Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 1 of 12

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
Pensacola Division

LOUIS REYNOLDS and JEFFERY MILLER;

Plaintiffs, v.

No. 3:10-cv-355

WENDELL HALL, in his official capacity as Sheriff for Santa Rosa County, Florida,

Defendant.

/

COMPLAINT

Plaintiffs LOUIS REYNOLDS and JEFFERY MILLER sue Defendant

WENDELL HALL (“Hall”) in his official capacity as Sheriff for Santa Rosa

County, Florida, and allege as follows:

INTRODUCTION

1. Plaintiffs challenge Sheriff Hall’s recently instituted policy and practice (“Postcard-Only Mail Policy”) that forbids inmates of the Santa Rosa County, Florida, Jail (“Jail”) from sending letters enclosed in envelopes to their parents, children, spouses, friends, other loved ones, or correspondents. Instead, Jail inmates must write all of their correspondences in a postcard format except for privileged/legal mail. This new policy impermissibly restricts inmates’ ability to

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 2 of 12
exercise their rights to communicate with correspondents outside the jail and these correspondents’ right to receive these inmates’ communications and expressions, in violation of the First and Fourteenth Amendments to the United States Constitution.
JURISDICTION AND VENUE 2. Plaintiffs bring this action pursuant 42 U.S.C. §1983 for violations of civil rights under the First and Fourteenth Amendments to the United States Constitution. 3. This Court has subject-matter jurisdiction over this matter pursuant to 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1343(a)(3) (civil rights). 4. Venue is proper in this judicial district and division pursuant to 28 U.S.C. §1391(b) and N.D. Fla. Loc. R. 3.1. Defendant Hall resides in this district and division and the unlawful practices that give rise to the claims herein occurred within this district and division.
PARTIES 5. Plaintiff Louis Reynolds (“Reynolds”) is a Jail inmate. He has remained in the Jail as an inmate since May 21, 2010. As set forth in the “General
Page 2 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 3 of 12
Allegations” section, Reynolds has been, and continues to be, adversely affected by the Postcard-Only Mail Policy.
6. Plaintiff Jeffery Miller (“Miller”) is a friend of Plaintiff Reynolds. Miller lives in Illinois and has not visited because of the long distance and cost. As set forth in the “General Allegation” section, Reynolds has been, and continues to be, adversely affected by the Postcard-Only Mail Policy.
7. Defendant Sheriff Wendell Hall is now, and at all material times has been, the Sheriff of Santa Rosa County, Florida. As Santa Rosa County Sheriff, he is charged with the care and custody of inmates at the Santa Rosa County Jail. He exercises overall responsibility for the policies and practices of the Jail, including the Postcard-Only Mail Policy. Plaintiffs sue Hall in his official capacity for injunctive and declaratory relief and attorneys fees and costs.
8. Defendant Hall at all times relevant hereto was acting and continues to act under color of law.
9. Jail correction officers, deputies, their supervisors, working in the Jail are agents and employees of Sheriff Hall.
GENERAL ALLEGATIONS
Page 3 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 4 of 12
10. Effective July 26, 2010, Sheriff Hall instituted a policy that required all outgoing mail, except legal or privileged mail, sent by an Jail inmate to be in a postcard form (hereinafter “Postcard Only Mail Policy”). Only mail to or from the courts, attorneys, government officials or agencies, and news media is considered legal or privileged (hereinafter collectively “privileged”). Mail from Reynolds to Miller is not privileged.
11. Prior the implementation of the Postcard-Only Mail Policy, Reynolds wrote multi-page letters several times a week to both his son and Miller, among other persons. He often included drawings he had made. In some of these letters, Reynolds would discuss sensitive issues including his health, details and directions for his property and finances, religion, and advice to his son.
12. However, now Reynolds may no longer send these letters and drawings. Now, his son, Miller, and other correspondents may no longer receive these letters and drawings. Though Reynolds would like to continue to discuss sensitive and personal topics with correspondents, he no longer includes this information in his mailed messages on postcards because they may be easily read by a host of people. Reynolds’s son lives with the son’s maternal grandmother, who may now read the messages Reynolds writes on postcards. Reynolds wants to be able to write his son messages without the grandmother reading them, but
Page 4 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 5 of 12
because of the Postcard-Only Mail Policy he cannot do that. Instead, Reynolds now sends no drawings and the messages in his mail are shorter.
13. Reynolds must now express all of his thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate his thoughts and ideas.
14. Reynolds’s son lives in Ohio and other correspondents live in Illinois. Because his son and friends lack financial resources, they are unable to pay for telephone collect calls from Reynolds. Accordingly, mail correspondence is the only practical way for him to stay in contact with them.
15. Reynolds is in the custody and under the control of Defendant Sheriff Hall. As a Jail inmate, he remains subject to the policies, practices, and customs of Defendant Sheriff Hall.
16. As a result of Sheriff Hall’s Postcard-Only Mail Policy, Miller no longer receives letters and drawings from Reynolds, who is in the Jail. Instead, he can receive only truncated messages on postcards. Absent Sheriff Hall’s PostcardOnly Mail Policy, Reynolds would send Miller letters and drawings that Miller would like to receive.
Page 5 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 6 of 12
17. Before Sheriff Hall instituted the Postcard Only Mail Policy, Jail inmates freely sent mail in a letter form that consisted of one or more sheets of paper enclosed in an envelope to correspondents outside the jail.
18. Now, Sheriff Hall and those acting under his authority will not transmit to the correspondent outside the jail non-privileged outgoing mail that does not conform to the Postcard Only Mail Policy.
19. The Postcard Only Mail Policy prohibits inmates from sending any non-legal mail unless it is on a postcard received from Jail officials or one purchased from the USPS.
20. The Postcard-Only Mail Policy prohibits drawings or unnecessary marking on all non-privileged mail.
21. This policy is reflected in the written Outgoing Mail Procedure (Standard Operating Procedure No. 15.48), revised on August 14, 2010, attached as Exhibit 1.
22. Jail inmates have few alternatives to mail by which to communicate with friends and family. Telephone calls from Jail inmates in the housing areas are limited to collect telephone calls, which are very expensive. Fellow inmates may easily overhear these telephone calls, which are made in a common area in a row
Page 6 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 7 of 12
of telephones. Family and friends may only visit a Jail inmate during a specific two-hour time period during the week, which prevents many friends and family with a conflict during this time period from visiting at all. Friends and family who do not live near the Jail or in another state cannot easily visit Jail inmates. When family and friends can visit a Jail inmate, they speak over a telephone to each other in ways that may be overheard by other inmates or visitors. Therefore, for all these reasons, mail correspondence for many Jail inmates and their family and friends is the most feasible and private way to communicate and maintain a relationship.
23. The Postcard-Only Mail Policy impermissibly curtails the ability of Jail inmates to express themselves and their correspondents to receive the expressions inmates desire to transmit. The required use of postcards unlawfully limits the space for message, permits third parties to intercept sensitive information, and cost more to send the same message.
24. The Sheriff’s Postcard-Only Mail Policy has and continues to inhibit, infringe, limit, chill, suppress, and interfere with the Plaintiffs’ constitutionallyprotected communications between inmates and correspondents or intended correspondents.
25. The Plaintiffs will suffer an injury as a result of the Postcard-Only Mail Policy. Sheriff Hall caused and will continue to cause this injury. The
Page 7 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 8 of 12
Postcard-Only Mail Policy infringes on the U.S. Constitution’s First Amendment free speech rights of Jail inmates, including Reynolds to communicate in a complete and meaningful way with and to express themselves fully to their family and friends.
26. Likewise, the Postcard-Only Mail Policy deprives the family, friends, and other correspondents, including Plaintiff Miller, of their U.S. Constitution’s First Amendment free speech right to receive such communications.
27. Sheriff Hall’s Postcard-Only Mail Policy has and will continue to inhibit, infringe, limit, chill, and suppress the constitutionally protected communications from Jail inmates to their correspondents.
28. Sheriff Hall has acted and threatens to continue acting under color of state law to deprive Plaintiffs of their constitutional rights. Plaintiffs face a real and immediate threat of irreparable injury as a result of these actions and threatened actions of Sheriff Hall and the existence, operation, and threat of enforcement of the Postcard-Only Mail Policy.
29. Reynolds desires to and would write non-privileged letters to family and friends, including Miller, and include sensitive information and drawings absent the Postcard-Only Mail Policy.
Page 8 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 9 of 12
EXHAUSTION OF ADMINISTRATIVE REMEDIES 30. Reynolds has filed formal grievances and exhausted all available administrative remedies.
COUNT 1: SUPPRESSION OF PROTECTED SPEECH (Plaintiff Reynolds - 42 U.S.C. §1983)
31. Plaintiff Reynolds realleges and incorporates by reference all of the preceding paragraphs in this Complaint.
32. The Defendant has deprived, and continues to deprive, him of his rights under the First Amendment to the United States Constitution, which are secured through the Fourteenth Amendment. The Sheriff’s Postcard Only Mail Policy established by Defendant is the cause in fact of the constitutional violations.
33. Absent intervention by this Court, Reynolds will suffer injury as a result of the Defendant’s unconstitutional practices. Unless restrained by this Court, the Defendant will continue to enforce the Postcard Only Mail Policy. Reynolds will continue to be irreparably harmed by the Defendant’s denial of his fundamental constitutional right to free speech. Reynolds has no adequate remedy at law for the denial of his fundamental constitutional rights.
Page 9 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 10 of 12
34. In depriving Reynolds of these rights, Defendant acted under color of state law. This deprivation under color of state law is actionable under and may be redressed by 42 U.S.C. §1983.
COUNT 2: SUPPRESSION OF PROTECTED SPEECH (Plaintiff Miller - 42 U.S.C. §1983)
35. Plaintiff Miller realleges and incorporates by reference paragraphs 1 through 29 of this Complaint.
36. The Defendant has deprived, and continues to deprive, Miller of his rights under the First Amendment to the United States Constitution, which are secured through the Fourteenth Amendment. The Sheriff’s Postcard Only Mail Policy established by Defendant is the cause in fact of the constitutional violations.
37. Absent intervention by this Court Miller would suffer injury as a result of the Defendant’s unconstitutional practices. Unless restrained by this Court, the Defendant will continue to enforce the Postcard Only Mail Policy. Miller will continue to be irreparably harmed by the Defendant’s denial of his fundamental constitutional right to receive speech from Jail inmates. Miller has no adequate remedy at law for the denial of his fundamental constitutional rights.
Page 10 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 11 of 12

38. In depriving Miller of these rights, Defendant acted under color of state law. This deprivation under color of state law is actionable under and may be redressed by 42 U.S.C. §1983.

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request the following relief:

A. An order declaring Defendant’s Postcard-Only Mail Policy alleged above to be in violation of the First and Fourteenth Amendment to the U.S. Constitution;

B. An order permanently enjoining Defendant and his officers, agents, affiliates, subsidiaries, servants, employees, successors, and all other persons or entities in active concert or privity or participation with him, from continuing their unlawful Postcard-Only Mail Policy or any other policy that limits outgoing mail to postcards, thus restoring the status quo that previously existed, including enjoining Defendant from:

format;

1. Restricting all non-privileged outgoing mail to be in a postcard

Page 11 of 12

Case 3:10-cv-00355-MCR -EMT Document 1 Filed 09/13/10 Page 12 of 12

2. Prohibiting categorically all “drawings or unnecessary marking” on all non-privileged mail, regardless of the message of the drawing or marking;

C. An award to Plaintiffs of reasonable attorneys’ fees and costs incurred in connection with this action from the Defendants pursuant to 42 U.S.C. §1988;

D. An order retaining the Court’s jurisdiction of this matter to enforce the terms of the Court’s orders; and

E. Such further and different relief as is just and proper or that is necessary to make the Plaintiffs whole.

Dated: September 13, 2010

Respectfully Submitted,

s/ Benjamin James Stevenson

Benjamin James Stevenson (Fla. Bar. Randall C. Marshall (Fla. Bar No.:

No. 598909)

181765)

American Civil Liberties Union

American Civil Liberties Union

Found. of Fla.

Found. of Fla.

Post Office Box 12723

4500 Biscayne Blvd., Suite 340

Pensacola, FL 32591-2723

Miami, Florida 33137

bstevenson@aclufl.org

RMarshall@aclufl.org

Tel: 786.363.2738

Tel: 786.363.2707

Fax: 786.363.1985

Fax: 786.363.1108

Counsel for Plaintiffs

Page 12 of 12

 
 Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 1 of 23

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
Pensacola Division

LOUIS REYNOLDS, JASON KENNEDY, RONALD MCCRANEY JR., all on behalf of themselves and all others similarly situated; and JEFFERY MILLER;

Plaintiffs,
v.
WENDELL HALL, in his official capacity as Sheriff for Santa Rosa County, Florida,

No. 3:10-cv-355 MCR/EMT Class Action

Defendant.

/

FIRST AMENDED COMPLAINT

Plaintiffs LOUIS REYNOLDS, JASON KENNEDY, RONALD

MCCRANEY JR., all on behalf of themselves and all others similarly situated, and

JEFFERY MILLER sue Defendant WENDELL HALL (“Hall”) in his official

capacity as Sheriff for Santa Rosa County, Florida, and allege as follows:

INTRODUCTION

1. Plaintiffs challenge Sheriff Hall’s recently instituted policy and practice (“Postcard-Only Mail Policy”) that forbids inmates of the Santa Rosa County, Florida, Jail (“Jail”) from sending letters enclosed in envelopes to their

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 2 of 23
parents, children, spouses, friends, other loved ones, or other correspondents. Instead, Jail inmates must write all of their correspondences in a postcard format except for privileged/legal mail. This new policy impermissibly restricts inmates’ ability to exercise their rights to communicate with correspondents outside the jail and these correspondents’ right to receive these inmates’ communications and expressions, in violation of the First and Fourteenth Amendments to the United States Constitution.
2. Plaintiffs ask this Court to enjoin the Postcard-Only Mail Policy and declare that it violates their constitutional rights. Plaintiff Miller seeks this and nominal damages of $1.
JURISDICTION AND VENUE 3. Plaintiffs bring this action pursuant 42 U.S.C. §1983 for violations of civil rights under the First and Fourteenth Amendments to the United States Constitution. 4. This Court has subject-matter jurisdiction over this matter pursuant to 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1343(a)(3) (civil rights). 5. Venue is proper in this judicial district and division pursuant to 28 U.S.C. §1391(b) and N.D. Fla. Loc. R. 3.1. Defendant Hall resides in this district and
Page 2 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 3 of 23
division and the unlawful practices that give rise to the claims herein occurred within this district and division.
PARTIES 6. Plaintiff Louis Reynolds (“Reynolds”) is a Jail inmate. He has remained in the Jail as an inmate since May 21, 2010. As set forth in the “General Allegations” section, he has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy. 7. Plaintiff Ronald McCraney Jr. (“McCraney”) is a Jail inmate. He has remained in the Jail as an inmate since June 28, 2010. As set forth in the “General Allegations” section, he has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy. 8. Plaintiff Jason Kennedy (“Kennedy”) is a Jail inmate. He has remained in the Jail as an inmate since February 11, 2010. As set forth in the “General Allegations” section, he has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy. 9. Louis Reynolds, Jason Kennedy, and Ronald McCraney Jr., and the class of similarly-situated inmates in the Jail shall be referred to collectively as “Jail Inmate Plaintiffs.”
Page 3 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 4 of 23
10. Plaintiff Jeffery Miller (“Miller”) is a friend of Plaintiff Reynolds. Miller lives in Illinois and has not visited because of the long distance and cost. As set forth in the “General Allegations” section, he has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy.
11. Miller shall be referred to as “Correspondent Plaintiff.” 12. Defendant Sheriff Wendell Hall is now, and at all material times has been, the Sheriff of Santa Rosa County, Florida. As Santa Rosa County Sheriff, he is charged with the care and custody of inmates at the Santa Rosa County Jail. He exercises overall responsibility for the policies and practices of the Jail, including the Postcard-Only Mail Policy. Plaintiffs sue Hall in his official capacity for injunctive and declaratory relief and attorneys fees and costs. 13. Defendant Hall at all times relevant hereto was acting and continues to act under color of law. 14. Jail correction officers, deputies, their supervisors, working in the Jail are agents and employees of Sheriff Hall.
Page 4 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 5 of 23
GENERAL ALLEGATIONS 15. The Santa Rosa County, Florida, Jail (“Jail”) is located in Milton, Florida. It houses both convicted prisoners and pretrial detainees. It has a rated capacity of 506 inmates (before the planned physical expansion of the Jail facility to include more beds). 16. Effective July 26, 2010, Sheriff Hall instituted a policy that required all outgoing mail, except legal or privileged mail, sent by an Jail inmate to be in a postcard form (hereinafter “Postcard Only Mail Policy”). Only mail to or from the courts, attorneys, government officials or agencies, and news media is considered legal or privileged (hereinafter collectively “privileged”). 17. Reynolds and Miller have been, and continue to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Prior the implementation of the Postcard-Only Mail Policy, Reynolds wrote multi-page letters several times a week to both his son and Miller, among other persons. He often included drawings he had made. In some of these letters, Reynolds would discuss sensitive issues including his health, details and directions for his property and finances, religion, and advice to his son.
Page 5 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 6 of 23
(b) However, now Reynolds may no longer send these letters and drawings. Now, his son, Miller, and other correspondents may no longer receive these letters and drawings. Though Reynolds would like to continue to discuss sensitive and personal topics with correspondents, he no longer includes this information in his mailed messages on postcards because they may be easily read by a host of people. Reynolds’s son lives with the son’s maternal grandmother, who may now read the messages Reynolds writes on postcards. Reynolds wants to be able to write his son messages without the grandmother reading them, but because of the Postcard-Only Mail Policy he cannot do that. Instead, Reynolds now sends no drawings and the messages in his mail are shorter.
(c) Reynolds must now express all of his thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate his thoughts and ideas.
(d) Reynolds wants to immediately to send letters and include drawings, but does not because of the Sheriff’s Postcard-Only Policy.
(e) Reynolds’s son lives in Ohio and other correspondents live in Illinois. Because his son and friends lack financial resources, they are unable to pay for telephone collect calls from Reynolds. Accordingly, mail correspondence is the only practical way for him to stay in contact with them.
Page 6 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 7 of 23
(f) As a result of Sheriff Hall’s Postcard-Only Mail Policy, Miller no longer receives letters and drawings from Reynolds, who is in the Jail. Instead, he can receive only truncated messages on postcards. Absent Sheriff Hall’s Postcard-Only Mail Policy, Reynolds would send Miller letters and drawings that Miller would like to receive.
18. Ronald McCraney Jr. has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Prior the implementation of the Postcard-Only Mail Policy, McCraney regularly wrote multi-page letters to numerous family members, including his mother who received a letter from him nearly daily. Nearly weekly, he included a color drawing on a large sheet of paper (approx. 17 inches by 11 inches) in these correspondences for his niece or family. In some of these letters to his mother, McCraney would relate private details of his health so his mother may assist him. Through other letters, McCraney would discuss plans for the future or use the process of letter writing as a way to work through ideas.
(b) However, now McCraney may no longer send these private letters or drawings. Now, his family and friends may no longer receive these letters and drawings. Though he would like to continue to discuss sensitive topics with correspondents, he no longer includes this information in his mailed messages
Page 7 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 8 of 23
on postcards because they may be easily read by a host of people. Instead, Ronald McCraney now sends fewer pieces of mail and no drawings and the messages in his mail are shorter.
(c) McCraney must now express all of his thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate his thoughts and ideas.
(d) McCraney wants to immediately send letters and include drawings, but does not because of the Sheriff’s Postcard-Only Policy.
(e) McCraney’s father is currently in Alaska and McCraney’s family has limited financial resources. Accordingly, mail correspondence is the only practical way for McCraney to stay in contact with his father.
19. Jason Kennedy has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Prior the implementation of the Postcard-Only Mail Policy, Kennedy regularly wrote numerous letters to family members, including his mother and his children. He sent drawings to his eight-year-old daughter who suffers from a mental disability. He would share personal information about his health with his mother.
Page 8 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 9 of 23
(b) However, now Kennedy may no longer send these private letters or drawings. Now, his family and friends may no longer receive these letters and drawings. Though he would like to continue to discuss sensitive topics with correspondents, he no longer includes this information in messages because on postcards they may be easily read by a host of people. Instead, Kennedy now sends fewer pieces of mail and no drawings and the messages in his mail are shorter.
(c) Kennedy must now express all of his thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate his thoughts and ideas.
(d) Kennedy wants to immediately to send letters and include drawings, but does not because of the Sheriff’s Postcard-Only Policy.
(e) Because his family and friends cannot often visit him and the expense of telephone calls, mail correspondence is the best way for him to stay in contact with his family.
(f) Having little or no money in the Jail’s inmate account, he is considered indigent and relies on his friends and family and Sheriff Hall for daily necessitates including a supply of writing and mail supplies. Therefore, often the
Page 9 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 10 of 23
number of pieces of mail he may send is limited to the Jail’s supplied allotment of mail supplies.
20. All Jail inmates are in the custody and under the control of Sheriff Hall. As Jail inmates, the Jail Inmate Plaintiffs remain subject to the policies, practices, and customs of Sheriff Hall.
21. Before Sheriff Hall instituted the Postcard Only Mail Policy, Jail inmates freely sent mail in a letter form that consisted of one or more sheets of paper enclosed in an envelope to correspondents outside the jail. Inmates tendered for collection outgoing letters in unsealed, open envelopes to Jail officials (though at times deputies would permit inmates to seal the envelopes themselves). During the nightshift (7 pm – 7 am) Sheriff’s deputies would at times read or scan the nonprivileged outgoing mail emanating from the housing unit to which they were assigned that evening. After reading or scanning the outgoing letter mail, the deputy would seal closed the envelope. Indigent inmates would receive stationary, sufficient postage, and envelopes to send two letters per week. For each letter, indigent inmates would be supplied with two sheets of 8.5 inch by 11 inch paper on which they could write on both sides.
22. Now, Sheriff Hall and those acting under his authority will not transmit to a correspondent outside the jail non-privileged outgoing mail that does
Page 10 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 11 of 23
not conform to the Postcard Only Mail Policy. For example, under the Postcard Only Mail Policy Martin Luther King Jr. could not have sent the letter he sent from the Birmingham Jail on April 16, 1963, to his fellow clergymen. Likewise, the Apostle Paul under the challenged Postcard Only Mail Policy could not have written his fellow Christians his Epistles while imprisoned by the Romans.
23. Under the Postcard Only Mail Policy, inmates may obtain postcards from Jail officials. Jail officials will give indigent inmates two per week. All postcards received from Jail officials are sized 4.5 inches by 6 inches. Alternatively, Jail inmates may receive metered postcards from friends and family. However, these metered postcards must have been purchased from the United States Postal Service (USPS), which since July 26, 2010, has only sold them in sizes that were no more than 4-1/4 inches high x 6 inches long. Postcard Only Mail Policy prohibits inmates from sending any non-legal mail unless it is on a postcard received from Jail officials or one purchased from the USPS.
24. Sheriff Hall requires that the front of the postcard contain only the addressee’s name and address, the sending inmate’s name and return address, and postage. Only the back may contain a substantive message. However, the inmate must leave an area of 1 inch by 2 inches blank so that Jail officials may stamp the following message (actual size) in the bottom, right corner:
Page 11 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 12 of 23
25. The Postcard-Only Mail Policy prohibits drawings or unnecessary marking on all non-privileged mail.
26. The Postcard Only Mail Policy shifted the task of reading or scanning outgoing mail from the nightshift deputies to daytime administrative personnel.
27. This policy is reflected in the written Outgoing Mail Procedure (Standard Operating Procedure No. 15.48), revised on August 14, 2010, attached as Exhibit 1.
28. Although Sheriff Hall restricts incoming mail in other respects, he permits incoming mail to be in letter form and consist of one or more sheets of paper contained inside an envelope.
29. Jail inmates have few alternatives to mail by which to communicate privately and freely with friends and family. Telephone calls from Jail inmates in the housing areas are limited to collect telephone calls, which are very expensive. Fellow inmates may easily overhear these telephone calls, which are made in a common area in a row of telephones. Family and friends may only visit a Jail inmate during a specific two-hour time period during the week, which prevents
Page 12 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 13 of 23
many friends and family with a conflict during this time period from visiting at all. Friends and family who do not live near the Jail or in another state (like Miller) cannot easily visit Jail inmates. When family and friends can visit a Jail inmate, they speak over a telephone to each other in ways that may be overheard by other inmates or visitors. Therefore, for all these reasons, mail correspondence for many Jail inmates and their family and friends is the most feasible, practical, and private way to communicate and maintain a relationship.
30. The Postcard-Only Mail Policy impermissibly curtails the ability of Jail inmates to express themselves and their correspondents to receive the expressions inmates desire to transmit. It allows indigent inmates less then oneeighteenth the amount of writing space permitted under the former policy and practice. Instead of sending one one-ounce letter for 44¢, Jail inmates must use over 18 postcards with postage at 28¢ each and costing a total of $5.04 to transmit the same amount of information. The Postcard-Only Mail Policy prevents Jail inmates from fully expressing their thoughts. Instead, Jail inmates must express these messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate the inmates’ thoughts and ideas. The Postcard-Only Mail Policy prevents family and friends of inmates from receiving these fully developed and complete messages from Jail inmates.
Page 13 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 14 of 23
31. In addition, the postcards expose the content of the inmates’ communications to anyone who handles, processes, or views in route the postcards, both within the jail and after the postcards leave the facility. Prior to the PostcardOnly Mail Policy, Jail inmates including the Jail Inmate Plaintiffs would regularly write letters to family and friends that contained sensitive information, including medical, spiritual, intimate, and financial information. Because these letters were enclosed in envelopes and only subject to review by a Sheriff deputy, Jail inmates felt confident that this sensitive information would not be exposed for others to see, including postal carriers. The Postcard-Only Mail Policy has forced Jail inmates to either abandon including sensitive information in their non-privileged correspondence or risk divulging confidential, sensitive information to unknown third-parties who can easily intercept these messages on postcards. Including sensitive financial information on a postcard increases the chance that the Jail inmate may become a victim of identity thief or fraud. The Postcard-Only Mail Policy either chills Jail inmates from writing about sensitive matters entirely, or it requires them to expose their communications to a host of strangers or unintended recipients—such as postal employees, an office secretary, or a child who retrieves from the mailbox a postcard that discusses sensitive details intended only for the parent’s eyes.
Page 14 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 15 of 23
32. At times, Jail inmates deliver their mail by placing it on the bars of their cell or on the glass on the door leading from the dorms. In many circumstances, fellow inmates may view the contents of the postcard placed for delivery in this manner.
33. The Sheriff’s Postcard-Only Mail Policy has and continues to inhibit, infringe, limit, chill, suppress, and interfere with the Plaintiffs’ constitutionallyprotected communications between inmates and correspondents or intended correspondents.
34. The Plaintiffs have suffered and will continue to suffer an injury as a result of the Postcard-Only Mail Policy. Sheriff Hall caused and will continue to cause this injury. The Postcard-Only Mail Policy infringes on the U.S. Constitution’s First Amendment free speech rights of Jail inmates Plaintiffs to communicate in a complete and meaningful way with and to express themselves fully to their family and friends. Likewise, the Postcard-Only Mail Policy deprives Miller of his U.S. Constitution’s First Amendment free speech right to receive such communications.
35. Sheriff Hall’s Postcard-Only Mail Policy has and will continue to inhibit, infringe, limit, chill, and suppress the constitutionally protected communications from Jail inmates to their correspondents.
Page 15 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 16 of 23
36. Sheriff Hall has acted and threatens to continue acting under color of state law to deprive Plaintiffs of their constitutional rights. Plaintiffs face a real and immediate threat of irreparable injury as a result of these actions and threatened actions of Sheriff Hall and the existence, operation, and threat of enforcement of the Postcard-Only Mail Policy.
37. Jail Inmate Plaintiffs desire to and would write non-privileged letters to family and friends, including Correspondent Plaintiff and include sensitive information and drawings absent the Postcard-Only Mail Policy.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 38. Each of the Jail Inmate Plaintiffs has filed formal grievances and exhausted all available administrative remedies.
CLASS ACTION ALLEGATIONS 39. The individual Jail Inmate Plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 40. The individual Jail Inmate Plaintiffs seek to represent a class defined as “all current and future detainees in the Santa Rosa County, Florida, Jail who are subject to or affected by the Postcard-Only Mail Policy.”
Page 16 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 17 of 23
41. The proposed class is so numerous and so fluid that joinder of all members is impracticable and uneconomical. With over seven thousand persons admitted to the Jail annually and an average Jail inmate population of around five hundred, the approximate size of the class is over five-hundred persons at a time.
42. There are questions of law and fact common to the members of the Plaintiff Class. The same policy and practice applies to all class members. The question common to all members of the Plaintiff Class is what justification Sheriff Hall has for instituting and maintaining his Postcard-Only Mail Policy and whether these reasons justify the specific free-speech restrictions of the Plaintiff Class. These common questions predominate.
43. The claims of the Jail Inmate Plaintiffs are typical of the claims of the members of the class. The Jail Inmate Plaintiffs suffer injuries similar in kind and degree as the class. They raise questions of fact and law common to the class. Their injuries arise from the same conduct as the class injuries. The Jail Inmate Plaintiffs seek a permanent injunction to end the unlawful policy and practices as the class would desire.
44. The named Jail Inmate Plaintiffs will fairly and adequately protect the interests of the class. Jail Inmate Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the class. Jail Inmate Plaintiffs
Page 17 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 18 of 23
understand the duties and responsibilities of serving as class representatives. Jail Inmate Plaintiffs are represented by attorneys employed by or working in cooperation with the ACLU Foundation of Florida, and the Florida Justice Institute, which have extensive experience in class action cases involving federal civil rights claims for inmates.
45. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
COUNT 1: SUPPRESSION OF PROTECTED SPEECH (Jail Inmate Plaintiffs - 42 U.S.C. §1983)
46. Jail Inmate Plaintiffs reallege and incorporate by reference all of the preceding paragraphs in this complaint.
47. The Defendant has deprived, and continues to deprive, Jail Inmate Plaintiffs of their rights under the First Amendment to the United States Constitution, which are secured through the Fourteenth Amendment. The Sheriff’s Postcard Only Mail Policy established by Defendant is the cause in fact of the constitutional violations.
Page 18 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 19 of 23
48. Absent intervention by this Court the Jail Inmate Plaintiffs will suffer injury as a result of the Defendant’s unconstitutional practices.
49. Unless restrained by this Court, the Defendant will continue to enforce the Postcard Only Mail Policy. Jail Inmate Plaintiffs have been and will continue to be irreparably harmed by the Defendant’s denial of Plaintiffs’ fundamental constitutional right to free speech.
50. Jail Inmate Plaintiffs have no adequate remedy at law for the denial of their fundamental constitutional rights.
51. In depriving the Jail Inmate Plaintiffs of these rights, Defendant acted under color of state law. This deprivation under color of state law is actionable under and may be redressed by 42 U.S.C. §1983.
COUNT 2: SUPPRESSION OF PROTECTED SPEECH (Miller - 42 U.S.C. §1983)
52. Miller realleges and incorporates by reference paragraphs 1 through 37 of this complaint.
53. The Defendant has deprived, and continues to deprive, Miller of his rights under the First Amendment to the United States Constitution, which are
Page 19 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 20 of 23
secured through the Fourteenth Amendment. The Sheriff’s Postcard Only Mail Policy established by Defendant is the cause in fact of the constitutional violations.
54. Absent intervention by this Court Miller will suffer injury as a result of the Defendant’s unconstitutional practices.
55. Unless restrained by this Court, the Defendant will continue to enforce the Postcard Only Mail Policy. Miller has been and will continue to be irreparably harmed by the Defendant’s denial of Miller’s fundamental constitutional right to receive speech from Reynolds.
56. Miller has no adequate remedy at law for the denial of their fundamental constitutional rights.
57. In depriving Miller of these rights, Defendant acted under color of state law. This deprivation under color of state law is actionable under and may be redressed by 42 U.S.C. §1983.
Page 20 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 21 of 23

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request the following relief:

A. An order certifying this matter as a Plaintiff Inmate class action pursuant to Rule 23;

B. An order declaring Defendant’s Postcard-Only Mail Policy alleged above to be in violation of the First and Fourteenth Amendments to the U.S. Constitution;

C. An order permanently enjoining Defendant and his officers, agents, affiliates, subsidiaries, servants, employees, successors, and all other persons or entities in active concert or privity or participation with him, from continuing their unlawful Postcard-Only Mail Policy or any other policy that limits outgoing mail to postcards, thus restoring the status quo that previously existed, including enjoining Defendant from:

format;

1. Restricting all non-privileged outgoing mail to be in a postcard

2. Prohibiting categorically all “drawings or unnecessary marking” on all non-privileged mail, regardless of the message of the drawing or marking;
Page 21 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 22 of 23
D. An order commanding the Defendant to provide notice to all current Jail inmates and Jail officials implementing the Defendant’s policies that the PostcardOnly Mail Policy is terminated;
E. An order permanently enjoining Defendant and his officers, agents, affiliates, subsidiaries, servants, employees, successors, and all other persons or entities in active concert or privity or participation with him, from taking retaliatory action against Plaintiffs for bringing this lawsuit;
F. Entry of judgment for Miller against Defendant Hall for nominal damages of $1 for the constitutional deprivations alleged above;
G. An award to Plaintiffs of reasonable attorneys’ fees and costs incurred in connection with this action from the Defendants pursuant to 42 U.S.C. §1988;
H. An order retaining the Court’s jurisdiction of this matter to enforce the terms of the Court’s orders; and
I. Such further and different relief as is just and proper or that is necessary to make the Plaintiffs whole.
Page 22 of 23

Case 3:10-cv-00355-MCR -EMT Document 5 Filed 09/20/10 Page 23 of 23

Dated: September 20, 2010

Respectfully Submitted,

s/ Benjamin James Stevenson Benjamin James Stevenson (Fla.
Bar. No. 598909) American Civil Liberties Union
Found. of Fla. Post Office Box 12723 Pensacola, FL 32591-2723 bstevenson@aclufl.org T. 786.363.2738 F. 786.363.1985

Randall C. Marshall (Fla. Bar No.: 181765)
RMarshall@aclufl.org Maria Kayanan (Fla. Bar No.:
305601) MKayanan@aclufl.org American Civil Liberties Union
Found. of Fla. 4500 Biscayne Blvd., Ste. 340 Miami, Florida 33137

Randall C. Berg, Jr. (Fla. Bar No. T. 786.363.2707

318371)

F. 786.363.1108

Florida Justice Institute, Inc.

100 SE Second St., Ste. 3750

Miami, Florida 33131-2115

RBerg@FloridaJusticeInstitute.org

T. 305.358.2081 x 225

F. 305.358.0910

Counsel for Plaintiffs

Page 23 of 23

 
 Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 1 of 17

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
Pensacola Division

LOUIS REYNOLDS, JASON KENNEDY, RONALD MCCRANEY JR., all on behalf of themselves and all others similarly situated; and JEFFERY MILLER;

No. 3:10-cv-355 MCR/EMT

Plaintiffs,

v.

WENDELL HALL, in his official capacity as Sheriff for Santa Rosa County, Florida,

Defendant.

/

PLAINTIFFS’ MOTION & MEMORANDUM OF LAW FOR CLASS CERTIFICATION

Plaintiffs move this Court pursuant to Fed. R. Civ. P. 23(b)(2) to

certify a class comprising of “all current and future detainees in the

Santa Rosa County, Florida, Jail who are subject to or affected by the

Postcard-Only Mail Policy.” Plaintiffs also move pursuant Fed. R. Civ. P.

23(g) to appoint the undersigned counsel as class counsel. Plaintiffs argue

as following in support of this motion:

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 2 of 17
Introduction Plaintiffs challenge Sheriff Hall’s recently instituted policy and practice (“Postcard-Only Mail Policy”) that forbids inmates of the Santa Rosa County, Florida, Jail (“Jail”) from sending letters enclosed in envelopes to their parents, children, spouses, friends, other loved ones, or other correspondents. Instead, Jail inmates must write all of their correspondences in a postcard format except for privileged/legal mail. This new policy impermissibly restricts inmates’ ability to exercise their rights to communicate with correspondents outside the jail and these correspondents’ right to receive these inmates’ communications and expressions, in violation of the First and Fourteenth Amendments to the United States Constitution. Louis Reynolds, Jason Kennedy, and Ronald McCraney Jr. (“Jail Inmate Plaintiffs”) seek injunctive and declaratory relief.
Argument I. Principles applicable to class certification.
For a district court to certify a class action, every putative class first must satisfy the prerequisites of “numerosity, commonality, typicality, and adequacy of representation” and at least one of the alternative requirements
Page 2 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 3 of 17
of Rule 23(b). Fed.R.Civ.P. 23; Mills v. Foremost Ins. Co., 511 F.3d 1300, 1307-08 (11th Cir. 2008) (citations omitted). Here, the putative class satisfies each of the four requirements of Rule 23(a) and—because the Sheriff applies his unconstitutional Postcard-Only Policy generally to all inmates—it qualifies through Rule 23(b)(2) for class certification.
Class certification is solely a procedural issue, and the court’s inquiry is limited to determining whether the proposed class satisfies the requirements of Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 17778 (1974). In ruling on the motion for class certification, the court must take the substantive allegations of the complaint as true. Drayton v. Western Auto Supply Co., 2002 WL 32508918, *6 (11th Cir. Mar. 11, 2002) (“It, therefore, is proper to accept the substantive allegations contained in the complaint as true when assessing Rule 23 requirements.”)
II. The requirements of Rule 23(a) are satisfied.
In order for a class to be certified, the following requirements must be satisfied: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly
Page 3 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 4 of 17
and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). As Plaintiffs demonstrate below, all four requirements of Rule 23(a) are easily met in this case.
A. Impracticability of Joinder – Rule 23(a)(1).
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” While there is no magic number of putative class members necessary to satisfy the numerosity standard, the Eleventh Circuit has indicated that more than forty class plaintiffs is generally enough to satisfy the rule. See Cox v. Amer. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986).
The jail’s average daily population is over 500 inmates. Compare Santa Rosa County, Florida, Sheriff’s Office, Department of Detention, available at http://www.santarosasheriff.org/departments/detention.shtml1 (stating that the current capacity of the jail is 506 inmates); with Santa Rosa County, Florida, Board of County Commissioners’ Meeting Minutes (Oct.
1 Pursuant to Fed. R. Evid. 201(b)(2), this Court may take judicial notice of that website, which is a public record. See In re Everglades Island Boat Tours, LLC, 484 F. Supp. 2d 1259, 1261 (M.D. Fla. 2007) (in treating motion to strike as motion to dismiss, district court judicially noted information found on website of South Florida Water Management District); see also Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (taking judicial notice of state agency website).
Page 4 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 5 of 17
11, 2007),2 (recording that Sheriff Hall reported that the jail was overcrowded and that some inmates were sleeping on plastic cots) and id. (July 24, 2008),3 (recording that Sheriff Hall anticipated being 50-75 beds short in three years (2011)). Although not every inmate of the Santa Rosa County jail desires to write letters to family and friends while in jail, unquestionably over 40 persons desire to do so. See, e.g., Inmate Grievance Form (Aug. 5, 2010), attached as Exhibit 1 (including a petition by over 100 inmates to reverse the Postcard-Only Mail Policy). Thus, with nearly fivehundred inmates in the Jail at any one time and a great number of them desiring to write letters to friends and family, the sheer numbers satisfy the numerosity requirements of Rule 23(a)(1).
In addition, a court may consider a number of other facts pertaining to numerosity, including the ease with which the class members may be identified and the nature of the action. Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981).4 Here, the inmates in the Jail at
2 Available from http://www.municode.com/library/clientCodePage.aspx?clientID=7626.
3 Id. 4 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981), the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981.
Page 5 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 6 of 17
any one time are in constant flux. While the Jail’s capacity is close to 500, over 7,000 persons are annually arrested and booked as an inmate. Santa Rosa County, Florida, Comprehensive Annual Financial Report (2009), p. 122 (pdf p. 131), available at http://www.co.santarosa.fl.us/financial/2009/Comprehensive Annual Financial Report.pdf (listing the annual number of jail inmates as 8,692 in 2007, 8,234 in 2008, and 7,469 in 2009). The fluid nature of the class, and the inclusion in the class of future prisoners, whose identities obviously cannot now be ascertained, makes joinder of all class members not just impracticable, but literally impossible. Phillips v. Joint Legis. Comm. on Performance & Expenditure Review of Miss., 637 F.2d 1014, 1022 (5th Cir.1981) (noting that future class members are necessarily unidentifiable and therefore joining them is impracticable) (quoting Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir.1974) (per curiam)).5 The numerosity requirement of Rule 23(a)(1) is satisfied.
5 See also Monaco v. Stone, 187 F.R.D. 50, 61 (E.D.N.Y. 1999) (fluidity of class of criminal defendants makes certification particularly appropriate); Dean v. Coughlin, 107 F.R.D. 331, 332 (S.D.N.Y. 1985) (“the fluid composition of a prison population is particularly well-suited for class status”); Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y. 1985) (“The fact that the [detention center] population ... is constantly revolving establishes sufficient numerosity to make joinder of the class members impracticable”); Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981) (certifying class of prisoners “in light of the fact that the inmate population at these facilities is constantly revolving”)
Page 6 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 7 of 17
B. Commonality – Rule 23(a)(2).
Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Traditionally, commonality refers to the group characteristics of the class as a whole. Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). However, this prerequisite does not mandate that all questions of law or fact are common; a single common question of law or fact is sufficient to satisfy the commonality requirement, as long as it affects all class members alike. See In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 685 (S.D. Fla. 2004). For that reason, the commonality requirement is “easily met.” 1 Herbert B. Newberg, Newberg on Class Actions § 3.10, at 274 (4th ed. 2002). Indeed, “[c]ommonality may be established where there are allegations of common conduct or standardized conduct by the defendant directed toward members of the proposed class.” Strube v. Am. Equity Inv. Life Ins. Co., 226 F.R.D. 688, 695 (M.D.Fla. 2005).
In this case, the members of the proposed class are all housed in a single facility and all of them are subject to the Sheriff’s Postcard-Only Policy. Accordingly, there are questions of fact and law that are common to the class, including (but not limited to) the following:
Page 7 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 8 of 17
1. The scope and nature of Sheriff’s Postcard-Only Policy. 2. The scope, criteria, and process for invoking the alleged
“privileged mail” exception to defendants’ postcard-only policy. 3. The scope and nature of the Sheriff’s interest in instituting the Postcard-Only Policy. 4. Whether the application of the Sheriff’s Postcard-Only Policy violates Inmates’ rights under the First and Fourteenth Amendments to the United States Constitution. Jail Inmate Plaintiffs have alleged that the injuries and threatened injuries detailed in the First Amended Complaint—both those of the Jail Inmate Plaintiffs and those of the class—stem from a single policy of the Defendant: the Postcard-Only Policy. This fact alone requires a finding of commonality. Plaintiffs need only show a “common nucleus of operative facts” to satisfy Rule 23(a)(2). Oshana v. Coca-Cola Bottling Co., 225 F.R.D. 575, 581 (N.D.Ill.2005); In re Currency Conversion Fee Antitrust Litigation, 224 F.R.D. 555, 562 (S.D.N.Y.2004) (“the commonality requirement does not require that each class member have identical claims as long as at least one common question of fact or law is evident”). Although class members will inevitably be affected in different ways by the postcardonly policy, “factual differences among the claims of the putative class members do not defeat certification.” Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir.2004) (quoting Baby Neal v. Casey, 43 F.3d 48, 56 (3d
Page 8 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 9 of 17
Cir.1994)) (overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006)). The controlling questions of fact and law in this case are common to the entire class. Accordingly, the commonality requirement of Rule 23(a)(2) is satisfied.
C. Typicality – Rule 23(a)(3).
Fed. R. Civ. P. 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” The focus of typicality is whether the class representative's interest is aligned enough with the proposed class members to stand in their shoes for purposes of the litigation and bind them in a judgment on the merits. See General Tel. Co. v. Falcon, 457 U.S. 147, 156 (1982) (citation omitted); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984); Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1275 (11th Cir. 2009). “A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).” Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. 2008). Thus, typicality is often met when, in proving her case, the representative plaintiff establishes the elements needed to prove the class members' case. See Brooks v. Southern Bell Tel. & Tel. Co., 133 F.R.D. 54, 58 (S.D. Fla. 1990);
Page 9 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 10 of 17
see also Hillis v. Equifax Consumer Serv., Inc., 237 F.R.D. 491, 499 (N.D. Ga. 2006) (citation omitted) (“Typicality cannot be satisfied when a named plaintiff who proved his own claim would not necessarily have proved anybody else's claim.”). The “typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members,” so long as the named representatives’ claims share “the same essential characteristics as the claims of the class at large.” Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985) (citations omitted).
Here, the claims, interest, and suffered injury for the Jail Inmate Plaintiffs and the class members are identical. All class members are at risk of being subjected – indeed, are subjected – to the Sheriff’s Postcard-Only Policy. The claims of the Jail Inmate Plaintiffs are based on the same legal theory as the claims of the class members – that the policy violates the free expression guarantees of the First Amendment to the United States Constitution. The Sheriff has uniformly applied this policy to all inmates. The typicality requirement is met.
Page 10 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 11 of 17
D. Adequacy of Representation – Rule 23(a)(4).
The fourth element of the Rule 23(a) analysis requires that the “representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). This requirement “involves questions [1] of whether plaintiffs' counsel are qualified, experienced, and generally able to conduct the proposed litigation, and [2] of whether plaintiffs have interests antagonistic to those of the rest of the class.” Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir.1985); see Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1189 (11th Cir. 2003).
These criteria are clearly satisfied in this case. There is no conflict between Plaintiffs or their counsel and other class members. Jail Inmate Plaintiffs are represented by attorneys employed by the ACLU Foundation of Florida and the Florida Justice Institute, which have extensive experience in class action cases involving federal civil rights claims for prisoners. The attorneys have previously litigated constitutional and statutory issues for prisoners in federal courts and are familiar with the issues raised in this litigation. See Lawson v. Wainwright,108 F.R.D. 450, 457 (S.D. Fla. 1986) (“In the instant case, this Court has no doubt that Plaintiff [prisoner class] is represented by competent, diligent counsel [from the Florida Justice
Page 11 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 12 of 17
Institute]. The Court file reflects that Plaintiff and his counsel will zealously pursue the interests of the class.”). The attorneys have litigated numerous class actions and have the personnel and the resources to fully litigate this action.
Jail Inmate Plaintiffs have no interest antagonistic to or in conflict with the interests of the class members they seek to represent. Jail Inmate Plaintiffs and the proposed class share a common goal, the end to the Postcard-Only Policy. There is no likelihood of conflicts or antagonistic interests developing between the Jail Inmate Plaintiffs and the class they represent since Jail Inmate Plaintiffs do not seek monetary relief and do not seek any different or additional relief for themselves, and in particular, request only injunctive and declaratory relief. First Am. Compl. (DE 5).
III. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2).
Certification is appropriate pursuant to Rule 23(b)(2) when the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). “The writers of Rule 23 intended that subsection (b)(2) foster institutional reform by facilitating suits that challenge widespread rights
Page 12 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 13 of 17
violations of people who are individually unable to vindicate their own rights.” Baby Neal, 43 F.3d at 64. Class certification under Rule 23(b)(2) is particularly appropriate in the prison litigation context where injunctive and declaratory relief are sought. See, e.g., Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), aff'd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); Lawson, 108 F.R.D. 458.
In certifying a class pursuant to Rule 23(b)(2), two basic requirements must be met: (1) the class members must have been harmed in essentially the same way by the defendant's acts; and (2) the common injury may properly be addressed by class-wide injunctive or equitable remedies. Holmes v. Continental Can Co., 706 F.2d 1144, 1155 (11th Cir.1983) (“[T]he claims contemplated in a [Rule 23] (b)(2) action are class claims, claims resting on the same grounds and applying more or less equally to all members of the class.”) (emphasis in original). Where these two requirements are met, the class members' interests are sufficiently cohesive that absent members will be adequately represented. Id. at 1155 n. 8 (“[T]he (b)(2) class is distinguished from the (b)(3) class by class cohesiveness .... Injuries remedied through (b)(2) actions are really group, as opposed to individual injuries.”); Lemon v. International Union of Operating Engineers, Local No.
Page 13 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 14 of 17
139, AFL-CIO, 216 F.3d 577, 580 (7th Cir. 2000) (“Rule 23(b)(2) operates under the presumption that the interests of the class members are cohesive and homogeneous such that the case will not depend on the adjudication of facts particular to any subset of the class nor require a remedy that differentiates materially among class members.”). “The members of a [Rule 23](b)(2) class are generally bound together through ‘pre-existing or continuing legal relationships' or by some significant common trait such as race or gender” that transcends the specific set of facts giving rise to the litigation.” Holmes, 706 F.2d, 1155 n. 8.
Here, a challenge to the Sheriff’s Postcard-Only Policy, which uniformly harms a specific class of people (Jail inmates), falls squarely within the ambit of Rule 23(b)(2). The injuries apply uniformly to the entire class.6 Jail Inmate Plaintiffs requested a single remedy that both will provide relief to the entire class and satisfies the strictures of Rule 65(d). See First Am. Compl, Prayer for Relief (asking that for “[a]n order permanently enjoining Defendant … from continuing their unlawful
6 Of course, it is not required that all class members have actually been denied the ability to send a specific piece of outgoing correspondence. Certification is appropriate even if the defendant’s action or inaction “has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.” Fed. R. Civ. P. 23(b)(2), 1966 Amendment advisory committee note (emphasis added).
Page 14 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 15 of 17
Postcard-Only Mail Policy or any other policy that limits outgoing mail to postcards, thus restoring the status quo that previously existed”). As they are all Jail inmates, they are bound by a common trait that pre-exists the litigation. Accordingly, the requirements of Rule 23(b)(2) are easily met. IV. The Court should appoint the undersigned as class counsel.
Fed. R. Civ. P. 23(g)(1) provides that “unless a statute provides otherwise, a court that certifies a class must appoint class counsel.” Fed. R. Civ. P. 23(g)(1)(A) outlines the factors relevant to the appointment of class counsel:
(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. All of these factors militate in favor of appointing the undersigned as class counsel. As already noted, the undersigned counsel are attorneys employed by the ACLU Foundation of Florida and the Florida Justice Institute who
Page 15 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 16 of 17
have extensive experience in class action cases for prisoners involving federal civil rights claims. They are thoroughly familiar with the applicable law and have extensive experience in handling class action, civil rights, and prisoners’ rights litigation. In addition, the undersigned have already done substantial work investigating and identifying the claims of the plaintiff class. The undersigned have sufficient resources that it will commit to representing the class.
WHEREFORE, Plaintiffs request that the Court certify a class of inmates, and appoint the Plaintiffs’ counsel as the class counsel and Plaintiffs Louis Reynolds, Jason Kennedy, Ronald McCraney Jr. as class representatives.
Page 16 of 17

Case 3:10-cv-00355-MCR -EMT Document 7 Filed 09/21/10 Page 17 of 17

N.D. FLA. LOC. R. 7.1(B) CONFERENCE COMPLIANCE

Plaintiffs’ counsel has not consulted opposing counsel with respect to

this motion because no counsel has yet appeared.

CERTIFICATE OF SERVICE
I certify one true and accurate copy of the foregoing document has been furnished by U.S. Mail on September 21, 2010, to the following:

Wendell Hall Sheriff for Santa Rosa County, Fla. 5755 East Milton Road Milton, FL 32583

Dated: September 21, 2010

Respectfully Submitted,

s/ Benjamin James Stevenson

Randall C. Marshall (Fla. Bar No.:

Benjamin James Stevenson (Fla. 181765)

Bar. No. 598909)

RMarshall@aclufl.org

American Civil Liberties Union Maria Kayanan (Fla. Bar No.:

Found. of Fla.

305601)

Post Office Box 12723

MKayanan@aclufl.org

Pensacola, FL 32591-2723

American Civil Liberties Union

bstevenson@aclufl.org

Found. of Fla.

T. 786.363.2738

4500 Biscayne Blvd., Ste. 340

F. 786.363.1985

Miami, Florida 33137

T. 786.363.2707

Randall C. Berg, Jr. (Fla. Bar No. F. 786.363.1108

318371)

Florida Justice Institute, Inc.

100 S.E. Second St., Ste. 3750

Miami, Florida 33131-2115

RBerg@FloridaJusticeInstitute.org

T. 305.358.2081 x 225

F. 305.358.0910

Counsel for Plaintiffs

Page 17 of 17

 
 Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 1 of 10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

LOUIS REYNOLDS, JASON KENNEDY, RONALD MCCRANEY, JR., all on behalf of themselves and all others similarly situated; and JEFFERY MILLER;

Plaintiffs,

vs.

CASE NO.: 3:10-CV-355 MCRIEMT

WENDELL HALL, in his official capacity as Sheriff for Santa Rosa County, Florida.

Defendant.
--------------------~/
MOTION TO DISMISS OF DEFENDANT WITH INCORPORATED MEMORANDUM OF LAW AND CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1 (B)

Defendant, WENDELL HALL, in his official capacity as Sheriff of Santa Rosa County,

Florida, moves to dismiss the First Amended Complaint of the Plaintiffs for the following reasons:

1. Plaintiffs fail to state a cause ofaction under the First Amendmentto the Constitution

in that the action of Defendant that is complained of by Plaintiffs related to limiting non-legal

outgoing mail to postcards only does not censor or suppress Plaintiffs' speech in any manner.

Plaintiffs are free to communicate and correspond utilizing mUltiple mediums of communication,

including the U.S. Mail.

2. Defendants' limitation on the particular medium ofmail communication complained

of by the Plaintiffs does not suppress or censor Plaintiffs' communication and said limitation is a

reasonable means ofavoiding the possibility ofprohibited messages, such as escape plans, threats, or

coded messages being communicated to persons outside ofthe prison setting and to reduce the labor

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 2 of 10
intensive and time consuming task of having Jail personnel open and review enveloped letters for such prohibited messages, thereby freeing Jail personnel to attend to other more pressing aspects of their primary responsibility of the care and custody of inmates at the Jail and to provide security at the Jail.
3. Concerns related to prison security, deterrence of crime and the proper allocation of limited staff resources are all legitimate penological interests which authorize whatever limited restriction the postcard only regulation imposes on the communications of the Plaintiffs.
4. The decisions of Jail personnel in defining the legitimate goals of the corrections systern and the most appropriate way to accomplish those goals are entitled to substantial deference.
5. Pursuant to Rule 7.l(B), N.D. Fla. Loc. R., the undersigned certifies that he has contacted opposing counsel in a good faith effort to resolve the issues raised herein. Opposing counsel opposes the relief requested herein.
MEMORANDUM OF LAW
Plaintiffs in this case have submitted a two count complaint challenging on First Amendment grounds a regulation and practice ofthe Santa Rosa County SheriffI Jail that restricts outgoing nonlegal mail sent by inmates from the Jail to postcards. Plaintiffs allege the regulation prevents or hinders their ability to communicate certain information to family members or other persons outside ofthe Jail setting by limiting their ability to discuss sensitive issues or include drawings.! Plaintiffs allege that the utilization ofpostcards enhances the risk that any sensitive or confidential information written on the cards can be seen or read by others. Plaintiffs allege their circumstances prevent other
1 Plaintiffs assert in paragraph 25 of the First Amended Complaint (Doc.5) that the regulation in question -'prohibits drawings or unnecessary marking on all non-privileged mail." However, a cursory review ofthe regulation in question reveals that "drawing or unnecessary marking" is prohibited only on "the postcard front." (Doc.5-l : Standard Operating Procedure 15.48, VI. b).
2

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 3 of 10
means of communication being utilized to achieve the purposes of the types of communication alleged to be hindered. Plaintiffs also allege the regulation increases the cost of sending the same infonnation to those with whom they wish to communicate by limiting the space allowed for communication and requiring more postcards to communicate the same amount ofinfonnation that could be communicated in a letter sent in an envelope?
Defendant does not dispute that the walls ofthe jail do not fonn a barrier separating prison inmates from the protections of the Constitution, including the First Amendment. Thornburgh v. Abbott, 490 U.S. 401 (1989), at page 407. Inmates have a constitutional right to send and receive mail and the First Amendment provides protection against censorship of prisoners' incoming and outgoing correspondence. Rodriguez v. Ames, 224 F.Supp.2d 555 (W. D. N. Y. 2002); Koutenic v. Brown, 396 F.Supp.2d 978 (W. D. Wis. 2005); Covell v. Amaio, 662 F.Supp.2d 1146 (D. Ariz. 2009). Defendant also recognizes that the standards applied to outgoing mail are different from the standards applied to incoming mail. Koutenic v. Brown, supra, and AVery v. Powell, 806 F.Supp. 7 (D. N. H. 1992), citing to Thornburgh, supra.
However, even though certain First Amendment rights survive the incarcerated status ofan inmate, the rights are not absolute or provided the same deference that exists outside of the jailor prison setting. Although the kind of censorship that might be allowable inside the prison walls would raise grave First Amendment concerns outside ofthe prison context, once inside the walls ofa jailor prison: "these rights must be exercised with due regard for the 'inordinately difficult
2 Plaintiffs also allege in paragraph 24 of the First Amended Complaint that the regulation requires the back of the postcard leave a one inch by two inch space blank in order to leave sufficient space for the stamping ofa message on the postcard by the Jail. Again, a review ofthe regulation in question (Doc.5-1) reveals that no such requirement is set forth in the regulation.
3

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 4 of 10
undertaking' that is modern prison administration." Thornburgh, at 407, citing to Turner v. Safley, 482 U.S. 78 (1987), at page 89. The courts have repeatedly stated that the judiciary "is ill-equipped to deal with the difficult and delicate problems of prison management" Id, at 407. As a result, the courts afford "considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world." /d. at 407-408. See also. Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Ware v. Randolph, supra 2008 WL 4390315 (C.D. Ill. 2008).
In challenging such a regulation, the burden is on the inmate to prove the regulation is invalid. Ware v. Randolph, supra, citing to Overton v. Bazzetta. supra at 132. In order for a facial challenge to such a regulation be successful under the First Amendment, the plaintiffmust establish that no set of circumstances exists under which the regulation would be valid. Davidson v. Mann, 129 F.3d 700 (2nd Cir. 1997), citing to U.S. v. Salerno, 481 U.S. 739, 745 (1987). Plaintiffs fail to meet their burden in this regard and fail to show that the regulation in question is not valid and rational when considered in the context of the connection between the regulation and the Jail's interest in avoiding a backlog of mail and in allocating prison personnel efficiently.
Even under the allegations of the Plaintiffs set forth in the complaint, it is apparent that the postcard only regulation in question does not censor Plaintiffs' mail as to content, except for the limited purpose of keeping the front of the postcard free of unnecessary markings. The content of the message found on the back of the card is not restricted by the policy in issue and there is no prohibition that would bar an inmate from drawing on the back of the postcard. An inmate may write and send as many postcards as he or she chooses to send. As a result, this circumstance is much different from those cases where outgoing mail has been censored or interfered with.
4

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 5 of 10
Defendants have been unable to identifY any case law that has found the imposition of a postcard only regulation for outgoing mail to violate the First Amendment.
However, at least two courts have addressed the issue of postcard only regulations in the context ofincoming mail. In Covell v. Amaio, 662 F.Supp.2d 1146 (D. Ariz. 2009), a prisoner held in the countyjail brought an action claiming that the sheriffviolated his First Amendment rights by instituting a policy that restricted incoming mail to metered postcards. The court, of course, recognized the rights of inmates under the First Amendment to send and receive mail, but also recognized that these rights are limited by the fact of incarceration and they may be curtailed to achieve legitimate correctional goals. The court applied the test set forth in Turner v. Safley, recognizing that the standard is deferential to the professional judgment of prison administrators. The court then looked at the four factors individually.
As to the first prong, the court concluded that there was a rational connection to a legitimate governmental interest in the regulation, when the focus was on jail security. The court noted that when the inmate does not present enough evidence to refute a common sense connection between the prison regulation and the objective that the government argues the policy is designed to further, then the first prong of the Turner test is satisfied. The court concluded the second prong was satisfied because the alternative means ofexercising the right at issue such as metered postcards, telephones and jail visits, although all less then ideal, were sufficient. Alternatives provided by the jail need not be ideal, only available. In terms ofthe third prong, the adverse impact ofaccommodation, the court noted that eliminating stamped mail allowed its limited security staffto devote more time to prison security assignments. Here, the court again noted the deference to the informed discretion of correction officials. Finally, the court found that the plaintiff failed to meet the burden ofshowing
5

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 6 of 10
that there were obvious or easy alternatives to the regulation or that it constituted an exaggerated response, particularly that there was a way to accommodate the right at a de minimis cost to the valid penological purpose.
More recently, the United States District Court for the Middle District of Florida has dismissed a complaint challenging a postcard only regulation applied to incoming mail in the Manatee County Jail. The court cited to the limitation of privileges and rights that accompanies incarceration and the need to strike a balance between the rights ofprisoners and the discretion given prison administrators to govern the order and security of a corrections facility. The court found the postcard only policy to be reasonably related to legitimate penological interests. Gambuzza v. Pannenter, 8:09-cv-1891-T-17TBM (M.D. Fla. 2010).
In the instant case, the legitimate penological interests are obvious. First, even on outgoing mail, the courts have upheld the interests of correction officials in limiting some forms of communication and inspecting outgoing mail for those forms of communication, such as threats, coded messages, escape plans and the like. Second, the amount ofjail stafftime that is taken up in opening and inspecting mail for such messages is obvious, time that necessarily removes the staff member from engaging in other duties related to the care and custody of inmates and ensuring institutional security.
Although not dealing with regulations that restrict non-legal outgoing mail to postcards, other courts have dealt with other restrictions and censorship of outgoing mail, upholding various restrictions, recognizing the deference to be granted to prison officials in making such decisions. These cases are instructive in analyzing the restriction at issue in this case.
In Ware v. Randolph, 2008 WL 4390315 (C.D. Ill. 2008), the plaintiffs' claim related to a
6

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 7 of 10
regulation that placed restrictions on his outgoing mail that prohibited correspondence and letters with drawings and or notes on the envelopes. The regulation was implemented in effort to clean up the outgoing mail and to avoid the possibility of messages being passed on the outside of the envelope. The regulation eliminated the need for jail personnel to make the determination as to whether a particular drawing or message was appropriate, a labor intensive and time-consuming task which required judgment calls on the part ofjail staff. The blanket prohibition reduced the burden on the mailroom staff. In upholding the regulation, the court noted that the policy did not prevent the offenders from corresponding with the free community; they simply were required to refrain from altering or defacing the outside oftheir envelopes. The court held that the actions ofprison officials in adopting prison regulations that may restrict an inmate's constitutional rights will be upheld as long as it is reasonably related to legitimate penological interest and the court must afford substantial deference to the professional judgment ofprison administrators, who bear a significant responsibly for defining the legitimate goals ofa correction system and for determining the most appropriate way to accomplish those goals, citing to Turner v. Saffiey. supra and Overton v. Bazzetta, supra. The court concluded that prison security, deterrence of crime, and proper allocation of limited staff resources are all legitimate penological interests which justified any limited abridgement of the constitutional rights ofthe plaintiff, citing to O'Lone v. Shabazz, 482 US 342, 348 (1987).
In Koutenic v. Brown, 396 F.Supp.2d 978 (W. D. Wis. 2005), a prison inmate sued alleging that his First Amendment rights were violated when he was prevented from mailing a letter that contained a drawing believed to contain encoded references to gang activities. The court granted summaryjudgment. In doing so, the court recoguized that the First Amendment provided protection against censorship of prisoner's incoming and outgoing correspondence, but also that legitimate
7

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 8 of 10
governmental interest mayjustify the imposition ofcertain restraints on inmate correspondence. The court noted the two different standards that have been utilized distinguishing between incoming inmate mail and outgoing inmate mail and that a less deferential standard applies to the censorship of outgoing prisoner mail. The court cited to Thornburgh v. Abbott, supra, and Procunier v. Martinez, 416 US 396 (1974), for the proposition that corrections officials must show that the regulation or practice in question furthers an important or substantial governmental interest unrelated to the suppression ofexpression and that the limitation ofthe First Amendment freedoms is no greater than necessary or essential to protect a particular governmental interest involved. The less deferential analysis was applied because the implications for prison security with outgoing correspondence are ofa lesser magnitude than the implications for the incoming materials. Even applying this standard, the court held that it should not unduly limit the discretion of prison officials in rejecting outgoing mail and should ask only whether the restrictions are generally necessary to protect the interest at stake.
In Davidson v. Mann, 129 F.3d 700 (2nd Cir. 1997), an inmate challenged prison regulations limiting access to stamps for non-legal mail, asserting a First Amendment violation. The court dismissed the claim, noting that although the plaintiffclaimed that the regulation deprived him ofhis First Amendment right to send outgoing non-legal mail, he did not allege that the regulation ever actually prevented him purchasing stamps, much less from sending mail, just as is the case herein.
In addressing a similar issue, the Eleventh Circuit in VanPoyck v. Singletary, 106 F.3d 1558 (11 th Cir. 1997), addressed inmates' challenge of the constitutionality of a DOC rule limiting free writing materials and postage to quantities sufficient for one letter per month and limiting the number ofstamps an inmate could possess at twenty. The court noted that although the rule reduced
8

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 9 of 10
the number ofopportunities for an indigent inmate to express free speech through the mail, the rules nevertheless allowed for some opportunities and were sufficient under the First Amendment. See also, Avery v. Powell, 806 F.Supp. 7 (D. N. H. 1992) (in upholding a prison regulation that prohibits inmates from sealing outgoing correspondence addressed to a recognized attorney the court noted that inmate's rights were not violated when their outgoing correspondence is read because of their reasonable concern for prison security and the inmate's diminished expectation ofprivacy; since the regulation in issue excepted legal mail, the court found it sufficiently tailored to avoid unnecessary infringement on inmate's First Amendment rights); Witherow v. Crawford, 468 F.Supp.2d 1253 (D. Nev. 2006) (censorship of a prisoner's incoming and outgoing mail pursuant to a criminal investigation did not violate his First Amendment rights).
Applying the above referenced case law to the facts ofthis case as alleged by the Plaintiffs, it is apparent that even ifthe regulation in question places some limits on the opportunities to express free speech, those opportunities still exist and are sufficient. None ofthe Plaintiffs allege they have ever been denied the opportunity to send mail to anyone outside the jail. The regulation in issue does not restrict the content of the message to be contained in the postcard correspondence and none of the Plaintiffs complain that their mail has been censored or tampered with. Instead, the regulation in issue falls within the realm of those types of regulations where the courts have deferred to the discretion ofcorrections officials in determining how to best meet the security and operational needs of the institution. At the same time, the regulation reduces the burden on jail staff to inspect mail and frees jail staff to perform other functions related to the care and custody of the inmates and jail security, allowing for a better allocation ofjail resources. The regulation in question is within the discretion ofthe Sheriffas he operates the Santa Rosa County Jail and meets the needs ofthe facility,
9

Case 3:10-cv-00355-MCR -EMT Document 12 Filed 10/12/10 Page 10 of 10
inmates. staff and public with the limited resources allocated to him to operate the Jail. As such, the regulation at issue does not serve to violate the First Amendment rights of the Plaintiffs, and should be held to not constitute a violation of those rights, with the resulting dismissal of the complaint of the Plaintiffs.
Respectfully submitted this 12th day of October 2010. s/ Keith C. Tischler Keith C. Tischler JOLLY AND PETERSON, P.A. 2145 Delta Blvd. Ste. 200 Tallahassee, FL 32303-4209 (850)422-0282 (850)942-5524 (facsimile) kct@jollylaw.com Attorney for Defendant
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 12th day of October 2010, I electronically filed the foregoing, in the United States District Court, Northern District of Florida, Pensacola Division, by using the CMJECF system which will send notification of such filing to all persons registered for this case, including Plaintiffs' attorneys.
s/ Keith C. Tischler
10

 
 Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 1 of 19

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

JASON KENNEDY, on behalf of himself and all others similarly situated,

Plaintiffs,

No. 3:10-cv-355 MCR/EMT

v.

WENDELL HALL, in his official capacity as Sheriff for Santa Rosa County, Florida,

Defendant.

_______________________________________/

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

Plaintiff, Jason Kennedy, on behalf of himself and all others similarly situated (“Plain-

tiffs”), brings this action pursuant to 42 U.S.C. § 1983 to enjoin the Defendant Sheriff of Santa

Rosa County, Florida, from forbidding inmates housed in the Santa Rosa County Jail (the “Jail”),

in violation of the First and Fourteenth Amendments to the U.S. Constitution, from sending let-

ters enclosed in envelopes to their parents, children, spouses, friends, loved ones, or other cor-

respondents (the “Postcard-only Mail Policy”), as described in Santa Rosa County Outgoing

Mail Procedure, Standard Operating Procedure No. 15.48.

Plaintiffs further seek a declaratory judgment that Defendant‟s Postcard-only Mail Policy

is unconstitutional, on its face and as applied, as it is used by Defendant to impermissibly restrict

Plaintiffs‟ right to communicate with correspondents outside the jail in violation of the U.S. Con-

stitution.

{07029319;1.3}

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 2 of 19
Defendant has moved to dismiss Plaintiffs‟ claims asserting three arguments: (1) Plaintiffs fail to state a cause of action under the First Amendment because Defendant‟s Postcard-only Mail Policy does not censor or suppress Plaintiffs‟ speech in any manner; (2) Defendant‟s Postcard-only Mail Policy is a reasonable means of avoiding the possibility of prohibited messages being communicated to outside persons and reduce staff labor; and (3) Defendant‟s belief that its Postcard-only Mail Policy is related to legitimate penological concerns authorizes whatever restriction is imposed on the communications of Plaintiffs and such beliefs are entitled to substantial deference. D.E. 12. Because Defendant‟s Motion to Dismiss (the “Motion”) fails to establish with certainty that Plaintiffs would not be entitled to relief under any set of facts that could be proven to support their claims, this Court should deny Defendant‟s Motion for the reasons set forth below.
Background Plaintiffs are inmates currently incarcerated at the Santa Rosa County Jail who are subject to, or affected by, the Postcard-only Mail Policy. Compl. ¶¶ 6, 40.1 Defendant, Wendell Hall, is currently, and at all times material to this action has been, the Sheriff of Santa Rosa County, Florida. Compl. ¶ 12. As Santa Rosa County Sheriff, Defendant Hall is charged with the care and custody of inmates at the Jail, and exercises overall responsibility for the policies and practices of the Jail, including the Postcard-only Mail Policy. Compl. ¶ 12. Effective July 26, 2010, Defendant Hall instituted a policy that required, with the exception of legal or privileged mail, all outgoing mail sent by a Jail inmate to be written on the back of a postcard measuring 4.5 inches by 6 inches. Compl. ¶¶ 16, 23. Prior to implementation of the Postcard-only Mail Policy, Plaintiffs freely sent mail in letter form that consisted of one or
1 All citations to the “Compl.” filed in this Response are in reference to Plaintiffs‟ First Amended Complaint, filed September 20, 2010. D.E. 5.
- 2 -
{07029319;1.3}

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 3 of 19
more sheets of paper enclosed in an envelope to correspondents outside the Jail. Compl. ¶ 21. As a result of the Postcard-only Mail Policy, however, no correspondence from an inmate to family members, friends, or other loved ones will be sent unless the correspondence conforms to the Postcard-only Mail Policy. Compl. ¶ 22. Pursuant to the Postcard-only Mail Policy, only the back of the postcard may contain a substantive message, and Plaintiffs must further leave an area of 1 inch by 2 inches blank at the bottom of the back of the postcard so that Jail officials can stamp the postcard as having been sent from the Jail. Compl. ¶ 24.
Prior to implementation of the Postcard-only Mail Policy, Plaintiffs had written multipage letters, several times a week, to their families and friends. Compl. ¶ 19(a). In these letters, Plaintiffs regularly discussed confidential and/or sensitive issues, such as Plaintiffs‟ finances, religion, or health, and often included full-page drawings with their letters. Compl. ¶¶ 19(a), 31. As a result of the Postcard-only Mail Policy, however, Plaintiffs are unable to send these letters and drawings. Compl. ¶¶ 19(b), 31, 33, 35.2 As a result of the Postcard-only Mail Policy, Plaintiffs must now express all of their thoughts and messages in an abbreviated and incomplete form. Compl. ¶¶ 19(b), 30, 31. As a result of the Postcard-only Mail Policy, Plaintiffs are further prohibited from sending these drawings to outside correspondents, and can no longer discuss issues of a confidential and/or sensitive nature. Compl. ¶¶ 19(b), 31, 33, 35. Absent the Postcard-only Mail Policy, Plaintiffs would immediately write and send non-privileged letters to their families, friends, and other loved ones, and would include sensitive and/or confidential information and drawings. Compl. ¶ 37.
2 Contrary to Defendant‟s allegation that “[n]one of the Plaintiffs allege they have ever been denied the opportunity to send mail to anyone outside the jail,” Plaintiffs have clearly made such allegations in their First Amended Complaint. D.E. 12 at 9; see Compl. ¶ 19(b), 31, 33, 35.
- 3 -
{07029319;1.3}

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 4 of 19
Standard of Review for a Motion to Dismiss Courts view Rule 12(b)(6) motions with disfavor. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (“We hasten to add that [a 12(b)(6) motion] is viewed with disfavor and rarely granted.”). A complaint should be upheld if it is “supported by [a] showing [of] any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007). When considering a motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff. Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008). Additionally, when considering a motion to dismiss the court should consider the plaintiff‟s allegations as true. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). As courts throughout Florida have consistently held, Twombly and Iqbal3 do not change the fundamental analysis that a district court engages in when ruling on a motion to dismiss, i.e., accepting all plausible allegations as true and determining whether the complaint contains „a short and plain statement of the claim showing that the pleader is entitled to relief.‟” Smith v. Wm. Wrigley Jr. Co., 663 F.Supp.2d 1336, 1341 n. 3 (S.D. Fla. 2009). The issue for consideration on a motion to dismiss is not whether the 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). If a defect can be cured by amendment, leave to amend should be freely granted. Forman v. Davis, 371 U.S. 178, 182 (1962); Ferrell Law, P.A. v. Crescent Miami Center, LLP, 313 Fed. Appx. 182, 186 (11th Cir. 2008); Fed. R. Civ. P. 15(a)(2).

3 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
{07029319;1.3}

- 4 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 5 of 19

Argument and Memorandum of Law

I. Defendant’s Motion to Dismiss Impermissibly Raises Factual Issues Outside the Scope of Plaintiffs’ Complaint

In the title and opening paragraph of Defendant‟s Motion, Defendant refers to the motion

here at issue as a Motion to Dismiss. See D.E. 12 at 1. A cursory review of Defendant‟s Motion

reveals, however, that Defendant has made no attempt to challenge the legal sufficiency of alle-

gations in Plaintiffs‟ Complaint, as would be proper in a motion to dismiss, and has instead di-

rectly addressed the merits of the case by raising disputed issues of fact. These asserted facts are

well outside the four corners of Plaintiffs‟ Complaint, were raised by Defendants solely to argue

that his Postcard-only Mail Policy constitutionally restricts Plaintiffs‟ speech, and impermissibly

exceed the scope of a motion to dismiss. See Zoher v. Chase Home Financing, 2010 WL

4064798 at *1 (S.D. Fla. 2010) (citing Milburn v. United States, 734 F.2d 762, 765 (11th Cir.

1984) (“A motion to dismiss for failure to state a claim merely tests the sufficiency of the com-

plaint; it does not decide the merits of the case.”)).

As a general rule, a district court may not consider any materials beyond the pleadings in

ruling on a motion to dismiss. SFM Holdings, Ltd. v. Banc of America Securities, LLC, 600 F.3d

1334, 1337 (11th Cir. 2010). When a district court is nonetheless provided with materials out-

side the pleadings in the context of a motion to dismiss, such as here, the court can either exclude

the additional facts or materials and decide the motion on the complaint alone, or convert the

motion to one for summary judgment after affording the plaintiff the opportunity to present evi-

dence and supporting materials. Property Mgmt. & Invest., Inc. v. Lewis, 752 F.2d 599, 604

(11th Cir. 1985) (citing Carter v. Stanton, 405 U.S. 669, 671 (1972)); Fed. R. Civ. P. 12(d) (“If,

on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not

excluded by the court, the motion must be treated as one for summary judgment under Rule 56.

{07029319;1.3}

- 5 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 6 of 19

All parties must be given a reasonable opportunity to present all the materials that is pertinent to the motion.”).4

In an attempt to induce the Court to improperly rule on the merits of Plaintiffs‟ case be-

fore allowing Plaintiffs the opportunity to conduct any discovery and therefore the ability to

supply evidence supporting their claims, Defendant has raised several disputed facts in support

of his Motion and requests that this Court rule on these factual disputes. In support of his argu-

ment that the Postcard-only Mail Policy is justified, for example, Defendant asserts that the Post-

card-only Mail Policy is necessary because “the amount of jail staff time that is taken up in open-

ing and inspecting mail for such messages is obvious,” and that the Postcard-only Mail Policy

“reduces the burden on jail staff to inspect mail.” D.E. 12 at 6, 9. Defendant also asserts, with-

out evidence, that “prison security” and “deterrence of crime” further justify his Postcard-only

Mail Policy. D.E. 12 at 2, 6, 9.

Yet, such conclusory allegations are woefully insufficient at this stage in the proceedings

where there has been no evidence presented demonstrating that such concerns were actually the

impetus for the regulation in question. Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990) (In

analyzing a prison regulation implicating First Amendment rights, prison authorities “cannot rely

on general or conclusory allegations to support their policies … [prison authorities] must demon-

strate both that [the] specific interests [identified] are the actual bases for their policies and that

the policies are reasonable related to the furtherance of the identified interests. An evidentiary

showing is required as to each point.”) (emphasis added).

4 While the Court may also take judicial notice of certain, limited facts without converting a motion to dismiss into a motion for summary judgment, this is only properly done when the materials and/or allegations presented by the moving party are not intertwined with the merits of the case and do not demonstrate the existence of any genuine issues of material fact. As described in further detail below, this is clearly not the case here. See Universal Express, Inc., 177 Fed. Appx. at 53; Lee v. County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).

{07029319;1.3}

- 6 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 7 of 19
Therefore, whether Defendant has justifications sufficient to support his Postcard-only
Mail Policy is a disputed matter of fact and evidence not before this Court, and is not a proper inquiry at this stage of the proceedings.5 Indeed, such allegations in the context of a motion to
dismiss are clearly improper. It is well established that a court should consider the plaintiffs‟
allegations as true in deciding a motion to dismiss. Cruz, 405 U.S. at 319; Jackson, 21 F.3d at
1534. Should Defendant here dispute any factual allegations made by Plaintiffs, he will have the
opportunity to present rebuttal evidence and/or testimony in support of his claims at the summary
judgment stage. See Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
These disputed facts Defendant raises in support of his Motion concern issues which fall
well outside the scope of Plaintiffs‟ Complaint and clearly require discovery to enable Plaintiffs
to respond. In accordance with well-established law, Plaintiffs request that this Court either ex-
clude such facts and allegations in considering Defendant‟s Motion, or convert Defendant‟s Mo-
tion into a motion for summary judgment and properly defer ruling on such motion until all parties have had the opportunity to conduct discovery and present supporting materials.6
II. Discovery is Required for a Proper Analysis of Plaintiffs’ First Amendment Claims
To state a claim under 42 U.S.C. § 1983, a plaintiff must establish two essential elements:
(1) the conduct complained of was committed by a person acting under color of state law; and
5 While Plaintiffs maintain that an analysis of Defendant‟s justifications for his Postcard-only Mail Policy is not a proper inquiry at this stage of the proceedings, Plaintiffs note that Defendant has not established the existence of any policies in effect prior to the Postcard-only Mail Policy which would require jail staff to open and inspect every piece of outgoing mail, and has further failed to produce any evidence or testimony in support of his allegation that the Postcard-only Mail Policy will result in any decreased burden on jail staff or resources. 6 Should this Court determine that Defendant‟s Motion be analyzed under the summary judgment standard, Plaintiffs request leave of court to file a motion pursuant to Fed. R. Civ. P. 56(f), so that Plaintiffs may be afforded the opportunity to conduct vital discovery prior to resolution of Defendant‟s Motion. See WSB-TV v. Lee, 842 F.2d 1266, 1269 (11th Cir. 1988) (summary judgment is improper if the plaintiff has been afforded no opportunity for discovery); Jones v. City of Columbus, 120 F.3d 249, 253 (11th Cir. 1997) (“The law in this circuit is clear: The party opposing a motion for summary judgment should be permitted an adequate opportunity to complete discovery prior to consideration of the motion.”).
- 7 -
{07029319;1.3}

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 8 of 19
(2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Blanton v. Griel Mem’l Psychiatric Hosp., 758 F.2d 1540, 1542 (11th Cir. 1985).
Plaintiffs here have clearly alleged both elements. Plaintiffs have alleged that Defendant Hall was acting under color of law in instituting the Postcard-only Mail Policy.7 Compl. ¶ 13, 36, 51. Plaintiffs have further alleged that Defendant‟s Postcard-only Mail Policy amounts to a deprivation of their rights as secured by the First Amendment to the U.S. Constitution. Compl. ¶ 1, 34, 47. Lastly, Plaintiffs have specifically claimed that Defendant‟s requirement that all nonprivileged, outgoing mail be in postcard format deprives Plaintiffs of the right to communicate meaningfully in a full and complete way, and to transmit sensitive and/or confidential information without divulging such information to third-parties. Compl. ¶¶ 30-32.
As Defendant recognizes, inmates retain First Amendment rights despite their incarceration. D.E. 12 at 3. Indeed, it has long been acknowledged that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution, nor do they bar free cit izens from exercising their own constitutional rights by reaching out to those on the „inside.‟” Thornburg v. Abbott, 490 U.S. 401, 407 (1989) (citing Turner v. Safley, 482 U.S. 78, 84 (1987)). Towards this end, Defendant correctly notes that inmates such as Plaintiffs clearly enjoy a protected First Amendment right to correspond with friends and family and thereby maintain these relationships. D.E. 12 at 3; see Procunier v. Martinez, 416 U.S. 396, 408-09 (1974) (noting that both inmates and families and friends of prisoners who seek to sustain relationships with them enjoy First Amendment rights to do so).
7 Although not disputed by Defendant, Plaintiffs have provided a factual basis for this allegation, including that the Sheriff has responsibility over the Jail and is charged by law with the care and custody of all of its inmates. Compl.,
¶ 12. - 8 -
{07029319;1.3}

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 9 of 19
Indeed, the Supreme Court has specifically recognized inmates‟ First Amendment right to correspond with friends and family outside of prison and has applied a heightened scrutiny test to restrictions on this right. Procunier, 416 U.S. at 413 (holding a restriction on outgoing correspondences must “further an important or substantial governmental interest unrelated to the suppression of expression” and “be no greater than is necessary or essential to the protection of the particular governmental interest involved”); Thornburgh, 490 U.S. at 413. Although the Court has relaxed the standard applicable in other contexts of First Amendment deprivations, it has broadly held that Procunier‟s heightened scrutiny must still apply to the constitutional assessment of all prison regulations concerning outgoing correspondence.8 Thornburgh, 490 U.S. at 413 (recognizing that the implications of outgoing correspondence for prison security are of a “categorically lesser magnitude” than the implications of incoming materials and therefore noting that heightened scrutiny would still apply to outgoing mail); compare Turner, 482 U.S. 78, 89 (1987) (testing whether a restriction on incoming mail was “reasonably related to legitimate penological interests”) with Koutnik v. Brown, 189 Fed.Appx. 546, 549 (7th Cir. 2006) (“Still prisons may regulate the transmission of outgoing mail so long as doing so „furthers one or more of the substantial governmental interests of security, order, and rehabilitation,‟ and is necessary to protect these interests.”) (quoting Procunier, 416 U.S. at 413-14) and Nasir v. Morgan, 350 F.3d 366, 371, 374 (3d Cir. 2003) (applying the Procunier test to outgoing mail) and Stow v. Grimaldi, 993 F.2d 1002, 1004 (1st Cir. 1993).
Despite Defendant‟s assertion that Plaintiffs have failed to show “that the regulation in question is not valid and rational” (D.E. 12 at 4), Defendant‟s Postcard-only Mail Policy restricts
8 Under Procunier, prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Procunier, 416 U.S. at 413.
- 9 -
{07029319;1.3}

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 10 of 19

the sending of outgoing mail by Plaintiffs, and as such Defendant is not entitled to Turner‟s defe-

rential, rational-basis analysis. Instead, Defendant‟s Postcard-only Mail Policy must be analyzed

under Procunier‟s heightened scrutiny, and should only withstand this Court‟s constitutional

scrutiny if Defendant is able to demonstrate that the Postcard-only Mail Policy (1) furthers an

important or substantial governmental interest unrelated to the suppression of expression, and (2)

involves a limitation of First Amendment freedoms no greater than necessary or essential to the

protection of the particular governmental interest involved. Procunier, 416 U.S. at 413.

As discussed more fully below, however, this constitutional analysis cannot be performed

in the absence of evidence establishing Defendant‟s justification(s) for the policy at issue as well

as the impact of the policy on both Plaintiffs and Defendant. Accordingly, it is impossible for

this Court, without any factual development whatsoever, to determine whether Defendant‟s Post-

card-only Mail Policy satisfies the First Amendment, and Defendant‟s Motion should therefore

be denied.

A. Discovery is necessary to determine whether Defendant’s Policy furthers a substantial governmental interest unrelated to the suppression of expression

Under the first prong of Procunier‟s analysis, a prison regulation which restricts inmate

correspondence violates the First Amendment unless the regulation “further[s] an important or

substantial governmental interest unrelated to the suppression of expression.” Procunier, 416

U.S. at 413-14. Concerned that officials might take advantage of the judicial deference often ac-

corded to prison administrators, the Court has even gone so far as to identify those governmental

interests which might justify a prison regulation which restricts fundamental constitutional guar-

antees. Id. at 412-13 (“The identifiable governmental interests at stake in [the maintenance of

penal institutions] are the preservation of internal order and discipline, the maintenance of insti-

tutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.”);

{07029319;1.3}

- 10 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 11 of 19

Cal. First Amendment Coalition v. Woodford, 299 F.3d 868, 879 (9th Cir. 2002) (“[A] prison

regulation that is not reasonably related to a legitimate penological interest, such as security or

rehabilitation, will fail to satisfy even the most deferential analysis.”).

In his Motion, Defendant alleges that “concerns related to prison security, deterrence of

crime and the proper allocation of limited staff resources” are the governmental interests which

justify the restriction of Plaintiffs‟ First Amendment rights as a result of Defendant‟s implemen-

tation of the Postcard-only Mail Policy. D.E. 12 at 2. As discussed above, such conclusory alle-

gations are simply insufficient at this stage in the proceedings and in the absence of evidence

demonstrating that such concerns were actually the impetus for the regulation in question. Walk-

er, 917 F.2d at 387. It is only after prison authorities have put forth evidence demonstrating that

their alleged penological interests were actually the impetus behind the challenged regulation,

and that the challenged regulation in fact furthers a substantial governmental interest unrelated to

the suppression of expression, that courts should defer to prison authorities‟ judgment. Id. at

386; see also Woodford, 299 F.3d at 882 (“Although prison officials may pass regulations in an-

ticipation of security problems, they must at a minimum supply some evidence that such poten-

tial problems are real, not imagined.”).

Defendant‟s alternative justification based on the “proper allocation of limited staff re-

sources” is similarly insufficient at this stage in the proceedings, for several reasons. D.E. 12 at

2. First, Defendant has not established the existence of any policies in effect prior to the Post-

card-only Mail Policy which would require jail staff to open and inspect every piece of outgoing

mail, and has further failed to produce any evidence or testimony in support of his allegation that

the Postcard-only Mail Policy will result in any decreased burden on jail staff or resources.

More importantly, this exact rationale has been consistently rejected by the courts as a justifica-

{07029319;1.3}

- 11 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 12 of 19

tion for a regulation which implicates First Amendment freedoms. Morrison v. Hall, 261 F.3d 896, 902-03 (9th Cir. 2001) (holding that the efficient use of prison staff and resources could not justify an effective ban on subscription publications); Clement v. Cal. Dept. of Corrections, 220 F.Supp.2d 1098, 1110 (N.D. Cal. 2002) (“[A]ny negative impact on prison resources created by a supposed increase in prison mail may be outweighed by the penological benefits of inmate correspondence with the outside world.”).
Despite the impropriety of these arguments at the motion to dismiss stage, Defendant has cited to two cases in support of his argument that the Postcard-only Mail Policy is justified by a legitimate penological interest in the “proper allocation of limited prison resources.” D.E. 12 at 5-6. These cases are easily distinguishable. In Covell v. Arpaio, 662 F.Supp.2d 1146 (D. Ariz. 2009), and Gambuzza v. Parmenter, 2010 WL 2179029 (M.D. Fla. 2010), jail inmate plaintiffs challenged policies that banned incoming letters and restricted inmates‟ incoming mail to metered postcards. Covell, 662 F.Supp.2d at 1148; Gambuzza, 2010 WL 2179029 at *1. While in both cases the court found that the jails‟ policies did not impermissibly restrict the inmates‟ First Amendment rights, in both cases the court applied only Turner‟s more deferential, rational-basis test, as the challenged policies dealt with a restriction on incoming mail only. Covell, 662 F.Supp.2d at 1152; Gambuzza, 2010 WL 2179029 at *2. In Gambuzza, the District Court‟s ruling remains subject to a pending Motion for Reconsideration and two pending Motions for Recusal which have yet to be adjudicated. More importantly, in Covell, the court had the necessary benefit of the presentation of evidence from both parties, as the case was decided on a motion for summary judgment, and only after the defendant sheriff presented evidence of a growing number of incidents regarding the attempted smuggling of contraband into the jail to justify the regula-

{07029319;1.3}

- 12 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 13 of 19

tion being challenged, required even under Turner‟s deferential standard. Covell, 662 F.Supp.2d

at 1153.

Unlike Covell and Gambuzza, Plaintiffs here are challenging a regulation which restricts

outgoing mail sent by inmates at the Jail to a postcard-only format. D.E. 12 at 2. As such, De-

fendant‟s Postcard-only Mail Policy should not be analyzed under the deferential Turner stan-

dard utilized in Covell and Gambuzza, and should instead be properly subject to Procunier‟s

heightened scrutiny. Gambuzza, 2010 WL 2179029 at *2 (citing Thornburgh, 490 U.S. at 413)

(“Prison officials have more leeway to regulate incoming than outgoing mail because of the

greater security risks inherent in materials coming into a prison. Turner is applicable to regula-

tions and policies regarding all incoming mail.”) (emphasis added). Additionally, even under

Turner‟s deferential standard, Covell still required the defendant sheriff to produce evidence that

his alleged penological interest was actually the impetus behind the challenged regulation. Co-

vell, 662 F.Supp.2d at 1153. The presentation of any such evidence by either party is impossible

here, however, where Defendant has raised such concerns in the context of a motion to dismiss,

and before any discovery has been conducted.

B. Discovery is necessary to determine whether Defendant’s Policy involves a limitation of First Amendment freedoms greater than necessary to protect Defendant’s stated interests

Similarly, this Court cannot adequately determine whether Defendant‟ Postcard-only

Mail Policy satisfies Procunier‟s second prong – whether it involves a limitation of First

Amendment freedoms greater than necessary or essential to the protection of the particular go-

vernmental interest involved – in the absence of evidence demonstrating that Defendant‟s policy

is narrowly drawn to prohibit only that correspondence which threatens Defendant‟s stated inter-

ests. As Procunier explained, “a restriction on inmate correspondence that furthers an important

{07029319;1.3}

- 13 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 14 of 19

or substantial interest of penal administration will nevertheless be invalid if its sweep is unneces-

sarily broad.” Id.

In Procunier, the Court struck down a regulation of the California DOC which provided

for the censorship of letters that “unduly complain[ed],” “magnif[ied] grievances,” or “ex-

pres[sed] inflammatory political, racial, religious or other views or beliefs.” Id. at 399. Finding

that the California DOC had at least articulated a substantial governmental interest – that letters

with such content could encourage violence and present a danger to prison security – the Court

nonetheless struck down the regulation, holding that even if the rule furthered such an interest, it

was not narrowly tailored to prevent only that correspondence that could create a potential threat

to prison security. Id. at 416 (“The regulation, however, is not narrowly drawn to reach only ma-

terial that might be thought to encourage violence nor is its application limited to incoming let-

ters. In short the Department‟s regulations authorized censorship of prisoner mail far broader

than any legitimate interest of penal administration demands and were properly found invalid by

the District Court.”).

Similarly, even if Defendants were able to produce evidence demonstrating that its al-

leged concerns regarding prison security and the deterrence of crime were the impetus for the

policy in question, the Postcard-only Mail Policy is not narrowly drawn to restrict only that cor-

respondence that might be thought to endanger prison security or hinder the deterrence of crime.

If Defendant‟s Postcard-only Mail Policy is allowed to stand, all non-privileged, outgoing letters

will be banned and restricted to a postcard-only format, regardless of whether that letter or in-

mate represented a danger to prison security or the deterrence of crime in any way.

In support of his argument to the contrary, Defendant first attempts to argue that the Post-

card-only Mail Policy here at issue is “much different” from regulations in other cases where

{07029319;1.3}

- 14 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 15 of 19

outgoing mail has been “censored or interfered with,” and suggests that the fact that the Post-

card-only Mail Policy does not censor Plaintiffs‟ mail on the basis of its content somehow elimi-

nates the need for an analysis pursuant to the First Amendment. D.E. 12 at 2 (“Plaintiffs fail to

state a cause of action under the First Amendment to the Constitution in that the [Postcard-only

Mail Policy] does not censor or suppress Plaintiffs‟ speech in any manner.”); Id. at 4.

This argument is entirely without merit, and is in fact directly contradicted by nearly all

of the cases cited by Defendant in support of his Motion. See Covell, 662 F.Supp.2d at 1152

(finding that jail‟s content-neutral, postcard-only mail regulation impinged on inmates‟ First

Amendment rights and warranted a constitutional analysis); Gambuzza, 2010 WL 2179029 at *2

(finding that jail‟s content-neutral, postcard-only mail regulation restricted inmates‟ First

Amendment rights); Ware v. Randolph, 2008 WL 4390315 (C.D. Ill. 2008) (finding that prison‟s

content-neutral, outgoing mail policy prohibiting drawings or notes on the outside envelope im-

plicated inmates‟ First Amendment rights); Avery v. Powell, 806 F.Supp.7 (D.N.H. 1992) (find-

ing that prison‟s content-neutral mail policy prohibiting inmates from receiving greeting cards

unless sent from an authorized vendor implicated inmates‟ First Amendment rights). A restric-

tion that limits the form of communication to postcards, though applying equally to all content,

still implicates the First Amendment because the availability of alternative means to communi-

cate cannot alone justify the restriction. See Solantic, LLC v. City of Neptune Beach, 410 F.3d

1250, 1258 (11th Cir. 2005) (ruling a content-neutral time, place, and manner restriction must

further a legitimate government interest, even if it “leave[s] open adequate alternative channels

of communication”); see also Procunier, 416 U.S. at 413 (requiring a speech restriction be nar-

rowly tailored to further an important or substantial government interest without regard to alter-

native channels of communication).

{07029319;1.3}

- 15 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 16 of 19

Unable to find any precedent to support his proposition that the Postcard-only Mail Poli-

cy is immune from First Amendment scrutiny due to its content neutrality, Defendant next cites

to two cases in support of his argument that even when dealing with a regulation restricting out-

going mail, deference should still be granted to prison officials in making such decisions. D.E.

12 at 6. In Ware v. Randolph, the court upheld a regulation of the Illinois Department of Correc-

tions which prohibited drawings or notes on the outside envelope of inmates‟ mail, while in

Koutnik v. Brown, 396 F.Supp.2d 978 (W.D. Wis. 2005), the court upheld a prison‟s application

of a mail regulation which prohibited the delivery of any mail that taught or advocated illegal or

gang activity to the delivery of a specific letter. Ware, 2008 WL 4390315 at *8; Koutnik, 396

F.Supp.2d at 986-87.

Again, these cases are easily distinguishable and fail to be analytically useful in deciding

Defendant‟s motion or determining the constitutionality of Defendant‟s Postcard-only Mail Poli-

cy. Most importantly, both Ware and Koutnik were litigated by pro se inmates, and both cases

were decided only at the summary judgment stage. Ware, 2008 WL 4390315 at *1; Koutnik, 396

F.Supp.2d at 980. As a result, and unlike the present case, both parties in these cases had the

ability to present evidence and testimony regarding the institutions‟ alleged justifications for the

challenged regulations and both courts had the opportunity to analyze such evidentiary showings

in light of the relevant First Amendment standard. Koutnik, 396 F.Supp.2d at 980 (court relied

on evidence presented by the defendant that gangs at the institution undermined institutional se-

curity and provided a support network for inmates who resist prison authority, and that plaintiff‟s

letter contained specific gang-related references and symbols); Ware, 2008 WL 4390315 at *7

(court relied on testimony presented by the defendant regarding the history of the challenged

regulation and the impact on the internal environment of the prison).

{07029319;1.3}

- 16 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 17 of 19

Conclusion While Defendant is correct in stating that a certain amount of deference should be afforded to the determinations of prison administrators in implementing and enforcing prison regulations, courts have made it abundantly clear that the First Amendment analysis to be performed is not toothless, and that courts must not blindly defer to the judgment of prison administrators simply because institutional concerns are at issue. Thornburgh, 490 U.S. at 414; Procunier, 416 U.S. at 405-06 (“[A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims.”); Bradbury v. Wainwright, 718 F.2d 1538, 1543 (11th Cir. 1983) (“Although deference to prison administrators is „wide-ranging,‟ courts are not required to abdicate their responsibility to redress constitutional violations.”). Thus, regardless of the fact that the constitutional concerns at issue arise in the context of a prison setting, where, such as here, “a prison regulation or practice offends a fundamental constitutional guarantee, federal courts [must] discharge their duty to protect … constitutional rights.” Procuner, 416 U.S. at 405-06; Bradbury, 718 F.2d at 1543. In his Motion, Defendant has proffered several alleged justifications for the Postcard-only Mail Policy. As discussed more fully above, however, an evidentiary review of those justifications and a proper application of the Procunier analysis can only be performed once discovery has been conducted and both parties have had the opportunity to present evidence in support of their claims. Therefore, Plaintiffs respectfully request for the reasons set forth above that this Court deny Defendant‟s Motion to Dismiss (D.E. 12), and order Defendant to file an Answer.

{07029319;1.3}

Respectfully submitted,
Randall C. Berg, Jr., Esq. Florida Bar No. 318371 - 17 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 18 of 19

{07029319;1.3}

Joshua A. Glickman, Esq. Florida Bar No. 43994 Shawn A. Heller, Esq. Florida Bar No. 46346
Florida Justice Institute, Inc. 3750 Miami Tower 100 S.E. Second Street Miami, Florida 33131-2309 305-358-2081 305-358-0910 (FAX) E-mail: RBerg@FloridaJusticeInstitute.org E-mail: JGlickman@FloridaJusticeInstitute.org E-mail: SHeller@FloridaJusticeInstitute.org
Benjamin James Stevenson, Esq. Florida Bar No. 598909
American Civil Liberties Union Found. of Fla. P.O. Box 12723 Pensacola, Florida 32591-2723 786-363-2738 786-363-1985 (FAX) E-mail: BStevenson@aclufl.org
Randall C. Marshall, Esq. Florida Bar No. 181765 Maria Kayanan, Esq. Florida Bar No. 305601
American Civil Liberties Union Found. of Fla. 4500 Biscayne Blvd., Ste. 340 Miami, Florida 33137 786-363-2707 786-363-1108 (FAX) E-mail: RMarshall@aclufl.org E-mail: MKayanan@aclufl.org
Attorneys for the Plaintiffs
By: s/Joshua A. Glickman Joshua A. Glickman, Esq. Florida Bar No. 43994
- 18 -

Case 3:10-cv-00355-MCR -EMT Document 21 Filed 10/29/10 Page 19 of 19
CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, on this 29th day of October, 2010, which will send a notice of electronic filing to all attorneys of record.
s/Joshua A. Glickman Joshua A. Glickman

SERVICE LIST
Case No. No. 3:10-cv-355 MCR/EMT United States District Court, Northern District of Florida
By CM/ECF:
Keith C. Tischler, Esq. Jolly and Peterson, P.A. 2145 Delta Blvd., Suite 200 Tallahassee, FL 32303-4209 850-422-0282 Fax: 850-942-5524 Email: kct@jollylaw.com
Counsel for Defendant

{07029319;1.3}

- 19 -

 
 Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 1 of 22

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
Pensacola Division

JASON KENNEDY, MARCIE HAMILTON, and GARRY NACE, all on behalf of themselves and all others similarly situated;

Plaintiffs,

v.
WENDELL HALL, in his official capacity as Sheriff for Santa Rosa County, Florida,

No. 3:10-cv-355 MCR/EMT Class Action

Defendant.

/

SECOND AMENDED COMPLAINT

Plaintiffs JASON KENNEDY, MARCIE HAMILTON, and GARRY

NACE, all on behalf of themselves and all others similarly situated sue Defendant

WENDELL HALL (“Hall”) in his official capacity as Sheriff for Santa Rosa

County, Florida, and allege as follows:

INTRODUCTION

1. Plaintiffs challenge Sheriff Hall’s recently instituted policy and practice (“Postcard-Only Mail Policy”) that forbids inmates of the Santa Rosa County, Florida, Jail (“Jail”) from sending letters enclosed in envelopes to their parents, children, spouses, friends, other loved ones, or other correspondents.

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 2 of 22
Instead, Jail inmates must write all of their correspondences in a postcard format except for privileged/legal mail. This new policy impermissibly restricts inmates’ ability to exercise their rights to communicate with correspondents outside the jail and these correspondents’ right to receive these inmates’ communications and expressions, in violation of the First and Fourteenth Amendments to the United States Constitution.
2. Plaintiffs ask this Court to enjoin the Postcard-Only Mail Policy and declare that it violates their constitutional rights.
JURISDICTION AND VENUE 3. Plaintiffs bring this action pursuant 42 U.S.C. §1983 for violations of civil rights under the First and Fourteenth Amendments to the United States Constitution. 4. This Court has subject-matter jurisdiction over this matter pursuant to 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1343(a)(3) (civil rights). 5. Venue is proper in this judicial district and division pursuant to 28 U.S.C. §1391(b) and N.D. Fla. Loc. R. 3.1. Defendant Hall resides in this district and division and the unlawful practices that give rise to the claims herein occurred within this district and division.
Page 2 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 3 of 22
PARTIES 6. Plaintiff Jason Kennedy (“Kennedy”) is a Jail inmate. He has remained in the Jail as an inmate since February 11, 2010. As set forth in the “General Allegations” section, he has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy. 7. Plaintiff Marcie Hamilton (“Hamilton”) is a Jail inmate. She has remained in the Jail as an inmate since March 5, 2010. As set forth in the “General Allegations” section, she has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy. 8. Plaintiff Garry Nace (“Nace”) is a Jail inmate. He has remained in the Jail as an inmate since October 1, 2010. As set forth in the “General Allegations” section, he has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy. 9. Jason Kennedy, Marcie Hamilton, and Garry Nace, and the class of similarly-situated inmates in the Jail shall be referred to collectively as “Jail Inmate Plaintiffs.” 10. Defendant Sheriff Wendell Hall is now, and at all material times has been, the Sheriff of Santa Rosa County, Florida. As Santa Rosa County Sheriff, he
Page 3 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 4 of 22
is charged with the care and custody of inmates at the Santa Rosa County Jail. He exercises overall responsibility for the policies and practices of the Jail, including the Postcard-Only Mail Policy. Plaintiffs sue Hall in his official capacity for injunctive and declaratory relief and attorneys fees and costs.
11. Defendant Hall at all times relevant hereto was acting and continues to act under color of law.
12. Jail correction officers, deputies, their supervisors, working in the Jail are agents and employees of Sheriff Hall.
GENERAL ALLEGATIONS 13. The Santa Rosa County, Florida, Jail (“Jail”) is located in Milton, Florida. It houses both convicted prisoners and pretrial detainees. It has a rated capacity of 634 inmates. 14. Effective July 26, 2010, Sheriff Hall instituted a policy that required all outgoing mail, except legal or privileged mail, sent by an Jail inmate to be in a postcard form (hereinafter “Postcard Only Mail Policy”). Only mail to or from the courts, attorneys, government officials or agencies, and news media is considered legal or privileged (hereinafter collectively “privileged”).
Page 4 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 5 of 22
15. Jason Kennedy has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Prior the implementation of the Postcard-Only Mail Policy, Kennedy regularly wrote numerous letters to family members, including his mother and his children. He sent drawings on full sheets of paper to his eight-yearold daughter who suffers from a mental disability. He would share personal information about his health with his mother.
(b) However, now Kennedy may no longer send these personal letters or full-page drawings. Though he would like to continue to discuss sensitive topics with correspondents, he no longer includes this information in messages because on postcards they may be easily read by a host of people aside from mail-screening Jail officials. Instead, Kennedy now sends fewer pieces of mail and no full-page drawings and the messages in his mail are shorter.
(c) Kennedy must now express all of his thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate his thoughts and ideas.
(d) Kennedy wants immediately to send letters and include fullpage drawings, but does not because of the Sheriff’s Postcard-Only Mail Policy.
Page 5 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 6 of 22
(e) Because his family and friends cannot often visit him and the expense of telephone calls, mail correspondence is the best way for him to stay in contact with his family.
(f) Having little or no money in the Jail’s inmate account, he is considered indigent and relies on his friends and family and Sheriff Hall for daily necessitates including a supply of writing and mail supplies. Therefore, often the number of pieces of mail he may send is limited to the Jail’s supplied allotment of mail supplies.
16. Marcie Hamilton has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Prior the implementation of the Postcard-Only Mail Policy, Hamilton regularly wrote numerous letters per week to family members and friends, including her mother, brother, and minor son and daughter. She frequently sent country songs, poems, and drawings and other art on full sheets of white paper to her children. In separate letters enclosed in envelopes and addressed to her son or daughter individually, she discussed sensitive issues of sexual development, sexual orientation, and family planning. She would share personal information about her health and finances with her mother. She received and filled requests from her children to making drawings of pictures they sent to her.
Page 6 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 7 of 22
(b) However, now Hamilton may no longer send these personal letters or full-page drawings on white paper. Though she would like to continue to discuss sensitive topics with correspondents, she no longer includes this information in messages because on postcards they may be easily read by a host of people aside from mail-screening Jail officials, including other household members to whom the messages are not directed. She may no longer create and send art on white paper and as a result the colored paper postcards (usually light blue) distort the intended coloration of her drawings and art. Hamilton now sends fewer pieces of mail and no full-page drawings and the messages in her mail are shorter. Her daughter has disappointedly asked why Hamilton no longer sends her country music songs.
(c) Hamilton would like to send letters immediately to her family and friends, including her mother, brother (who lives in Tennessee), and minor son and daughter, but cannot under the Postcard-Only Mail Policy.
(d) Hamilton would like to share personal information, like financial and medical information with her mother and give advice to her son and daughter individually (without other house residents intercepting the messages and reading them), but does not include this information on postcards because the
Page 7 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 8 of 22
postcards may be easily read by a host of people, including other family members to whom it was not directed.
(e) Because usually her mother, minor daughter, and minor son all visit her at the same time (when they are able to do so), she cannot have substantive one-to-one communication with any one of them.
(f) Hamilton must express all of her thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate her thoughts and ideas.
(g) Since the Postcard-Only Mail Policy was instituted, she has attempted to transmit longer messages over multiple postcards required to complete the message. In these cases, she would label the sequence in which the recipient should organize the postcards so to coherently read the entire message in its intended order. However, at times not all the postcards arrive concurrently; at other times, one or two postcards in the multiple postcard correspondence never arrive at all.
(h) Because her some of family (e.g., brother lives in Tennessee) and friends cannot often visit her and the expense of telephone calls, mail correspondence is the best way for her to stay in contact and maintain relationships with her family and friends.
Page 8 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 9 of 22
(i) Having little or no money in the Jail’s inmate account, she is considered indigent and relies on her friends and family and Sheriff Hall for daily necessitates including a supply of writing and mail supplies. Therefore, often the number of pieces of mail she may send is limited by the Jail’s supplied allotment of mail supplies.
17. Garry Nace has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Nace would like to send letters immediately to his family and friends, including his brother who lives in Oklahoma, but cannot under the Postcard-Only Mail Policy.
(b) Nace would like to share personal sensitive information with some of his correspondents, but does not include this information on postcards because they may be easily read by a host of people aside from mail-screening Jail officials. As a result of the Postcard-Only Mail Policy, he does not write much.
(c) Nace must express all of his thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate his thoughts and ideas.
Page 9 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 10 of 22
(d) Because his family and friends cannot often visit him and the expense of telephone calls, mail correspondence is the best way for Nace to stay in contact with his family and friends.
18. All Jail inmates are in the custody and under the control of Sheriff Hall. As Jail inmates, the Jail Inmate Plaintiffs remain subject to the policies, practices, and customs of Sheriff Hall.
19. Before Sheriff Hall instituted the Postcard Only Mail Policy, Jail inmates freely sent mail in a letter form that consisted of one or more sheets of paper enclosed in an envelope to correspondents outside the jail. Inmates tendered for collection outgoing letters in unsealed, open envelopes to Jail officials (though at times deputies would permit inmates to seal the envelopes themselves). During the nightshift (7 pm – 7 am) Sheriff’s deputies would at times read or scan the nonprivileged outgoing mail emanating from the housing unit to which they were assigned that evening. After reading or scanning the outgoing letter mail, the deputy would seal closed the envelope. Indigent inmates would receive stationary, sufficient postage, and envelopes to send two letters per week. For each letter, indigent inmates would be supplied with two sheets of 8.5 inch by 11 inch paper on which they could write on both sides.
Page 10 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 11 of 22
20. Now, Sheriff Hall and those acting under his authority will not transmit to a correspondent outside the jail non-privileged outgoing mail that does not conform to the Postcard Only Mail Policy. For example, under the Postcard Only Mail Policy Martin Luther King Jr. could not have sent the letter he sent from the Birmingham Jail on April 16, 1963, to his fellow clergymen. Likewise, the Apostle Paul under the challenged Postcard Only Mail Policy could not have written his fellow Christians his Epistles while imprisoned by the Romans.
21. Under the Postcard Only Mail Policy, inmates may obtain postcards from Jail officials. Jail officials will give indigent inmates two per week. All postcards received from Jail officials are sized no larger than 4.25 inches by 6 inches and are typically 4.25 inches by 5.5 inches (such that post postcards may be cut from letter-sized (8.5” x 11”) card stock). Alternatively, Jail inmates may receive metered postcards from friends and family. However, these metered postcards must have been purchased from the United States Postal Service (USPS), which since July 26, 2010, has only sold them in sizes that were no more than 41/4 inches high x 6 inches long. Postcard Only Mail Policy prohibits inmates from sending any non-legal mail unless it is on a postcard received from Jail officials or one purchased from the USPS.
Page 11 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 12 of 22
22. Sheriff Hall requires that the front of the postcard contain only the addressee’s name and address, the sending inmate’s name and return address, and postage. Only the back may contain a substantive message. However, the inmate must leave an area of 1 inch by 2 inches blank so that Jail officials may stamp the following message (actual size) in the bottom, right corner:
23. The Postcard Only Mail Policy shifted the task of reading or scanning outgoing mail from the nightshift deputies to daytime administrative personnel.
24. This policy is reflected in the written Outgoing Mail Procedure (Standard Operating Procedure No. 15.48), revised on August 14, 2010, previously filed as docket entry 5.1 (DE 5.1).
25. Although Sheriff Hall restricts incoming mail in other respects, he permits incoming mail to be in letter form and consist of one or more sheets of paper contained inside an envelope.
26. Jail inmates have few alternatives to mail by which to communicate privately and freely with friends and family. Telephone calls from Jail inmates in the housing areas are limited to collect telephone calls, which are very expensive.
Page 12 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 13 of 22
Fellow inmates may easily overhear these telephone calls, which are made in a common area in a row of telephones. Family and friends may only visit a Jail inmate during a specific two-hour time period during the week, which prevents many friends and family with a conflict during this time period from visiting at all. Friends and family who do not live near the Jail or in another state cannot easily visit Jail inmates. When family and friends can visit a Jail inmate, they speak over a telephone to each other in ways that may be overheard by other inmates or visitors. Therefore, for all these reasons, mail correspondence for many Jail inmates and their family and friends is the most feasible, practical, and private way to communicate and maintain a relationship.
27. The Postcard-Only Mail Policy impermissibly curtails the ability of Jail inmates to express themselves and their correspondents to receive the expressions inmates desire to transmit. It allows indigent inmates less then oneeighteenth the amount of writing space permitted under the former policy and practice. Instead of sending one one-ounce letter for 44¢, Jail inmates must use over 18 postcards with postage at 28¢ each and costing a total of $5.04 to transmit the same amount of information. The Postcard-Only Mail Policy prevents Jail inmates from fully expressing their thoughts. Instead, Jail inmates must express these messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate the inmates’ thoughts and ideas.
Page 13 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 14 of 22
The Postcard-Only Mail Policy prevents family and friends of inmates from receiving these fully developed and complete messages from Jail inmates.
28. In addition, the postcards expose the content of the inmates’ communications to anyone who handles, processes, or views in route the postcards, both within the jail and after the postcards leave the facility. Prior to the PostcardOnly Mail Policy, Jail inmates including the Jail Inmate Plaintiffs would regularly write letters to family and friends that contained sensitive information, including medical, spiritual, intimate, and financial information. Because these letters were enclosed in envelopes and only subject to review by a Sheriff deputy, Jail inmates felt confident that this sensitive information would not be exposed for others to see, including postal carriers. The Postcard-Only Mail Policy has forced Jail inmates to either abandon including sensitive information in their non-privileged correspondence or risk divulging confidential, sensitive information to unknown third-parties who can easily intercept these messages on postcards. Including sensitive financial information on a postcard increases the chance that the Jail inmate may become a victim of identity thief or fraud. The Postcard-Only Mail Policy either chills Jail inmates from writing about sensitive matters entirely, or it requires them to expose their communications to a host of strangers or unintended recipients—such as postal employees, an office secretary, or a child who retrieves
Page 14 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 15 of 22
from the mailbox a postcard that discusses sensitive details intended only for the parent’s eyes.
29. At times, Jail inmates deliver their mail by placing it on the bars of their cell or on the glass on the door leading from the dorms. In many circumstances, fellow inmates may view the contents of the postcard placed for delivery in this manner.
30. The Sheriff’s Postcard-Only Mail Policy has and continues to inhibit, infringe, limit, chill, suppress, and interfere with the Plaintiffs’ constitutionallyprotected communications between inmates and correspondents or intended correspondents.
31. The Plaintiffs have suffered and will continue to suffer an injury as a result of the Postcard-Only Mail Policy. Sheriff Hall caused and will continue to cause this injury. The Postcard-Only Mail Policy infringes on the U.S. Constitution’s First Amendment free speech rights of Jail inmates Plaintiffs to communicate in a complete and meaningful way with and to express themselves fully to their family and friends.
32. Sheriff Hall’s Postcard-Only Mail Policy has and will continue to inhibit, infringe, limit, chill, and suppress the constitutionally protected communications from Jail inmates to their correspondents.
Page 15 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 16 of 22
33. Sheriff Hall has acted and threatens to continue acting under color of state law to deprive Plaintiffs of their constitutional rights. Plaintiffs face a real and immediate threat of irreparable injury as a result of these actions and threatened actions of Sheriff Hall and the existence, operation, and threat of enforcement of the Postcard-Only Mail Policy.
34. Jail Inmate Plaintiffs desire to and would write non-privileged letters to family and friends and include sensitive information and full-page drawings absent the Postcard-Only Mail Policy.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 35. Each of the Jail Inmate Plaintiffs has filed formal grievances and exhausted all available administrative remedies.
Page 16 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 17 of 22
CLASS ACTION ALLEGATIONS 36. The individual Jail Inmate Plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 37. The individual Jail Inmate Plaintiffs seek to represent a class defined as “all current and future inmates incarcerated or detained in the Santa Rosa County, Florida, Jail who are subject to or affected by the Postcard-Only Mail Policy.” 38. The proposed class is so numerous and so fluid that joinder of all members is impracticable and uneconomical. With over seven thousand persons admitted to the Jail annually and an average Jail inmate population of around five hundred, the approximate size of the class is over five-hundred persons at a time. 39. There are questions of law and fact common to the members of the Plaintiff Class. The same policy and practice applies to all class members. The question common to all members of the Plaintiff Class is what justification Sheriff Hall has for instituting and maintaining his Postcard-Only Mail Policy and whether these reasons justify the specific free-speech restrictions of the Plaintiff Class. These common questions predominate.
Page 17 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 18 of 22
40. The claims of the Jail Inmate Plaintiffs are typical of the claims of the members of the class. The Jail Inmate Plaintiffs suffer injuries similar in kind and degree as the class. They raise questions of fact and law common to the class. Their injuries arise from the same conduct as the class injuries. The Jail Inmate Plaintiffs seek a permanent injunction to end the unlawful policy and practices as the class would desire.
41. The named Jail Inmate Plaintiffs will fairly and adequately protect the interests of the class. Jail Inmate Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the class. Jail Inmate Plaintiffs understand the duties and responsibilities of serving as class representatives. Jail Inmate Plaintiffs are represented by attorneys employed by or working in cooperation with the ACLU Foundation of Florida, and the Florida Justice Institute, which have extensive experience in class action cases involving federal civil rights claims for inmates.
42. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
Page 18 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 19 of 22
COUNT 1: SUPPRESSION OF PROTECTED SPEECH (Jail Inmate Plaintiffs - 42 U.S.C. §1983)
43. Jail Inmate Plaintiffs reallege and incorporate by reference all of the preceding paragraphs in this complaint.
44. The Defendant has deprived, and continues to deprive, Jail Inmate Plaintiffs of their rights under the First Amendment to the United States Constitution, which are secured through the Fourteenth Amendment. The Sheriff’s Postcard Only Mail Policy established by Defendant is the cause in fact of the constitutional violations.
45. Absent intervention by this Court the Jail Inmate Plaintiffs will suffer injury as a result of the Defendant’s unconstitutional practices.
46. Unless restrained by this Court, the Defendant will continue to enforce the Postcard Only Mail Policy. Jail Inmate Plaintiffs have been and will continue to be irreparably harmed by the Defendant’s denial of Plaintiffs’ fundamental constitutional right to free speech.
47. Jail Inmate Plaintiffs have no adequate remedy at law for the denial of their fundamental constitutional rights.
Page 19 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 20 of 22
48. In depriving the Jail Inmate Plaintiffs of these rights, Defendant acted under color of state law. This deprivation under color of state law is actionable under and may be redressed by 42 U.S.C. §1983.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request the following relief: A. An order certifying this matter as a Plaintiff Inmate class action pursuant to Rule 23; B. An order declaring Defendant’s Postcard-Only Mail Policy alleged above to be in violation of the First and Fourteenth Amendments to the U.S. Constitution; C. An order permanently enjoining Defendant and his officers, agents, affiliates, subsidiaries, servants, employees, successors, and all other persons or entities in active concert or privity or participation with him, from continuing their unlawful Postcard-Only Mail Policy or any other policy that limits outgoing mail to postcards, thus restoring the status quo that previously existed, including enjoining Defendant from restricting all non-privileged outgoing mail to be in a postcard format;
Page 20 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 21 of 22
D. An order commanding the Defendant to provide notice to all current Jail inmates and Jail officials implementing the Defendant’s policies that the PostcardOnly Mail Policy is terminated;
E. An order permanently enjoining Defendant and his officers, agents, affiliates, subsidiaries, servants, employees, successors, and all other persons or entities in active concert or privity or participation with him, from taking retaliatory action against Plaintiffs for bringing this lawsuit;
F. An award to Plaintiffs of reasonable attorneys’ fees and costs incurred in connection with this action from the Defendants pursuant to 42 U.S.C. §1988;
G. An order retaining the Court’s jurisdiction of this matter to enforce the terms of the Court’s orders; and
H. Such further and different relief as is just and proper or that is necessary to make the Plaintiffs whole.
Page 21 of 22

Case 3:10-cv-00355-MCR -EMT Document 34 Filed 12/14/10 Page 22 of 22

CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed today the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all persons registered for this case, including the Defendant’s counsel.

Dated: December 14, 2010

Respectfully Submitted,

s/ Benjamin James Stevenson Benjamin James Stevenson (Fla. Bar. No.
598909) American Civil Liberties Union Found. of
Fla. Post Office Box 12723 Pensacola, FL 32591-2723 bstevenson@aclufl.org T. 786.363.2738 F. 786.363.1985

Randall C. Marshall (Fla. Bar No.: 181765)
RMarshall@aclufl.org Maria Kayanan (Fla. Bar No.:
305601) MKayanan@aclufl.org American Civil Liberties Union
Found. of Fla. 4500 Biscayne Blvd., Ste. 340 Miami, Florida 33137

Randall C. Berg, Jr. (Fla. Bar No. 318371) T. 786.363.2707 Joshua A. Glickman (Fla. Bar No. 43994) F. 786.363.1108

Shawn A. Heller (Fla. Bar No. 46346)

Florida Justice Institute, Inc.

100 SE Second St., Ste. 3750

Miami, Florida 33131-2115

RBerg@FloridaJusticeInstitute.org

T. 305.358.2081

F. 305.358.0910

Counsel for Plaintiffs

Page 22 of 22

 
 Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 1 of 21

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
Pensacola Division

MARCIE HAMILTON and JAMIE BROJANAC, all on behalf of themselves and all others similarly situated;

Plaintiffs,

v.
WENDELL HALL, in his official capacity as Sheriff for Santa Rosa County, Florida,

No. 3:10-cv-355 MCR/EMT Class Action

Defendant.

/

THIRD AMENDED COMPLAINT

Plaintiffs MARCIE HAMILTON and JAMIE BROJANAC, all on behalf of

themselves and all others similarly situated, sue Defendant WENDELL HALL

(“Hall”) in his official capacity as Sheriff for Santa Rosa County, Florida, and

allege as follows:

INTRODUCTION

1. Plaintiffs challenge Sheriff Hall’s recently instituted policy and practice (“Postcard-Only Mail Policy”) that forbids inmates of the Santa Rosa County, Florida, Jail (“Jail”) from sending letters enclosed in envelopes to their parents, children, spouses, friends, other loved ones, or other correspondents.

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 2 of 21
Instead, Jail inmates must write all of their correspondences in a postcard format except for privileged/legal mail. This new policy impermissibly restricts inmates’ ability to exercise their rights to communicate with correspondents outside the jail and these correspondents’ right to receive these inmates’ communications and expressions, in violation of the First and Fourteenth Amendments to the United States Constitution.
2. Plaintiffs ask this Court to enjoin the Postcard-Only Mail Policy and declare that it violates their constitutional rights.
JURISDICTION AND VENUE 3. Plaintiffs bring this action pursuant 42 U.S.C. §1983 for violations of civil rights under the First and Fourteenth Amendments to the United States Constitution. 4. This Court has subject-matter jurisdiction over this matter pursuant to 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1343(a)(3) (civil rights). 5. Venue is proper in this judicial district and division pursuant to 28 U.S.C. §1391(b) and N.D. Fla. Loc. R. 3.1. Defendant Hall resides in this district and division and the unlawful practices that give rise to the claims herein occurred within this district and division.
Page 2 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 3 of 21
PARTIES 6. Plaintiff Marcie Hamilton (“Hamilton”) is a Jail inmate. She has remained in the Jail as an inmate since March 5, 2010. As set forth in the “General Allegations” section, she has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy. 7. Plaintiff Jamie Brojanac (“Brojanac”) is a Jail inmate. She has remained in the Jail as an inmate since December 9, 2010. As set forth in the “General Allegations” section, she has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy. 8. Marcie Hamilton, Jamie Brojanac, and the class of similarly-situated inmates in the Jail shall be referred to collectively as “Jail Inmate Plaintiffs.” 9. Defendant Sheriff Wendell Hall is now, and at all material times has been, the Sheriff of Santa Rosa County, Florida. As Santa Rosa County Sheriff, he is charged with the care and custody of inmates at the Santa Rosa County Jail. He exercises overall responsibility for the policies and practices of the Jail, including the Postcard-Only Mail Policy. Plaintiffs sue Hall in his official capacity for injunctive and declaratory relief and attorneys fees and costs.
Page 3 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 4 of 21
10. Defendant Hall at all times relevant hereto was acting and continues to act under color of law.
11. Jail correction officers, deputies, their supervisors, working in the Jail are agents and employees of Sheriff Hall.
GENERAL ALLEGATIONS 12. The Santa Rosa County, Florida, Jail (“Jail”) is located in Milton, Florida. It houses both convicted prisoners and pretrial detainees. It has a rated capacity of approximately 634 inmates. 13. Effective July 26, 2010, Sheriff Hall instituted a policy that required all outgoing mail, except legal or privileged mail, sent by an Jail inmate to be in a postcard form (hereinafter “Postcard Only Mail Policy”). Only mail to or from the courts, attorneys, government officials or agencies, and news media is considered legal or privileged (hereinafter collectively “privileged”). 14. Marcie Hamilton has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Prior the implementation of the Postcard-Only Mail Policy, Hamilton regularly wrote numerous letters per week to family members and friends, including her mother, brother, and minor son and daughter. She frequently
Page 4 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 5 of 21
sent country songs, poems, and drawings and other art on full sheets of white paper to her children. In separate letters enclosed in envelopes and addressed to her son or daughter individually, she discussed sensitive issues of sexual development, sexual orientation, and family planning. She would share personal information about her health and finances with her mother. She received and filled requests from her children to making drawings of pictures they sent to her.
(b) However, now Hamilton may no longer send these personal letters or full-page drawings on white paper. Though she would like to continue to discuss sensitive topics with correspondents, she no longer includes this information in messages because on postcards they may be easily read by a host of people aside from mail-screening Jail officials, including other household members to whom the messages are not directed. She may no longer create and send art on white paper and as a result the colored paper postcards (usually light blue) distort the intended coloration of her drawings and art. Hamilton now sends fewer pieces of mail and no full-page drawings and the messages in her mail are shorter. Her daughter has disappointedly asked why Hamilton no longer sends her country music songs.
Page 5 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 6 of 21
(c) Hamilton would like to send letters immediately to her family and friends, including her mother, brother (who lives in Tennessee), and minor son and daughter, but cannot under the Postcard-Only Mail Policy.
(d) Hamilton would like to share personal information, like financial and medical information with her mother and give advice to her son and daughter individually (without other house residents intercepting the messages and reading them), but does not include this information on postcards because the postcards may be easily read by a host of people, including other family members to whom it was not directed.
(e) Because usually her mother, minor daughter, and minor son all visit her at the same time (when they are able to do so), she cannot have substantive one-to-one communication with any one of them.
(f) Hamilton must express all of her thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate her thoughts and ideas.
(g) Since the Postcard-Only Mail Policy was instituted, she has attempted to transmit longer messages over multiple postcards required to complete the message. In these cases, she would label the sequence in which the recipient should organize the postcards so to coherently read the entire message in
Page 6 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 7 of 21
its intended order. However, at times not all the postcards arrive concurrently; at other times, one or two postcards in the multiple postcard correspondence never arrive at all.
(h) Because some of her family (e.g., brother lives in Tennessee) and friends cannot often visit her and the expense of telephone calls, mail correspondence is the best way for her to stay in contact and maintain relationships with her family and friends.
(i) Having little or no money in the Jail’s inmate account, she is considered indigent and relies on her friends and family and Sheriff Hall for daily necessitates including a supply of writing and mail supplies. Therefore, often the number of pieces of mail she may send is limited by the Jail’s supplied allotment of mail supplies.
15. Jamie Brojanac has been, and continues to be, deprived of constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Brojanac wants immediately to send letters to her family and friends, but does not because of the Sheriff’s Postcard-Only Mail Policy.
(b) Brojanac is often better able to connect with her daughters through drawings. She wants immediately to send full page drawings to her two
Page 7 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 8 of 21
youngest, pre-teen daughters, but does not because of the Sheriff’s Postcard-Only Mail Policy.
(c) Brojanac’s mother is legally blind and cannot drive a car and accordingly her mother does not visit Brojanac. Furthermore, her mother cannot read the small print on postcards, but could read a letter.
(d) Brojanac’s children live with relatives. Brojanac would like to communicate mother-child messages through letters to her children, who may be embarrassed if a relative read these private messages. Brojanac would like to communicate with her relatives about her children’s welfare without her children knowing the contents of the messages. However, her children and the relatives with whom they live may intercept a message not intended for them, if it is in postcard format. Therefore, as a result she does not send these sensitive messages.
(e) Brojanac would like to share personal sensitive information (health, finances, and intimate emotions) with some of her correspondents, but will not include this information on postcards because they may be easily read by a host of people aside from mail-screening Jail officials.
(f) Because Brojanac’s family and friends cannot often visit her and the expense of telephone calls, mail correspondence is the best way for her to stay in contact with her family.
Page 8 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 9 of 21
(g) Having little or no money in the Jail’s inmate account, Brojanac is considered indigent and relies on Brojanac’s friends and family and Sheriff Hall for daily necessitates including a supply of writing and mail supplies. Therefore, often the number of pieces of mail Brojanac may send is limited to the Jail’s supplied allotment of mail supplies.
16. All Jail inmates are in the custody and under the control of Sheriff Hall. As Jail inmates, the Jail Inmate Plaintiffs remain subject to the policies, practices, and customs of Sheriff Hall.
17. Before Sheriff Hall instituted the Postcard Only Mail Policy, Jail inmates freely sent mail in a letter form that consisted of one or more sheets of paper enclosed in an envelope to correspondents outside the jail. Inmates tendered for collection outgoing letters in unsealed, open envelopes to Jail officials (though at times deputies would permit inmates to seal the envelopes themselves). During the nightshift (7 pm – 7 am) Sheriff’s deputies would at times read or scan the nonprivileged outgoing mail emanating from the housing unit to which they were assigned that evening. After reading or scanning the outgoing letter mail, the deputy would seal closed the envelope. Indigent inmates would receive stationary, sufficient postage, and envelopes to send two letters per week. For each letter,
Page 9 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 10 of 21
indigent inmates would be supplied with two sheets of 8.5 inch by 11 inch paper on which they could write on both sides.
18. Now, Sheriff Hall and those acting under his authority will not transmit to a correspondent outside the jail non-privileged outgoing mail that does not conform to the Postcard Only Mail Policy. For example, under the Postcard Only Mail Policy Martin Luther King Jr. could not have sent the letter he sent from the Birmingham Jail on April 16, 1963, to his fellow clergymen. Likewise, the Apostle Paul under the challenged Postcard Only Mail Policy could not have written his fellow Christians his Epistles while imprisoned by the Romans.
19. Under the Postcard Only Mail Policy, inmates may obtain postcards from Jail officials. Jail officials will give indigent inmates two per week. All postcards received from Jail officials are sized no larger than 4.25 inches by 6 inches and are typically 4.25 inches by 5.5 inches (such that post postcards may be cut from letter-sized (8.5” x 11”) card stock). Alternatively, Jail inmates may receive metered postcards from friends and family. However, these metered postcards must have been purchased from the United States Postal Service (USPS), which since July 26, 2010, has only sold them in sizes that were no more than 41/4 inches high x 6 inches long. Postcard Only Mail Policy prohibits inmates from
Page 10 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 11 of 21
sending any non-legal mail unless it is on a postcard received from Jail officials or one purchased from the USPS.
20. Sheriff Hall requires that the front of the postcard contain only the addressee’s name and address, the sending inmate’s name and return address, and postage. Only the back may contain a substantive message. However, the inmate must leave an area of 1 inch by 2 inches blank so that Jail officials may stamp the following message (actual size) in the bottom, right corner:
21. The Postcard Only Mail Policy shifted the task of reading or scanning outgoing mail from the nightshift deputies to daytime administrative personnel.
22. This policy is reflected in the written Outgoing Mail Procedure (Standard Operating Procedure No. 15.48), revised on August 14, 2010, previously filed as docket entry 5.1 (DE 5.1).
23. Although Sheriff Hall restricts incoming mail in other respects, he permits incoming mail to be in letter form and consist of one or more sheets of paper contained inside an envelope.
Page 11 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 12 of 21
24. Jail inmates have few alternatives to mail by which to communicate privately and freely with friends and family. Telephone calls from Jail inmates in the housing areas are limited to collect telephone calls, which are very expensive. Fellow inmates may easily overhear these telephone calls, which are made in a common area in a row of telephones. Family and friends may only visit a Jail inmate during a specific two-hour time period during the week, which prevents many friends and family with a conflict during this time period from visiting at all. Friends and family who do not live near the Jail or in another state cannot easily visit Jail inmates. When family and friends can visit a Jail inmate, they speak over a telephone to each other in ways that may be overheard by other inmates or visitors. Therefore, for all these reasons, mail correspondence for many Jail inmates and their family and friends is the most feasible, practical, and private way to communicate and maintain a relationship.
25. The Postcard-Only Mail Policy impermissibly curtails the ability of Jail inmates to express themselves and their correspondents to receive the expressions inmates desire to transmit. It allows indigent inmates less then oneeighteenth the amount of writing space permitted under the former policy and practice. Instead of sending one one-ounce letter for 44¢, Jail inmates must use over 18 postcards with postage at 28¢ each and costing a total of $5.04 to transmit the same amount of information. The Postcard-Only Mail Policy prevents Jail
Page 12 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 13 of 21
inmates from fully expressing their thoughts. Instead, Jail inmates must express these messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate the inmates’ thoughts and ideas. The Postcard-Only Mail Policy prevents family and friends of inmates from receiving these fully developed and complete messages from Jail inmates.
26. In addition, the postcards expose the content of the inmates’ communications to anyone who handles, processes, or views in route the postcards, both within the jail and after the postcards leave the facility. Prior to the PostcardOnly Mail Policy, Jail inmates including the Jail Inmate Plaintiffs would regularly write letters to family and friends that contained sensitive information, including medical, spiritual, intimate, and financial information. Because these letters were enclosed in envelopes and only subject to review by a Sheriff deputy, Jail inmates felt confident that this sensitive information would not be exposed for others to see, including postal carriers. The Postcard-Only Mail Policy has forced Jail inmates to either abandon including sensitive information in their non-privileged correspondence or risk divulging confidential, sensitive information to unknown third-parties who can easily intercept these messages on postcards. Including sensitive financial information on a postcard increases the chance that the Jail inmate may become a victim of identity thief or fraud. The Postcard-Only Mail Policy either chills Jail inmates from writing about sensitive matters entirely, or it
Page 13 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 14 of 21
requires them to expose their communications to a host of strangers or unintended recipients—such as postal employees, an office secretary, or a child who retrieves from the mailbox a postcard that discusses sensitive details intended only for the parent’s eyes.
27. At times, Jail inmates deliver their mail by placing it on the bars of their cell or on the glass on the door leading from the dorms. In many circumstances, fellow inmates may view the contents of the postcard placed for delivery in this manner. At times, an inmate’s viewing the contents and messages in other inmate’s postcard left for pick-up has cause significant disturbances in the jail.
28. The Sheriff’s Postcard-Only Mail Policy has and continues to inhibit, infringe, limit, chill, suppress, and interfere with the Plaintiffs’ constitutionallyprotected communications between inmates and correspondents or intended correspondents.
29. The Plaintiffs have suffered and will continue to suffer an injury as a result of the Postcard-Only Mail Policy. Sheriff Hall caused and will continue to cause this injury. The Postcard-Only Mail Policy infringes on the U.S. Constitution’s First Amendment free speech rights of Jail inmates Plaintiffs to
Page 14 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 15 of 21
communicate in a complete and meaningful way with and to express themselves fully to their family and friends.
30. Sheriff Hall’s Postcard-Only Mail Policy has and will continue to inhibit, infringe, limit, chill, and suppress the constitutionally protected communications from Jail inmates to their correspondents.
31. Sheriff Hall has acted and threatens to continue acting under color of state law to deprive Plaintiffs of their constitutional rights. Plaintiffs face a real and immediate threat of irreparable injury as a result of these actions and threatened actions of Sheriff Hall and the existence, operation, and threat of enforcement of the Postcard-Only Mail Policy.
32. Jail Inmate Plaintiffs desire to and would write non-privileged letters to family and friends and include sensitive information and full-page drawings absent the Postcard-Only Mail Policy.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 33. Each of the Jail Inmate Plaintiffs named herein has filed formal grievances and exhausted all available administrative remedies.
Page 15 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 16 of 21
CLASS ACTION ALLEGATIONS 34. The individual Jail Inmate Plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 35. The individual Jail Inmate Plaintiffs seek to represent a class defined as “all current and future inmates incarcerated or detained in the Santa Rosa County, Florida, Jail who are subject to or affected by the Postcard-Only Mail Policy.” 36. The proposed class is so numerous and so fluid that joinder of all members is impracticable and uneconomical. With over seven thousand persons admitted to the Jail annually and an average Jail inmate population of around five hundred, the approximate size of the class is over five-hundred persons at a time. 37. There are questions of law and fact common to the members of the Plaintiff Class. The same policy and practice applies to all class members. The question common to all members of the Plaintiff Class is what justification Sheriff Hall has for instituting and maintaining his Postcard-Only Mail Policy and whether these reasons justify the specific free-speech restrictions of the Plaintiff Class. These common questions predominate.
Page 16 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 17 of 21
38. The claims of the Jail Inmate Plaintiffs are typical of the claims of the members of the class. The Jail Inmate Plaintiffs suffer injuries similar in kind and degree as the class. They raise questions of fact and law common to the class. Their injuries arise from the same conduct as the class injuries. The Jail Inmate Plaintiffs seek a permanent injunction to end the unlawful policy and practices as the class would desire.
39. The named Jail Inmate Plaintiffs will fairly and adequately protect the interests of the class. Jail Inmate Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the class. Jail Inmate Plaintiffs understand the duties and responsibilities of serving as class representatives. Jail Inmate Plaintiffs are represented by attorneys employed by or working in cooperation with the ACLU Foundation of Florida, and the Florida Justice Institute, which have extensive experience in class action cases involving federal civil rights claims for inmates.
40. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
Page 17 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 18 of 21
COUNT 1: SUPPRESSION OF PROTECTED SPEECH (Jail Inmate Plaintiffs - 42 U.S.C. §1983)
41. Jail Inmate Plaintiffs reallege and incorporate by reference all of the preceding paragraphs in this complaint.
42. The Defendant has deprived, and continues to deprive, Jail Inmate Plaintiffs of their rights under the First Amendment to the United States Constitution, which are secured through the Fourteenth Amendment. The Sheriff’s Postcard Only Mail Policy established by Defendant is the cause in fact of the constitutional violations.
43. Absent intervention by this Court the Jail Inmate Plaintiffs will suffer injury as a result of the Defendant’s unconstitutional practices.
44. Unless restrained by this Court, the Defendant will continue to enforce the Postcard Only Mail Policy. Jail Inmate Plaintiffs have been and will continue to be irreparably harmed by the Defendant’s denial of Plaintiffs’ fundamental constitutional right to free speech.
45. Jail Inmate Plaintiffs have no adequate remedy at law for the denial of their fundamental constitutional rights.
Page 18 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 19 of 21
46. In depriving the Jail Inmate Plaintiffs of these rights, Defendant acted under color of state law. This deprivation under color of state law is actionable under and may be redressed by 42 U.S.C. §1983.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request the following relief: A. An order certifying this matter as a Plaintiff Inmate class action pursuant to Rule 23; B. An order declaring Defendant’s Postcard-Only Mail Policy alleged above to be in violation of the First and Fourteenth Amendments to the U.S. Constitution; C. An order permanently enjoining Defendant and his officers, agents, affiliates, subsidiaries, servants, employees, successors, and all other persons or entities in active concert or privity or participation with him, from continuing their unlawful Postcard-Only Mail Policy or any other policy that limits outgoing mail to postcards, thus restoring the status quo that previously existed, including enjoining Defendant from restricting all non-privileged outgoing mail to be in a postcard format;
Page 19 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 20 of 21
D. An order commanding the Defendant to provide notice to all current Jail inmates and Jail officials implementing the Defendant’s policies that the PostcardOnly Mail Policy is terminated;
E. An order permanently enjoining Defendant and his officers, agents, affiliates, subsidiaries, servants, employees, successors, and all other persons or entities in active concert or privity or participation with him, from taking retaliatory action against Plaintiffs for bringing this lawsuit;
F. An award to Plaintiffs of reasonable attorneys’ fees and costs incurred in connection with this action from the Defendants pursuant to 42 U.S.C. §1988;
G. An order retaining the Court’s jurisdiction of this matter to enforce the terms of the Court’s orders; and
H. Such further and different relief as is just and proper or that is necessary to make the Plaintiffs whole.
Page 20 of 21

Case 3:10-cv-00355-MCR -EMT Document 43 Filed 02/24/11 Page 21 of 21

CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed today the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all persons registered for this case, including the Defendant’s counsel.

Dated: February 24, 2011

Respectfully Submitted,

s/ Benjamin James Stevenson Benjamin James Stevenson (Fla. Bar. No.
598909) American Civil Liberties Union Found. of
Fla. Post Office Box 12723 Pensacola, FL 32591-2723 bstevenson@aclufl.org T. 786.363.2738 F. 786.363.1985

Randall C. Marshall (Fla. Bar No.: 181765)
RMarshall@aclufl.org Maria Kayanan (Fla. Bar No.:
305601) MKayanan@aclufl.org American Civil Liberties Union
Found. of Fla. 4500 Biscayne Blvd., Ste. 340 Miami, FL 33137

Randall C. Berg, Jr. (Fla. Bar No. 318371) T. 786.363.2707 Joshua A. Glickman (Fla. Bar No. 43994) F. 786.363.1108

Shawn A. Heller (Fla. Bar No. 46346)

Florida Justice Institute, Inc.

100 SE Second St., Ste. 3750

Miami, FL 33131-2115

RBerg@FloridaJusticeInstitute.org

T. 305.358.2081

F. 305.358.0910

Counsel for Plaintiffs

Page 21 of 21

 
 Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 1 of 26

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA

MARCIE HAMILTON et al.,

Plaintiffs,

v.

No. 3:10-cv-355 MCR/ EMT

WENDELL HALL,

Defendant.

/

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

“General correspondence such as between the inmate, the family, and other persons should be encouraged.”

Florida Sheriff’s Association’s Florida Model Jail Standards (2011), §9.03(a)1

Plaintiff MARCIE HAMILTON, on behalf of herself and a class of all others similarly situated, pursuant to Federal Rule of Civil Procedure 65(a), move the Court for a preliminary injunction enjoining Defendant Sheriff Wendell Hall (“Sheriff”) from enforcing the Postcard-Only Mail Policy and states as follows:

1 Available at http://www.flsheriffs.org/our_program/florida-model-jail-standards/

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 2 of 26

I.

INTRODUCTION & BACKGROUND

Plaintiffs challenge the Sheriff’s policy and practice of forbidding inmates of the Santa Rosa County, Florida, Jail (“Jail”) from sending letters enclosed in envelopes to their parents, children, spouses, friends, other loved ones, or other correspondents (“Postcard-Only Mail Policy”). Instead, Jail inmates must write all of their correspondences on the single side of a postcard, with the exception of privileged or legal mail. This policy impermissibly restricts inmates’ ability to exercise their rights to communicate with correspondents outside the jail and these correspondents’ right to receive these inmates’ communications and expressions, in violation of the First and Fourteenth Amendments to the United States Constitution.

Although inmates at the Jail have three ways to maintain relationships with friends, family, and loved ones, correspondence through the mail is many times the only practical and effective method of communication.2 Telephone calls, which are always collect calls, are expensive. In-person visitation, while occasionally allowed, is limited to a given two-hour window per week, which many times is scheduled during a time that makes it impossible for a friend or family member to visit. Additionally, both telephone

2 See, e.g., Al-Amin v. Smith, 511 F.3d 1317, 1333-34 (11th Cir. 2008) (“Indeed, given their incarceration and often distance from their attorneys, prisoners' use of the mail to communicate with their attorneys about their criminal cases may frequently be a more important free speech right than the use of their tongues.”)
Page 2 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 3 of 26
calls and visitations can be overheard by fellow inmates; neither provides for personal, intimate conversations with family, friends, or loved ones.
The Sheriff’s Postcard-Only Mail Policy severely limits this vital channel of communication. Inmates can no longer discuss sensitive topics of health, finances, or intimate emotions without the likelihood that others will read these messages openly displayed on postcards. A single side of a 4.25” x 5.5” postcard does not provide sufficient space in which an inmate can fully develop and express ideas of complexity, nor can they convey issues of a confidential and/or sensitive nature. Inmates cannot transmit full-size pictures in postcards, which leave little room for anything beyond a caricature. Lastly, inmates cannot direct unique messages to one person (e.g., a child) without the other household member doubtlessly intercepting it. Because postcards cannot replace letters as a vehicle for these messages and communications, these communications simply stop.
Yet, as the U.S. Supreme Court observed, “the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation.”3 “Access [to prisons] is essential … to families and
3 Procunier v. Martinez, 416 U.S. 396, 412 (1974) (citing Federal Bureau of Prisons, Policy Statement 7300.1A (“Constructive, wholesome contact with the community is a valuable therapeutic tool in the overall correctional process.”) and Association of State Correctional Administrators, Policy Guideline (Aug. 23, 1972) (“Correspondence with members of an inmate's family, close friends, associates and organizations is beneficial to the morale of all confined persons and may form the basis for good adjustment in the institution and the community”)).
Page 3 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 4 of 26
friends of prisoners who seek to sustain relationships with [inmates].”4 Through communication, inmates continue to have contact with the outside world. Not only does this better prepare them for life outside the jail walls, but it also gives them a sense of value and worth, which ultimately reduces security problems inside the penal institution.
The Sheriff’s Postcard-Only Mail Policy violates both the spirit and letter of the U.S. Constitution by cutting off forms of expression and intimate connections. Further, it is just bad policy that further isolates inmates reducing security and increasing recidivism. Accordingly, Plaintiffs seek a declaration that the Postcard-Only Mail Policy violates the First Amendment, and an injunction that enjoins the Sheriff from enforcing it.
II. STATEMENT OF FACTS 1. In the summer of 2010, the Sheriff instituted the Postcard-Only Mail Policy. See Hamilton Decl. (DE 54-1), ¶ 2; see also Standard Operating Procedure No. 15.48 (Aug. 14, 2010) (DE 54-4), authenticated as party admission by Stevenson Decl. (DE 54-3). Pursuant to the Sherriff’s Postcard-Only Mail Policy, all Jail inmates’ outgoing mail, except legal or privileged mail, must be in a postcard form. Id. 2. Pursuant to a notice entitled “Effective July 15, 2010” (DE 54-8), the Sheriff required that the front of the postcard contain only the addressee’s name and
4 Thornburg v. Abbott, 490 U.S. 401, 407 (1989).
Page 4 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 5 of 26
address, the sending inmate’s name and return address, and postage. See id., authenticated as party admission by Stevenson Decl. (DE 54-3). Only the back of the postcard may contain a substantive message. Id. However, the inmate must also leave an area of 1 inch by 2 inches blank so that Jail officials may stamp the following message (actual size) in the bottom, right corner:
Id. 3. Jail inmates are only permitted to mail postcards either received from Jail
officials or metered postcards that were purchased from the United States Postal Service (USPS). Hamilton Decl. (DE 54-1), ¶ 8. A common USPS postcard is depicted in Hamilton Exhibit A. Id. All postcards received from Jail officials are typically 4.25 inches by 5.5 inches. Id. A postcard received from Jail officials is depicted in Hamilton Exhibit A. Id.
4. Plaintiff Hamilton is a jail inmate. Hamilton Decl. (DE 54-1), ¶ 1. She would like immediately to send letters to friends and family. Hamilton Decl., ¶ 5; Hamilton Decl., ¶ 5. But for the Sheriff’s Postcard-Only Mail Policy, she would send letters to friends and family. Id.
5. Hamilton has remained in the Jail as an inmate since March 5, 2010. Hamilton Decl. (DE 54-1), ¶ 1. Although she would like to correspond with her mother
Page 5 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 6 of 26
about health and finances, she is unable to correspond with her mother regarding these sensitive topics because she does not want to expose such information on a postcard that may be read by a number of people, who would have been unable to read her mail prior to implementation of the Postcard-Only Mail Policy. Id. at ¶ 5. Although Hamilton would also like to give advice to her daughter about sexual development through written correspondence, she is similarly unable to discuss this information in postcard format because she believes her daughter would be horribly embarrassed if household members accidently read mail intended for her daughter and including such information. Id. She would similarly like to send full-page drawings, poems, and country songs to her children, but is unable to do so. Id. She is unable to fully develop her thoughts and ideas in the space provided in postcards. Id. Prior to the implementation of the Postcard-Only Mail Policy, Hamilton was able to – and did – correspond in the manner described above. Id.
6. Telephone calls from Jail inmates in the housing areas are limited to collect telephone calls, which are very expensive. Hamilton Decl. (DE 54-1), ¶ 6; Inmate Handbook (DE 54-10), at p. 21 (pdf p. 22), authenticated as party admission by Stevenson Decl. (DE 54-3). Fellow inmates may easily overhear these telephone calls, which are made in a common area in a row of telephones. Hamilton Decl. (DE 54-1), ¶ 6. Family and friends may only visit Jail inmates during a specific two-hour time period during the week. Id., at ¶ 7; Visitation Schedule (DE 54-9), authenticated as party admission by Stevenson Decl. When family and friends can visit a Jail inmate, they
Page 6 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 7 of 26
speak over a telephone to each other in ways that may be overheard by other inmates or visitors. Hamilton Decl., ¶ 7.
7. Jail inmates deliver their mail by placing it on the bars of their cell or on the glass on the door leading from the dorms. Hamilton Decl., ¶ 4. Fellow inmates may view the contents of the postcard placed for delivery in this manner. Id.
8. Defendant Hall, as Sheriff of Santa Rosa County, Florida, is charged as a matter of law with the care, control, and custody of inmates at the Santa Rosa County Jail. See § 30.49(2)(a), Fla. Stat. (requiring the Sheriff to submit a proposal budget that includes “proposed expenditures for operating and equipping the sheriff's office and jail”); Baugher v. Alachua County, 305 So.2d 838, 839 (Fla. 1st DCA 1975) (concluding that the “operation of that [the jail] and the control and custody of the inmates therein incarcerated are in the hands of the sheriff”), followed by White v. Palm Beach County, 404 So.2d 123, 125 (Fla. 4th DCA 1981) and Rolle v. Brevard County, Florida, 2007 WL 328682 (M.D. Fla. 2007) (noting that jail operational “decisions are the province of the Sheriff”).
9. Other secure penal institutions in Florida and elsewhere permit inmates to send full-page letters to friends and family. Martin Decl. (DE 54-2), ¶¶ 16-21.
10. Inspecting every piece of outgoing mail is not necessary or essential to maintaining jail order or security. Id. at ¶ 13.
Page 7 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 8 of 26
11. The Sheriff’s Postcard-Only Mail Policy is not necessary or essential to further any legitimate interests in security or order. Id. at ¶ 14. The policy unnecessarily limits inmate opportunities to engage in lawful and routinely accepted correspondence practices. Id.
12. The Sheriff’s Postcard-Only Mail Policy is antithetical to sound inmate governance. Id. at ¶ 15. Not only do restrictions on the means of maintaining family and community relationships and ties frustrate the inmates’ reintegration into the community upon release, but such restrictions often lead inmates to feel isolated and humiliated, which make the inmates more difficult to control and secure. Id.
III. PRELIMINARY INJUNCTION STANDARD A district court should grant preliminary injunctive relief when the movant establishes four factors: “(1) a substantial likelihood of success on the merits; (2) irreparable injury will be suffered if the relief is not granted; (3) the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) entry of the relief would serve the public interest.” Siebert v. Allen, 506 F.3d 1047, 1049 (11th Cir. 2007) (citing Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005)).
Page 8 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 9 of 26
IV. ARGUMENT A. There is a Substantial Likelihood that Jail Inmates Will Succeed on the
Merits of Their Claims The Jail inmates will ultimately prevail on the merits of their claim. The Sheriff’s Postcard-Only Mail Policy restricts speech and infringes on the First Amendment. Under the applicable Procunier heightened scrutiny test, the Sheriff’s policy fails because it neither furthers an important government interest nor is it narrowly tailored. 1. The Sherriff’s Postcard-Only Mail Policy Implicates the First Amendment The right to send and receive mail generally is protected by the First Amendment. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 427 (1993) (“A prohibition on the use of the mails is a significant restriction of First Amendment rights.”). The U.S. Supreme Court has specifically recognized inmates’ First Amendment right to correspond with friends and family outside a prison. Procunier v. Martinez, 416 U.S. 396, 408-09 (1974) (noting that both inmates and family and friends of prisoners who seek to sustain relationships with them enjoy First Amendment rights to do so). Free speech rights exist in jail as “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). Therefore, the First Amendment applies to the Sheriff’s Postcard-Only Mail Policy restricting inmate mail.5
5 Indeed, the policy amounts to prior restraint on speech. “A prior restraint on
Page 9 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 10 of 26
The Sheriff’s Postcard-Only Mail Policy prohibits jail inmates from communicating through non-privileged letters. Although the restriction is not an outright ban of all mail—it still permits limited communication on the back of postcards—the availability of other limited forms or channels of communication does not alone justify the free speech restrictions or eliminate First Amendment implications. See Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258 (11th Cir. 2005) (ruling a contentneutral time, place, and manner restriction must further a legitimate government interest, even if it “leave[s] open adequate alternative channels of communication”); see also Procunier, 416 U.S. at 413 (requiring a speech restriction be narrowly tailored to further an important or substantial government interest without regard to alternative channels of communication); Turner, 482 U.S. at 89-90 (requiring a restriction on incoming mail to be “reasonably related to legitimate penological interests,” even if it leaves open “other avenues” of communication).
Furthermore, as a practical matter, the Sheriff’s Postcard-Only Mail Policy necessarily restricts inmates’ mail message and content. It does so in four ways. First, because many jail inmates understandably will not discuss sensitive issues like health, finances, religion, and intimate emotions in a postcard open to all to read, the Sheriff’s
expression exists when the government can deny access to a forum for expression before the expression occurs.” U.S. v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000). The key feature of a prior restraint is it gives “‘public officials the power to deny use of a forum in advance of actual expression.’” Ward v. Rock Against Racism, 491 U.S. 781, 795 n. 5 (1989) (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975)). In this case, the Sheriff has simply denied all access to communication through the forum of letters.
Page 10 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 11 of 26
Postcard-Only Mail Policy necessarily limits and chills discussion on these topics.6 Second, the Postcard-Only Mail Policy effectively prohibits inmate expressions on fullsized (8.5” x 11”) drawings and other artwork, which cannot be enclosed in a postcard, but could be – and were previously – enclosed in an envelope. Third, the Sheriff’s Postcard-Only Mail Policy implicitly mandates all inmate mail communication be abbreviated and incomplete because a single side of a 4.25” x 5.5” postcard provides insufficient room to fully develop and communicate many of the inmates’ thoughts and ideas. Fourth, the Postcard-Only Mail Policy prevents inmates from securely communicating on a one-to-one basis, when other third parties or household members may reasonably intercept and read such communications. Thus, the Postcard-Only Mail Policy restricts both the substance and form of communication.
2. The Applicable First Amendment Test: Procunier’s Heightened Scrutiny
The U.S. Supreme Court has established that restrictions on outgoing mail are subject to heightened scrutiny. Procunier v. Martinez, 416 U.S. 396, 413 (1974). Although the applicable standard has been relaxed in the other contexts, including for incoming mail, see Turner, 482 U.S. at 89, heightened scrutiny continues to be applied
6 The U.S. Supreme Court has recognized that the possibility that a third-party may read mail chills communication. Wolff v. McDonnell, 418 U.S. 539, 577 (1974) (finding that prison officials’ inspection of incoming attorney mail in the inmate’s presence did not chill inmates’ free speech because “the inmate's presence insures that prison officials will not read the mail”).
Page 11 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 12 of 26
categorically7 to restrictions on inmate’s outgoing mail. Thornburg v. Abbott, 490 U.S. 401, 413 (1989) (limiting the heightened scrutiny in Procunier “to regulations concerning outgoing correspondence”)); see also Johnson v. Smith, No. 2:10-CV-236, 2011 WL 344085, *4 (N.D. Ga. Feb. 1, 2011) (holding jail inmate “stated a viable claim regarding the Jail's policy that inmates use only postcards for general outgoing mail” and citing the Procunier heightened scrutiny standard as the test to apply); Nasir v. Morgan, 350 F.3d 366, 371, 374 (3d Cir. 2003) (ruling the Procunier test applies to a regulation of outgoing mail); Stow v. Grimaldi, 993 F.2d 1002, 1004 (1st Cir. 1993) (same).8 The Defendant recognizes that the Procunier standard applies to outgoing mail. Def.’s Mot. to Dismiss (DE 12) at 12 (“Defendant also recognizes that the standards applied to outgoing mail are different from the standards applied to incoming mail.”)
7 The Supreme Court recognized that the activity at issue in Procunier “— outgoing personal correspondence from prisoners—did not, by its very nature, pose a serious threat to prison order and security” and were of a “categorically lesser magnitude” than the implications of incoming materials. Abbott, 490 U.S. at 411, 413.
8 Accordingly, other postcard cases concerning incoming mail are simply inapplicable to this case. Covell v. Arpaio, 662 F.Supp.2d 1146 (D. Ariz. 2009); Gambuzza v. Parmenter, No. 8:09-cv-1891, 2010 WL 2179029 (M.D. Fla. May 28, 2010). Furthermore, court opinions, like these, where the court sides with legal arguments asserted attorneys instead of pro se litigants, have little persuasive value. A case similar to the one at hand like Martinez v. Maketa, which involves a Colorado jail’s outgoing postcard-only mail policy and lawyers and evidence on both sides, is much more persuasive authority. No. 1:10-cv-02242 (D. Colo. Dec. 20, 2010) (Stipulated Order Granting Preliminary Injunction enjoining El Paso County Jail’s postcard-only mail policy), available at http://www.aclu.org/files/assets/2010-12-20-MartinezvMaketaOrderGrantingPI.pdf.
Page 12 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 13 of 26
Pursuant to Procunier, a jail’s restriction on an inmate’s outgoing mail must meet two requirements. Procunier, 416 U.S. at 413. First, the limitations on a prisoner’s First Amendment rights in his outgoing mail “must further an important or substantial governmental interest unrelated to the suppression of expression.” Id. More specifically, the limitation must further “one or more of the substantial governmental interests of security, order, and rehabilitation.” Id. Second, “the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” Id. The Sheriff’s Postcard-Only Mail Policy fails both Procunier prongs.
3. The Postcard-Only Mail Policy does not Further an Important or Substantial Governmental Interest
Under the first prong of Procunier’s analysis, jailors may only restrict free speech in order to further an “important or substantial governmental interest.” Procunier, 416 U.S. at 413-14. Concerned that officials might take advantage of the judicial deference often accorded to prison administrators, the Court delineated the specific interests that may trump fundamental constitutional guarantees: “preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.” Id. at 412-13.
The Sheriff identified two justifications for his restrictions on the inmates’ free speech: crime deterrence and security. See Def.’s Mot. to Dismiss (DE 12) at p. 2, ¶ 3. The Sheriff asserts the Postcard-Only Mail Policy avoids the possibility that inmates through mail communication will direct or plan crimes, including escapes and threats. Id.
Page 13 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 14 of 26
at p. 1, ¶ 2. The Sheriff also believes prohibiting letters reduces the “intensive and time consuming task” of removing letters from unsealed envelopes to review mail for prohibited messages and thereby frees up personnel to provide greater security. Id. at p. 1-2, ¶ 2. (Importantly, the time savings the Sheriff identifies comes from the deputies no longer having to open and remove the letters from the envelopes, which takes a matter of moments. He misidentifies any time savings from reading the message, because whether on a postcard or in a letter, a message would take the same time to read. See id.)
Although the Sheriff has elsewhere argued that the general cost savings (e.g., one fewer person would be needed in the mail room) additionally justifies the restriction, the Sheriff did not assert this basis in his Motion to Dismiss (DE 12). Likely, the Sheriff appreciates that this is a losing argument.
First, a mere desire to save money does not satisfy the Procunier test, which requires that the restriction on First Amendment rights “furthers one or more of the substantial governmental interests of security, order, and rehabilitation.” 416 U.S. at 413 (emphasis added). If a jailor tackles the same problems inherent to all management in any agency (like saving costs), jailors are afforded no deference.9 Procunier v. Martinez,
9 Even when a court should afford jail officials deference, courts have made it abundantly clear that the First Amendment analysis to be performed is not toothless, and that courts must not blindly defer to the judgment of prison administrators simply because institutional concerns are at issue. Abbott, 490 U.S. at 414; Procunier, 416 U.S. at 405-06 (“[A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims.”); Bradbury v. Wainwright, 718 F.2d 1538, 1543 (11th Cir. 1983).
Page 14 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 15 of 26
416 U.S. 396, 404-405 (1974) (observing that jailors are afforded the deference because of the concerns unique to effective prison management); see also Johnson v. California, 543 U.S. 499, 510 (2005) (observing that reduced scrutiny and deference owed to penal officials, have only applied where the exercise of a right that is “‘inconsistent with proper incarceration’”); Cal. First Amendment Coalition v. Woodford, 299 F.3d 868, 879 (9th Cir. 2002) (“[A] prison regulation that is not reasonably related to a legitimate penological interest, such as security or rehabilitation, will fail to satisfy even the most deferential analysis”). Indeed, where the inmate’s First Amendment rights are “not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” inmates retain them in full. Pell v. Procunier, 417 U.S. 817, 822 (1974).
Second, courts have refused to recognize cost savings as a government interest that would justify deprivation of constitutional rights of prisoners. See, e.g., Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (holding that costs were not a “legitimate governmental interest sufficient to justify the County's policy” of refusing to provide inmates with abortion-related services); see also Gates v. Collier, 501 F.2d 1291, 1319 (5th Cir. 1974)10 (“Where state institutions have been operating under unconstitutional conditions and practices, the defenses of fund shortage and the inability of the district court to order appropriations by the state legislature, have
10 See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent for the Eleventh Circuit all decisions of the Fifth Circuit handed down prior to close of business on September 30, 1981).
Page 15 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 16 of 26
been rejected by the federal courts.”) (citing cases); Mitchell v. Untreiner, 421 F.Supp. 886, 896 (N.D. Fla. 1976) (“‘[l]ack of funds is not an acceptable excuse for unconstitutional conditions of incarceration’”) (citations omitted); Morrison v. Hall, 261 F.3d 896, 902-03 (9th Cir. 2001) (holding that the efficient use of prison staff and resources could not justify an effective ban on subscription publications).
Therefore, general cost savings is not an important government interest sufficient to satisfy Procunier’s first prong.
a. The Postcard-Only Mail Policy Does Not Deter Crime Plaintiffs agree that preventing prisoners from using outgoing mail to commit crimes is an important governmental interest. See Martinez, 416 U.S. at 413. However, restricting prisoners’ outgoing mail to postcards does not advance that interest. Both before and after instituting the Postcard-Only Mail Policy, the Sheriff instructed guards to “read/scan” inmate’s nonprivileged outgoing mail. Compare Outgoing Mail Procedure, Standard Operating Procedure No. 15.48(II) (Effective August 14, 2010) (DE 54-4, p. 1)11 with id. (Effective March 26, 2009) (DE 54-5, p. 1).12 Because jail officials still “read/scan” the outgoing mail, the Postcard-Only Mail Policy that merely substitutes (postcard for letter) what is read or scanned does not “further” the goal of crime
11 Authenticated as a party admission by Stevenson’s Decl. (DE 54.4). 12 Authenticated as a party admission by Stevenson’s Decl.
Page 16 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 17 of 26
deterrence. The change in the policy does not affect the reading or scanning of correspondence for criminal activity.
Furthermore, reading inmates’ outgoing mail in many circumstances is unnecessary to further jail order or security. See Martin Decl. (DE 54.3), 11 (inspecting every piece of outgoing mail is not necessary or essential to maintaining jail order or security). Indeed, the Federal Bureau of Prisons generally permits minimum or low security level inmates to seal mail themselves, absent specific concerns. 28 C.F.R. § 540.14. Therefore, the Sheriff’s continued policy directing deputies to read or scan all outgoing mail (whether in letter or postcard format) may be largely a waste of time.
b. The Postcard-Only Mail Policy Does Not Enhance Security
The Sheriff has stated that the Postcard-Only Mail Policy saves his deputies the time required to remove the letter from an envelope. This time saved, on a cumulative basis, he asserts, can be redirected to providing security—though the mechanics of this are unknown. Even assuming the removal of letters from envelopes would take a significant amount of time, the Defendant’s security rationale is rebutted by numerous examples of well-run jails and correctional facilities that freely allow prisoners to write letters to friends and family members. A survey of the mail policies for state and federal prisons in the United States shows that no state restricts its inmates’ mail to postcards.13
13 See 28 C.F.R. § 540.14; Ala. Admin. Reg. 448, available at http://www.doc.state.al.us/docs/AdminRegs/AR448.pdf; Alaska Dep’t of Corr. Policies & Procedures, No. 810.03, http://www.correct.state.ak.us/corrections/pnp/pdf/810.03.pdf; Ariz.
Page 17 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 18 of 26
This fact alone weighs heavily against a finding that a postcard-only policy furthers the
interest in security and crime prevention. See Martinez, 416 U.S. at 414 n. 14 (“While
Dep’t of Corr. Order Manual, § 914.05, available at http://www.azcorrections.gov/Policies/900/0914.pdf; Ark. Admin. Code 004.00.2-860; Cal. Code Regs. tit. 15, § 3138(a); Colo. Dep’t of Corr. Admin. Reg. No. 300-38, available at http://www.doc.state.co.us/sites/default/files/ar/0300_38_1.pdf; Conn. Agencies Regs. § 18-8131(d); Del. Dep’t of Corr. Policy Manual, No. 4.0, available at http://www.doc.delaware.gov/pdfs/policies/policy_4-0.pdf; Fla. Admin. Code 33-210.101; Ga. Comp. R. & Regs. R. 125-3-3-.02; Haw. Dep’t of Public Safety Corr. Admin. Policy No. 15.02, available at http://hawaii.gov/psd/policies-and-procedures/P-P/3-COR/CORR%20%20PP%20FINAL/CHAPTER%2015/COR.15.02.pdf; Idaho Dep’t of Corr. Standard Operating Procedure No. 402.02.01.001, available at http://www.idoc.idaho.gov/policy/int4020201001.pdf; Ill. Admin. Code tit. 20, § 525.130; Ind. Code § 11-11-3-5; Iowa Admin. Code r. 201-20.4; Kan. Admin. Regs. 44-12-601; 501 Ky. Admin. Regs. 6:020 (adopting Ky. Dep’t of Corr. Policies & Procedure, No. 16.2, available at http://www.corrections.ky.gov/NR/rdonlyres/E20E4AEA-9C734E28-9CA4-0F02EF3881B9/181101/162.pdf); La. Admin Code. tit. 22, pt. I, § 313; Me. Dep’t of Corr. Policy No. 21.2, available at http://www.maine.gov/corrections/PublicInterest/documents/21.2-PRISONERMAIL12-109R.doc; Code Me. R. 03-201 Ch. 1, § II.a (jail policies); Md. Pub. Saf. & Corr. 12.02.20.04; 103 Mass. Regs. Code 481.09; Mich. Admin. Code r. 791.6603; Minn. R. 2911.3300; Miss. Dep’t of Corr. Standard Operating Pro. No. 31-01-01; Mo. Dep’t of Corr. Family & Friends Handbook, available at http://doc.mo.gov/documents/FFWeb.pdf; Mont. Dep’t of Corr. Policy No. 3.3.6, available at http://www.cor.mt.gov/content/Resources/Policy/Chapter3/3-3-6.pdf; Neb. Admin. R. & Regs. Tit. 68, Ch. 3, § 009; Neb. Admin. R. & Regs. Tit. 81, Ch. 9, § 002 (jail standards); Nev. Dep’t of Corr. Policy No. 750, available at http://www.doc.nv.gov/ar/pdf/AR750.pdf; N.H. Code Admin. R. Cor 301.05; N.J. Admin. Code tit. 10A, 10A:18-2.25; N.M. Dep’t of Corr. Policy No. 151200, available at http://corrections.state.nm.us/policies/current/CD-151200.pdf; N.Y. Comp. Codes R. & Regs. tit. 7, § 720.3; N.C. Admin. Code tit. 5, r. 2D.0307; N.D. Dep’t of Corr. & Rehabilitation, Inmate Handbook, § 3, available at http://www.nd.gov/docr/adult/docs/INMATE_HANDBOOK_2010.pdf; Ohio Admin. CoDE 5420-9-18; Okla. Dep’t of Corr. Operation Policy No. 030117, available at http://www.doc.state.ok.us/Offtech/op030117.pdf; Or. Admin. r. 291-131-0020; 37 Pa. Code § 93.2;R.I. Admin. Code 17-1-18:III; S.C. - no authority found (telephone call to Dep’t of Corr. on Mar. 31, 2011, confirmed inmates can send and receive letters); S.D. Admin. R. 17:50:10:02; Tenn. Dep’t of Corr. Admin. Policy No. 507.02, available at http://www.tn.gov/correction/pdf/507-02.pdf; Tenn. Comp. R. & Regs. 1400-01-.11 (jail standards); Tex. Dep’t of Crim. Justice Policy No. BP-03.91, available at http://www.tdcj.state.tx.us/policy/BP0391r2_fnl.pdf; Tex. Admin. Code tit. 37, § 291.2 (jail standards); Utah Admin. R. 251-705; Vt. Admin. Code 12-8-21:965; 6 Va. Admin. Code 15-31320; Wash. Admin. Code 137-48-040; Wash. Dep’t of Corr. Policy No. 450.100, available from http://www.doc.wa.gov/policies/default.aspx; W. Va. Code St. R. § 90-7-3; W. Va. Div. of Corr. Policy No. 503.00; Wis. Admin. Code s DOC 309.04; Wyo. Dep’t of Corr. Policy No. 5.401,
available from http://corrections.wy.gov/policies/index.html.
Page 18 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 19 of 26
not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction”). Therefore, the Postcard-Only Mail Policy does not advance or maintain the jail’s interest in security and order.
Furthermore, the restriction of inmate mail is antithetical to maintaining proper security. Restrictions on inmates’ communications with family and friends often lead to a feeling of isolation, which may make the inmate more difficult to control. See Martin Dec, ¶ 14-15. Also, arbitrary restrictions like these undermine the respectful relationship between inmate and guard. Id.
4. The Postcard-Only Mail Policy is not Narrowly Tailored to Protect Government Interests
The Postcard-Only Mail Policy similarly fails the second, narrow-tailoring prong of Procunier. As the U.S. Supreme Court explained, “a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad.” Procunier, 416 U.S. at 413. Even if the Court were to find that the Postcard-Only Mail Policy actually furthers security or crime deterrence, the policy’s broad and sweeping reach is not narrowly tailored to prohibit only that correspondence that might be thought to represent criminal activity or threaten internal security. Instead, the Postcard-Only Mail Policy applies to all correspondence and chills the communications of all inmates, regardless of whether the Sheriff suspects that the communication represents a threat to the public or the institution in any way. The Sheriff cannot demonstrate why this blanket policy of
Page 19 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 20 of 26
requiring postcards for all outgoing mail is necessary, as opposed to a more narrowly drawn policy of requiring certain inmates at certain times to write on postcards. As a result, the Postcard-Only Mail Policy does not involve a limitation of First Amendment freedoms no greater than necessary or essential to the protection of the particular governmental interest involved, and necessarily fails Procunier’s exacting standard.
In analyzing prison regulations under Procunier’s second prong, courts have also looked to see whether reasonable alternatives exist to prison officials to protect their asserted interests. See Spradley v. Sistrunk, 1996 WL 467511 at *3 (M.D. Fla. 1996) (“[W]e take the terms ‘necessary’ or ‘essential’ to mean that there is no alternative means of protecting [the asserted interest] that is reasonably available to prison officials.”). If such reasonable alternatives are found to exist, the regulation may sweep more broadly than necessary, and must necessarily fail Procunier’s constitutional analysis. See id. Here, all of the Sheriff’s concerns regarding crime deterrence and security are already covered by existing rules and statutes which combat against inmate crime and fraud. His policies already require Jail officials to open and read every piece of mail. See Outgoing Mail Procedure, Standard Operating Procedure No. 15.48(II) (Effective August 14, 2010) (DE 54-4, p. 1). This satisfies the Sheriff’s concerns regarding crime deterrence and security, and clearly establishes that the Postcard-Only Mail Policy involves a limitation of First Amendment freedoms greater than necessary or essential to the protection of the
Page 20 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 21 of 26
particular governmental interest asserted. Indeed, no state or federal prison similarly limits inmate mail to postcards.14
B. Jail Inmates Will Continue to Suffer Irreparable Injury Unless this Court Issues an Injunction Under the current Postcard-Only Mail Policy, Jail inmates may not freely and
completely communicate with friends and loved ones. They cannot discuss in their correspondence sensitive issues, include full sized pictures, fully develop ideas, or direct communication to just one household member. The policy infringes on the free speech rights secured by the First Amendment. This infringement constitutes a de facto irreparable injury because, as the Supreme Court has noted, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373 (citation omitted), followed by KH Outdoor, 458 F.3d at 1271-72. Preliminary injunctive relief is essential to safeguard Jail inmates’ constitutional rights during the pendency of these proceedings.
C. The Threatened Injury to Jail Inmates Outweighs Whatever Harm the Preliminary Injunction Could Cause Defendant The next factor the Court should consider when deciding whether to grant
preliminary relief involves an evaluation of the severity of the impact on the defendant should the temporary injunction be granted and the hardship that would occur to the plaintiff if the injunction should be denied. Defendant cannot show that the entry of a preliminary injunction will harm it in any way. Indeed, the Santa Rosa County jail
14 See Note 13, supra.
Page 21 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 22 of 26
operated just fine for years without the Postcard-Only Mail Policy. Yet, the hardship to Plaintiffs if the preliminary injunction is denied, as set out in the preceding section, would be the continued violation of their First Amendment right to engage in constitutionally protected speech. D. Entry of the Relief Sought by Jail Inmates Will Serve the Public Interest
Permitting Jail inmates to freely and fully communicate in letters with friends and family promotes security at the Jail, reduces recidivism, and champions a rule of law in favor of free speech. See Procunier, 416 U.S. at 412 (“inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation”); Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (“The vitality of civil and political institutions in our society depends on free discussion”); see also KH Outdoor, 458 F.3d at 1272; Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999) (“[T]he public interest favors protecting First Amendment freedoms.”); ACLU v. Reno, 929 F. Supp. 824, 851 (E.D. Pa. 1996) (“No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.”). Thus, entry of the relief sought by Plaintiffs will serve the public interest. The equities weigh in favor of enjoining the Sheriff’s Postcard-Only Mail Policy for the time being and returning to the mail policy in place until last summer.
Page 22 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 23 of 26
E. No Security Should Be Required Federal Rule of Civil Procedure 65(c) states that “[n]o restraining order or
preliminary injunction shall issue except upon the giving of security by the applicant.” As noted by a well-recognized treatise, however, “the court may dispense with security altogether if grant of the injunction carries no risk of monetary loss to the defendant.” Charles A. Wright, Arthur R. Miller, Mary K. Kane, 11A Fed. Prac. & Proc. Civ. § 2954 (3d ed. 2009). The Eleventh Circuit has accepted this position. Carillon Importers v. Frank Pesce Int’l Group, 112 F.3d 1125, 1127 (11th Cir. 1997) (citing Corrigan Dispatch Co. v. Casa Guzman, 569 F.2d 300, 303 (5th Cir. 1978) (affirming no security bond)). Because Defendant would suffer little harm, economic or otherwise, from the entry of the preliminary injunction sought by Plaintiffs, no security should be required. Further, Plaintiffs are indigent and are represented by pro bono counsel; requiring the posting of a bond would therefore pose an insurmountable financial hardship.
V. CLASSWIDE RELIEF IS APPROPRIATE Preliminary injunctive relief on behalf of the Plaintiff Class is appropriate here, where Plaintiffs have filed a Motion for Class Certification (DE 7) which is currently pending before the Court. The Court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers. See Brantley v. Maxwell-Jolly, 656 F. Supp.2d 1161, 1178 n. 14 (N.D.
Page 23 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 24 of 26
Cal. 2009) (“District courts are empowered to grant preliminary injunctions ‘regardless of whether the class has been certified.”) (citations omitted).
Where, such as here, the activities of the Defendant are directed generally against a class of persons, the lack of formal class certification does not create an obstacle to class wide preliminary injunctive relief. See Robertson v. Nat’l Basketball Ass’n, 389 F. Supp. 867 (S.D. N.Y. 1975) (preliminary injunction entered five years before class certification); Leisner v. New York Tel. Co., 358 F. Supp. 359, 371 (S.D. N.Y. 1973) (“[R]elief as to the class is appropriate at this time even though when the preliminary injunction motion was heard, the class had not yet been certified.”).
Indeed, “when the determination of the class action issue is delayed, a suit brought under Rule 23 should be treated as a class action … until there is a determination that the action may not proceed under the rule.” N.Y. State Nat’l Org. for Women v. Terry, 697 F. Supp. 1324, 1336 (S.D. N.Y. 1988), citing to 7B Wright, Miller & Kane, Federal Practice and Procedure § 1785, at 106-07 (1986); see also Joyce v. City & County of San Francisco, 864 F. Supp. 843, 854 (N.D. Cal. 1994) (permitting class wide relief before class certification). Because a determination has not yet been made whether the Jail inmates can proceed as a class, it is appropriate at this stage that the Court considers the injuries alleged to all individuals within the proposed class. Id.
Page 24 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 25 of 26 VI. CONCLUSION
Applying relevant law to the undisputed material facts, the Plaintiffs are entitled to a preliminary injunction enjoining the Sheriff from enforcing the Postcard-Only Mail Policy.
WHEREFORE, Plaintiffs request that the Court enjoin the Sheriff from the following:
A. Continuing to enforce the Postcard-Only Mail Policy; and B. Restricting the Jail inmates’ outgoing mail to postcard format. Further, Plaintiffs request that they be excused from posting a security bond.
Page 25 of 26

Case 3:10-cv-00355-MCR -EMT Document 54 Filed 04/15/11 Page 26 of 26

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I electronically filed today the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all persons registered for this case, including the opposing counsel.

Dated: April 15, 2011

Respectfully Submitted,

s/ Benjamin James Stevenson

Randall C. Marshall (Fla. Bar No.:

Benjamin James Stevenson (Fla. Bar. No. 598909) 181765)

American Civil Liberties Union Found. of Fla.

RMarshall@aclufl.org

Post Office Box 12723

Maria Kayanan (Fla. Bar No.: 305601)

Pensacola, FL 32591-2723

MKayanan@aclufl.org

bstevenson@aclufl.org

American Civil Liberties Union Found.

T. 786.363.2738

of Fla.

F. 786.363.1985

4500 Biscayne Blvd., Ste. 340

Miami, FL 33137

Randall C. Berg, Jr. (Fla. Bar No. 318371)

T. 786.363.2707

Joshua A. Glickman (Fla. Bar No. 43994)

F. 786.363.1108

Shawn A. Heller (Fla. Bar No. 46346)

Florida Justice Institute, Inc.

100 SE Second St., Ste. 3750

Miami, FL 33131-2115

RBerg@FloridaJusticeInstitute.org

T. 305.358.2081

F. 305.358.0910

Counsel for Plaintiffs

Page 26 of 26

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

Page 1 of 5

MARCIE HAMILTON and JAMIE BROJANAC, all on behalf of themselves and all others similarly situated;

Plaintiffs,

v.

Case No.: 3:10cv355/MCR/EMT

WENDELL HALL, in his official capacity as Sheriff for Santa Rosa County, Florida,

Defendant. ____________________________________/

ORDER

Plaintiff, Marcie Hamilton, who is currently housed in the Santa Rosa County Jail (“Jail”),1 has filed a Third Amended Complaint on behalf of herself and all others similarly situated against Wendell Hall, the Sheriff of Santa Rosa County, Florida (“Sheriff”) (doc. 43), challenging a recently implemented policy requiring all outgoing mail, except legal and other privileged correspondence, to be in postcard form.2 Pending before the court is Plaintiffs’ Motion & Memorandum of Law for Class Certification (doc. 7), in which the plaintiff requests

1 Although Jam ie Brojanac’s name appears in the caption, she has voluntarily dism issed her claim s (see doc. 50).
2 The policy has been in effect since August 14, 2010. According to the plaintiff, only m ail to or from courts, attorneys, government agencies and officials, and news m edia is considered legal or privileged. The plaintiff further alleges that inm ates m ay obtain postcards from Jail officials, but that indigent inm ates are allotted only two postcards per week, which are 4.5 by 6 inches in size. The front of the postcard m ay contain only postage and the nam e and address of the inm ate and recipient. Inmates m ay write substantive m essages on the back of the postcard, but they m ust leave a blank area m easuring 1 inch by 2 inches so that Jail officials may stamp a message indicating the source of the correspondence. Inmates also are prohibited from drawing or otherwise unnecessarily m arking on non-privileged m ail.
Case No: 3:10cv355/MCR/EMT

Page 2 of 5
that the court certify a class of “all current and future detainees in the Santa Rosa County, Florida, Jail who are subject to or affected by the Postcard-Only Mail Policy.” The Sheriff has responded in opposition to the motion. Having considered the motion and the response, the court finds that the plaintiff’s motion should be granted and that the proposed class action should be certified. STANDARD OF REVIEW
The decision to grant or deny class certification lies within the sound discretion of the district court. Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir. 2004); Walker v. Jim Dandy Co., 747 F.2d 1360, 1363 (11th Cir. 1984). A trial court should not determine the merits of the claims at the class certification stage but may consider the merits “to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.” Heffner v. Blue Cross and Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir. 2006) (internal quotation marks and citation omitted). The district court “must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts.” Shin v. Cobb Cnty. Bd. of Educ., 248 F.3d 1061, 1064 (11th Cir. 2001). “Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.” General Teleph. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); see also In re Bayshore Ford Truck Sales, Inc., 471 F.3d 1233 (11th Cir. 2006) (noting that “Rule 23(c)(1) specifically empowers district courts to alter or amend class certification orders at any time prior to a decision on the merits”) (internal quotation marks omitted) (emphasis in original). “[P]articularly during the period before any notice is sent to members of the class, [a class certification order] is inherently tentative.” Falcon, 457 U.S. at 160. DISCUSSION
“For a district court to certify a class action, the named plaintiffs must have standing, and the putative class must meet each of the requirements specified in Federal Rule of Civil
Case No: 3:10cv355/MCR/EMT

Page 3 of 5
Procedure 23(a),3 as well as at least one of the requirements set forth in Rule 23(b).”4 Klay,
382 F.3d at 1250. The Sheriff does not dispute that the named plaintiff has standing or that
3 According to Rule 23(a),
[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all m em bers is im practicable, (2) there are questions of law or fact com m on to the class, (3) the claim s or defenses of the representative parties are typical of the claim s or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
4 Rule 23(b) sets forth the following three requirem ents:
1) the prosecution of separate actions by or against individual m em bers of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual m embers of the class which would establish incom patible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual m em bers of the class which would as a practical matter be dispositive of the interests of the other m em bers not parties to the adjudications or substantially im pair or im pede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby m aking appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predom inate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The m atters pertinent to the findings include: (A) the interest of mem bers of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claim s in the particular forum ; (D) the difficulties likely to be encountered in the m anagem ent of a class action.
Fed. R. Civ. P. 23(b).
Case No: 3:10cv355/MCR/EMT

Page 4 of 5
the requirements of Rule 23(a) and Rule 23(b) have been satisfied in this case.5 Rather, the Sheriff argues that class certification is unnecessary in this case and will constitute a waste of his resources, as well as those of the court, because the plaintiff has requested declaratory and injunctive relief that, if granted, will benefit all members of the proposed class regardless of whether a class action is certified. While the court recognizes that a class action may not be necessary where the relief requested otherwise can be obtained, this case does not present such a circumstance. Indeed, considering the transitory nature of incarceration in a county jail, the claims of the named plaintiff could become moot at any time upon her release, as demonstrated by the fact that a number of individuals originally named as plaintiffs in this action have already dismissed their claims because of their release. Thus, in the event the relief requested is warranted, there is no guarantee that any of the proposed class members will receive such relief in the absence of a class action. The court therefore finds that the proposed class action should be certified. See Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (noting that “[c]ertification of a class under Rule 23(b)(2) is especially appropriate where, as here, the claims of the members of the class may become moot as the case progresses” and certifying class action because “risk of mootness [was] great” and “the issue raised [was] important not only [to the named plaintiff], but [also to] other similarly situated”) (internal quotation marks and citations omitted). CONCLUSION
For the reasons discussed above, the court finds that the plaintiff has met her burden under Fed. R. Civ. P. 23(a) and (b)(2) and that the motion for class certification should therefore be granted at this time. As the court noted above, however, this determination may be revisited should subsequent developments in the case so require. It is therefore ORDERED as follows:
5 The Sheriff explicitly acknowledges that the requirements of Rule 23(a) have been satisfied but does not address Rule 23(b). For the reasons set forth in the plaintiff’s m otion and the sheriff’s response, however, the court finds that the plaintiff has standing to assert the claim s in her com plaint, see Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279-80 (11th Cir. 2000), and also has satisfied the requirements of Rule 23(a) and Rule 23(b)(2).
Case No: 3:10cv355/MCR/EMT

Page 5 of 5
1. Plaintiff’s motion for class certification (doc. 7) is GRANTED. 2. In accordance with the requirements set forth in Fed. R. Civ. P. 23(c)(1)(B), the court certifies a class defined as follows: All current and future detainees in the Santa Rosa County, Florida, Jail who are subject to or affected by the Postcard-Only Mail Policy. 3. Also in accordance with Fed. R. Civ. P. 23(c)(1)(B), the court defines the following class issue: Whether the Postcard-Only Mail Policy in effect at the Santa Rosa County, Florida, Jail violates the plaintiff’s and proposed class members’ rights under the First and Fourteenth Amendments to the United States Constitution. 4. The named plaintiff, Marcie Hamilton, shall act as the representative party. Fed. R. Civ. P. 23(a)(4). 5. Attorneys from the ACLU Foundation of Florida and the Florida Institute of Justice shall serve as class counsel. Fed. R. Civ. P. 23(g). 6. Within thirty (30) days of the date of this order, the plaintiff shall submit to the court for approval a proposed notice to the class members in accordance with Fed. R. Civ. P. 23(c)(2)(B). Prior to filing this proposed notice, plaintiff shall confer with defendant in an effort to agree on the language of the class notice. DONE and ORDERED this 26th day of May, 2011.
s/ M. Casey Rodgers
M. CASEY RODGERS UNITED STATES DISTRICT JUDGE
Case No. 3:10cv355/MCR/EMT

 
 Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 1 of 17
Case 3:10-cv-00355-MCR-EMT Document 133-1 Fileci12/01/:Ll Page l of l7

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

MARCIE HAMILTON et al.,

Plaintiffs,

v.

No. 3:1 0-cv-355 MCRIEMT

WENDELL HALL,

Defendant. I

SETTLEMENT AGREEMENT AND CONSENT DECREE

Plaintifi: Marcie Hamilton, individually and on behalf of the Settlement Class defined

herein (hereinafter "Plaintiffs"), and Defendant, Wendell Hall, in his official capacity as Sheriff

for Santa Rosa County, Florida (hereinafter "Defendant SherifF' and collectively referred to as

the "Parties"), hereby agree to and submit the following Settlement Agreement and Consent

Decree (hereinafter "Consent Decree") for adoption and entry by the Cowi.

I.

RECITALS

A. WHEREAS Plaintiffs filed this action on September 13, 2010, seeking

declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, and seeking to enjoin the

Defendant Sheriff from forbidding inmates housed in the Santa Rosa County Jail (hereinafter the

''Jail"), in violation of the First and Fourteenth Amendments to the U.S. Constitution, from

sending letters enclosed in envelopes to their parents, children, spouses, friends, loved ones, or

other correspondents (hereinafter the "Postcard-Only Mail Policy"), as described in Santa Rosa

County Outgoing Mail Procedure, Standard Operating Procedure No. 15.48; and

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 2 of 17
Case 3:10-cv-00355-MCR-EMT Document 133-1 Filed 12/01/11 Page 2 of 17

B. WHEREAS the United States District Court for the Northern District of Florida

has subject matter jurisdiction over this dispute; see 28 U.S.C. § 1331 (federal question) and 28

U.S.C. § l343(a)(3) (civil rights); and

C. WHEREAS the Parties, in an effort to avoid the burden, costs and inherent risks

of further litigation, agree that it is in the best interests of the Parties; and

D. WHEREAS the Parties have engaged in extensive discovery in the above-

captioned matter, including the exchange of documents, preparation and responses to requests for

production of documents, requests for admissions, interrogatories, and depositions; and

E

WHEREAS this action has been certified by the Court, pursuant to Rule 23,

Federal Rules of Civil Procedure, as a class action on behalf of all current and future detainees in

the Jail who are subject to or affected by the Postcard-Only Mail Policy; and

F. WHEREAS by agreeing to this Settlement Agreement and Consent Decree

(hereinafter "Consent Decree"), the Defendant Sheri IT does not admit to liability; and

G. WHEREAS the signatories to this Consent Decree represent that they are

authorized to enter into this Consent Decree, and promise to carry out the various promises and

representations made herein; and

l-1. WHEREAS this Consent Decree includes a general release and, upon execution

by the Defendant Sheriff of the promises and representations made herein and the Court's entry

of this Consent Decree, the Defendant Sheriff will be released from all claims and liability as

stated in this Consent Decree; and

l.

WHEREAS the Parties agree that the relief provided herein is narrowly drawn

relief that extends no further than necessary to correct the alleged violation of Plaintiffs'

Page 2 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 3 of 17

Case 3:10-cv-00355-MCI~-EMT Document 133-1 Filed 12/01/11 Page 3 of 17

constitutional rights, and is the least intrusive means necessary to correct the alleged violation of

Plaintiffs' constitutional rights, pursuant to 18 U.S.C. § 3626(a)(1 )(A); and

.T.

WHEREAS the Parties agree that the terms and conditions of this Consent Decree

constitute a fair, reasonable, and adequate resolution for the Plaintiffs, pursuant to Rule 23(e)(2),

Federal Rules of Civil Procedure.

NOW, THEREFORE, it is mutually agreed between the Parties, subject to the Court's

entry of this Consent Decree, as follows:

II. DEFINITIONS

1. The following terms as used in this Consent Decree have the meanings set forth

below in this Paragraph. In construing these definitions, the singular shall include the plural and

the plural shall include the singular:

(a) "Envelope Correspondence" means correspondence enclosed in an

envelope. Such correspondence includes, but is not limited to, letiers, paperwoi'k,

newspaper clippings, photographs, drawings, or a combination of one or more of these

items.

(b) "Postcard" means a piece of light-colored card stock of dimensions

consistent with the postcards sold by the United States Postal Service.

(c) "Privileged" describes a piece of correspondence that is sent to or 11·om a

court, attorney, governmental official or agency, or news media.

(d) "Non-Privileged" describes all other correspondence that is not otherwise

Privileged.

Page 3 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 4 of 17
Case 3:10-cv-00355-MCI=<-EMT Document 133-1 Fileci1.2/0l/l1 f.) age 4 of 1.7
(e) "Indigent Inmate" refers to a Jail inmate who, for the last seven (7) consecutive days, has had no more than one dollar ($1.00) in his or her inmate account that may be used for the purchase of commissary items.
(f) "Writing Materials" means a writing instrument (e.g., pen or pencil) approved by the Jail, and:
(I) For every piece of Envelope Correspondence, also one ( 1) No. I0 sized envelope of any color, two (2) pieces of light-colored paper measuring at least 7.25" wide by at least 10.5'' tall, and postage sufficient for mailing a one ounce Envelope Correspondence via First Class U.S. Mail (The Defendant Sheriff will provide prepaid postage to the inmates or affix the postage to the correspondence after receiving it from the inmate for mailing); or
(2) For every Postcard, also one (!) Postcard, and postage sufficient for mailing a Postcard via First Class U.S. Mail (The Defendant Sheriff will provide prepaid postage to the inmates or affix the postage to the correspondence after receiving it from the inmate for mailing).
(g) An inmate is "Booked and Processed" at the earlier of (i) the court's failure to order the inmate's release at the inmate's first appearance hearing or (ii) the expiration of twenty (24) hours after the inmate's initial custody at the Jail.
(h) "Jail" refers to the Santa Rosa County, Florida, Jail. III. SETTLEMENT CLASS
Page 4 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 5 of 17
Case 3:10-cv-00355-MCI~-EMT Document 1.33-1 Filecl1.2/01/1l Pa~Je 5 of 17
2. The Settlement Class, as used herein, will hereby be defined as all current and future inmates incarcerated or detained at the Jail.
IV. TERMS AND EFFECT OF CONSENT DECREE 3. Full Resolution. This Consent Decree resolves in full all claims against the Defendant Sheriff by all Plaintiffs, including named Plaintiff Marcie Hamilton, except the issue of Plaintiffs' attorneys' fees and costs as set forth below, involving alleged violations of their First and Fourteenth Amendment rights, or of any other federal, state or local law, regulation, duty, or obligation which are based upon or could be based upon or arise from the facts alleged in Case No. 3:10-cv-3550-MCR-EMT, filed in the United States District Court, Northern Division ofFlorida, Pensacola Division. 4. Release. Upon execution by the Defendant Sheriff of the promises and representations made herein and the Court's entry of this Consent Decree, the Plaintiffs agree that the Defendant Sheriff is released from any and all liability, claim, action or demand of vvhatever kind or sort which any of them might have against the Defendant Sherift~ except the issue of Plaintiffs' attorneys' fees and costs as set forth below, and that they release Defendant Sheriff from any and all grievances, suits, causes of action, and claims of any nature whatsoever, whether known or unknown, including but not limited to all claims asserted in this action together with any and all charges, complaints and claims, which are based on actions, facts or occurrences prior to the execution of this Consent Decree. 5. Merger. This Consent Decree contains all the terms and conditions agreed upon by the Parties hereto regarding the subject matter of the instant proceeding, and no oral agreement entered into at any time nor any writien agreement entered into prior to the execution
Page 5 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 6 of 17
Case 3:10-cv-00355-MCI~-EMT Document 133-1 Filecll2/01/11 Page 6 ofl7

of this Consent Decree shall be deemed to exist, or to bind the Parties hereto, or to vary the terms

and conditions contained herein, except as expressly provided herein.

6.

Liability. Nothing contained in this Consent Decree, nor any order entered by the

Court adopting this Consent Decree, is or shall be construed as an admission by the Defendant

Sheriff of the truth of any allegations or the validity of any claim asserted in the Complaint, or of

the Defendant Sheriffs liability therefor, nor as a concession or an admission of any fault or

omission, of any act or failure to act, or of any statement, written document, or report heretofore,

filed or made by the Defendant Sheriff. Nor shall this Consent Decree nor any confidential

papers related hereto and created for settlement purposes only, nor any of the terms of either, be

alTered or received as evidence in any civil, criminal or administrative action or proceeding

against the Defendant Sheriff~ nor shall they be construed by anyone for any purpose whatsoever

as an admission or presumption of any wrongdoing on the part of the Defendant Sheriff, nor as

an admission of the Defendant Sheriff that the modifications or concessions given hereunder

represents the reliefthat could be recovered at trial. However, nothing herein shall be construed

to preclude the use of this Consent Decree in order to effectuate the consummation, enforcement,

or modification of its terms.

7. Assignment. This Consent Decree shall apply to all persons who are members of

the Settlement Class. This Consent Decree creates no rights in favor of any other person and

creates no obligations or duties on the part of the Defendant Sheriff beyond the terms of this

Consent Decree. This Consent Decree shall bind all parties to this action as well as the

successors in office to the Defendant Sheriff, and to any other person or entity who in the future

operates the Jail. Defendant SheriJT agrees to use his best efforts to make the requirements of

this Consent Decree known to each of his employees, deputies, and agents who are responsible

Page 6 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 7 of 17
Case 3:10-cv-00355-MCI~-EMT Document 1.33-1 Filecl1.2/01/11. Page 7 of 17
for operation of the Jail. Should the Defendant Sheriff hereinafter enter into a contract for the operation of the Jail by another entity, whether public or private, the Defendant Sheriff shall insure that the terms of this Consent Decree are incorporated into such contract, and the
I
Defendant Sheriff shall be required to insure that the entity operating the Jail complies with the terms of this Consent Decree. Nothing set forth in this particular Paragraph shall bar or limit the Court's power to enforce the terms of this Consent Decree, or the right of the Defendant Sheriff or any successor Sheriff or any other person or entity who in the future operates the Jail to petition the Court for modification of this Consent Decree.
8. Enforcement. Except as otherwise provided in this Consent Decree, if class counsel believes that there has been a failure to comply with the terms of this Consent Decree, before moving the Court to redress the non-compliance class counsel must notify the Defendant Sheriff and his counsel in writing of the alleged non-compliance and include in the notice sufficient specificity so that the Defendant Sheriff can identify the nature of the allegation, including describing with particularity the term(s) of the Consent Decree that are alleged to have been violated, the specific errors or omissions upon which the alleged violation is based, and the corrective action sought. Upon class counsel's request, the Defendant Sheriff shall provide additional, relevant information pertinent to the alleged violation. The Parties then have twentyeight (28) days from the date of written notification to meet and confer to attempt to resolve the issue or issues. If the Parties are unable to resolve the dispute within twenty-eight (28) clays, class counsel may file a motion or notice with the Court seeking appropriate relief. Class counsel may file such a motion without substituting new named representative plaintiffs, if the named plaintiffs at the time of the entry of this Consent Decree are no longer members of the class at the time of the filing of such a motion.
Page 7 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 8 of 17
Case 3:10-cv-00355-MCI=<-EMT Document 133-1 Filecl12/01/11 Page 8 of 17
9. Court Approval. The Parties agree that they will take all necessary and appropriate steps to obtain preliminary approval from the Court of this Consent Decree, final approval and entry by the Court of this Consent Decree, and dismissal of the action with prejudice, subject to the Court's jurisdiction to enforce this Consent Decree and adjudicate any dispute over Plaintiffs' attorney fees, costs, and litigation expenses.
10. Effective Date. This Consent Decree shall be effective immediately upon the Court's entry of this Consent Decree.
l I. Settlement Contingent on Court Adoption. The Parties agree that this Col)Sent Decree is subject to and conditioned upon the Court's entry of this Consent Decree. In the event that the Court declines to approve or enter this Consent Decree, the Parties agree that this Consent Decree shall be null and void and ·without prejudice to the Parties' rights.
I2. Waiver of Appeal. Upon the Court's entry of this Consent Decree, the Parties waive their rights to appeal any existing order, decision or ruling in this action. The Parties further waive their rights to appeal the Court's entry of this Consent Decree.
13. Default. Subject to the foregoing terms, and following the Court's entry of this Consent Decree, no default by any person or party to this Consent Decree in the performance of any of the covenants or obligations under this Consent Decree, or any judgment or order entered in co1~unction therewith, shall affect the dismissal of the Complaint, the preclusion of prosecution of actions, the discharge and release of the Defendant Sheriff, or the judgment entered approving these provisions. Nothing in the preceding sentence shall be construed to affect the Court's jurisdiction to enforce this Consent Decree on a Motion for Contempt or any other motion seeking appropriate relief.
Page 8 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 9 of 17
Case 3:10-cv-00355-MCR-EMT Document 133-1 Filecl12/01/11 Page 9 of 17
14. Captions. The captions of this Consent Decree are for convenience of reference only and in no way define, limit, or describe the scope or intent ofthis Consent Decree.
15. Recitals: The parties agree that recitals set forth above are true and that they constitute a part of this Settlement.
V. INMATE MAIL PROVISIONS 16. The Defendant Sheriffs specific obligations regarding Jail policies and practices pursuant to this Consent Decree are as follows: (a) Inmates May Send Letter·s. The Defendant Sheriff will not prohibit or restrict
Jail inmates from mailing Non-Privileged Envelope Correspondence to correspondents outside the Jail, except as set forth in paragraph l6(g), below. (b) Provision of Writing Materials upon Intake. The Defendant Sheriff will provide each inmate at the time the inmate is Booked and Processed with sufficient Writing Materials so that the inmate may send two (2) pieces of Envelope Correspondence at no cost to the inmate. (c) Provision of Writing Materials to Indigent Inmates. The Defendant Sheriff will provide each Indigent Inmate with sufficient Writing Materials so that the imnate may send per week one ( 1) piece of Envelope Correspondence and two (2) Postcards, at no expense to the inmate. The indigent status of an inmate will be based upon the status of the inmate's account for the seven (7) clay period prior to the issuance of indigent packages. If an inmate is determined to be indigent, the Defendant Sheriff will provide the Indigent Inmate with an indigent package that includes the Writing Materials at the time of the next issuance of the packages, not to exceed two weeks.
Page 9 of !7

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 10 of 17
Case 3:10-cv-0035~)-MCI=<-EMT Document 133-1 Fileci12/0l/ll Page 10 of 17

(d) Provision of Legal Writing Materials to Indigent Inmates. The Defendant

Sheriff will pmvide each Indigent Inmate, upon request, with sufficient Writing

Materials so that the Indigent Inmate may send per week two (2) pieces of

Privileged Envelope Correspondence, at no expense to the inmate. Absent an act

of nature or a declared state of emergency, the Defendant Sheriff must provide

such Writing Materials at the next indigent package distribution, not to exceed

two (2) weeks ft·om the Indigent Inmate's request for such Writing Materials. The

Writing Materials provided to the Indigent Inmate may be pre-stamped as

"privileged mail" and restricted to that purpose. If an inmate specially requests

Writing Materials to send urgent Privileged Envelope Correspondence before the

next regular indigent package distribution, the Defendant Sheriff will respond to

the special request within three (3) clays.

(e) Sale of Writing Materials. The Defendant Sheriffwill offer for sale to each Jail

inmate, on a basis of not less than once per week, the following:

( 1)

an unlimited number of Postcards;

(2)

at least eight (8) No. I0 sized envelopes of any color;

(3)

at least one (l) notepad of light-colored paper measuring at least

7.25" wide by at least 10.5'' tall;

(4)

an unlimited number of postage stamps for Postcards and Envelope

Correspondence; and

(5)

an unlimited number of No. l 0 sized envelopes, which may be pre-

stamped as "privileged mail" and restricted to that purpose.

Page 10 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 11 of 17
Case 3:10-cv-00355-MCF~-EMT Document 133-1 Filecl12/01/11 Page 11 of 17
(f) Price of Writing Materials. Writing Materials sold to Jail inmates by the Defendant Sheriff, his agents or contractors, will not be priced any greater than the price regularly charged by the U.S. Postal Service for such items.
(g) No Content or Volume Restrictions. The Defendant Sheriff will not censor or restrict the number of Postcards or Envelope Correspondence a Jail inmate can send or receive, or the length, language, content, recipient or source of such Postcards or Envelope Correspondence, except where the restriction is necessary or essential to preserve internal order and discipline, maintain institutional security against escape or unauthorized entry, or rehabilitate the sentenced inmates or prevent the sending of (i) threats of physical harm against persons or threats of criminal activity, (ii) threats of blackmail or extortion, (iii) plans for escape, (iv) codes, (v) plans for activities in violation of facility rules, or (vi) information, which if communicated, would create a clear and present danger of violence and physical harm to a human being.
(h) Third-Party Provisions. The Defendant Sheriff will not prohibit or restrict the number of blank Postcards or envelopes a Jail inmate can receive from outside correspondents, so long as such envelopes and postcards (i) bear no postage, or (ii) have First Class postage printed and permanently affixed by a postal meter or the U.S. Postal Service. Notwithstanding the foregoing, the Defendant Sheriff may limit the number of such blank envelopes a Jail inmate may receive from outside correspondents to a maximum of two (2) envelopes per incoming correspondence. Furthermore, the Defendant Sheriff may prohibit Jail inmates from possessing more than ten ( l 0) such envelopes at any one time. The
Page 11 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 12 of 17
Case 3:10-cv-00355-MCR-EMT Document 133-1 Fileci12/0J./ll Page 12 of J.7
Defendant Sheriff may treat as contraband any such envelopes over these limits, but will transmit to the inmate the remaining non-contraband items (letters, drawings) in the incoming correspondence. (i) Third-Party Inmate Provisions. The Defendant Sheriff will not prohibit or restrict the number of envelopes, postcards and Writing Materials a Jail inmate can exchange, give, or receive from other Jail inmates, so long as such envelopes, postcards and Writing Materials contain no message or markings written by another Jail inmate, or except where the restriction is necessary or essential to prevent the sending or receipt of (i) threats of physical harm against persons or threats of criminal activity, (ii) threats of blackmail or extortion, (iii) plans for escape, (iv) codes, (v) plans for activities in violation of facility rules, (vi) information, which if communicated, would create a clear and present danger of violence and physical harm to a human being, or (vii) where the envelopes, postcards or writing materials are used for purposes of gambling or bartering. 17. Within fifteen ( 15) days from the Court's entry of this Consent Decree, the Defendant Sheriff shall revise all written policies, procedures, orders, regulations and rules to conform to the above specific injunctive relief, including, but not limited to, Santa Rosa County Outgoing Mail Procedure for Security Staff- Standard Operating Procedure No. J5.48, Santa Rosa County Inmate Mail Procedure- General Order No. 0-071, and the Inmate Handbook, and shall provide a copy of all such revised policies, procedures, orders, regulations and rules to class counsel.
VI. NOTICE
Page 12 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 13 of 17
Case 3:10-cv-00355-MCR-EMT Document 133-1 Filecl12/01/1l Page 13 of 17
18. Pmsuan't to Rule 23(e), Federal Rules of Civil Procedure, the Defendant Sheriff, within seven (7) clays of the Court's preliminary approval of the Notice of Proposed Settlement (hereinafter "Notice") attached to this Consent Decree as Exhibit A, shall provide the Notice to those members of the Plaintiff Class presently confined at the Jail, by posting a copy of the attached Notice in each dorm until December 31, 20 I J in a place plainly readable and accessible to inmates generally, and providing a copy of the attached Notice individually to any inmate who is not housed in a common dormitory setting. The attached Notice shall be posted and distributed in English and Spanish. The cost of providing such notice and distributing copies of this Consent Decree shall be borne by the Defendant Sheriff in his official capacity.
19. Class members shall have until December 31, 20 ll, to file with the Clerk of the Court any written objections to this proposed Consent Decree, with a copy to class counsel. The Defendant SheriiT shall provide free paper, envelopes and postage to any indigent inmate who wishes to file objections to this Consent Decree. Such communications with the Court shall be considered privileged legal mail by the Defendant Sheriff, his agents and employees.
VII. COSTS, EXPENSES AND ATTORNEYS' FEES 20. Prevailing Party. Defendant Sheriff agrees that Plaintiffs are the prevailing parties in this action and, as such, are entitled under 42 U.S.C. § 1988 to reasonable attorneys' fees, costs and expenses. The Defendant Sheriff is liable for and will pay Plaintiffs such reasonable attorneys' fees, costs, and expenses. However, the Defendant Sheriff reserves the right to challenge any and all aspects other than liability of Plaintiffs' application for fees, costs and expenses. The Parties will endeavor in good faith to resolve the current ancillary dispute over the amount of reasonable attorneys' fees, costs and expenses before the Court's final approval and entry of the Consent Decree. However, if the Parties are unable to resolve this
Page 13 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 14 of 17
Case 3:10-cv-00355-MCR-EMT Doculllent 133-1 Filed 12/01/11 l=>age 14 of 17
ancillary dispute before the Court's final approval and entry of the Consent Decree, the Plaintiffs \Viii waive any claim and entitlement to reasonable attorneys' fees, costs and expenses incurred in resolving this ancillary dispute after the Court's final approval and entry of the Consent Decree.
21. Taxable Costs. Plaintiffs' counsel shall file a Bill of Costs and other appropriate papers as required by Rule 54.2, Local Rules of the Northern District of Florida, within ten (1 0) days of the Court's entry ofthis Consent Decree.
22. Attomeys' Fees and Litigation Expenses. Plaintiffs' counsel shall submit appropriate papers regarding Plaintiffs' attorneys' fees and related nontaxable litigation expenses to the Defendant Sheriffs counsel within twenty-eight (28) clays of the Court's entry of this Consent Decree. Counsel for the Parties shall thereafter have twenty-eight (28) days to meet and confer in an attempt to settle all attorneys' fees and related nontaxable expenses. If the matter is not settled within the twenty-eight (28) day time fi·ame, Plaintiffs' counsel shall submit appropriate papers to the Court as an application for their reasonable attorneys' fees and related nontaxable expenses, pursuant to Local Rule 54.1 (E), Local Rules of the Northern District of Florida.
23. Enlargement of Time. The aforementioned time frames for attempting to settle Plaintiffs' attorneys' fees, costs and expenses may be extended by the filing with the Court of a Joint Stipulation of Enlargement.
Vrii. CONSENT AND EXECUTION BY PARTIES AND COUNSEL WHEREFORE the Parties and their counsel do hereby agree to the terms and conditions of the Consent Decree as set forth above, subject to the Court's entry of this Consent Decree below.
Page 14ofl7

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 15 of 17
Case 3:10-cv-003E·S-MCF<-EMi- Docurnent 133. 1 Filed 12/0l/ll Pane 15 of 17

Class Repn.:scntativc

~~~~~{ Wendell rtall Sheriff of Santa Rosa County .5755 East tvlilton Road 1vlilton. FL :12583

BcnJ:&Ittin ,1ri1tTC. , Ievenson (Fla. Bar. No. 5<JI)l)09) ACLflJ Found. of Fin. Post O!Tice Box 12723 Pensacobt. FL J25lJ 1-2723
bstevcnson(~t)aclullorg
T. 71:\6.31.\3.2731-l F. 786.361. IIJI:\5

~~~/---

C---/" ' ...............~-... ..::::::~~---~·~

Keith C. Tischln

·

Jolly and Peterson, I'.A.

2l45 Delta Blvd., Ste. 20(1

Tallahassee, FL J2J(D-4209

(850)422-02})2.

(ii50)942-5524 (facsimile)

kct((i!jollylaw .com

Randllll C. Berg, Jr. (Fla. Bar No. 3H:G7l) Joshua A. Gliclanan (Fla. Bar No. 43994) Shawn A. Heller (Fl:s. Bar No. 46346) Florida Justice !n::;titttlc, Inc. 100 SE Second Sl., Slt:, 3750 MiHmi, .FL 33131-21 15 R13erg({rH:loridaJ usticc Insl ir.ute.org
·r. 305.351:\.2081
F. :105 .35C:.0910
Randall C. iVIarshnll (Fla. llnr No.: 1817(,5)
I{ Marshaii((Dnclu n.org
Maria K11yanan (Fla. Bar No.: 305(i() I)
MKnyanan@aclull.org American Civil Liberties Union Found. of Fin. 4500 Biscayne Blvd., Ste. ~\40 lvliarni, FL .1:3 L\7 T. 786J6J.2707

Counsel for Defendant ,)'her(/]'

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 16 of 17

Case 3:10-cv-00355-MG<-EMT Document 133-1 Filed 12/01/ll Page 16 of 17

F. 786.363.1 I08 Couuselfor Plaiut(ff.\·

IX. APPROVAL AND EXECUTION BY THE COURT
This matter came before the Court for a Fairness Hearing on February

, _9 ,

2012. Having conducted such a hearing, and upon the foregoing approvals by the Parties and

their counsel, the Court being fully advised in the premises, it is hereby

ORDERED AND ADJUDGED AS FOLLOWS:

l. The Settlement Class is hereby defined as all current and future detainees of the

Santa Rosa County, Florida, Jail.

2. The foregoing Settlement Agreement and Consent Decree was entered into in

good faith, provides a fair, reasonable, and adequate resolution of the Plaintiffs' claims, and is in

the best interest ofthe Settlement Class.

3. The foregoing Settlement Agreement and Consent Decree constitutes narrowly

drawn relief that extends no further than necessary to correct the alleged violation of Plaintiffs'

constitutional rights, and is the least intrusive means necessary to correct the alleged violation of

Plaintiffs' constitutional rights, pursuant to 18 U.S.C. § 3626(a)(l )(A);

4. The terms and conditions of this Settlement Agreement and Consent Decree are

hereby approved and entered as a judicially enforceable Consent Decree;

5. This Court reserves jurisdiction over the Parties in this action, including the

Defendant Sherin: all successors in office to the Defendant Sheriff, and all Settlement Class

members, to enforce this Consent Decree in accordance with the terms for the mutual benefit of

all the parties.

Page 16 of 17

Case 3:10-cv-00355-MCR-EMT Document 158 Filed 02/13/12 Page 17 of 17

6.

Subject to this Court's jurisdiction over the Parties in this action to enforce this Consent

Decree, it is further ordered, adjudged and decreed that the Complaint in this action be dismissed with

prejudice.

Done and Ordered in Pensacola, Florida, this 13th day of February, 2012.

M. CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE

Page 17 of 17

 
 CLOSED,CLASS CERTIFIED
U.S. District Court Northern District of Florida (Pensacola) CIVIL DOCKET FOR CASE #: 3:10−cv−00355−MCR−EMT

REYNOLDS et al v. HALL Assigned to: CHIEF JUDGE M CASEY RODGERS Referred to: MAGISTRATE JUDGE ELIZABETH M TIMOTHY Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 09/13/2010 Date Terminated: 02/13/2012 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

LOUIS REYNOLDS TERMINATED: 04/07/2011

represented by BENJAMIN JAMES STEVENSON BENJAMIN STEVENSON ESQ − PENSACOLA FL PO BOX 12723 PENSACOLA, FL 32591−2723 786−363−2738 Fax: 786−363−1985 Email: bstevenson@aclufl.org ATTORNEY TO BE NOTICED

JOSHUA AARON GLICKMAN FLORIDA JUSTICE INSTITUTE INC− MIAMI FL 100 SE 2ND ST 3750 BANK OF AMERICA TWR MIAMI, FL 33131 305−358−2081 Fax: 305−358−0910 Email: josh@sjlawcollective.com TERMINATED: 07/03/2012

MARIA KAYANAN ACLU OF FLORIDA 4500 BISCAYNE BLVD STE 340 MIAMI, FL 33137 786−363−4435 Email: mkayanan@aclufl.org ATTORNEY TO BE NOTICED

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

RANDALL C MARSHALL ACLU OF FLORIDA − MIAMI 4500 BISCAYNE BLVD STE 340 MIAMI, FL 33137−4129 786−363−2700 Fax: 786−363−1108 Email: rmarshall@aclufl.org ATTORNEY TO BE NOTICED

SHAWN ALEX HELLER

Plaintiff JEFFERY MILLER TERMINATED: 04/07/2011
Plaintiff JASON KENNEDY TERMINATED: 04/07/2011
Plaintiff RONALD MCCRANEY, JR TERMINATED: 04/07/2011

SOCIAL JUSTICE LAW COLLECTIVE PL P O BOX 70327 WASHINGTON, DC 20024 202−709−5744 Fax: 866−893−0416 Email: shawn@shawnheller.com ATTORNEY TO BE NOTICED
represented by BENJAMIN JAMES STEVENSON (See above for address)
JOSHUA AARON GLICKMAN (See above for address)
MARIA KAYANAN (See above for address)
RANDALL CHALLEN BERG (See above for address)
RANDALL C MARSHALL (See above for address)
SHAWN ALEX HELLER (See above for address)
represented by BENJAMIN JAMES STEVENSON (See above for address)
JOSHUA AARON GLICKMAN (See above for address)
MARIA KAYANAN (See above for address)
RANDALL CHALLEN BERG (See above for address)
RANDALL C MARSHALL (See above for address)
SHAWN ALEX HELLER (See above for address)
represented by BENJAMIN JAMES STEVENSON (See above for address)
JOSHUA AARON GLICKMAN (See above for address)
MARIA KAYANAN (See above for address)
RANDALL CHALLEN BERG (See above for address)
RANDALL C MARSHALL (See above for address)

Plaintiff MARCIE HAMILTON
Plaintiff GARRY NACE TERMINATED: 04/07/2011 Plaintiff JEFFREY A DICKSTEIN
V. Defendant WENDELL HALL
Defendant JAMIE BROJANAC TERMINATED: 04/07/2011 Counter Claimant WENDELL HALL TERMINATED: 04/07/2011 Counter Defendant JASON KENNEDY TERMINATED: 04/07/2011
Counter Claimant WENDELL HALL TERMINATED: 04/07/2011

SHAWN ALEX HELLER (See above for address)
represented by JOSHUA AARON GLICKMAN (See above for address)
BENJAMIN JAMES STEVENSON (See above for address) ATTORNEY TO BE NOTICED
represented by BENJAMIN JAMES STEVENSON (See above for address)
represented by JEFFREY A DICKSTEIN 7027 E 33RD ST TULSA, OK 74145 PRO SE
represented by KEITH C TISCHLER JOLLY &PETERSON PA − TALLAHASSEE FL 2145 DELTA BLVD STE 200 TALLAHASSEE, FL 32303 850−422−0282 Fax: 850−422−1913 Email: kct@jollylaw.com ATTORNEY TO BE NOTICED
represented by BENJAMIN JAMES STEVENSON (See above for address)
represented by KEITH C TISCHLER (See above for address)
represented by BENJAMIN JAMES STEVENSON (See above for address)
MARIA KAYANAN (See above for address)
RANDALL CHALLEN BERG (See above for address)
RANDALL C MARSHALL (See above for address)
represented by KEITH C TISCHLER (See above for address)

Counter Defendant RONALD MCCRANEY, JR TERMINATED: 04/07/2011
Counter Claimant WENDELL HALL TERMINATED: 04/07/2011 Counter Defendant LOUIS REYNOLDS TERMINATED: 04/07/2011

represented by BENJAMIN JAMES STEVENSON (See above for address)
MARIA KAYANAN (See above for address)
RANDALL CHALLEN BERG (See above for address)
RANDALL C MARSHALL (See above for address)
represented by KEITH C TISCHLER (See above for address)
represented by BENJAMIN JAMES STEVENSON (See above for address)
MARIA KAYANAN (See above for address)
RANDALL CHALLEN BERG (See above for address)
RANDALL C MARSHALL (See above for address)

Date Filed 09/13/2010
09/13/2010 09/20/2010 09/20/2010 09/20/2010
09/20/2010 09/21/2010
09/21/2010 09/28/2010

# Docket Text
1 COMPLAINT against WENDELL HALL ( Filing fee $ 350 receipt number 1129−1677067.), filed by JEFFERY MILLER, LOUIS REYNOLDS. (Attachments: # 1 Exhibit Santa Rosa Sheriff SOP 15.48) (STEVENSON, BENJAMIN) (Entered: 09/13/2010)
2 CIVIL COVER SHEET. (STEVENSON, BENJAMIN) (Entered: 09/13/2010)
3 Request Clerk issue Summons by JEFFERY MILLER, LOUIS REYNOLDS. (Attachments: # 1 Summons) (STEVENSON, BENJAMIN) (Entered: 09/20/2010)
4 Summons Issued as to WENDELL HALL. (cbj) (Entered: 09/20/2010)
5 First AMENDED COMPLAINT (Class Action) against WENDELL HALL, filed by JEFFERY MILLER, LOUIS REYNOLDS, JASON KENNEDY, RONALD MCCRANEY. (Attachments: # 1 Exhibit Exhibit Santa Rosa Sheriff SOP 15.48) (STEVENSON, BENJAMIN) (Entered: 09/20/2010)
6 NOTICE of Appearance by RANDALL CHALLEN BERG on behalf of All Plaintiffs (BERG, RANDALL) (Entered: 09/20/2010)
7 MOTION to Certify Class &MEMORANDUM OF LAW by JASON KENNEDY, RONALD MCCRANEY, JEFFERY MILLER, LOUIS REYNOLDS. (Internal deadline for referral to judge if response not filed earlier: 10/12/2010). (Attachments: # 1 Exhibit Inmate Grievance Form (Aug. 5, 2010)) (STEVENSON, BENJAMIN) (Entered: 09/21/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 7 MOTION &MEMORANDUM OF LAW For Class Certification (cbj) (Entered: 09/21/2010)
8 SUMMONS Returned Executed by RONALD MCCRANEY, JR, JEFFERY MILLER, JASON KENNEDY, LOUIS REYNOLDS. WENDELL HALL served

10/12/2010 10/12/2010 10/12/2010 10/12/2010 10/12/2010 10/12/2010 10/13/2010 10/13/2010
10/15/2010 10/15/2010 10/15/2010 10/15/2010
10/26/2010 10/27/2010 10/28/2010
10/29/2010 11/01/2010

on 9/21/2010, answer due 10/12/2010. (Attachments: # 1 Exhibit Return of Service on Defendant Wendell Hall, in his individual capacity as Sheriff for Santa Rosa County, Florida) (BERG, RANDALL) (Entered: 09/28/2010)
9 COUNTERCLAIM against JASON KENNEDY, filed by WENDELL HALL. (TISCHLER, KEITH) (Entered: 10/12/2010)
10 COUNTERCLAIM against RONALD MCCRANEY, JR, filed by WENDELL HALL. (TISCHLER, KEITH) (Entered: 10/12/2010)
11 COUNTERCLAIM against LOUIS REYNOLDS, filed by WENDELL HALL. (TISCHLER, KEITH) (Entered: 10/12/2010)
12 MOTION to Dismiss First Amended Complaint by WENDELL HALL. (Internal deadline for referral to judge if response not filed earlier: 11/1/2010). (TISCHLER, KEITH) (Entered: 10/12/2010)
13 RESPONSE in Opposition re 7 MOTION to Certify Class &MEMORANDUM OF LAW filed by WENDELL HALL. (TISCHLER, KEITH) (Entered: 10/12/2010)
14 NOTICE of Appearance by JOSHUA AARON GLICKMAN on behalf of JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS (GLICKMAN, JOSHUA) (Entered: 10/12/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 9 Counterclaim, 10 Counterclaim, 11 Counterclaim. − − (ISO in Q) (cbj) (Entered: 10/13/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 7 MOTION to Certify Class &MEMORANDUM OF LAW, 13 Response in Opposition to Motion. − (ROin Q) (cbj) (Entered: 10/13/2010)
15 ATTORNEY TIME RECORDS by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (STEVENSON, BENJAMIN) (Entered: 10/15/2010)
16 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (STEVENSON, BENJAMIN) (Entered: 10/15/2010)
17 ATTORNEY TIME RECORDS by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 10/15/2010)
18 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (Attachments: # 1 Randall C. Berg, Jr.. Esq.(8/2010), # 2 Randall C. Berg, Jr. Esq.(9/2010)) (BERG, RANDALL) (Entered: 10/15/2010)
19 NOTICE of Appearance by SHAWN ALEX HELLER on behalf of JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS (HELLER, SHAWN) (Entered: 10/26/2010)
20 NOTICE of Voluntary Dismissal by RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS (STEVENSON, BENJAMIN) (Entered: 10/27/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 20 Notice of Voluntary Dismissal (as to plaintiffs LOUIS REYNOLDS, RONALD MCCRANEY JR., and JEFFERY MILLER). (cbj) (Entered: 10/28/2010)
21 RESPONSE in Opposition re 12 MOTION to Dismiss First Amended Complaint filed by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (GLICKMAN, JOSHUA) (Entered: 10/29/2010)
22 ATTORNEY TIME RECORDS by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (STEVENSON, BENJAMIN)

11/01/2010 11/03/2010 11/03/2010
11/09/2010 11/09/2010 12/02/2010 12/03/2010 12/03/2010 12/09/2010 12/09/2010 12/14/2010
12/14/2010 12/14/2010
12/15/2010

(Entered: 11/01/2010)
23 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (STEVENSON, BENJAMIN) (Entered: 11/01/2010)
24 STIPULATION OF DISMISSAL WITHOUT PREJUDICE OF DEFENDANT'S COUNTERCLAIMS PURSUANT TO RULE 41(a)(1)(A)(ii) F.R.C.P. by WENDELL HALL, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (TISCHLER, KEITH) (Entered: 11/03/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 12 MOTION to Dismiss First Amended Complaint, 21 Response in Opposition to Motion; and 24 Stipulation Of Dismissal without prejudice re counterclaims (cbj) (Entered: 11/03/2010)
25 ATTORNEY TIME RECORDS by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 11/09/2010)
26 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (Attachments: # 1 Randall C. Berg, Jr., Esq., # 2 Joshua A. Glickman, Esq., # 3 Dante P. Trevisani, Esq.) (BERG, RANDALL) (Entered: 11/09/2010)
28 ORDER of Deficiency. The submitted hard copy of the document shall be returned to Mr. Willie Kevin Williams by the clerk without electronic filing. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on December 2, 2010. (kvg) (copy of order mailed to Willie Wiliams). (Entered: 12/02/2010)
29 ATTORNEY TIME RECORDS by JASON KENNEDY. (STEVENSON, BENJAMIN) (Entered: 12/03/2010)
30 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY. (STEVENSON, BENJAMIN) (Entered: 12/03/2010)
31 ATTORNEY TIME RECORDS by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 12/09/2010)
32 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (Attachments: # 1 Joshua A. Glickman, Esq.) (BERG, RANDALL) (Entered: 12/09/2010)
33 PLAINTIFFS' NOTICE OF FILING SECOND AMENDED COMPLAINT; JOINT MOTION TO ACCEPT SHERIFF'S MOTION TO DISMISS (And Plaintiffs' Response) AS RESPONSE TO SECOND AMENDED COMPLAINT; AND PLAINTIFFS' UNOPPOSED AMENDMENT TO MOTION FOR CLASS CERTIFICATION re 7 Motion to Certify Class and 13 Response in Opposition and 12 Motion to Dismiss filed by JASON KENNEDY. (STEVENSON, BENJAMIN) Modified on 12/16/2010 to create proper linkage and clarify docket text(kvg). (Entered: 12/14/2010)
34 SECOND AMENDED COMPLAINT against WENDELL HALL, filed by JASON KENNEDY, MARCIE HAMILTON, GARRY NACE. (STEVENSON, BENJAMIN) (Entered: 12/14/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 33 PLAINTIFFS NOTICE OF FILING SECOND AMENDED COMPLAINT; JOINT MOTION TO ACCEPT SHERIFF'S MOTION TO DISMISS AS RESPONSE TO SECOND AMENDED COMPLAINT; AND PLAINTIFFS' UNOPPOSED AMENDMENT TO MOTION FOR CLASS CERTIFICATION. (kvg) (Entered: 12/14/2010)
35 ORDER GRANTING 33 PLAINTIFFS' NOTICE OF FILING SECOND AMENDED COMPLAINT; JOINT MOTION TO ACCEPT SHERIFF'S

12/16/2010
01/11/2011 01/11/2011 01/11/2011 01/11/2011 02/09/2011 02/09/2011 02/24/2011
02/24/2011 02/28/2011
02/28/2011
03/01/2011 03/01/2011 03/14/2011

MOTION TO DISMISS AS RESPONSE TO SECOND AMENDED COMPLAINT; AND PLAINTIFFS' UNOPPOSED AMENDMENT TO MOTION FOR CLASS CERTIFICATION. Signed by District Judge M CASEY RODGERS on December 15, 2010. (kvg) (Entered: 12/15/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 12 MOTION to Dismiss First Amended Complaint and 21 Response in Opposition to Motion; 7 MOTION to Certify Class &MEMORANDUM OF LAW and 13 Response in Opposition to Motion; 34 Second Amended Complaint and 12 Motion to Dismiss (considered a Response pursuant to 35 Order. (kvg) (Entered: 12/16/2010)
36 ATTORNEY TIME RECORDS by MARCIE HAMILTON, JASON KENNEDY, GARRY NACE. (STEVENSON, BENJAMIN) (Entered: 01/11/2011)
37 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON, JASON KENNEDY, GARRY NACE. (STEVENSON, BENJAMIN) (Entered: 01/11/2011)
38 ATTORNEY TIME RECORDS by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 01/11/2011)
39 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (Attachments: # 1 Joshua A. Glickman, Esq., # 2 Randall C. Berg, Jr., Esq.) (BERG, RANDALL) (Entered: 01/11/2011)
40 ATTORNEY TIME RECORDS by MARCIE HAMILTON, JASON KENNEDY, GARRY NACE. (STEVENSON, BENJAMIN) (Entered: 02/09/2011)
41 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON, JASON KENNEDY, GARRY NACE. (STEVENSON, BENJAMIN) (Entered: 02/09/2011)
42 MOTION Joint Motion To Accept Sheriffs Motion To Dismiss (And Plaintiffs Response) As Response To Third Amended Complaint &Unopposed Amendment To Motion For Class Certification &Notice of Filing Third Amended Complaint by MARCIE HAMILTON, JAMIE BROJANAC. (STEVENSON, BENJAMIN) (Entered: 02/24/2011)
43 THIRD AMENDED COMPLAINT against WENDELL HALL, filed by MARCIE HAMILTON, JAMIE BROJANAC. (STEVENSON, BENJAMIN) (Entered: 02/24/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re:, 42 Plaintiffs' Motion of Filing Third Amended Complaint; Joint Motion To Accept Sheriff's Motion To Dismiss (And Plaintiffs' Response) As Response To Third Amended Complaint; and Unopposed Amendment To Motion For Class Certification and 43 Third Amended Complaint. (kvg) (Entered: 02/28/2011)
44 ORDER GRANTING 42 Plaintiffs' Motion of Filing Third Amended Complaint; Joint Motion To Accept Sheriff's Motion To Dismiss (And Plaintiffs' Response) As Response To Third Amended Complaint; and Unopposed Amendment To Motion For Class Certification. Signed by District Judge M CASEY RODGERS on February 28, 2011. (kvg) (Entered: 02/28/2011)
45 ATTORNEY TIME RECORDS by JAMIE BROJANAC, MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 03/01/2011)
46 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 03/01/2011)
47 NOTICE of Supplemental Authorities by JAMIE BROJANAC, MARCIE HAMILTON re 21 Response in Opposition to Motion, 7 MOTION to Certify Class &MEMORANDUM OF LAW (Attachments: # 1 Clay v. Pelle, No. 1:10−cv−1840 (D. Colo. Mar. 8, 2011), # 2 Johnson v. Smith, No. 2:10−CV−236, 2011 WL

03/15/2011 03/15/2011 03/15/2011 04/07/2011 04/13/2011 04/13/2011 04/15/2011 04/15/2011
04/15/2011 04/15/2011 04/26/2011 04/26/2011 05/02/2011 05/09/2011 05/09/2011

344085 (N.D. Ga. Feb. 1, 2011)) (STEVENSON, BENJAMIN) (Entered: 03/14/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 47 Plaintiff's Notice of Supplemental Authorities re: 21 Response. (kvg) (Entered: 03/15/2011)
48 ATTORNEY TIME RECORDS by MARCIE HAMILTON, JASON KENNEDY. (BERG, RANDALL) (Entered: 03/15/2011)
49 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON, JASON KENNEDY. (Attachments: # 1 Exhibit Time records for Berg 2/11) (BERG, RANDALL) (Entered: 03/15/2011)
50 NOTICE of Voluntary Dismissal by JAMIE BROJANAC (STEVENSON, BENJAMIN) (Entered: 04/07/2011)
51 ATTORNEY TIME RECORDS by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 04/13/2011)
52 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (Attachments: # 1 Dante P. Trevisani, Esq., # 2 Joshua A. Glickman, Esq.) (BERG, RANDALL) (Entered: 04/13/2011)
53 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 04/15/2011)
54 MOTION for Preliminary Injunction by MARCIE HAMILTON. (Attachments: # 1 Affidavit Hamilton Declaration, # 2 Affidavit Martin Expert Declaration, # 3 Affidavit Stevenson Declaration, # 4 Exhibit Outgoing Mail Procedure, Standard Operating Procedure No. 15.48 − (Effective August 14, 2010), # 5 Exhibit Outgoing Mail Procedure for Security Staff, Standard Operating Procedure No. 15.48 − (Effective March 26, 2009), # 6 Exhibit Inmate Mail, General Order No. O−071 (Effective August 14, 2010), # 7 Exhibit Inmate Mail, General Order No. O−071 (Effective August 18, 2007), # 8 Exhibit Notice Effective July 15, 2010, # 9 Exhibit Visitation Schedule, # 10 Exhibit Inmate Handbook) (STEVENSON, BENJAMIN) (Entered: 04/15/2011)
55 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 04/15/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 54 Plaintiffs' MOTION for Preliminary Injunction. (A response has not been filed)(referred as directed by tdg) (kvg) (Entered: 04/15/2011)
56 MOTION for Extension of Time to File Response/Reply as to 54 MOTION for Preliminary Injunction Unopposed by WENDELL HALL. (TISCHLER, KEITH) (Entered: 04/26/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 56 Defendant's Unopposed Motion for Enlargement of Time to Submit a Response to Plaintiffs' 54 Motion for Preliminary Injunction. (kvg) (Entered: 04/26/2011)
57 ORDER GRANTING 56 Defendant's Unopposed Motion for Enlargement of Time to Submit a Response to Plaintiff's 54 Motion for Preliminary Injunction. Signed by District Judge M CASEY RODGERS on May 2, 2011. (Response due 5/16/2011) (kvg) (Entered: 05/02/2011)
58 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 05/09/2011)
59 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 05/09/2011)

05/13/2011 05/13/2011
05/16/2011 05/16/2011 05/16/2011 05/17/2011 05/18/2011 05/19/2011 05/23/2011 05/24/2011 05/26/2011
05/26/2011
05/26/2011 05/31/2011 05/31/2011

60 ATTORNEY TIME RECORDS by MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, GARRY NACE. (BERG, RANDALL) (Entered: 05/13/2011)
61 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, GARRY NACE, LOUIS REYNOLDS. (Attachments: # 1 Exhibit Glickman's Time Record, # 2 Exhibit Tresiani's Time Record) (BERG, RANDALL) (Entered: 05/13/2011)
62 RESPONSE in Opposition re 54 MOTION for Preliminary Injunction filed by WENDELL HALL. (TISCHLER, KEITH) (Entered: 05/16/2011)
63 NOTICE of Filing of Defendant in Support of Response of Defendant to Motion for Preliminary Injunction (items 1, 3 &4) by WENDELL HALL re 62 Response in Opposition to Motion (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Affidavit, # 3 Exhibit Affidavit) (TISCHLER, KEITH) (Entered: 05/16/2011)
64 NOTICE of Filing of Defendant in Support of Response of Defendant to Motion for Preliminary Injunction (Exh. #2) by WENDELL HALL re 63 Notice (Other), Notice (Other) (Attachments: # 1 Affidavit Affidavit, # 2 Attachment to Affidavit) (TISCHLER, KEITH) (Entered: 05/16/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 62 Response in Opposition to 54 Motion, 63 Notice of Filing and 64 Notice of Filing. (kvg) (Entered: 05/17/2011)
65 Joint MOTION for Judicial Determination of Standing During Pendency of Plaintiffs' Motion for Class Certification by MARCIE HAMILTON. (GLICKMAN, JOSHUA) (Entered: 05/18/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 65 Joint MOTION for Judicial Determination of Standing During Pendency of Plaintiffs' Motion for Class Certification. (kvg) (Entered: 05/19/2011)
66 MOTION for Leave to File re 62 Response in Opposition to Motion for Preliminary Injunction by MARCIE HAMILTON. (GLICKMAN, JOSHUA) (Entered: 05/23/2011)
67 ORDER granting 66 Motion for Leave to File. Signed by District Judge M CASEY RODGERS on May 24, 2011. (ak, Pensacola) (Entered: 05/24/2011)
68 ORDER re: 54 Motion for Preliminary Injunction. The parties shall have 5 days from the date of this order to inform the court of their positions regarding an evidentiary hearing and, in the event they request an evidentiary hearing, to advise the court of the anticipated length of the hearing. Signed by District Judge M CASEY RODGERS on May 26, 2011. (Miscellaneous Deadline − by 5/31/2011) (kvg) (Entered: 05/26/2011)
69 ORDER GRANTING 7 Motion for Class Certification. Within 30 days of the date of this order, the pla shall submit to the court for approval a proposed notice to the class members in accordance with Fed. R. Civ.P. 23(c)(2)(B). Signed by District Judge M CASEY RODGERS on May 26, 2011. (Miscellaneous Deadline − by 6/27/2011.) (kvg) (Entered: 05/26/2011)
70 ORDER re: 65 Joint Motion for Judicial Determination. The relief requested is DENIED as moot in light of the court's 69 order granting pla's motion for class certification. Signed by District Judge M CASEY RODGERS on May 26, 2011. (kvg) (Entered: 05/27/2011)
71 RESPONSE by WENDELL HALL re 68 Order, Set Deadlines/Hearings,, Regarding Plaintiffs' Motion for Preliminary Injunction. (TISCHLER, KEITH) (Entered: 05/31/2011)
72 NOTICE re Hearing on Motion for Preliminary Injuction by MARCIE HAMILTON re 68 Order, Set Deadlines/Hearings,, (STEVENSON, BENJAMIN) (Entered: 05/31/2011)

05/31/2011 06/08/2011 06/08/2011 06/08/2011
06/09/2011 06/09/2011
06/10/2011 06/13/2011
06/14/2011 06/22/2011 06/23/2011 06/23/2011 07/01/2011 07/05/2011 07/07/2011 07/07/2011 07/12/2011

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 71 Response and 72 Notice in compliance with 68 Order. (kvg) (Entered: 05/31/2011)
73 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 06/08/2011)
74 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 06/08/2011)
75 ORDER. On May 26, 2011, the court entered an 69 order certifying a class action in this case. As a result, notice is permissive, not mandatory, and thus the pla should not have been directed to submit a notice for court approval. Additionally, upon further consideration, the court finds that notice is not appropriate in this case. Signed by District Judge M CASEY RODGERS on June 8, 2011. (kvg) (Entered: 06/08/2011)
76 ATTORNEY TIME RECORDS by MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, GARRY NACE, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 06/09/2011)
77 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, GARRY NACE, LOUIS REYNOLDS. (Attachments: # 1 Exhibit Berg Time Records − May 2011, # 2 Exhibit Glickman Time Records − May 2011, # 3 Errata Trevisani Time Records − May 2011) (BERG, RANDALL) (Entered: 06/09/2011)
78 ORDER DENYING 12 Motion to Dismiss. Signed by District Judge M CASEY RODGERS on June 10, 2011. (kvg) (Entered: 06/10/2011)
79 REPLY to Response to Motion re 54 MOTION for Preliminary Injunction filed by MARCIE HAMILTON. (Attachments: # 1 Exhibit A − Order Enjoining Postcard−only Mail Policy, Martinez v. Maketa, No. 1:10−cv−02242 (D. Colo. June 7, 2011)) (GLICKMAN, JOSHUA) (Entered: 06/13/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 79 Reply to 62 Response to 54 Motion for Preliminary Injunction. (kvg) (Entered: 06/14/2011)
80 ANSWER to 43 Amended Complaint and Affirmative Defenses by WENDELL HALL. (TISCHLER, KEITH) (Entered: 06/22/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of District Judge M CASEY RODGERS notified that action is needed Re: 80 Answer to Amended Complaint. (ISO in :Q drive) (kvg) (Entered: 06/23/2011)
81 INITIAL SCHEDULING ORDER. Signed by District Judge M CASEY RODGERS on June 23, 2011. Rule 26 Meeting Report due by 8/8/2011. Discovery due by 10/21/2011. (kvg) (Entered: 06/23/2011)
82 REPORT of Rule 26(f) Planning Meeting. (STEVENSON, BENJAMIN) (Entered: 07/01/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 82 Report of Rule 26(f) Planning Meeting. (kvg) (Entered: 07/05/2011)
83 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 07/07/2011)
84 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 07/07/2011)
85 NOTICE OF HEARING. Oral Argument on 54 Plaintiffs' Motion for Preliminary Injunction set for 8/12/2011 12:30 PM in Pensacola before CHIEF JUDGE M CASEY RODGERS. (copy to CSO and CRD) (kvg) (Entered: 07/12/2011)

07/15/2011 07/15/2011 07/28/2011
08/03/2011 08/03/2011 08/09/2011 08/09/2011 08/12/2011 08/12/2011
08/12/2011
08/23/2011
08/24/2011 08/31/2011
09/06/2011

86 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (Attachments: # 1 Exhibit Dante P. Trevisani Time Record, # 2 Exhibit Randall C. Berg, Jr. Time Record, # 3 Exhibit Joshua A. Glickman Time Record) (BERG, RANDALL) (Entered: 07/15/2011)
87 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (BERG, RANDALL) (Entered: 07/15/2011)
88 FINAL SCHEDULING ORDER AND MEDIATION REFERRAL. Signed by CHIEF JUDGE M CASEY RODGERS on July 28, 2011. (Discovery due 10/21/2011, Dispositive and Daubert Motions to be filed by 11/10/2011, Mediation to take place by 11/18/2011, Mediation Report due by 12/2/2011) (kvg) Modified on 7/29/2011 to correct deadine (kvg). (Entered: 07/28/2011)
89 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 08/03/2011)
90 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 08/03/2011)
91 NOTICE of Filing of Defendant In Support of Response of Defendant to Motion for Preliminary Injunction (Second Notice) by WENDELL HALL (Attachments: # 1 Exhibit) (TISCHLER, KEITH) (Entered: 08/09/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 91 Notice of Filing re: 62 Response. (kvg) (Entered: 08/09/2011)
92 ATTORNEY TIME RECORDS by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 08/12/2011)
93 ATTORNEY TIME RECORDS − SEALED PORTION by JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (Attachments: # 1 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 2 Exhibit Attorney Time Record − Dante P. Trevisani, # 3 Exhibit Attorney Time Record − Joshua A. Glickman) (BERG, RANDALL) (Entered: 08/12/2011)
94 Minute Entry for proceedings held before CHIEF JUDGE M CASEY RODGERS:Motion Hearing held on 8/12/2011 re 54 MOTION for Preliminary Injunction filed by MARCIE HAMILTON. Argument heard. Court shall enter a written order. Court grants Plaintiffs' request for an extra week to provide expert disclosures. (Court Reporter Gwen Kesinger.) (sps) (Entered: 08/15/2011)
95 NOTICE of Fling Unsworn Declaration of Michael Berg in Support of Motion for Preliminary Injunction by MARCIE HAMILTON re 54 MOTION for Preliminary Injunction (Attachments: # 1 Affidavit Unsworn Declaration of Michael Berg, # 2 Exhibit Exhibit A − C.V. of Michael Berg) (BERG, RANDALL) (Entered: 08/23/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 95 Notice of of Filing Unsworn Declaration of Michael Berg in Support of 54 Motion for Preliminary Injunction. (kvg) (Entered: 08/24/2011)
96 ORDER. The parties are directed to promptly confer and advise the court in writing within 5 days of the date of this order whether the proposed discovery period should be shortened or lengthened and reasons therefore and also advise as to the anticipated time required for an evidentiary hearing/trial if more than one day is needed. Signed by CHIEF JUDGE M CASEY RODGERS on August 31, 2011. (Miscellaneous Deadline − by 9/6/2011.) (kvg) (Entered: 09/01/2011)
97 RESPONSE by MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, GARRY NACE, LOUIS REYNOLDS re 96 Order,, Set Deadlines/Hearings, Joint Response to Order (D.E. 96). (BERG, RANDALL) (Entered: 09/06/2011)

09/07/2011 09/08/2011
09/09/2011 09/09/2011 09/09/2011 09/10/2011 09/12/2011 09/12/2011 09/14/2011
09/14/2011 10/03/2011
10/04/2011 10/04/2011 10/12/2011
10/12/2011 10/14/2011 10/18/2011

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 97 Joint Response to Order (DE 96 ). (kvg) (Entered: 09/07/2011)
98 Joint MOTION for Mediation Excusal ( (Internal deadline for referral to judge if response not filed earlier: 9/26/2011).), Joint MOTION to Vacate 88 Scheduling Order,, Order Referring Case to Mediation, to Extent Necessary to Excuse Parties from Mediation by WENDELL HALL, MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 09/08/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 98 Joint Motion to Excuse Parties from Mediation. (kvg) (Entered: 09/09/2011)
99 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 09/09/2011)
100 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 09/09/2011)
101 NOTICE (Joint) of Trial Schedule Availability by MARCIE HAMILTON re 96 Order,, Set Deadlines/Hearings, 97 Response/Reply (BERG, RANDALL) (Entered: 09/10/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 101 Notice of Joint Trial Schedule Availability. (kvg) (Entered: 09/12/2011)
102 ORDER GRANTING 98 Parties Joint Motion to Excuse Parties from Mediation. Signed by CHIEF JUDGE M CASEY RODGERS on September 12, 2011. (kvg) (Entered: 09/12/2011)
103 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, GARRY NACE, LOUIS REYNOLDS. (Attachments: # 1 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 09/14/2011)
104 ATTORNEY TIME RECORDS by MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, GARRY NACE, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 09/14/2011)
105 ORDER SETTING TRIAL AND FOR PRETRIAL CONFERENCE IN A CIVIL CASE. Signed by CHIEF JUDGE M CASEY RODGERS on October 3, 2011. (Discovery due 10/31/2011, Pretrial Stipulation and other papers due 11/15/2011, Pretrial Conference set for 11/21/2011 12:30 PM, Bench Trial set for 12/1/2011 09:00 AM) (kvg) (Entered: 10/03/2011)
106 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 10/04/2011)
107 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 10/04/2011)
108 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (Attachments: # 1 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 10/12/2011)
109 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (BERG, RANDALL) (Entered: 10/12/2011)
110 MOTION for Writ of Habeas Corpus ad testificandum by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 10/14/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE ELIZABETH M TIMOTHY notified that action is needed Re: 110 Motion for Writ of Habeas Corpus ad testificandum. Referred to ELIZABETH M

10/18/2011
10/18/2011 11/03/2011 11/03/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011
11/07/2011 11/07/2011
11/07/2011

TIMOTHY. (kvg) (Entered: 10/18/2011)
111 ORDER granting 110 Motion for Writ of Habeas Corpus ad testificandum.
s/Elizabeth M. Timothy United States Magistrate Judge on 10/18/11. (tsm)
(Entered: 10/18/2011)
112 Writ of Habeas Corpus ad Testificandum Issued as to MARCIE HAMILTON for December 1, 2011 at 9:00 am (Cert. Copy to USM). (kvg) (Entered: 10/18/2011)
113 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 11/03/2011)
114 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 11/03/2011)
115 Joint MOTION for Clarification Regarding Trial Briefing re 105 Order, Set Deadlines/Hearings,, by WENDELL HALL, MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 11/07/2011)
116 PRETRIAL Stipulation by WENDELL HALL, MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 11/07/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 116 Pretrial Memorandum, 115 Joint MOTION for Clarification Regarding Trial Briefing re 105 Order. (pmc) (Entered: 11/07/2011)
117 MOTION in Limine to Preclude Evidence of Plaintiffs Duration of Detention at Jail by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 11/07/2011)
Set Deadline as to 117 MOTION in Limine to Preclude Evidence of Plaintiffs Duration of Detention at Jail. (Internal deadline for referral to judge if response not filed earlier: 11/25/2011). (pmc) (Entered: 11/07/2011)
118 MOTION in Limine with Incorporated Memorandum of Law and Certificate of Complaince by WENDELL HALL. (TISCHLER, KEITH) (Entered: 11/07/2011)
119 NOTICE of Filing in Support of Motion in Limine by WENDELL HALL re 118 MOTION in Limine with Incorporated Memorandum of Law and Certificate of Complaince (Attachments: # 1 Exhibit, # 2 Exhibit) (TISCHLER, KEITH) (Entered: 11/07/2011)
120 NOTICE of Filing in Support of Motion in Limine by WENDELL HALL re 118 MOTION in Limine with Incorporated Memorandum of Law and Certificate of Complaince (Attachments: # 1 Exhibit) (TISCHLER, KEITH) (Entered: 11/07/2011)
121 DUPLICATE ENTRY* NOTICE of Filing in Support of Motion in Limine by WENDELL HALL re 118 MOTION in Limine with Incorporated Memorandum of Law and Certificate of Complaince (Attachments: # 1 Exhibit) (TISCHLER, KEITH) Modified on 11/8/2011 to disregard entry per Attorney. (pmc). (Entered: 11/07/2011)
Set Deadlines as to 118 MOTION in Limine with Incorporated Memorandum of Law and Certificate of Complaince, (Internal deadline for referral to judge if response not filed earlier: 11/25/2011). (pmc) (Entered: 11/07/2011)
122 DUPLICATE ENTRY* NOTICE of Filing in Support of Motion in Limine by WENDELL HALL re 118 MOTION in Limine with Incorporated Memorandum of Law and Certificate of Complaince (Attachments: # 1 Exhibit) (TISCHLER, KEITH) *Modified on 11/8/2011 to disregard entry per Attorney (pmc). (Entered: 11/07/2011)
123 MOTION in Limine to Exclude Untimely Disclosed Exhibits by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 11/07/2011)

11/07/2011 11/07/2011 11/07/2011 11/08/2011 11/08/2011 11/08/2011 11/08/2011
11/10/2011 11/10/2011 11/15/2011 11/15/2011 11/15/2011
11/30/2011

124 REQUEST for Judicial Notice by MARCIE HAMILTON. (Attachments: # 1 Exhibit 42− Part 1 of 9, # 2 Exhibit 42− Part 2 of 9, # 3 Exhibit 42− Part 3 of 9, # 4 Exhibit 42− Part 4 of 9, # 5 Exhibit 42− Part 5 of 9, # 6 Exhibit 42− Part 6 of 9, # 7 Exhibit 42− Part 7 of 9, # 8 Exhibit 42− Part 8 of 9, # 9 Exhibit 42− Part 9 of 9) (GLICKMAN, JOSHUA) (Entered: 11/07/2011)
125 MOTION in Limine to Exclude Evidence Irrelevant to the Proper First Amendment Analysis by MARCIE HAMILTON. (GLICKMAN, JOSHUA) (Entered: 11/07/2011)
Response due 11/25/2011 to 123 and 125 Motions in Limine. (kvg) (Entered: 11/08/2011)
126 NOTICE of Filing in Support of Motion in Limine by WENDELL HALL re 118 MOTION in Limine with Incorporated Memorandum of Law and Certificate of Complaince (Attachments: # 1 Exhibit) (TISCHLER, KEITH) (Entered: 11/08/2011)
127 NOTICE of Filing in Support of Motion in Limine by WENDELL HALL re 118 MOTION in Limine with Incorporated Memorandum of Law and Certificate of Complaince (Attachments: # 1 Exhibit) (TISCHLER, KEITH) (Entered: 11/08/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 124 Plaintiffs' Request for Judicial Notice. (kvg) (Entered: 11/08/2011)
128 ORDER GRANTING 115 Joint Motion for Clarification Regarding Trial Briefing. The parties shall submit by 11/15/2011, proposed findings of fact and conclusions of law or, in the alternative, a proposed opinion or memorandum of decision in which such proposed findings of fact and conclusions of law appear, with complete citation of authorities, where appropriate. The parties are not required to submit trial briefs or memoranda or additional briefing on the plaintiffs motion for preliminary injunction. Signed by CHIEF JUDGE M CASEY RODGERS on November 8, 2011. (kvg) (Entered: 11/09/2011)
129 Joint MOTION to Continue Trial and Set Settlement Filing &Hearing Dates by WENDELL HALL, MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 11/10/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 129 Joint MOTION to Continue Trial and Set Settlement Filing &Hearing Dates. (kvg) (Entered: 11/10/2011)
130 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (Attachments: # 1 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 11/15/2011)
131 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (BERG, RANDALL) (Entered: 11/15/2011)
132 ORDER Granting 129 Joint MOTION to Continue Trial and Set Settlement Filing &Hearing Dates. The trial of this matter is continued; the Writ of Habeas Corpus ad Testificandum issued as to Marcie Hamilton for December 1, 2011, is hereby cancelled, with notice to be provided to the office of the U.S. Marshal and any other party served with notice of same; and the parties shall appear before the court at 9:00 a.m., on December 2, 2011, at a hearing to determine the notice to be provided to potential class members and the fairness, reasonableness, and adequacy of the parties' settlement agreement. (Hearing set for 12/2/2011 09:00 AM in U.S. Courthouse Pensacola before CHIEF JUDGE M CASEY RODGERS). Signed by CHIEF JUDGE M CASEY RODGERS on November 15, 2011. (cc USMS, CRD, CSO) (pmc) (Entered: 11/15/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 117 MOTION in Limine, 118 MOTION in Limine, 119 Notice, 120 Notice, 123 MOTION in Limine, 124

12/01/2011
12/01/2011
12/01/2011 12/02/2011
12/05/2011 12/05/2011 12/05/2011
12/05/2011 12/09/2011 01/03/2012 01/03/2012 01/03/2012 01/03/2012
01/05/2012 01/10/2012

Request, 125 MOTION in Limine, 126 Notice, 127 Notice. (pmc) (Entered: 11/30/2011)
133 Joint MOTION for Settlement &Preliminarily Approval of Consent Decree &Notice to Class by WENDELL HALL, MARCIE HAMILTON. (Attachments: # 1 Exhibit Settlement Agreement and Consent Decree, # 2 Exhibit Notice of Proposed Settlement) (STEVENSON, BENJAMIN) (Entered: 12/01/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 133 Joint MOTION for Settlement &Preliminarily Approval of Consent Decree &Notice to Class. (pmc) (Entered: 12/01/2011)
134 Writ of Habeas Corpus ad Testificandum for MARCIE L. HAMILTON Returned Unexecuted. (jmd) (Entered: 12/02/2011)
135 Minute Entry for proceedings held before CHIEF JUDGE M CASEY RODGERS:Status Conference held on 12/2/2011. Court preliminarily approves the proposed settlement agreement. Notice of Proposed Settlement shall be posted with members of the settlement class and objections will be due on or before Dec. 31, 2011. Final (Fairness) Hearing is tentatively set for Jan. 11, 2012 @ 12:30 pm.(Court Reporter Jeanine Black (Wierzbicki).) (sps) (Entered: 12/02/2011)
136 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 12/05/2011)
137 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 12/05/2011)
138 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (Attachments: # 1 Exhibit Attorney Time Record − Dante P. Trevisani, # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 4 Exhibit Attorney Time Record − Shawn A. Heller) (BERG, RANDALL) (Entered: 12/05/2011)
139 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (BERG, RANDALL) (Entered: 12/05/2011)
144 RESPONSE in Opposition re 133 Joint MOTION for Settlement &Preliminarily Approval of Consent Decree &Notice to Class filed by JEFFREY A DICKSTEIN (see doc 135 ). (Posted as directed by chambers) (pmc) (Entered: 01/05/2012)
140 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 01/03/2012)
141 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 01/03/2012)
142 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (BERG, RANDALL) (Entered: 01/03/2012)
143 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (Attachments: # 1 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 01/03/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 144 Response in Opposition to 133 Motion pursuant to 135 Status Conference. (pmc) (Entered: 01/05/2012)
145 ORDER. The fairness hearing scheduled for Wednesday, January 11, 2012, is cancelled. Dickstein shall have ten (10) days from the date of this order in which to submit additional objections to the proposed settlement. The Sheriff shall allow Dickstein reasonable access to the Jail's law library prior to the expiration of the ten−day period. The fairness hearing will be conducted on Thursday, February 9, 2012, at 12:30 p.m. USMS is directed to immediately communicate this order to both the Sheriff and Dickstein. (Internal deadline for referral to judge if response not filed earlier: 1/20/2012). Signed by CHIEF JUDGE M CASEY RODGERS on January 10, 2012. (copy to USMS via hand delivery) (pmc) (Entered: 01/10/2012)

01/17/2012 01/17/2012 01/18/2012 01/23/2012 01/24/2012 01/24/2012 01/25/2012 02/02/2012
02/03/2012
02/06/2012 02/06/2012 02/06/2012
02/06/2012 02/09/2012
02/10/2012 02/10/2012 02/13/2012

146 ACKNOWLEDGMENT OF SERVICE as to JEFFREY A DICKSTEIN, SANTA ROSA COUNTY JAIL re 145 Order, by USMS. (pmc) (Entered: 01/18/2012)
147 RESPONSE by JEFFREY A DICKSTEIN re 145 Order. (pmc) (Entered: 01/18/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 147 Response re 145 Order. (pmc) (Entered: 01/18/2012)
148 Second RESPONSE by JEFFREY A DICKSTEIN re 145 Order. (pmc) (Entered: 01/24/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 148 Second Response pursuant to 145 Order. (pmc) (Entered: 01/24/2012)
149 RESPONSE by MARCIE HAMILTON re 144 Response in Opposition to Motion (Dickstein's Objections). (STEVENSON, BENJAMIN) (Entered: 01/24/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 149 Response to 144 Response in Opposition to Motion. (pmc) (Entered: 01/25/2012)
150 RESPONSE of Defendant to Objections to the Proposed Settlement Agreement and Consent Decree by WENDELL HALL re 144 Response in Opposition to Motion, 133 Joint MOTION for Settlement &Preliminarily Approval of Consent Decree &Notice to Class, 147 Response/Reply, 148 Response/Reply (TISCHLER, KEITH) (Entered: 02/02/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 150 Response of Defendant to Objections to the Proposed Settlement Agreement amd Consent Decree. (pmc) (Entered: 02/03/2012)
151 ATTORNEY TIME RECORDS by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 02/06/2012)
152 ATTORNEY TIME RECORDS − SEALED PORTION by MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 02/06/2012)
153 ATTORNEY TIME RECORDS − SEALED PORTION by JEFFREY A DICKSTEIN, MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, GARRY NACE, LOUIS REYNOLDS. (Attachments: # 1 Exhibit Attorney Time Record − Joshua A. Glickman, # 2 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 3 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 02/06/2012)
154 ATTORNEY TIME RECORDS by JEFFREY A DICKSTEIN, MARCIE HAMILTON, JASON KENNEDY, RONALD MCCRANEY, JR, JEFFERY MILLER, LOUIS REYNOLDS. (BERG, RANDALL) (Entered: 02/06/2012)
155 Minute Entry for proceedings held before CHIEF JUDGE M CASEY RODGERS:Fairness Hearing held on 2/9/2012. Parties shall file a joint stipulation as to settlement of attorneys fees and costs. The court shall sign and file the consent decree. Written order to follow. (Court Reporter Donna Boland.) (sps) (Entered: 02/09/2012)
156 STIPULATION re Attorneys' Fees by WENDELL HALL, MARCIE HAMILTON. (STEVENSON, BENJAMIN) (Entered: 02/10/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 156 Stipulation re Attorneys' Fees. (pmc) (Entered: 02/10/2012)
157 FINDINGS OF FACT AND CONCLUSIONS OF LAW, ORDER APPROVING SETTLEMENT AGREEMENT AND CONSENT DECREE

02/13/2012
02/16/2012 02/17/2012 02/23/2012 03/01/2012
07/03/2012 07/03/2012 07/03/2012

s/ M. Casey Rodgers CHIEF JUDGE M CASEY RODGERS on February 13, 2012. (ak, Pensacola)
(Entered: 02/13/2012)
158 CONSENT JUDGMENT
s/ M. Casey Rodgers CHIEF JUDGE M CASEY RODGERS on February 13, 2012. (ak, Pensacola)
(Entered: 02/13/2012)
160 MOTION for Order to Show Cause Directed to Defendant Sheriff Hall by JEFFREY A DICKSTEIN. (pmc) (Entered: 02/17/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 160 MOTION for Order to Show Cause Directed to Defendant Sheriff Hall. (pmc) (Entered: 02/17/2012)
161 ORDER denying 160 Motion for Order to Show Cause. Signed by CHIEF JUDGE M CASEY RODGERS on February 23, 2012. (pmc) (Entered: 02/23/2012)
162 Mail Returned as Undeliverable. Mail sent to JEFFREY A DICKSTEIN Re: 161 ORDER. ("Return to Sender," "Attempted Not Known," "Unable to Forward")(Santa Rosa site shows inmate released. Forwarding address given: 7027 E 33rd St, Tulsa, OK 74145)( 161 re−mailed to Tulsa address) (kvg) (Entered: 03/01/2012)
163 Consent MOTION to Withdraw as Attorney by MARCIE HAMILTON. (GLICKMAN, JOSHUA) (Entered: 07/03/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE M CASEY RODGERS notified that action is needed Re: 163 Consent MOTION to Withdraw as Attorney (Joshua Glickman, Esq). (kvg) (Entered: 07/03/2012)
164 ORDER granting 163 Motion to Withdraw as Attorney. Attorney JOSHUA AARON GLICKMAN terminated
s/ M. Casey Rodgers Signed by CHIEF JUDGE M CASEY RODGERS on July 3, 2012. (ak, Pensacola)
(Entered: 07/03/2012)