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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DARRYLL JOEL McKENZIE,

Plaintiff,

vs.

WALTER McNEIL, et al.,

Defendants.

Case No. 4:11-cv-45-RH-WCS

PLAINTIFF’S EXPARTE MOTION FOR TEMPORARY INJUNCTION

AND DECLARATORY RELIEF

COMES NOW the Plaintiff, DARRYLL McKENZIE, by and through the 

undersigned attorney, and requests this Honorable Court enter an Order for 

Temporary Injunctive Relief and as cause would show:

1. This morning at 9 a.m., this attorney had a phone conference with Darryll 

McKenzie. In order to brief him on the conference issues, I sent him a packet 

of information and he had it with him in his GED class earlier this morning. 

2. At the GED class, a corrections officer named Shimer – on information and 

belief, it was Jonathan Shimer – took Mr. McKenzie’s legal mail envelope and 

opened it up and began reading the contents aloud to the other officers and 

to the teachers who were in the GED classroom. 

3. One of the teachers called the Captain – on information and belief it was a 

Capt. Knowles – and eventually Mr. McKenzie got his legal mail back. 

4. The incident happened between 7:40 a.m. and 8:00 a.m.

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 1 of 12
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5. As a result of this incident, it can be presumed that officers on the FSP 

compound know about Mr. McKenzie’s lawsuit as well as some of Mr. 

McKenzie’s lawsuit strategy. 

6. Florida State Prison is the prison at which Steven Singer, a Defendant herein, 

serves as Warden.

7. Mr. McKenzie does not feel safe at FSP. He is also concerned that some 

contact or strategy with regard to witnesses is now being discussed at FSP.

8. Some of Mr. McKenzie’s witnesses are at FSP now and they will be 

concerned as well. Mr. McKenzie may have trouble getting their further 

cooperation. Some inmate witnesses have already expressed fear of retaliation.

9. Mr. McKenzie has had problems, too, with extreme and inappropriate 

redaction of documents he has received from the Department of Corrections.

10. It appears that a number of responsive documents were destroyed by the 

Department in November, nearly three months after they were requested by 

Mr. McKenzie. See Exhibit A. The Department asked for an extension and 

then destroyed the documents.

11. Grievance documents complaining of failure to provide Mr. McKenzie with 

health care after this incident are redacted so that none of his health care 

complaints can be read. See Exhibit B. 

12. In the employment application for Defendant William C. Moore, the name 

and location of his high school have been redacted. His former employers, his 

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 2 of 12
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supervisors name and business address has been redacted from his work 

history in his employment application. In a report of force used, the inmate’s 

name has been redacted. On a counseling memorandum, the signatures of 

Major Jarvis and a witness are redacted. Again, in an 04/06/2004 Written 

Reprimand, the Reprimanding Authority’s signature is redacted. In a IG 

report on an 8/22/2003 arrest of Moore, the name of the complainant, the 

inspector, the Columbia County Sheriff’s Deputy, are all redacted. On the 

following pages, the name of the arresting officer, the case number, the 

attorneys for the defense and state, and several witness’s names are redacted.

Exhibit C.

13. Other records of the Defendant officers’ criminal histories have had the case 

numbers, names of arresting officers, and other particulars redacted.

14. Plaintiff feels there is a substantial likelihood he will prevail on the merits;

15. There exists a substantial threat that Plaintiff will suffer irreparable injury if 

the injunction is not granted;

16. The threatened injury, to Plaintiff outweighs the threatened harm injunction 

will do to the entity sought to be enjoined; and

17. The granting of the preliminary injunction will not disturb the public interest.

MEMORANDUM OF LAW

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 3 of 12
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The documents read and disclosed to others were clearly privileged. re can be 

no serious question that the material in the present case was privileged. See In re Grand 

Jury Investigation, 974 F.2d 1068, 1070–71 (9th Cir.1992). Gomez v. Vernon, 255 F.3d 

1118, 1132-33 (9th Cir. 2001). To conclude that security concerns make it impossible 

for inmates to keep privileged documents confidential “would undermine a critical 

component of the right of access to the courts, namely, the opportunity to receive 

privileged communications from counsel.” Gomez v. Vernon, 255 F.3d at 1133. As the 

Supreme Court has held, the inmates' First Amendment and other rights pertaining to 

privileged correspondence are “not inconsistent with [their] status as ... prisoners or 

with the legitimate penological objectives of the correctional system.” Pell v. Procunier, 

417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).

The Florida Department of Corrections should not be permitted to redact the 

medical records it sends to Mr. McKenzie’s lawyer. Mr. McKenzie and his lawyer are 

legally the same entity. See Richard Bertram, Inc. v. Sterling Bank & Trust, 820 So.2d 963, 

965 (Fla. 4th DCA 2002), “[A]n attorney serves as an agent for his or her client. As 

such, the attorney's acts are the acts of the principal, . . .” See also Rue & Ziffra, 

attached as Exhibit D.

The Florida Department of Corrections should not be permitted to make 

redactions of documents under federal subpoena, but rather, such documents as must 

be redacted should be redacted prior to filing.

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 4 of 12
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In Gomez, supra, the court concluded that some relief is necessary to prevent 

retaliatory action. Implicit in these rulings is a determination that, absent the 

injunction, the likely harm would be irreparable. Gomez at 1129-30.

WHEREFORE, the undersigned attorneys move the Court to enter a 

temporary order requiring:

A. That Florida Department of Corrections officers refrain from reading Mr. 

McKenzie’s legal mail;

B. That the officers who are now privy to the contents of the mail be enjoined 

to refrain from disclosing them or discussing the matter with others;

C. That Darryll McKenzie be transferred from Florida State Prison and be 

given a choice of alternatives of transfer destination;

D. That Mr. McKenzie’s named witnesses, who wish transfers, be granted 

transfers and given some choice of alternatives of transfer destination;

E. That improperly redacted documents be replaced with unredacted 

documents well prior to the trial in this matter;

F. Such other relief as justice may require.

Respectfully Submitted,

s/James V. Cook______________________

JAMES V. COOK, ESQ.

Florida Bar Number 0966843

Law Office of James Cook

314 West Jefferson Street

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 5 of 12
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Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

cookjv@nettally.com

I CERTIFY the foregoing was filed electronically on 2/29/12 and that the person 

noted below is registered to be notified by the CM/ECF electronic mail system:

Lance Eric Neff, Mark Hiers

Office of the Attorney General

The Capitol, PL 01

Tallahassee, FL 32399-1050

Lance.neff@myfloridalegal.com

Ginger Barry Boyd

Broad and Cassel

200 Grand Boulevard, Suite 205A

Destin, Florida 32550

gbarry@broadandcassell.com

s/James Cook____________________

JAMES V. COOK

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 6 of 12
DEPARTMENT OF CORRECTIONS --

RECORDS DISPOSITION DOCUMENT PAGE 

1. DEPARTMENT/SECTION CONTACT (Name and Telephone Number) 

COLUMBIA CORRECTIONAL TAVIA L. !'RYE, GSS INST./ SECURITY 

3. NOTICE OF INTENTION: The scheduled records listed In Item 5 are to be disposed of in the manner'checked below (specify only 

one). 

~ a. Destruction o b. Microfilming and Destruction o c, Other ---.1:L . 

4. SUBMITTED BY: I hereby certify that the records to be disposed of are correctly rep~sented below, that any audit requirements for 

the records have been fully justified, and that further retention is not required for an'y litigation pending or imminent. · . U QQ D. MADDOX, COLONEL a / ) ~J;) l.L, ~ . 0l ' ~~d w. mJJdf9?~~ ~ 9-. /9 ~ // 

Signature Name and Title Date 

6. 

Recor Date . 

DC2·575 (Revised 7/05) 

d. 

RetenUon 

. e. 

Inclusive 

Dates 

f. 

Number 

Of Archive Size 

Boxes 

7. DISPOSAL CERTIFICATE: The above listed records have bee~ t:.. 

disposed of In the manner and on the date shown In column g. ~ 

Signature Date 

Name and Title 

Witness 

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 7 of 12
, 

TO: 0 Warden o Assislanl. Warden 

From: 

"'UV SJGN .... :rUn£, INMATE ACREgS '1'0 THE !1()LLOWINC 11 Of 3n~nA" l·;XTENSIONS: 

1L- 'rllis r.UITl 1'1 "~cd folr tiling ~ {erml.1 c.rievnna: lit tile iru:litul\rnl Of facility lc ... ~t:lS 1\1:\1115 fot lilm, .. ~~a', 10 lhe orti«"oflh.: Se~lt\1lry ill ncr:nul.,..c<: \v11l1 1l.l\1~ ;;3_\11), 

!'II,rida ,\dml",.u3Iiv" CadI!:, W,hcn "" ~ppc~l is '''nd~ 10 lhe SCCltllll')', n I'I'P~ ofll1e h'llilll rel]1on" II) the BIi<:\-:1nC~ mil., he 1I!111chcd (c~C(Pt lIS stllt"'\ to.:''''''). 

'.'.'II.:n tilt inmn"~ recti \1111\ he m~y "'" "'t~'CI~)' .. free ted b.,. 1110:. rubmi,~io~ or a grievance 111 Ill<! instilulional level !>o:C;l11SC "rIlle "':::11ili,'(:; n:llur~ Ilflhi: l'!1 ie\'ltllee,.>r i. 

<:llLilll:J 11)' <-uupler JJ-luJ (\1 tile a direct J,'1"j~liI<:e he fIlllf:;)li.J/c,UJliJ t::ricV;IIIU! Ilirtclly 10 th'" S':")':\~I'y'S om~e Thclllicvo.\(c Inny be se111~d in Lht e'w.:\',J'~ by Ill.: 

ininule find P1(01;c~nd po!!Bgu llC( lhmur;h rCillliM; illsliluljollal clmnnc:ls" Tho! iLIII1Lt\( nllL~1 indi~Dle ~ YIlII!1 r~iI:ODLI tUI 1101 inl~i .. llr brins.,ng his ilri~";o,,¢c In Ih" ~l1"nti"n 0, 

Ihe ill~ri"uian" /rlilc irmn,k: Ones /WI pnwWc: i yo)j" n:~ or irl!teScCtrlary oc- his dcsi~I:LI~€1 rC1!ftStIlL:llil'C feels Lhllllllc fe;\SOJ\ s\!l'lllk,[ is nil! ,lIlo:qul1'C:, lI\e gric'"M~" 

""ill he reUlrn.::d It. IlLe in",rolc- ror processing al Ill<: ijUlill>liO!lollcYel. " """ " 

IlISrKlmJ11()N: 

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Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 8 of 12
\:)rare or rlonaa 

EMPLt)JVMENT 

APPLICATION 

Equal Opportunity Employer/Affirmative Action Employer 

The State of Florida does not tolerate violence in the workplace. 

Where to Find Vacancy Information: 

• On the Internet: http;l/jobsdirect.state.fl.us 

Jobs and Benefits Centers - Consult your local telephone directory 

• Stale Agency Personnel Offices 

Type or print in ink this application in its entirety. 

Specify the position for which you are applying. 

(Note: A separate application must be submitted for each 

vacancy. Photocopies are acceptable.) 

Submit your application to the office announcing the vacancy no 

later than the close of business on the announced deadline date. 

Sign your name in the Certification Section (page 4). All 

information you submit is subject to verification. 

Notify the agency's hiring authority in advance if you require 

special disabilfty accommodations to participate in the 

employment process. 

NAME OF SCHOOL LOCATION 

NAME OF SCHOOL LOCATION 

Social SEl 

Your III. 

I 

Ci' 

Home Phone 

Agency. fior\Q4 J)~"pi. dl~~"'l/ 

nil, t1 W-eJ!--i-; 01'1111../ o(l'tL ee 

POSitron Number ------::--:;:::."""1f= 

SJsiness Phone SUNCOM (State Employees) 

COURSE OF 

STIJDY 

-'\ 

YOUR NAME, IF DIFFERENT WHILE ATTENDING SCHOOL: ________________________________ ---: _____ _ 

LICENSURE, REGISTRATION, CERTIFICATION EXAMPLES: Dr;ver Ucense, TeacherCert;!;ca!;on, RN, LPN, PE, CPA, etc. 

it 

1 

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 9 of 12
Declaratory judgments -- Medical records -- Copying fees -- When patient's legal representative 

requests copies of patient's medical records on behalf of patient, proper fee under administrative 

rule is $1.00 per page for first 25 pages and 25 cents for each page in excess of 25 pages, the rate 

applicable when a patient requests copies, not $1.00 per page fee applicable to requests from all 

other entities 

RUE & ZIFFRA, P.A., as legal representative of Tammy Bales, Allan Best and Karen Stella-Medina, 

Plaintiff, vs. HEALTH INFORMATION PROFESSIONALS, INC., Defendant. Circuit Court, 7th 

Judicial Circuit in and for Orange County. Case No. 2010-CA-008510-O. December 19, 2011. Julie H. 

O'Kane, Judge. Counsel: Luis R. Gracia, Rue & Ziffra, P.A., Port Orange, for Plaintiff. Eric V. Hires, 

Law Office of Eric V. Hires, LLC, Orlando, for Defendant. 

ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF

This cause, coming on to be heard upon Plaintiff's Motion for Summary Judgment, and the Court having 

reviewed legal authorities, considered the pleadings, arguments of counsel, and being sufficiently advised 

on the premises, hereby finds and holds as follows: 

FACTS

1. The Plaintiff, Rue & Ziffra, P.A., (hereafter Rue & Ziffra) is a law firm that all times material hereto 

had an ongoing contractual relationship with Tammy Bales, Allan Best and Karen Stella-Medina to 

provide legal services to them and, as a result, had full authority to act on their behalf as their legal 

representative. 

2. The Defendant, Health Information Professionals, Inc., (hereafter Health Information Professionals) is 

a corporation that provides services which include the release of medical records on behalf of medical 

providers to parties that request such information. 

3. Ms. Bales, Mr. Best and Ms. Medina were all patients of medical providers for whom the Defendant 

provides release of medical information services. 

4. As part of their respective cases, Ms. Bales, Mr. Best and Ms. Medina executed a release of medical 

records document directing Health Information Professionals to provide their medical records to Rue & 

Ziffra as their legal representative. 

5. In responding to the request for the above mentioned records, the Defendant billed Rue & Ziffra at a 

rate of $1.00 per page in order to produce the records. 

6. Rue & Ziffra challenged the $1.00 per page charge as excessive and contrary to the language of Rule 

64B8-10.003 of the Florida Administrative Code which allows the charges to reproduce copies for 

patients to be no more than $1.00 per page for the first 25 pages of records and 25 cents for all pages in 

excess of 25. 

7. Health Information Professionals stood by the $1.00 per page charge claiming that the Florida 

Administrative Code rule that allows charges as argued by the Plaintiff is only applicable to records 

provided for patients and governmental entities. Since Rue & Ziffra is neither, Health Information 

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 10 of 12
Professionals argued that the applicable provision of the code, which refers to other entities requesting 

medical information, allows charges for medical records at a rate of $1 per page. 

8. Rue & Ziffra filed a Declaratory Judgment Action pursuant to Florida Statute §86.021 in order to 

establish and determine the parties' rights under Rule 64B8-10.003 of the Florida Administrative Code. 

PROCEDURAL POSTURE

9. On May 9th, 2011, the Plaintiff filed an amended Motion for Summary Judgment arguing that as the 

duly appointed legal representative of the above referenced patients, and pursuant to Rule 64B8-10.003(2) 

of the Florida Administrative Code, the charge for medical records should have been $1.00 for the first 25 

pages of records and 25 cents for each page in excess of 25 pages. 

10. In support of the above argument, Plaintiff cited the plain language of Rule 64B8-10.003(2), which in 

relevant part states as follows: 

(2) For patients and governmental entities, the reasonable costs of reproducing copies of written or typed 

documents or reports shall not be more than the following: (a) For the first 25 pages, the cost shall be 

$1.00 per page. (b) For each page in excess of 25 pages, the cost shall be 25 cents.

11. Plaintiff further argued the well settled principle of law that an attorney serves as an agent for his or 

her client. As such, the acts of an attorney are the acts of the principle, the client. Richard Bertram, Inc. v. 

Sterling Bank & Trust, 820 So.2d 963, 965 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1201b]. Thus, Rue 

& Ziffra was simply standing "in the shoes" of the patients, i.e., their clients, when it requested their 

medical records from the Defendant. Therefore, the law firm was not just "another entity" for purposes of 

Rule 64B8-10.003 of the Florida Administrative Code. 

12. Finally, the Plaintiff stated that a plain reading of Rule 64B8-10.003(2) makes it clear that the 

determinative factor in deciding what the applicable charge for records will be depends on the party for 

whom the copies are being made. As Rue & Ziffra requested the medical records at issue for its clients, 

who are undisputedly the patients, the parties for whom the copies have been requested are the patients. 

13. On May 12, 2011, Health Information Professionals filed a Response in Opposition to the Plaintiff's 

Motion for Summary Judgment arguing that the correct provision to be applied in the case was not 

subsection (2) of Rule 64B8-10.003, but subsection (3) of the same rule. 

14. To summarize, Rule 64B8-10.003(3) states that for entities other than patients and governmental 

entities, i.e., other entities, the reasonable costs of reproducing copies of written or typed documents or 

reports shall not be more than $1.00 a page. 

15. Based on the above, Health Information Professionals argued that since Rue & Ziffra is not the patient 

itself, an undisputed fact, the language of subsection (2) is inapplicable to this matter and, as another 

entity, the correct charge for records billed to Rue & Ziffra is $1.00 per page. 

16. A hearing on Plaintiff's Motion for Summary Judgment took place on September 14, 2011, wherein 

the parties argued their respective positions. 

CONCLUSIONS OF LAW AND RULING

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 11 of 12
17. The Florida Administrative Code provision at issue in this case is Chapter 64B8-10.003, which is 

titled "Costs of Reproducing Medical Records." That administrative code provision refers back to Florida 

Statute §456.057(18). Florida Statute, §456.057 is titled "Ownership and Control of Patient Records; 

Report or Copies of Records to be Furnished," and it defines the record owner as the health care 

practitioner who generates a medical record after essentially performing an examination of a patient. 

18. Subparagraph (6) of the above section reads that any health care practitioner licensed by the 

department or a board within the department who makes a physical or mental examination of, or 

administers treatment or dispenses legend drugs to any person shall, upon request of such person or the 

person's legal representative, furnish, in a timely manner, without delay for legal review, copies of all 

reports relating to the examination. 

19. Further, subparagraph (18) of that statutory section reads that a health care practitioner or records 

owner furnishing copies of reports or records or making the reports or records available for digital 

scanning pursuant to this section shall charge no more than the actual cost of copying, including 

reasonable staff time, or the amount specified in the administrative rule by the appropriate board, or the 

department when there is no board. 

20. The Court also notes that Florida Administrative Code Provision 64B8-10.004 defines "legal 

representatives" for purposes of Florida Statute §456.057 as including the patient's attorney who has been 

designated by the patient to receive copies of the patient's medical records. 

21. The Court, as well as the parties, has been unable to find any legislative history or other commentary 

on the administrative code provision that sets forth what the charges at issue in this case should be. 

22. Accordingly, based on what the Court views to be a plain reading of the statute, and in order to 

harmonize the statute at issue with the relevant administrative code provision, the Court hereby grants 

Plaintiff's Motion for Summary Judgment and finds that, pursuant to Rule 64B8-10.003(2), the patients' 

legal representative, which in this case is their attorney, is required to pay $1.00 for the first 25 pages of 

records and 25 cents for each page in excess of 25 pages, and is not required to pay the charge of $1.00 

per page that would be assessed for all other entities who request copies of such pursuant to Rule 64B8-

10.003(3). 

Based upon the forgoing it is hereby ORDERED AND ADJUDGED that the Plaintiff's Motion for 

Summary Judgment is GRANTED. 

The Court hereby reserves jurisdiction for the purposes of awarding costs and, if applicable, attorney's 

fees, to Plaintiff. 

Case 4:11-cv-00045-RH-CAS Document 67 Filed 02/29/12 Page 12 of 12