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VIA UPS No.

1Z64589FP299627016

December 11, 2015

Antonio J. Ortiz-Carballo
1748 NE 60th Street
Ocala, FL 34479
Dear Mr. Ortiz-Carballo,
Congratulations on your lawsuit against David R. Ellspermann, Clerk and Comptroller of Marion
County, and $125,000 settlement against Clerk Ellspermann for employment discrimination.
My name is Neil Gillespie. I am a volunteer civil rights advocate. I am not a lawyer. But I know
it is not illegal to speak Spanish. Under Fla. Stat. sec. 90.606 Interpreters and translators.
(1)(a) When a judge determines that a witness cannot hear or understand the English
language, or cannot express himself or herself in English sufficiently to be understood, an
interpreter who is duly qualified to interpret for the witness shall be sworn to do so.
Also see enclosed a news story in the Orlando Weekly, by Monivette Cordeiro, July 22, 2015,
How Floridas judicial system violates the federal Civil Rights Act and leaves non-English
speakers out in the cold. http://www.orlandoweekly.com/orlando/how-floridas-judicial-system-violates-the-federal-civil-rights-actand-leaves-non-english-speakers-out-in-the-cold/Content?oid=2415259

The court records in your case show, in my personal opinion, denial of your civil rights under
color of law. You established a cause of action against Clerk Ellspermann for employment
discrimination. The settlement amount of $125,000 shows the violation of your employment
civil rights was substantial. On that basis, several things look wrong:
1.
I believe the U.S. Attorney had a duty to bring a civil rights case against Clerk David
Ellspermann. I believe the Assistant U.S. Attorney in Ocala then was Philip R. Lammens.
2.
I do not understand why you had to pay a lawyer in a successful employment civil rights
case on any basis other than a contingent fee agreement. See Poindexter v. FBI discussed below.
3.
US Magistrate Judge Gary R. Jones is not an Article III federal judge, he is a magistrate
judge, a lawyer hired by the court for a term of eight years. A magistrate judge is supposed to
issue a report and recommendation, which is ruled on by an Article III judge, William Terrell
Hodges in your case. There is a 14 day period before the Article III judge rules where you get to
file a response to the report and recommendation. But Magistrate Judge Jones ruled directly on
matters that required an Article III federal judge, who is appointed by President for life, and
confirmed by the U.S. Senate. Report and Recommendation (R&R) rules are complicated, and I
do not fully understand them. Here is a link to a R&R in the Tampa Division.
http://www.justice.gov/archive/tax/Prater_Magistrate_sRptandRecMSJ.pdf

Mr. Antonio J. Ortiz-Carballo


December 11, 2015

Page - 2

Also see the local rules for the Middle District of Florida, Chapter 6 US Magistrate Judges,
https://www.flmd.uscourts.gov/LocalRules.htm
Enclosed you will find local Rule 6.01 Duties of United States Magistrate Judges, 9 pages.
Also see 28 U.S. Code Chapter 43 - UNITED STATES MAGISTRATE JUDGES
https://www.law.cornell.edu/uscode/text/28/part-III/chapter-43
4.
I believe Magistrate Judge Gary Jones was wrong to grant, without a hearing, a motion
by Cynthia Sass to withdrawal as your counsel, without replacement counsel to represent you. A
lawyer is bound by the rules of professional conduct to see a case to the end. See Rule 4-1.3
Diligence, https://www.floridabar.org/divexe/rrtfb.nsf/FV/7CAA33D4D0F911B585257170006DC334
Motion for Leave to Withdrawal as Counsel for Plaintiff by Cynthia N. Sass et al.
Case 5:08-cv-00165-WTH-DAB Document 22 Filed 02/23/09 Page 1 of 4 PageID 385
Order by US Magistrate Jones, GRANTED without a hearing, a motion to withdrawal as
counsel, filed by Cynthia N. Sass et al., thereby leaving the Plaintiff unrepresented
Case 5:08-cv-00165-WTH-DAB Document 23 Filed 02/24/09 Page 1 of 2 PageID 389
5.
I believe Magistrate Judge Gary Jones was wrong to deny your pro se Motion For A
Federal Public Defender. I believe you were entitled to counsel appointment in an employment
civil rights case if you could not obtain adequate counsel.
Plaintiffs PRO SE Motion For A Federal Public Defender, Doc. 24, March 20, 2009
Case 5:08-cv-00165-WTH-DAB Document 24 Filed 03/20/09 Page 1 of 1 PageID 391
Order, DENIED counsel appointment, by US Magistrate Gary R. Jones
Case 5:08-cv-00165-WTH-DAB Document 25 Filed 03/23/09 Page 1 of 2 PageID 392
Rick Carey is the Assistant Federal Public Defender in Ocala. Donna Lee Elm is the Federal
Defender, appointed by the US Eleventh Circuit COA for a term of 4 years. Ms. Elms term
expires September 8, 2016, see enclosed. The public can comment through December 21, 2015.
Florida Statutes, section 29.007, Court-appointed counsel, applies in any situation in which the
court appoints counsel to protect a litigants due process rights.
The Ocala Division, Middle District of Florida, is under the US Eleventh Circuit COA.
Addendum Five, US Eleventh Circuit, Non-Criminal Justice Act Counsel Appointment:
The court adopts these provisions for furnishing representation for persons financially
unable to obtain adequate representation in cases and situations which do not fall within
the scope of 18 U.S.C. 3006A, as amended but in which the court believes that the
interests of justice will be served by the presence of counsel.

Mr. Antonio J. Ortiz-Carballo


December 11, 2015

Page - 3

(b)(2) Any person seeking relief under 29 U.S.C. 621, 42 U.S.C. 1981, 42 U.S.C.
1982, 42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986, 42 U.S.C. 2000a, 42
U.S.C. 2000d, and 42 U.S.C. 2000e or in such other cases as the court shall determine
to be appropriate may be eligible for representation. The court may approve such
representation on a determination that the interests of justice so require and that the
person is financially unable to obtain representation.
Enclosed is my letter to James Gerstenlauer, Circuit Executive, U.S. Court of Appeals, Eleventh
Circuit, asking about Addendum Five. Mr. Gerstenlauer has not responded.
The American Bar Association (ABA), in its Florida Directory of Law Governing Appointment
of Counsel in State Civil Proceedings, 2. Sustenance, states,
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While
nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has
specified that state courts have concurrent jurisdiction with federal courts for Title VII
claims. Yellow Freight System Inc. v. Donnelly, 494 U.S. 820, 826 (1990).
Title VII provides that [u]pon application by the complainant and in such circumstances
as the court may deem just, the court may appoint an attorney for such complainant.
42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed:
Title VII's provision for attorney appointment was not included simply as an
aforethought; it is an important part of Title VII's remedial scheme, and therefore courts
have an obligation to consider requests for appointment with care. In acting on such
requests, courts must remain mindful that appointment of an attorney may be essential
for a plaintiff to fulfill the role of a private attorney general, vindicating a policy of
the highest priority. Once the plaintiff has triggered the attorney appointment
provision, courts must give serious consideration to the plaintiffs request such
discretionary choices are not left to a court's inclination, but to its judgment; and its
judgment is to be guided by sound legal principles. Furthermore, in exercising this
discretion, the court should clearly indicate its disposition of the request for appointment
and its basis for that disposition. 737 F.2d 1173, 1183-85 (D.C. Cir. 1984).
Magistrate Judge Gary Jones should have followed Poindexter v. FBI, Addendum Five, and the
Report and Recommendation rules. Article III Judge William Terrell Hodges had a duty to
follow Poindexter v. FBI, Addendum Five, and Report and Recommendation. See Judicial
Conduct & Disability http://www.ca11.uscourts.gov/judicial-conduct-disability
Conclusion
You are a remarkable individual for bringing a successful case against David R. Ellspermann,
Clerk and Comptroller of Marion County, for employment discrimination violating your civil
rights. Unfortunately Clerk Ellspermann was protected from the full consequences of the law by
the corrupt federal court system, and corrupt cronies in the U.S. Department of Justice.

Mr. Antonio J. Ortiz-Carballo


December 11, 2015

Page - 4

Unfortunately Marion County Florida is home to Neo-Confederates, white supremacy racism,


Lost Cause of the Confederacy racist ideology, and has a history of racial terror lynching.
See Civil Rights, Marion County FL http://www.nosue.org/civil-rights/marion-county-florida/
Also see, The End of Lynching in Marion County Florida, Chapter 5 Lethal Punishment,
http://www.scribd.com/doc/284372795/The-End-of-Lynching-in-Marion-County-Florida
Excerpts below from page 70 and page 72 respectively:
"Between 1885 and 1930, nineteen black men were lynched in Marion County, nine of
them for sexual offenses. Marion County lynchings were public affairs, often carried out
before hundreds of witnesses, but none of the perpetrators was prosecuted."
"Marion County mobs sometimes left a placard or a sign attached to the body of the
victim; when Robert Larkin was lynched in 1893, the mob left a placard reading, "Done
by 300 of the best citizens of this county."
Page 72, last paragraph, "White supremacy was deeply established in Marion County. In
1924, the Ocala Banner gave front-page space to an announcement that the Ku Klux Klan
would be organizing a chapter in Marion County. Interested parties were instructed to
send their name, church and lodge affiliations, and their place of birth, "only 100 per cent
Americans wanted." The initiation fee was ten dollars and robes cost another five
dollars."[fn 14, Ocala Banner, May 30, 1924, 1.]
Pages 71-72, "A striking aspect of lynching in Marion County is the frequency with
which mobs took their victims from the custody of law enforcement, apparently meeting
little or no resistance. Of the fifteen cases in which I have been able to determine the
circumstances of the suspect's capture by the mob, all but two involved suspects already
in the custody of law enforcement officers."
Feel free to contact me by email. I will provide you with links to justice. Thank you.
Sincerely,

Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481

Tel. 352-854-7807
Email: neilgillespie@mfi.net

Scribd: https://www.scribd.com/user/32458790/Neil-Gillespie
Website: http://www.nosue.org/
Blog: http://nosueorg.blogspot.com/
Facebook: https://www.facebook.com/pages/The-Justice-Network/150432974991704

Mr. Antonio J. Ortiz-Carballo


December 11, 2015

Page - 5

Cc. Steven D. Merryday


Chief United States District Judge
Sam M. Gibbons U.S. Courthouse
801 North Florida Avenue
Tampa, Florida 33602
Tel. 813-301-5400
Chambers 1530, Courtroom 15A
https://www.flmd.uscourts.gov/home.htm
Cc: James Gerstenlauer, Circuit Executive, james_gerstenlauer@ca11.uscourts.gov
U.S. Court of Appeals, Eleventh Circuit
http://www.scribd.com/doc/284367285/Letter-to-James-Gerstenlauer-Circuit-Executive-US-Eleventh-Circuit-COA

Cc: Donna Lee Elm, Federal Defender, Donna_Elm@fd.org


Website, http://flm.fd.org/ Appointed by the Eleventh Circuit Court of Appeals.
Cc: John M. Fitzgibbons, Statewide Chair, Email: fitzgibbons.law@verizon.net
Florida Federal Judicial Nominating Commission. Email: b.kayklein@verizon.net
http://www.floridabar.org/tfb/TFBComm.nsf/6b07501281c8e567852570000072a0b9/04c1fedbfa11cdcb852571b6005b9bf4

NPR: Report: Judges Have Too Much Control In Public Defense System
http://www.npr.org/sections/itsallpolitics/2015/09/09/438581667/report-judges-have-too-much-control-in-public-defense-system

National Association of Criminal Defense Lawyers, Report: Federal Indigent Defense 2015
http://www.nacdl.org/federalindigentdefense2015/
28 U.S. Code Chapter 23 - CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLANS
https://www.law.cornell.edu/uscode/text/28/part-I/chapter-23
28 U.S. Code 471 - Requirement for a district court civil justice expense and delay reduction plan
https://www.law.cornell.edu/uscode/text/28/471
There shall be implemented by each United States district court, in accordance with this chapter, a
civil justice expense and delay reduction plan. The plan may be a plan developed by such district
court or a model plan developed by the Judicial Conference of the United States. The purposes of
each plan are to facilitate deliberate adjudication of civil cases on the merits, monitor discovery,
improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes.
Ortiz-Carballo v Ellspermann, $125,000 Settlement Case No. 5.08-cv-00165 Marion Co. FL
http://www.scribd.com/doc/271966970/Ortiz-Carballo-v-Ellspermann-125-000-SETTLEMENT-Marion-Co-Florida

American Bar Association, Civil Right to Counsel


http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justic
e/resources---information-on-key-atj-issues/civil_right_to_counsel1.html

Mr. Antonio J. Ortiz-Carballo


December 11, 2015

Page - 6

ABA, Florida Directory of Law Governing Appointment of Counsel in State Civil Proceedings
http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_judges_manu
al_fl.authcheckdam.pdf

Justice Network, Civil Right to Counsel


http://www.nosue.org/home/civil-right-to-counsel/
Justice Network, Civil Rights
http://www.nosue.org/civil-rights/
Justice Network, Marion County Florida
http://www.nosue.org/civil-rights/marion-county-florida/
Justice Network, Wesley Snipes Trial
http://www.nosue.org/wesley-snipes-trial/
Justice Network, US Judge Hodges: Bus Stop Shelter Destroyed
http://www.nosue.org/wesley-snipes-trial/us-judge-hodges-bus-stop-shelter-destroyed/
Judicial Conduct & Disability (For complaints against federal judges)
http://www.ca11.uscourts.gov/judicial-conduct-disability

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VIA UPS No. 1Z64589FP297867029

December 11, 2015

The Honorable Steven D. Merryday


Chief United States District Judge
U.S. District Court, Middle District, Florida
Sam M. Gibbons U.S. Courthouse
801 North Florida Avenue
Tampa, Florida 33602
Tel. 813-301-5400
Chambers 1530, Courtroom 15A
https://www.flmd.uscourts.gov/home.htm

RE: CIVIL COUNSEL APPOINTMENTS


Dear Chief Judge Merryday:
I regret to inform you that the U.S. District Court for the Middle District of Florida is in violation
of laws requiring civil counsel appointment. I demand you correct this lawlessness immediately.
I also regret to inform you that certain US Magistrate Judges are not in compliance with the
Report and Recommendation law, 28 U.S. Code 636 (b), and/or Middle District local rule
Chapter 6, Untied States Magistrate Judges. I demand you correct this lawlessness immediately.
Unfortunately US Magistrate Judge Gary R. Jones wrongly failed to appoint civil counsel in an
employment civil rights case, and wrongly failed to follow the Report and Recommendation law,
28 U.S. Code 636 (b), and Chapter 6, Untied States Magistrate Judges, in the case of Antonio
J. Ortiz-Carballo v. David R. Ellspermann, Clerk and Comptroller of Marion County, US District
Court, Middle District of Florida, Ocala Division, Case No. 5:08-cv-00165.
Mr. Ortiz-Carballo successfully sued Clerk Ellspermann for employment discrimination and
obtained a $125,000 settlement against Clerk Ellspermann. See enclosed a copy of my letter to
Mr. Ortiz-Carballo, and a 93 page composite of court records in Ortiz-Carballo v. Ellspermann.
The court records show, in my personal opinion, the denial of Mr. Ortiz-Carballos civil rights
under color of law. Mr. Ortiz-Carballo established a cause of action against Clerk Ellspermann
for employment discrimination. The settlement amount of $125,000 shows the violation of his
employment civil rights was substantial. On that basis, several things look wrong:
1.
I believe the U.S. Attorney had a duty to bring a civil rights case against Clerk David
Ellspermann. I believe the Assistant U.S. Attorney in Ocala then was Philip R. Lammens.
To determine when Philip R. Lammens was the Assistant U.S. Attorney in Ocala, I requested the
application for U.S. District Judge submitted by Philip R. Lammens to John M. Fitzgibbons,
Statewide Chair, Florida Federal Judicial Nominating Commission. As of today, Fitzgibbons has

The Honorable Steven D. Merryday


Chief United States District Judge

December 11, 2015


Page - 2

not provided the records I requested from him November 30, 2015. Mr. Fitzgibbons has claimed
several excuses, which in my view is a deliberate delay or refusal to provide the records.
2.
I do not understand why Mr. Ortiz-Carballo had to pay a lawyer on any basis other than a
contingent fee agreement in a successful employment civil rights case. See Poindexter v. FBI.
3.
US Magistrate Judge Gary R. Jones failed to follow the Report and Recommendation
law, 28 U.S. Code 636 (b), and Chapter 6, Untied States Magistrate Judges, in this case.
4.
I believe Magistrate Judge Gary Jones was wrong to grant, without a hearing, a motion
by Cynthia Sass to withdrawal as counsel for Mr. Ortiz-Carballo, without replacement counsel to
represent him. A lawyer is bound by the rules of professional conduct to see a case to the end.
See Rule 4-1.3 Diligence, https://www.floridabar.org/divexe/rrtfb.nsf/FV/7CAA33D4D0F911B585257170006DC334
Motion for Leave to Withdrawal as Counsel for Plaintiff by Cynthia N. Sass et al.
Case 5:08-cv-00165-WTH-DAB Document 22 Filed 02/23/09 Page 1 of 4 PageID 385
Order by US Magistrate Jones, GRANTED without a hearing, a motion to withdrawal as
counsel, filed by Cynthia N. Sass et al., thereby leaving the Plaintiff unrepresented
Case 5:08-cv-00165-WTH-DAB Document 23 Filed 02/24/09 Page 1 of 2 PageID 389
5.
I believe Magistrate Judge Gary Jones was wrong to deny Mr. Ortiz-Carballos pro se
Motion For A Federal Public Defender. I believe he was entitled to counsel appointment in an
employment civil rights case if he could not obtain adequate counsel.
Plaintiffs PRO SE Motion For A Federal Public Defender, Doc. 24, March 20, 2009
Case 5:08-cv-00165-WTH-DAB Document 24 Filed 03/20/09 Page 1 of 1 PageID 391
Order, DENIED counsel appointment, by US Magistrate Gary R. Jones
Case 5:08-cv-00165-WTH-DAB Document 25 Filed 03/23/09 Page 1 of 2 PageID 392
Rick Carey is the Assistant Federal Public Defender in Ocala. Donna Lee Elm is the Federal
Defender, appointed by the US Eleventh Circuit COA for a term of 4 years. If the Federal
Defender is not appropriate for a civil counsel appointment, the Chief Judge of the Middle
District has a duty to provide an alternative way to provide a civil counsel appointment.
Florida Statutes, section 29.007, Court-appointed counsel, applies in any situation in which the
court appoints counsel to protect a litigants due process rights.
Addendum Five, US Eleventh Circuit, Non-Criminal Justice Act Counsel Appointment:
The court adopts these provisions for furnishing representation for persons financially
unable to obtain adequate representation in cases and situations which do not fall within
the scope of 18 U.S.C. 3006A, as amended but in which the court believes that the

The Honorable Steven D. Merryday


Chief United States District Judge

December 11, 2015


Page - 3

interests of justice will be served by the presence of counsel.


(b)(2) Any person seeking relief under 29 U.S.C. 621, 42 U.S.C. 1981, 42 U.S.C.
1982, 42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986, 42 U.S.C. 2000a, 42
U.S.C. 2000d, and 42 U.S.C. 2000e or in such other cases as the court shall determine
to be appropriate may be eligible for representation. The court may approve such
representation on a determination that the interests of justice so require and that the
person is financially unable to obtain representation.
Enclosed is my letter to James Gerstenlauer, Circuit Executive, U.S. Court of Appeals, Eleventh
Circuit, asking about Addendum Five. Mr. Gerstenlauer has not responded.
The American Bar Association (ABA), in its Florida Directory of Law Governing Appointment
of Counsel in State Civil Proceedings, 2. Sustenance, states,
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While
nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has
specified that state courts have concurrent jurisdiction with federal courts for Title VII
claims. Yellow Freight System Inc. v. Donnelly, 494 U.S. 820, 826 (1990).
Title VII provides that [u]pon application by the complainant and in such circumstances
as the court may deem just, the court may appoint an attorney for such complainant.
42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed:
Title VII's provision for attorney appointment was not included simply as an
aforethought; it is an important part of Title VII's remedial scheme, and therefore courts
have an obligation to consider requests for appointment with care. In acting on such
requests, courts must remain mindful that appointment of an attorney may be essential
for a plaintiff to fulfill the role of a private attorney general, vindicating a policy of
the highest priority. Once the plaintiff has triggered the attorney appointment
provision, courts must give serious consideration to the plaintiffs request such
discretionary choices are not left to a court's inclination, but to its judgment; and its
judgment is to be guided by sound legal principles. Furthermore, in exercising this
discretion, the court should clearly indicate its disposition of the request for appointment
and its basis for that disposition. 737 F.2d 1173, 1183-85 (D.C. Cir. 1984).
Magistrate Judge Gary Jones should have followed Poindexter v. FBI, Addendum Five, and the
Report and Recommendation rules. Article III Judge William Terrell Hodges had a duty to
follow Poindexter v. FBI, Addendum Five, and Report and Recommendation.
Florida Statutes, section 29.007, Court-appointed counsel, applies in any situation in which the
court appoints counsel to protect a litigants due process rights.

The Honorable Steven D. Merryday


Chief United States District Judge

December 11, 2015


Page - 4

Please advise the undersigned if, and when, the U.S. District Court for the Middle District of
Florida will comply with laws requiring civil counsel appointment.
Also advise the undersigned if, and when, certain US Magistrate Judges will comply with the
Report and Recommendation law, 28 U.S. Code 636 (b), and/or Middle District local rule
Chapter 6, Untied States Magistrate Judges. Thank you.
Sincerely,

Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481

Tel. 352-854-7807
Email: neilgillespie@mfi.net

Scribd: https://www.scribd.com/user/32458790/Neil-Gillespie
Website: http://www.nosue.org/
Blog: http://nosueorg.blogspot.com/
Facebook: https://www.facebook.com/pages/The-Justice-Network/150432974991704
Cc: Mr. Antonio J. Ortiz-Carballo, 1748 NE 60th Street, Ocala, FL 34479
Cc: James Gerstenlauer, Circuit Executive, james_gerstenlauer@ca11.uscourts.gov
U.S. Court of Appeals, Eleventh Circuit
http://www.scribd.com/doc/284367285/Letter-to-James-Gerstenlauer-Circuit-Executive-US-Eleventh-Circuit-COA

Cc: Donna Lee Elm, Federal Defender, Donna_Elm@fd.org


Website, http://flm.fd.org/ Appointed by the Eleventh Circuit Court of Appeals.
Cc: John M. Fitzgibbons, Statewide Chair, Email: fitzgibbons.law@verizon.net
Florida Federal Judicial Nominating Commission. Email: b.kayklein@verizon.net
http://www.floridabar.org/tfb/TFBComm.nsf/6b07501281c8e567852570000072a0b9/04c1fedbfa11cdcb852571b6005b9bf4

NPR: Report: Judges Have Too Much Control In Public Defense System
http://www.npr.org/sections/itsallpolitics/2015/09/09/438581667/report-judges-have-too-much-control-in-public-defense-system

National Association of Criminal Defense Lawyers, Report: Federal Indigent Defense 2015
http://www.nacdl.org/federalindigentdefense2015/
28 U.S. Code Chapter 23 - CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLANS
https://www.law.cornell.edu/uscode/text/28/part-I/chapter-23

The Honorable Steven D. Merryday


Chief United States District Judge

December 11, 2015


Page - 5

28 U.S. Code 471 - Requirement for a district court civil justice expense and delay reduction plan
https://www.law.cornell.edu/uscode/text/28/471
There shall be implemented by each United States district court, in accordance with this chapter, a
civil justice expense and delay reduction plan. The plan may be a plan developed by such district
court or a model plan developed by the Judicial Conference of the United States. The purposes of
each plan are to facilitate deliberate adjudication of civil cases on the merits, monitor discovery,
improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes.
Ortiz-Carballo v Ellspermann, $125,000 Settlement Case No. 5.08-cv-00165 Marion Co. FL
http://www.scribd.com/doc/271966970/Ortiz-Carballo-v-Ellspermann-125-000-SETTLEMENT-Marion-Co-Florida

American Bar Association, Civil Right to Counsel


http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justic
e/resources---information-on-key-atj-issues/civil_right_to_counsel1.html

ABA, Florida Directory of Law Governing Appointment of Counsel in State Civil Proceedings
http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_judges_manu
al_fl.authcheckdam.pdf

Justice Network, Civil Right to Counsel


http://www.nosue.org/home/civil-right-to-counsel/
Justice Network, Civil Rights
http://www.nosue.org/civil-rights/
Justice Network, Marion County Florida
http://www.nosue.org/civil-rights/marion-county-florida/
Justice Network, Wesley Snipes Trial
http://www.nosue.org/wesley-snipes-trial/
Justice Network, US Judge Hodges: Bus Stop Shelter Destroyed
http://www.nosue.org/wesley-snipes-trial/us-judge-hodges-bus-stop-shelter-destroyed/
Judicial Conduct & Disability (For complaints against federal judges)
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http://www.orlandoweekly.com/orlando/how-floridas-judicial-system-violates-the-federal-civil-rights-act-and-leaves-non-english-speakers-out-in-the...

NEWS & FEATURES NEWS

July 22, 2015

By Monivette Cordeiro

Maria Machin had a test for the Duval County Courthouse when she walked in
on the morning of June 29. She would walk to every single floor of the
courthouse and ask for directions to the domestic-violence office. She wouldn't
ask for help in English only in Spanish.
As Machin ambled from floor to floor, she went to each help desk asking for
employees to show her the way, but instead of assisting her, she says they
looked at her like she was "an alien." Finally, she found her way to the office,
where again she asked for help, this time about filing domestic-violence forms.
After some more strange looks, the employees finally rustled up from the back
a woman who spoke Spanish.
"She told me that there are no forms or anything to give someone that speaks
Spanish," says Machin, president of the League of United Latin American
Citizens in Jacksonville. "The clerk of the court has told his people that anyone
coming in that doesn't speak English has to bring their own translator ... it's
like Mayberry on acid here. We are invisible to them."
The experience Machin had last month is the reality many people who are
limited English proficient, also known as LEP, experience as they go through
Florida's judicial system. And it isn't limited to asking for directions at a help
desk. In most Florida courts, interpreters are not provided by the state in civil
cases, only in criminal proceedings, Machin says, and in some courts, LEP
individuals are asked to bring and pay for their own interpreters, unless they
are indigent. LEP services also vary by location and the population of speakers
of other languages, she says.

12/11/2015 10:54 AM

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Machin is a member of the Florida Language Access Coalition. Last week the
organization filed an administrative complaint to the Department of Justice
Civil Rights Division that alleges that Florida courts are routinely violating the
federal Civil Rights Act of 1964 by failing to provide free, qualified
interpretation services in all programs and activities of the courts.
Under the Civil Rights Act, state courts that receive indirect or direct federal
funding must comply with Title VI, which prohibits discrimination on the basis
of race, color and national origin in programs that receive federal financial
assistance, according to the federal LEP website. In a 2010 letter from Thomas
Perez, then the Assistant Attorney General of the DOJ's Civil Rights Division,
to state court administrators and chief justices across the country, Perez wrote,
"The Supreme Court has held that failing to take reasonable steps to ensure
meaningful access for LEP persons is a form of national origin discrimination.
... Despite efforts to bring courts into compliance, some state court system
policies and practices significantly and unreasonably impede, hinder or restrict
participation in court proceedings and access to court operations based upon a
person's English language ability."
Perez also reiterated in his letter that state courts must provide interpreters in
all court proceedings, cannot charge interpreter costs to one or more parties,
cannot restrict language services to only courtrooms and must ensure
communication with court appointed or supervised personnel.
In a memorandum of understanding between the State of Maine Judicial
Branch and the federal government, the DOJ makes it clear that in an extreme
case of noncompliance from a state, the department is authorized to terminate
its financial assistance or file a civil suit.
Florida State Statutes 90.606 and 90.6063 address interpreters and
translators, but don't specifically provide instructions for people who are not
deaf. Florida Supreme Court public information officer Craig Waters said in a
statement on July 15 that "The Florida Supreme Court and the state courts
have a policy of not commenting publicly about pending complaints against
us."
In the Ninth Judicial Circuit, which covers Orange and Osceola counties,
interpreters are provided in any situation where you could lose due process
rights, which includes the criminal division and juvenile courts, as well as
domestic violence and mental health hearings, says chief deputy court
administrator Karen Levey. The circuit court employs seven Spanish-speaking
interpreters and one Spanish/Haitian Creole interpreter, who provide services
for almost 25,000 court hearings.
"It's quite a few events for just eight people," she said. "We would like to hire
more, but we can't until we have funding sources from the state."
Kathy Card, state coordinator for the Florida Language Access Coalition and
one of the complainants, says she was the chair of the National LEP Advocacy
Task Force when it filed a successful complaint against Maine's judicial system
over a decade ago for not complying with the federal law. After the DOJ's
ruling, Card says information was sent to all state judicial systems about LEP
rules, including Florida's program manager for the Court Interpreter
Certification and Regulation Program..
Later, she retired and moved to Florida, where she says she found Florida was
about 20 years behind when it came to interpretation services in courts,

12/11/2015 10:54 AM

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hospitals, schools, housing, voter polls and social services. In June, she called
Florida's program manager to see what the situation was a decade later.
"She just told me they look toward Florida State Statutes, and when I asked
about the federal law, she said, 'I'm not going to comment on that, you will
have to ask general counsel,'" Card says. "It's frustrating because if you're not
monitoring the states' compliance, they stop. ... There is a huge amount of
work ahead of us, and this state is the most challenging in the entire country."

How other states are dealing with languageaccess laws


According to a Brennan Center for Justice report in 2009, 46 percent of state
courts fail to require that interpreters be provided in all civil cases, 80 percent
fail to guarantee that people needing interpretation are not unlawfully charged
and 37 percent fail to require that interpreters be credentialed.
A decade after an administrative complaint was filed against Maines judicial
system for not following federal law, communication access specialist Taylor
Kilgore says the state will provide an interpreter to anyone who identifies as
LEP, no questions asked.
We have had to make cuts from other places, but this is one of our big
priorities, she says.
Maine doesnt really have large populations that speak one language, but
rather smaller community pockets that each speak their own language, and
Kilgore says that at times it can be hard to find speakers of less-common
languages.
In California, the Legal Aid Foundation of Los Angeles filed a complaint
against the state judicial system in 2010 after two Korean-speaking people
involved in civil suits were denied interpreters in Los Angeles County, says
Joann Lee, directing attorney for the foundation.
The California courts decided to comply voluntarily with the Department of
Justice in 2011, and in January of this year created a strategic plan to expand
the provision of spoken language interpreters by 2020 to include all civil
proceedings and all court-ordered, court-operated programs, services or
events, according to the California Language Access Plan.
I think people are very appreciative, Lee says. Theres still some bumps in
the road but for the most part, they are happy with the new policy.
Editor's note: In the original version of this story, we reported that the
National LEP Advocacy Task Force sent information to state courts
explaining LEP rules; that information was sent by the U.S. Department of
Justice, not the task force. We regret the error.
Jump to comments
Tags: News

12/11/2015 10:54 AM

CHAPTER SIX
UNITED STATES MAGISTRATE JUDGES

RULE 6.01

DUTIES OF UNITED STATES MAGISTRATE JUDGES

(a)
In addition to the powers and duties set forth in 28 U.S.C. Section 636(a), the United
States Magistrate Judges are hereby authorized, pursuant to 28 U.S.C. Section 636(b), to perform
any and all additional duties, as may be assigned to them from time to time by any judge of this
Court, which are not inconsistent with the Constitution and laws of the United States.
(b)
The assignment of duties to United States Magistrate Judges by the judges of the
Court may be made by standing order entered jointly by the resident judges in any Division of the
Court; or by any individual judge, in any case or cases assigned to him, through written order or oral
directive made or given with respect to such case or cases.
(c)
The duties authorized to be performed by United States Magistrate Judges, when
assigned to them pursuant to subsection (b) of this rule, shall include, but are not limited to:

12/1/09

(1)

Issuance of search warrants upon a determination that probable cause


exists, pursuant to Rule 41, Fed.R.Cr.P., and issuance of administrative
search warrants upon proper application meeting the requirements of
applicable law.

(2)

Processing of complaints and issuing appropriate summonses or arrest


warrants for the named defendants. (Rule 4, Fed.R.Cr.P.)

(3)

Conduct of initial appearance proceedings for defendants, informing them of


their rights, admitting them to bail and imposing conditions of release. (Rule
5, Fed.R.Cr.P. and 18 U.S.C. Section 3146)

(4)

Appointment of counsel for indigent persons and administration of the Court's


Criminal Justice Act Plan, including maintenance of a register of eligible
attorneys and the approval of attorneys' compensation and expense
vouchers. (18 U.S.C. Section 3006A; Rule 44, Fed.R.Cr.P.; and Rule 4.13(a)
of these rules)

(5)

Conduct of full preliminary examinations. (Rule 5.1, Fed.R.Cr.P. and 18


U.S.C. Section 3060)

(6)

Conduct of removal hearings for defendants charged in other districts,


including the issuance of warrants of removal. (Rule 40, Fed.R.Cr.P.)

6-1

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(7)

Issuance of writs of habeas corpus ad testificandum and habeas corpus ad


prosequendum. (28 U.S.C. Section 2241(c)(5))

(8)

Setting of bail for material witnesses and holding others to security of the
peace and for good behavior. (18 U.S.C. Section 3149 and 18 U.S.C.
Section 3043)

(9)

Issuance of warrants and conduct of extradition proceedings pursuant to 18


U.S.C. Section 3184.

(10)

The discharge of indigent prisoners or persons imprisoned for debt under


process or execution issued by a federal court. (18 U.S.C. Section 3569 and
28 U.S.C. Section 2007)

(11)

Issuance of an attachment or other orders to enforce obedience to an


Internal Revenue Service summons to produce records or give testimony.
(26 U.S.C. Section 7604(a) and (b))

(12)

Conduct of post-indictment arraignments, acceptance of not guilty pleas,


acceptance of guilty pleas in felony cases with the consent of the Defendant,
and the ordering of a presentence investigation report concerning any
defendant who signifies the desire to plead guilty. (Rules 10, 11(a) and 32(c),
Fed.R.Cr.P.)

(13)

Acceptance of the return of an indictment by the grand jury, issuance of


process thereon and, on motion of the United States, ordering dismissal of
an indictment or any separate count thereof. (Rules 6(f) and 48(a),
Fed.R.Cr.P.)

(14)

Supervision and determination of all pretrial proceedings and motions made


in criminal cases through the Court's Omnibus Hearing procedure or
otherwise including, without limitation, motions and orders made pursuant to
Rules 12, 12.2(c), 15, 16, 17, 17.1 and 28, Fed.R.Cr.P., 18 U.S.C. Section
4244, orders determining excludable time under 18 U.S.C. Section 3161, and
orders dismissing a complaint without prejudice for failure to return a timely
indictment under 18 U.S.C. Section 3162; except that a magistrate judge
shall not grant a motion to dismiss or quash an indictment or information
made by the defendant, or a motion to suppress evidence, but may make
recommendations to the Court concerning them.

(15)

Conduct of hearings and issuance of orders upon motions arising out of


grand jury proceedings including orders entered pursuant to 18 U.S.C.
Section 6003, and orders involving enforcement or modification of
subpoenas, directing or regulating lineups, photographs, handwriting
exemplars, fingerprinting, palm printing, voice identification, medical
examinations, and the taking of blood, urine, fingernail, hair and bodily
secretion samples (with appropriate medical safeguards).

6-2

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(16)

Conduct of preliminary and final hearings in all probation revocation


proceedings, and the preparation of a report and recommendation to the
Court as to whether the petition should be granted or denied. (Rule 32.1,
Fed.R.Cr.P. and 18 U.S.C. Section 3653.)

(17)

Processing and review of habeas corpus petitions filed pursuant to 28 U.S.C.


Section 2241, et seq., those filed by state prisoners pursuant to 28 U.S.C.
Section 2254, or by federal prisoners pursuant to 28 U.S.C. Section 2255,
and civil suits filed by state prisoners under 42 U.S.C. Section 1983, with
authority to require responses, issue orders to show cause and such other
orders as are necessary to develop a complete record, including the conduct
of evidentiary hearings, and the preparation of a report and recommendation
to the Court as to appropriate disposition of the petition or claim.

(18)

Supervision and determination of all pretrial proceedings and motions made


in civil cases including, without limitation, rulings upon all procedural and
discovery motions, and conducting pretrial conferences; except that a
magistrate judge (absent a stipulation entered into by all affected parties)
shall not appoint a receiver, issue an injunctive order pursuant to Rule 65,
Fed.R.Civ.P., enter an order dismissing or permitting maintenance of a class
action pursuant to Rule 23, Fed.R.Civ.P., enter any order granting judgment
on the pleadings or summary judgment in whole or in part pursuant to Rules
12(c) or 56, Fed.R.Civ.P., enter an order of involuntary dismissal pursuant to
Rule 41(b) or (c), Fed.R.Civ.P., or enter any other final order or judgment that
would be appealable if entered by a judge of the Court, but may make
recommendations to the Court concerning them.

(19)

Conduct of all proceedings in civil suits, before or after judgment, incident to


the issuance of writs of replevin, garnishment, attachment or execution
pursuant to governing state or federal law, and the conduct of all proceedings
and the entry of all necessary orders in aid of execution pursuant to Rule 69,
Fed.R.Civ.P.

(20)

Conduct or preside over the voir dire examination and empanelment of trial
juries in civil and criminal cases.

(21)

Processing and review of all suits instituted under any law of the United
States providing for judicial review of final decisions of administrative officers
or agencies on the basis of the record of administrative proceedings, and the
preparation of a report and recommendation to the Court concerning the
disposition of the case.

(22)

Serving as a master for the taking of testimony and evidence and the
preparation of a report and recommendation for the assessment of damages
in admiralty cases, non-jury proceedings under Rule 55(b)(2), Fed.R.Civ.P.,
or in any other case in which a special reference is made pursuant to Rule
53, Fed.R.Civ.P.

6-3

12/1/09

(23)

In admiralty cases, entering orders (i) appointing substitute custodians of


vessels or property seized in rem; (ii) fixing the amount of security, pursuant
to Rule E(5), Supplemental Rules for Certain Admiralty and Maritime Claims,
which must be posted by the claimant of a vessel or property seized in rem;
(iii) in limitation of liability proceedings, for monition and restraining order
including approval of the ad interim stipulation filed with the complaint,
establishment of the means of notice to potential claimants and a deadline
for the filing of claims; and (iv) to restrain further proceedings against the
plaintiff in limitation except by means of the filing of a claim in the limitation
proceeding.

(24)

Appointing persons to serve process pursuant to Rule 4(c), Fed.R.Civ.P.,


except that, as to in rem process, such appointments shall be made only
when the Marshal has no deputy immediately available to execute the same
and the individual appointed has been approved by the Marshal for such
purpose.

(25)

Processing and review of petitions in civil commitment proceedings under the


Narcotic Addict Rehabilitation Act, and the preparation of a report and
recommendation concerning the disposition of the petition.

(26)

Conduct of proceedings and imposition of civil fines and penalties under the
Federal Boat Safety Act. (46 U.S.C. Section 1484(d)).

6-4

RULE 6.02

REVIEW OF MAGISTRATE JUDGES' REPORTS AND RECOMMENDATIONS

(a)
In any case in which the magistrate judge is not authorized to enter an operative
order pursuant to Rule 6.01, 28 U.S.C. Section 636 or any standing or special order of the Court
entered thereunder, but is authorized or directed to file a report or recommendation to the District
Judge to whom the case has been assigned, a copy of such report and recommendation shall be
furnished, upon filing, to the District Judge and to all parties. Within fourteen (14) days after such
service, any party may file and serve written objections thereto; and any party desiring to oppose
such objections shall have fourteen (14) days thereafter within which to file and serve a written
response. The District Judge may accept, reject, or modify in whole or in part, the report and
recommendation of the magistrate judge or may receive further evidence or recommit the matter
to the magistrate judge with instructions.

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6-5

RULE 6.03

MISDEMEANOR AND PETTY OFFENSES

(a)
Pursuant to 18 U.S.C. Section 3401, any full time United States Magistrate Judge of
this District, sitting with or without a jury, shall have jurisdiction to try persons accused of, and
sentence persons convicted of, petty offenses. With consent of the parties, any full time United
States Magistrate Judge of this District, sitting with or without a jury, shall have jurisdiction to try
persons accused of, and sentence persons convicted of a Class A misdemeanor committed within
the District whether originating under an applicable Federal statute or regulation or a state statute
or regulation made applicable by 18 U.S.C. Section 13. Cases of misdemeanors may, upon transfer
into this District under Rule 20, Fed.R.Cr.P., be referred to a full time United States Magistrate
Judge of this District for plea and sentence, upon defendant's consent. In a petty offense case
involving a juvenile, any full time United States Magistrate Judge of this District may exercise all
powers granted to the District Court under Chapter 403 of Title 18 of the United States Code. In
cases of any misdemeanor, other than a petty offense involving a juvenile, in which consent to trial
before a Magistrate Judge has been filed, a Magistrate Judge may exercise all powers granted to
the District Court under Chapter 403 of Title 18 of the United States Code.
(b)
Any person charged with a petty offense as defined in 18 U.S.C. Section 19 may, in
lieu of appearance post collateral in the amount indicated for the offense, waive appearance before
a magistrate judge, and consent to forfeiture of the collateral. The offenses for which collateral may
be posted and forfeited in lieu of appearance by the person charged, together with the amounts of
collateral to be posted, shall be specified in standing orders of the Court, in each Division of the
Court, copies of which shall be maintained in the offices of the Clerk and the magistrate judges,
respectively. For all petty offenses not specified in such standing orders, the person charged must
appear before a magistrate judge; and further, nothing contained in this rule shall prohibit a law
enforcement officer from arresting a person for the commission of any offense, including those for
which collateral may be posted and forfeited, and requiring the person charged to appear before a
magistrate judge or, upon arrest, taking him immediately before a magistrate judge.
(c)
In the trial of all cases pursuant to this rule, Rule 58, Federal Rules of Criminal
Procedure, governs practice and procedure.

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6-6

RULE 6.04

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RESERVED

6-7

RULE 6.05

TRIAL OF CIVIL CASES

(a)
Pursuant to 28 U.S.C. Section 636(c)(1), and subject to the provisions of this rule,
all full time United States Magistrate Judges in the District are hereby specially designated to
conduct any or all proceedings in any jury or nonjury civil matter and order the entry of judgment in
the case.
(b)
Upon the filing of any civil case the Clerk shall deliver to the Plaintiff(s) written notice
of the right of the parties to consent to disposition of the case by a United States Magistrate Judge
pursuant to 28 U.S.C. Section 636(c) and the provisions of this rule. The Clerk shall also issue or
supply at that time, for each Defendant in the case, copies of such notice which shall be attached
to the summons and thereafter served upon the Defendant(s) in the manner provided by Rule 4,
Fed.R.Civ.P.; provided, however, that a failure to serve a copy of such notice upon any Defendant
shall not affect the validity of the service of process or the jurisdiction of the Court to proceed. If,
after the initial filing of a civil case, new or additional parties enter or join in the action pursuant to
the operation of any statute, rule or order of the Court, the Clerk shall immediately mail or otherwise
deliver a copy of such notice to each such party.
(c)
The written notice contemplated by subsection (b) of this rule shall be in such form
as the judges of the Court from time to time direct. In addition, the Clerk shall maintain on hand,
in a form or forms to be approved by the judges of the Court, written consent agreements for the
use of the parties in communicating to the Clerk their unanimous and voluntary consent, upon entry
of an order of reference by the presiding district judge, to have all further proceedings in the case,
including trial with or without a jury, and the entry of judgment, conducted by a United States
Magistrate Judge. One form of such consent agreements shall provide for appeal to the United
States Court of Appeals (28 U.S.C. Section 636(c)(3)), and another shall provide for appeal to the
presiding district judge (28 U.S.C. Section 636(c)(4)).
(d)
If the parties in any civil case unanimously consent to disposition of the case by a
United States Magistrate Judge pursuant to 28 U.S.C. Section 636(c) and this rule, such consent
must be communicated to the Clerk on an appropriate form (provided by the Clerk in accordance
with subsection (c) of this rule). The Clerk shall not accept or file any consent except in the form
and manner, and within the time, prescribed by this rule.
(e)
In the event the parties file a unanimous consent pursuant to subsection (d) of this
rule, the Clerk shall immediately notify the presiding district judge who will promptly (1) enter an
order of reference to a United States magistrate judge, or (2) enter an order declining to do so;
provided, however, the judges of the Court shall not decline to make an order or orders of reference
for the purpose of limiting the types of cases to be tried by the United States magistrate judges
pursuant to this rule. In making or in declining to make an order of reference the presiding judge
may consider, among other things, the current allocation of pending judicial business between the
judges of the Court and the magistrate judges; the judicial economy, if any, to be gained by the
reference as measured in part by the extent of prior judicial labor expended and familiarity
accumulated in the case by the judge or the magistrate judge, as the case might be; the extent to
which the magistrate judge(s) may have time available to devote to the case giving due regard to
the necessity of diligent performance of other judicial duties regularly assigned to the magistrate
judges; and any other features peculiar to the individual case which suggest, in the interest of justice
or judicial economy, that a reference should or should not be made.

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6-8

(f)
In any case in which an order of reference has been made, the presiding judge may,
for cause shown on his own motion, or under extraordinary circumstances shown by any party,
vacate the order of reference and restore the case to the calendar of the presiding judge.
(g)
In all cases in which an order of reference has been made on the basis of a consent
agreement providing for appeal to the presiding judge of the District Court pursuant to 28 U.S.C.
Section 636(c)(4), any such appeal shall be governed by the applicable Federal Rules of Appellate
Procedure relating to appeals in civil cases from the District Court to the Court of Appeals, except
that Rules 30, 31(b), and 32, Fed.R.App.P., shall not apply.
(h)
Nothing in this rule shall be construed to limit or affect the right of any judge or
judges of the Court to assign judicial duties or responsibilities to a United States magistrate judge
or magistrate judges pursuant to Rule 6.01, or any standing order entered under that rule, with or
without the consent of the parties.

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6-9

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RULE 4-1.3 DILIGENCE


4 RULES OF PROFESSIONAL CONDUCT
4-1 CLIENT-LAWYER RELATIONSHIP

RULE 4-1.3 DILIGENCE


A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer and
take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with
commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound,
however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise
professional discretion in determining the means by which a matter should be pursued. See rule 4-1.2. The lawyer's duty to act with
reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process
with courtesy and respect.
A lawyer's workload must be controlled so that each matter can be handled competently.
Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely
affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of
limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however,
unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer. A lawyer's duty to act with
reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will
not prejudice the lawyer's client.
Unless the relationship is terminated as provided in rule 4-1.16, a lawyer should carry through to conclusion all matters undertaken
for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If
a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will
continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer
relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the
lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or
administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer
will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing
responsibility for the matter. See rule 4-1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on
the scope of the representation the lawyer has agreed to provide to the client. See rule 4-1.2.
[Revised: 05/22/2006]

12/11/2015 10:30 AM

UNITED STATES COURT OF APPEALS


ELEVENTH JUDICIAL CIRCUIT
56 Forsyth Street, NW
Atlanta , Georgia 30303
404/335-6535

JAMES P. GERSTENLAUER
Circuit Executive

DATE

6 November 2015

To

Eleventh Circuit Court of Appeals Judges


District, Magistrate, and Bankruptcy Judges of the Eleventh Circuit
District and Bankruptcy Court Clerks of the Eleventh Circuit
Bankruptcy Administrators of the Eleventh Circuit
Lawyers Advisory Committee Members in Florida
Presidents and Executive Directors of State and
Local Bar Associations in Florida
Administrative Office ofthe U.S. Courts, Judicial Services Office

FROM

su BJECT:

James P. Gerstenlauer

~~~

Reappointment of Federal Public Defender Donna Lee Elm


Middle District of Florida at Tampa

Attached for your information is the public notice concerning the reappointment
of the Federal Public Defender in the Middle District of Florida at Tampa. Although
the incumbent Federal Public Defender, Donna Lee Elm, does seek reappointment,
there is no presumptive right to reappointment. Therefore, the position will be
advertised to the bar and general public.
We are forwarding the notice of this position throughout the federal judiciary,
and to federal, state, and local bar organizations. We ask your assistance in
circulating this announcement.
Thank you.

Attachment

UNITED STATES COURT OF APPEALS


ELEVENTH JUDICIAL CIRCUIT
JAMES P. GERSTENLAUER
Circuit Executive

56 Forsyth Street, NW
Atlanta, Georgia 30303
404/335-6535

PUBLIC NOTICE
REAPPOINTMENT OF INCUMBENT FEDERAL PUBLIC DEFENDER
Middle District of Florida
The current four-year term of Donna Lee Elm, Federal Public Defender for
the Middle District of Florida at Tampa, expires 8 September 2016. The Federal
Public Defender, under authority of 18 U.S.C. 3006A(g)(2)(A), provides criminal
defense services to individuals unable to afford counsel and supervises a full-time
staff of attorneys and administrative and clerical personnel. In accordance with
regulations of the Judicial Conference of the United States and the Court of Appeals
for the Eleventh Circuit governing the appointment and reappointment of Federal
Public Defenders, a review committee has been established to evaluate Ms. Elm's
performance in consideration of her request to be reappointed to a new four-year
term. The Committee is soliciting written comments from members of the bar and
concerned citizens about the performance of Ms. Elm and her office staff. .If
requested, the identity of a respondent to this solicitation will not be divulged
without prior consent. However, Ms. Elm will be provided with a general
description of the source and nature of any comments. Comments should be
submitted to James P. Gerstenlauer, Circuit Executive, United States Court of
Appeals for the Eleventh Circuit, 56 Forsyth Street, NW, Atlanta, GA 30303,
and must be received in the Circuit Executive's Office no later than
21 December 2015.
Although the incumbent Federal Public Defender, Donna Elm, does seek
reappointment, there is no presumptive right to reappointment. Therefore, the
position will be advertised to the bar and general public. Accordingly, the Court is
soliciting applications for this position from qualified persons. The Court
encourages applications from all qualified persons, including women, members of
minority groups, and individuals with disabilities. All applications, including the
application of the incumbent Federal Public Defender, will be subjected to the same
standard of review. The approximate salary range is $142,740 to $158,600,
depending on experience and qualifications. Federal public defenders may not
engage in the private practice of law and are subject to judiciary financial disclosure
requirements.

To qualify for appointment as the Federal Public Defender applicants must:


a.

be members in good standing of at least one state bar or the District of


Columbia or the Virgin Islands bar, and members in good standing of every
other bar of which they are members;

b.

have been eng~ged in the active practice of criminal law for a period of at
least five years, preferably with significant federal criminal trial and appellate
.
expenence;

c.

possess the ability to administer a Federal Public Defender's office


effectively;

d.

possess, and have a reputation for:


( 1) integrity and good character;
(2) sound physical and mental health;
(3) commitment to equal justice under law and vigorous representation of
his or her clients;
(4) outstanding legal ability and competence (evidenced by substantial legal
experience, ability to deal with complex legal problems, aptitude for
legal scholarship and writing, and familiarity with courts and court
processes);

e.

have a commitment to the vigorous representation of those unable to afford


counsel; and

f.

not be related by blood or marriage to a judge of the Eleventh Circuit Court


of Appeals or to a judge of the district court to be served, within the degrees
specified in Title 28, United States Code, Section 458 at the time of the initial
appointment.

Applications are available at www.ca11.uscourts.gov; from any federal


Clerk of Court in the states of Alabama, Florida, and Georgia; and from the
Circuit Executive, James P. Gerstenlauer, 56 Forsyth Street, NW, Atlanta,
Georgia 30303. Applications should be submitted in confidence to the Circuit
Executive and must be received in the Circuit Executive's Office no later than
21 December 2015. Email and fax copies of applications will not be accepted.
The United States Courts are equal opportunity employers.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0029/Sections/0029.007.html

Select Year:

The 2015 Florida Statutes


Title V
JUDICIAL BRANCH

Chapter 29
COURT SYSTEM FUNDING

View Entire Chapter

29.007
Court-appointed counsel. For purposes of implementing s. 14, Art. V of the State Constitution,
the elements of court-appointed counsel to be provided from state revenues appropriated by general law are
as follows:
(1) Private attorneys appointed by the court to handle cases where the defendant is indigent and cannot
be represented by the public defender or the office of criminal conflict and civil regional counsel.
(2) When the office of criminal conflict and civil regional counsel has a conflict of interest, private
attorneys appointed by the court to represent indigents or other classes of litigants in civil proceedings
requiring court-appointed counsel in accordance with state and federal constitutional guarantees and federal
and state statutes.
(3) Reasonable court reporting and transcription services necessary to meet constitutional or statutory
requirements, including the cost of transcribing and copying depositions of witnesses and the cost of foreign
language and sign-language interpreters and translators.
(4) Witnesses, including expert witnesses, summoned to appear for an investigation, preliminary hearing,
or trial in a case when the witnesses are summoned on behalf of an indigent, and any other expert witnesses
approved by the court.
(5) Mental health professionals appointed pursuant to s. 394.473 and required in a court hearing involving
an indigent, mental health professionals appointed pursuant to s. 916.115(2) and required in a court hearing
involving an indigent, and any other mental health professionals required by law for the full adjudication of
any civil case involving an indigent person.
(6) Reasonable pretrial consultation fees and costs.
(7) Travel expenses reimbursable under s. 112.061 reasonably necessary in the performance of
constitutional and statutory responsibilities.
Subsections (3), (4), (5), (6), and (7) apply when court-appointed counsel is appointed; when the court
determines that the litigant is indigent for costs; or when the litigant is acting pro se and the court determines
that the litigant is indigent for costs at the trial or appellate level. This section applies in any situation in
which the court appoints counsel to protect a litigants due process rights. The Justice Administrative
Commission shall approve uniform contract forms for use in processing payments for due process services
under this section. In each case in which a private attorney represents a person determined by the court to be
indigent for costs, the attorney shall execute the commissions contract for private attorneys representing
persons determined to be indigent for costs.
History.s. 7, ch. 2000-237; s. 43, ch. 2003-402; s. 16, ch. 2005-236; s. 18, ch. 2007-62.

Copyright 1995-2015 The Florida Legislature Privacy Statement Contact Us

12/11/2015 12:10 PM

VIA Email: fitzgibbons.law@verizon.net


VIA Email: b.kayklein@verizon.net

November 30, 2015

John M. Fitzgibbons, Statewide Chair


Florida Federal Judicial Nominating Commission
The Law Office of John M. Fitzgibbons
707 North Franklin Street, Suite 700
Tampa, FL 33602
Email: fitzgibbons.law@verizon.net
Telephone: 813.221.8800
Fax: 813.228.9813
Website: www.fitzgibbonslawtampa.com
Public Records Request. F.S. 119.07(1)(c) All public records requests shall be acknowledged
promptly and in good faith. Access to public records and meetings, Art. I, Sec. 24, Fla. Const.
Dear Mr. Fitzgibbons:
This is a public records request for the application for U.S. District Judge submitted by Philip R.
Lammens, who is one of the four finalists submitted in your letter September 11, 2015 to U.S.
Senator Bill Nelson and U.S. Senator Marco Rubio, in your position as Statewide Chair of the
Florida Federal Judicial Nominating Commission.
Thank you in advance for the courtesy of a response.
Sincerely,

Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Tel. 352-854-7807
Email: neilgillespie@mfi.net
Cc: MuckRock, info@muckrock.com
Enclosure: Letter September 11, 2015 to U.S. Senator Bill Nelson and U.S. Senator Marco Rubio,
from John M. Fitzgibbons, Statewide Chair, Florida Federal Judicial Nominating Commission.
https://www.flsd.uscourts.gov/wp-content/uploads/2015/09/15091JNC-NOTICE-AND-LETTER.pdf

Page 1 of 1

Neil Gillespie
From:
To:
Sent:
Subject:

"John Fitzgibbons" <fitzgibbons.law@verizon.net>


"Neil Gillespie" <neilgillespie@mfi.net>
Monday, December 07, 2015 3:47 PM
Re: Public Records Request-John Fitzgibbons-StatewideChair-Florida Federal Judicial Nominating
Commission
Mr. Gillespie, I need to review the application, then redact portions of it, such as home address,

etc. I am in the middle of a busy week but hope to have it to you in the relatively near future.
John M. Fitzgibbons

Board Certified Criminal Trial Lawyer


The Law Offices of John M. Fitzgibbons
707 North Franklin Street, Suite 700
Tampa, Florida 33602
Telephone: (813) 221-8800
Fax: (813) 228-9813
Email:fitzgibbons.law@verizon.net
Website:fitzgibbonslawtampa.com

From: Neil Gillespie <neilgillespie@mfi.net>


Date: Friday, December 4, 2015 2:54 PM
To: John Fitzgibbons <fitzgibbons.law@verizon.net>, Kay Klein <b.kayklein@verizon.net>
Cc: Neil Gillespie <neilgillespie@mfi.net>
Subject: Fw: Public Records Request-John Fitzgibbons-StatewideChair-Florida Federal Judicial
Nominating Commission
Mr. Fitzgibbons, when can I expect to get the records? Neil J. Gillespie

----- Original Message ----From: Neil Gillespie


To: John M Fitzgibbons ; Kay Kline
Cc: Neil Gillespie ; MuckRock
Sent: Monday, November 30, 2015 4:29 AM
Subject: Public Records Request-John Fitzgibbons-StatewideChair-Florida Federal Judicial Nominating
Commission

12/11/2015

VIA UPS No. 1Z64589FNW92003432


Via email: james_gerstenlauer@ca11.uscourts.gov

October 6, 2015

James Gerstenlauer, Circuit Executive


U.S. Court of Appeals, Eleventh Circuit
56 Forsyth St. N.W.
Atlanta, Ga. 30303
Dear Mr. Gerstenlauer:
Addendum Five to the local rules for the U.S. Court of Appeals, Eleventh Circuit, provides for a
Non-Criminal Justice Act Counsel Appointment. What is the procedure for a qualified person to
obtain a Non-Criminal Justice Act Counsel Appointment as described in Addendum Five?
On information and belief, I was entitled to a Non-Criminal Justice Act Counsel Appointment in
past cases before the Eleventh Circuit, but did not get one. Addendum Five states,
The court adopts these provisions for furnishing representation for persons financially
unable to obtain adequate representation in cases and situations which do not fall within
the scope of 18 U.S.C. 3006A, as amended but in which the court believes that the
interests of justice will be served by the presence of counsel.
(b)(2) Any person seeking relief under 29 U.S.C. 621, 42 U.S.C. 1981, 42 U.S.C.
1982, 42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986, 42 U.S.C. 2000a, 42
U.S.C. 2000d, and 42 U.S.C. 2000e or in such other cases as the court shall determine
to be appropriate may be eligible for representation. The court may approve such
representation on a determination that the interests of justice so require and that the
person is financially unable to obtain representation.
On September 11, 2015 I submitted this question by email to Assistant Federal Public Defender
Rick Carey, but got no response, other than a read acknowledgment from Mr. Carey.
On September 12, 2015 I submitted a follow-up email to Assistant Federal Public Defender Rick
Carey, and others, including Federal Public Defender Donna Elm, but got no response.
Thank you in advance for the courtesy of a response.
Sincerely,

Neil J. Gillespie
8092 SW 115th Loop
Ocala, FL 34481
Tel. 352-854-7807
Email: neilgillespie@mfi.net
Enclosure: Addendum Five to the local rules for the U.S. Court of Appeals, Eleventh Circuit

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FOLD HERE

ADDENDUM FIVE
NON-CRIMINAL JUSTICE ACT COUNSEL APPOINTMENTS
The court adopts these provisions for furnishing representation for persons financially unable
to obtain adequate representation in cases and situations which do not fall within the scope of 18
U.S.C. 3006A, as amended but in which the court believes that the interests of justice will be
served by the presence of counsel.
(a) Determination of Need.
In determining need for appointment of counsel, the court shall generally be governed by the
guidelines outlined in 18 U.S.C. 3006A.
(b) Appointment of Counsel.
(1) Counsel shall be selected from the same panels of attorneys designated or approved by
the district courts of the Eleventh Circuit as described in Addendum Four, which are hereby
approved by this court, or from a bar association, legal aid agency, or other approved organization.
In addition, any judge of this court may appoint competent counsel not otherwise included in the
preceding categories.
(2) Any person seeking relief under 29 U.S.C. 621, 42 U.S.C. 1981, 42 U.S.C. 1982,
42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986, 42 U.S.C. 2000a, 42 U.S.C. 2000d, and
42 U.S.C. 2000e or in such other cases as the court shall determine to be appropriate may be
eligible for representation. The court may approve such representation on a determination that the
interests of justice so require and that the person is financially unable to obtain representation.
(3) The court may at its discretion and in the interest of justice substitute one appointed
counsel for another at any stage of the proceedings on appeal.
(4) The court may at its discretion and where circumstances warrant make appointments of
counsel retroactive so as to include representation furnished prior to appointment.
(c) Withdrawal or Release of Appointed Counsel.
Counsel appointed under this rule to represent a party shall continue such representation until
relieved by order of the court of appeals.
(d) Duties of Appointed Counsel.
(1) Appointed counsel shall furnish the party represented, upon written request, with a copy
of motion papers and briefs filed for the party on the appeal, and shall send the party a copy of the
Rev.: 8/07

Addendum Five

court's decision when issued; the clerk will send appointed counsel an extra copy of the decision for
this purpose.
(2) Appointed counsel shall appear for oral argument only when directed by the court.
(3) In the event of affirmance or other decision adverse to the party represented appointed
counsel shall promptly advise the party in writing of the right to seek further review by the filing of
a petition for writ of certiorari with the Supreme Court.
(4) Appointed counsel shall advise the party represented in each case that, if the party wishes
to file a petition for a writ of certiorari with the Supreme Court, the party may have the right to do
so without prepayment of fees and costs or giving security therefor.
(5) No appointed representative under this rule shall accept a payment from or on behalf of
the person represented in this court without prior authorization by a United States circuit judge.
(e)

Payment of Claims for Expenses.

(1) In all appeals covered by this rule, the court of appeals may authorize reimbursement of
necessary expenses reasonably incurred in representing a party on appeal, consistent with the
limitations contained in the Criminal Justice Act, by any private attorney, bar association, legal aid
agency, or other approved organization appointed by the court for the purpose of representing a party
on appeal pursuant to this addendum. Compensation for attorney services as a fee for either in-court
or out-of-court time is not authorized.
(2) Travel expenses and other expenses reasonably incurred and necessary for adequate
representation on appeal may be claimed by an appointed attorney or other legal representative. The
clerk of court shall furnish each attorney or other representative at the time of appointment with
information as to expenses currently allowable and in accordance with rules, regulations and
guidelines promulgated by the Judicial Conference of the United States. Per diem may not be
claimed in lieu of actual travel and subsistence expenses. Meal and lodging expenses incurred
incident to representation on appeal, necessary long distance telephone calls or telegrams, and the
cost of photocopying (but not printing), are reimbursable expenses within the guidelines established
by the court. Expenses of general office overhead, personal items, filing fees and expenses of
printing of briefs are not reimbursable. Expenses of travel by private automobile may be claimed
on a straight mileage basis at the authorized rate. See (6) of the guidelines, below. Parking fees
and toll expenses are allowable. Transportation other than by private automobile may be claimed
on an actual cost basis, but first class fare is not permitted unless absolutely necessary and
documentation is provided that tourist or economy fares were not available.
(3) Unless otherwise ordered by the court for good cause shown, travel expenses other than
those incurred in connection with attending oral argument will not be reimbursed without a prior ex
parte application to and approval by the court.
Rev.: 8/07

Addendum Five

(4) All claims for reimbursement of expenses for representation on appeal shall be itemized
in detail and filed with the clerk of court on officially approved forms that the clerk's office will
provide. Claims should be filed as promptly as possible and in no event later than 60 days after
issuance of the mandate.
(5) After approval of allowable reimbursable expenses by the court, the claim form will be
forwarded to the circuit executive for payment.
(6) Reimbursable Expenses.
(a) Travel and transportation expenses. Travel and transportation must be accomplished by
the most economical means available. Only actual expenses may be claimed.
(i) Air transportation. Tourist or economy accommodations must be used except
where unavailable. A copy of the ticket must be attached to the claim form. If travel
by first class air transportation is claimed a detailed explanation of the reasons
therefor must be provided with the ticket copy.
(ii) Automobile transportation. The total mileage cost shall not exceed the fare
authorized for travel by tourist or economy air transport except in an emergency or
for other compelling reasons. Travel by privately owned automobile shall not exceed
the current government authorized rate for official travel per mile on a straight
mileage basis, plus parking fees, ferry, bridge, road, and tunnel fares.
(iii) Local transportation. Local travel will be accomplished by the most economical
means available and only actual expenses may be claimed. Transportation to and
from an airport should be by airport shuttle, if available.
(iv) Meals and lodging. Reasonable compensation for hotel or motel
accommodations and meals will be allowed on an actual expense basis subject to the
limitations governing compensation for federal employees traveling to the same
destination. Counsel will be notified by the clerk prior to the scheduled oral
argument session of the current limitations. A copy of the hotel or motel bill shall
be attached to the claim form.
(b) Photocopying. Actual costs not to exceed 25 cents per page will be paid if copy bill is
submitted. For in-house copying, actual costs not to exceed 15 cents per page will be paid.
(c) Express mail and other special arrangements. For delivery of items that could have been
mailed via U.S. Postal Service first class mail, additional expenses will be reimbursed only
if a satisfactory explanation is given why first class mail service was not utilized. In
non-emergency cases routine documents such as briefs and motions should be prepared early
enough to permit use of first class mail.
Rev.: 8/07

Addendum Five

(d) Computer Assisted Legal Research.


(i) By Court Appointed Counsel. The cost of use, by appointed counsel, of computer
assisted legal research services, may be allowed as a reimbursable out-of-pocket expense,
provided that the amount claimed is reasonable. Whenever appointed counsel incurs charges
for computer assisted legal research, counsel should attach to the claim form a copy of the
bill and receipt for the use of the legal research services or an explanation of the precise basis
of the charge (e.g., indicating the extent to which it was derived by proration of monthly
charges, or by charges identifiable to the specific research). If the amount claimed is in
excess of $500 or if it includes costs for downloading or printing, counsel should include a
brief statement of justification.
(ii) By Commercial Computer Assisted Legal Research Services. The court may in
advance authorize counsel to obtain computer assisted legal research services, where the
research is performed by employees of a commercial legal research firm or organization
rather than by appointed counsel, provided that the total amount charged for computer
assisted legal research services is reasonable. Requests by counsel for authority to obtain
such computer assisted legal research services should include the following:
a - a brief explanation of the need for the research services; and
b - an estimate of the charges.
(e) Miscellaneous Expenses. The lowest possible cost for expenses such as postage,
telephone calls, brief supplies, and parking, shall be incurred.
(f) Briefs.
Reimbursement will be provided only for the number of copies of briefs and record excerpts
required by the rules to be filed and served, plus two copies for each party signing the brief. The
number of copies and number of pages must be itemized on the claim form.
(g) Funding.
By resolution the court may allocate from time to time certain monies from its
nonappropriated fund account to support this program of non-CJA counsel appointments.

Rev.: 8/07

Addendum Five

Page 1 of 3

Neil Gillespie
From:
To:
Cc:

Sent:
Attach:
Subject:

"Neil Gillespie" <neilgillespie@mfi.net>


"James Gerstenlauer" <james_gerstenlauer@ca11.uscourts.gov>
"Rick Carey" <rick.carey@fd.org>; "Donna Elm" <donna_elm@fd.org>; "Ita M. Neymotin" <ineymotin@flrc2.org>; "Mark
Brewer" <mbrewer@flrc2.org>; "Alton L. "Rip" Colvin" <Rip.Colvin@justiceadmin.org>; "Jeffrey Lewis"
<jeffrey.lewis@rc1.myflorida.com>; "JOHN TENEWITZ" <JOHNTENEWITZ@AUD.STATE.FL.US>; "David Gee, HCSO
Sheriff" <DGee@hcso.tampa.fl.us>; "Mary Mainland MD Chief Medical Examiner" <mainlandm@hillsboroughcounty.org>;
"Sheriff Chris Blair" <cblair@marionso.com>; "Captain Bill Sowder MCSO" <bsowder@marionso.com>; "Jeffrey Deen"
<jdeen@rc5state.com>; "Neil Gillespie" <neilgillespie@mfi.net>
Wednesday, October 07, 2015 11:20 AM
ABA - Florida Civil Counsel Appointment.pdf; ABA - Legal Aid and Indigent Defendants.pdf; RulesAddendum05AUG07.pdf;
Letter-James Gerstenlauer-CA11-Circuit Executive re Non-Criminal Justice Act Counsel Appointment.pdf
Letter-James Gerstenlauer-CA11-Circuit Executive re Non-Criminal Justice Act Counsel Appointment

VIA UPS No. 1Z64589FNW92003432


Via email: james_gerstenlauer@ca11.uscourts.gov
James Gerstenlauer, Circuit Executive
U.S. Court of Appeals, Eleventh Circuit
56 Forsyth St. N.W.
Atlanta, Ga. 30303
Dear Mr. Gerstenlauer:
Addendum Five to the local rules for the U.S. Court of Appeals, Eleventh Circuit, provides for a Non-Criminal Justice Act
Counsel Appointment. What is the procedure for a qualified person to obtain a Non-Criminal Justice Act Counsel Appointment
as described in Addendum Five?
On information and belief, I was entitled to a Non-Criminal Justice Act Counsel Appointment in past cases before the Eleventh
Circuit, but did not get one. Addendum Five states,
The court adopts these provisions for furnishing representation for persons financially unable to obtain adequate
representation in cases and situations which do not fall within the scope of 18 U.S.C. 3006A, as amended but in
which the court believes that the interests of justice will be served by the presence of counsel.
(b)(2) Any person seeking relief under 29 U.S.C. 621, 42 U.S.C. 1981, 42 U.S.C. 1982, 42 U.S.C. 1983, 42
U.S.C. 1985, 42 U.S.C. 1986, 42 U.S.C. 2000a, 42 U.S.C. 2000d, and 42 U.S.C. 2000e or in such other
cases as the court shall determine to be appropriate may be eligible for representation. The court may approve such
representation on a determination that the interests of justice so require and that the person is financially unable to
obtain representation.
On September 11, 2015 I submitted this question by email to Assistant Federal Public Defender Rick Carey, but got no
response, other than a read acknowledgment from Mr. Carey.
On September 12, 2015 I submitted a follow-up email to Assistant Federal Public Defender Rick Carey, and others, including
Federal Public Defender Donna Elm, but got no response.
Thank you in advance for the courtesy of a response.
Sincerely,
Neil J. Gillespie
8092 SW 115th Loop
Ocala, FL 34481
Tel. 352-854-7807
Email: neilgillespie@mfi.net
Enclosure: Addendum Five to the local rules for the U.S. Court of Appeals, Eleventh Circuit
----- Original Message ----From: Neil Gillespie
To: Rick Carey ; Donna Elm

10/10/2015

Page 2 of 3

Cc: Ita M. Neymotin ; Mark Brewer ; Alton L. "Rip" Colvin ; Jeffrey Lewis ; JOHN TENEWITZ ; Neil Gillespie
Sent: Saturday, September 12, 2015 6:16 AM
Subject: Fw: How does a qualified civil litigant obtain a federal civil counsel appointment?

Mr. Carey, when can I expect a response from you to my email below?
Thank you. Neil J Gillespie
----- Original Message ----From: Neil Gillespie
To: Rick Carey
Cc: Neil Gillespie
Sent: Friday, September 11, 2015 2:05 AM
Subject: How does a qualified civil litigant obtain a federal civil counsel appointment?

Rick Carey
Assistant Federal Public Defender
Office of the Federal Public Defender
201 SW 2nd St Ste 102
Ocala, FL 34474-4119
Office: 352-351-9157
Fax: 352-351-9162
Dear Mr. Carey:
This is a request for information only.
How does a qualified civil litigant obtain a federal civil counsel appointment? A law-abiding civil litigant who is indigent,
disabled, and a vulnerable adult, (Fla. Stat. ch 415). Cases like a section 1983 civil rights lawsuit, or defense of a wrongful
foreclosure of a federal HECM reverse home mortgage.
Attached you will find Addendum Five to the local rules, U.S. Eleventh Circuit (set out in part below) that shows non-criminal
justice act counsel appointments are available.
http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/RulesAddendum05AUG07.pdf
How does a qualified litigant apply for a federal civil counsel appointment?
The U.S. District Court, Middle District of Florida CJA page does not show information for a non-criminal justice act civil
counsel appointment. https://www.flmd.uscourts.gov/AttyResources/cja_e-voucher.htm
Do the federal courts have a plan equivalent to the Florida Office of Criminal Conflict and Civil Regional Counsel, the five
Regional Counsel offices created by the legislature (Statute 27.511)? http://flrc2.org/History.html If so, How does a qualified
litigant apply for a federal civil counsel appointment?
Also, the American Bar Association (ABA) has a "Civil Right to Counsel" page, "Law Governing Appointment of Counsel in
State Civil Proceedings", with 50 research reports, one for each state detailing existing authority for appointment of counsel in
various types of civil proceedings. The Florida report is attached.
http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice/resources--information-on-key-atj-issues/civil_right_to_counsel1.html
If I missed anything leading to a federal civil counsel appointment, please advise me. Thank you.
Sincerely,
Neil J. Gillespie
8092 SW 115th Loop
Ocala, FL 34481
Tel. 352-854-7807
Email: neilgillespie@mfi.net
ADDENDUM FIVE - U.S. Eleventh Circuit Court of Appeals
NON-CRIMINAL JUSTICE ACT COUNSEL APPOINTMENTS
http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/RulesAddendum05AUG07.pdf

10/10/2015

Page 3 of 3

The court adopts these provisions for furnishing representation for persons financially unable to obtain adequate representation
in cases and situations which do not fall within the scope of 18 U.S.C. 3006A, as amended but in which the court believes
that the interests of justice will be served by the presence of counsel.
(a) Determination of Need...
(b) Appointment of Counsel...
(2) Any person seeking relief under 29 U.S.C. 621, 42 U.S.C. 1981, 42 U.S.C. 1982, 42 U.S.C. 1983, 42 U.S.C. 1985,
42 U.S.C. 1986, 42 U.S.C. 2000a, 42 U.S.C. 2000d, and 42 U.S.C. 2000e or in such other cases as the court shall
determine to be appropriate may be eligible for representation. The court may approve such representation on a determination
that the interests of justice so require and that the person is financially unable to obtain representation

10/10/2015

http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice/resources---information-on-key-at...

Home > ABA Groups > Standing Committee on Legal Aid and Indigent
Defendants > Initiatives > Resource Center for Access to Justice Initiatives > Resources & Information
on Key ATJ Issues > Civil Right to Counsel

Civil Right to Counsel


Law Governing Appointment of Counsel in State Civil
Proceedings
The map below provides access, by clicking each state, to a
research report detailing existing authority for appointment of
counsel in various types of civil proceedings. Additional prefatory
material and appendices are available through links below.
Introduction
Acknowledgments
Foreword
Appendix: International Law Relating to Appointment
of Counsel in Civil Proceedings

Civil Appt. Authority

Additional Resources
ABA Toolkit for a Right to Counsel in Civil
Proceedings

ABA House of Delegates Policy Resolution Urging


Recognition of a Civil Right to Counsel

The Toolkit includes in one package the "ABA Basic


Principles for a Right to Counsel in Civil Proceedings"

For additional information regarding civil right to

and "The ABA Model Access Act," which provide two

counsel issues, please visit:

important tools for jurisdictions seeking to implement a


civil right to counsel.

National Coalition for a Civil Right to Counsel

AMERICAN BAR ASSOCIATION


Directory of Law Governing Appointment of
Counsel in State Civil Proceedings

FLORIDA
Copyright 2014 American Bar Associaton
All rights reserved.
American Bar Associaton
Standing Commitee on Legal Aid and Indigent Defendants
321 N. Clark Street
Chicago, IL 60610
Phone: 312-988-5765; FAX: 312-988-5483
htp://www.americanbar.org/groups/legal_aid_indigent_defendants.html
The materials herein may be reproduced, in whole or in part, provided that such use is for informatonal, noncommercial purposes only and any copy of the materials or porton thereof acknowledges original publicaton by
the American Bar Associaton and includes the ttle of the publicaton, the name of the author, and the legend
Copyright 2014 American Bar Associaton. Reprinted by permission. Requests to reproduce materials in any
other manner should be addressed to: Copyrights and Contracts Department, American Bar Associaton,
321 N. Clark Street, Chicago, IL 60610; Phone: 312-988-6102; FAX: 312-988-6030;
E-mail: copyright@abanet.org.

ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

FLORIDA
Table of Contents
Preface.........................................................................................................................................................1
Law Addressing Authorizaton or Requirement to Appoint Counsel in Specifc Types of Civil Proceedings.2
1. SHELTER..............................................................................................................................................2
Federal Statutes and Court Decisions Interpretng Statutes...........................................................2
2. SUSTENANCE......................................................................................................................................2
Federal Statutes and Court Decisions Interpretng Statutes...........................................................2
3. SAFETY AND/OR HEALTH....................................................................................................................3
A. Domestc Violence Protecton Order Proceedings.........................................................................3
B. Conservatorship, Adult Guardianship, or Adult Protectve Proceedings........................................3
State Statutes and Court Decisions Interpretng Statutes...............................................................3
State Court Rules and Court Decisions Interpretng Court Rules....................................................4
C. Civil Commitment or Involuntary Mental Health Treatment Proceedings.....................................4
State Statutes and Court Decisions Interpretng Statutes...............................................................4
State Court Rules and Court Decisions Interpretng Court Rules....................................................5
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton .....................5
D. Sex Ofender Proceedings..............................................................................................................5
E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings.................................................5
State Statutes and Court Decisions Interpretng Statutes...............................................................5
4. CHILD CUSTODY..................................................................................................................................5
A. Appointment of Counsel for ParentState-Initated Proceedings................................................5
State Statutes and Court Decisions Interpretng Statutes ..............................................................5
Federal Statutes and Court Decisions Interpretng Statutes...........................................................6
State Court Rules and Court Decisions Interpretng Court Rules....................................................7
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton ....................7
State Court Decisions Addressing Courts Inherent Authority........................................................9
B. Appointment of Counsel for ParentPrivately Initated Proceedings...........................................9
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton .....................9
C. Appointment of Counsel for ChildState-Initated Proceedings.................................................10
Federal Statutes and Court Decisions Interpretng Statutes.........................................................10
State Court Rules and Court Decisions Interpretng Court Rules..................................................11
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton ..................11
D. Appointment of Counsel for ChildPrivately Initated Proceedings...........................................11
5. MISCELLANEOUS..............................................................................................................................11
A. Civil Contempt Proceedings.........................................................................................................11
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton ..................11
B. Paternity Proceedings..................................................................................................................12
C. Proceedings for Judicial Bypass of Parental Consent for Minor to Obtain an Aborton...............12
State Statutes and Court Decisions Interpretng Statutes.............................................................12
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton ..................12
D. Unaccompanied Minors in Immigraton Proceedings..................................................................13
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

ii

State Statutes and Court Decisions Interpretng Statutes.............................................................13


E. Proceedings Involving Claims by and Against Prisoners...............................................................13
State Statutes and Court Decisions Interpretng Statutes.............................................................14
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton ..................14
F. Forfeiture Proceedings.................................................................................................................14
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton ..................15
Law Addressing Authorizaton or Requirement to Appoint Counsel in Civil Proceedings Generally..........16
State Statutes and Court Decisions Interpretng Statutes.....................................................................16
Federal Statutes and Court Decisions Interpretng Statutes..................................................................16
State Court Decisions Addressing Courts Inherent Authority...............................................................17

ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

iii

Preface
Important Informaton to Read Before Using This Directory
The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings
(Directory) is a compilaton of existng statutory provisions, case law, and court rules requiring
or permitng judges to appoint counsel for civil litgants. The Directory consists of 51 detailed
research reportsone for each state plus D.C.that present informaton organized by types of
civil proceedings. Prior to using the Directory, please read the Introducton, at the Directorys
home page, for the reasons behind the development of the Directory, the various sources of
authority from which judicial powers to appoint counsel in civil proceedings may derive, and
the structure used to organize informaton within each of the research reports.
Terms of Use/Disclaimers
This Directory should not be construed as providing legal advice and the ABA makes no
warrantes concerning the informaton contained therein, which has been updated to refect
the law through early 2012. The Directory does not seek to address all conceivable subsidiary
issues in each jurisdicton, but some such issues were researched and addressed, including:
notfcaton of right to counsel; standards for waiver of right to counsel; standard of review on
appeal for improper denial of counsel at trial; whether counsel for a child means a clientdirected atorney or a best interests atorney/atorney ad litem; and federal court decisions
fnding a right to counsel. Similarly, the research did not exhaustvely identfy all law regarding
the issue of compensaton of appointed counsel in each jurisdicton, though discussion of such
law does appear within some of the reports.
The Directory atempts to identfy as unpublished any court decisions not published
within an ofcial or unofcial case reporter. Discussion of unpublished cases appears only for
those jurisdictons where court rules currently permit their citaton in briefs or opinions.
Limitatons on the use of unpublished opinions vary by jurisdicton (e.g., whether unpublished
cases have value as precedent), and such limits were not exhaustvely researched. Users should
conduct independent, jurisdicton-specifc research both to confrm whether a case is published
and to familiarize themselves with all rules relatng to the citaton and use of unpublished or
unreported cases.
Acknowledgments
This Directory was a mult-year project of the ABAs Standing Commitee on Legal Aid
and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the Natonal
Coaliton for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted
to form the Directorys reports. The Acknowledgments, at the Directorys home page, details
additonal specifc contributons of the many individuals involved in this project.
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

Law Addressing Authorizaton or Requirement to Appoint Counsel in


Specifc Types of Civil Proceedings
1. SHELTER
Federal Statutes and Court Decisions Interpretng Statutes
The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968,
provides that [a]n aggrieved person may commence a civil acton in an appropriate United
States district court or State court. 42 U.S.C. 3613 (a)(1)(A). Further, [u]pon applicaton
by a person alleging a discriminatory housing practce or a person against whom such a practce
is alleged, the court may-- (1) appoint an atorney for such person. 42 U.S.C. 3613(b).
2. SUSTENANCE
Federal Statutes and Court Decisions Interpretng Statutes
Title VII of the Civil Rights Act of 1964 prohibits employment discriminaton. While
nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specifed that
state courts have concurrent jurisdicton with federal courts for Title VII claims. Yellow Freight
System Inc. v. Donnelly, 494 U.S. 820, 826 (1990).
Title VII provides that [u]pon applicaton by the complainant and in such circumstances
as the court may deem just, the court may appoint an atorney for such complainant. 42
U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed:
Title VII's provision for atorney appointment was not included simply as an
aferthought; it is an important part of Title VII's remedial scheme, and therefore courts
have an obligaton to consider requests for appointment with care. In actng on such
requests, courts must remain mindful that appointment of an atorney may be essental
for a plaintf to fulfll the role of a private atorney general, vindicatng a policy of the
highest priority. Once the plaintf has triggered the atorney appointment provision,
courts must give serious consideraton to the plaintf's request such discretonary
choices are not lef to a court's inclinaton, but to its judgment; and its judgment is to
be guided by sound legal principles. Furthermore, in exercising this discreton, the
court should clearly indicate its dispositon of the request for appointment and its basis
for that dispositon.
737 F.2d 1173, 1183-85 (D.C. Cir. 1984).
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

3. SAFETY AND/OR HEALTH


A. Domestc Violence Protecton Order Proceedings
No law could be located regarding the appointment of counsel for indigent litgants in
domestc violence protecton order proceedings.
B. Conservatorship, Adult Guardianship, or Adult Protectve Proceedings
State Statutes and Court Decisions Interpretng Statutes
If a vulnerable adult requires a protectve service interventon, 1 he or she is enttled to
be represented by counsel at the hearing determining whether such services are necessary, and
the court shall appoint legal counsel to represent a vulnerable adult who is without legal
representaton. Fla. Stat. 415.1051(1)(c)(2) & (2)(f)(2).
Upon a petton to determine whether a person is incapacitated (a predecessor step to
guardianship),2 Fla. Stat. 744.331 provides that
(a) When a court appoints an atorney for an alleged incapacitated person, the court
must appoint the ofce of criminal confict and civil regional counsel or a private
atorney as prescribed in s. 27.511(6). A private atorney must be one who is included in
the atorney registry compiled pursuant to s. 27.40. Appointments of private atorneys
must be made on a rotatng basis, taking into consideraton conficts arising under this
chapter.
(b) The court shall appoint an atorney for each person alleged to be incapacitated in all
cases involving a petton for adjudicaton of incapacity. The alleged incapacitated
person may substtute her or his own atorney for the atorney appointed by the court.

A protectve service interventon is a hearing in which the court determines whether, as a result of abuse,
neglect, or exploitaton, an adult is in need of protectve services by the state, such as placement in adult familycare homes, assisted living facilites, nursing homes, or other appropriate facilites. Fla. Stat.. 415.1051(3). See
also id. 415.1051(1) (describing nonemergency protectve services interventons).
2

In re Fey, 624 So.2d 770, 772 n.1 (Fla. App. 1993) (Florida Probate Rule 5.550(b)(1)(B) provides that the requisite
notce of fling the petton to determine incapacity shall state that an atorney has been appointed to represent
such person; thus, the appointment of counsel must be accomplished at the very onset of guardianship
proceedings, as opposed to any tme before fnal hearing.)
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

(c) Any atorney representng an alleged incapacitated person may not serve as guardian
of the alleged incapacitated person or as counsel for the guardian of the alleged
incapacitated person or the pettoner.
(d) Efectve January 1, 2007, an atorney seeking to be appointed by a court for
incapacity and guardianship proceedings must have completed a minimum of 8 hours of
educaton in guardianship. A court may waive the inital training requirement for an
atorney who has served as a court-appointed atorney in incapacity proceedings or as
an atorney of record for guardians for not less than 3 years. The educaton requirement
of this paragraph does not apply to the ofce of criminal confict and civil regional
counsel untl July 1, 2008.
One of the Florida Court of Appeals has said that the failure to appoint counsel in such
proceedings is reversible error. Martnez v. Cramer, --- So.3d ----, 2013 WL 4006526 (Fla. App.
2013) (citng In re Fey, 624 So.2d 770, 772 (Fla. App. 1993). Counsel is also provided for review
of the guardianship. Fla. Stat. 744.464(2)(e). Additonally, Fla. Stat. 744.3031 provides that
counsel must be appointed for emergency guardianship proceedings.
State Court Rules and Court Decisions Interpretng Court Rules
Fla. Prob. R. 5.649(c) provides that [w]ithin 3 days afer a petton has been fled, the
court shall appoint an atorney to represent a person with a developmental disability who is the
subject of a petton to appoint a guardian advocate. The person with a developmental disability
may substtute his or her own atorney for the atorney appointed by the court.
C. Civil Commitment or Involuntary Mental Health Treatment Proceedings
State Statutes and Court Decisions Interpretng Statutes
When an indigent person is mentally disabled and requires involuntary admission to
residental services, he or she is enttled to appointed counsel at both the capacity
determinaton, Fla. Stat. 393.12, and the hearing to determine involuntary admission, id.
393.11(6). Counsel must also be appointed for indigent people subject to pettons for
involuntary outpatent placement, see id. 394.4655(4), or inpatent placement, see id.
394.467(4).3

In Auxier v. Jerome Golden Center for Behavioral Health, 85 So.3d 1164 (Fla. App. 2012), a wards GAL commited
the ward and then opposed appointment of counsel for the ward, arguing that the GALs own atorney could
represent the ward. The Court of Appeals held that the atorney appointed pursuant to 394.467(4) represents
the ward, not any GAL that the ward might have.
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

Indigent partes also have the right to court-appointed counsel in proceedings regarding
involuntary substance abuse treatment. See id. 397.681(2).
State Court Rules and Court Decisions Interpretng Court Rules
Fla. R. Juv. P. Rule 8.350(a)(6)( 2011) provides that, where the state seeks to place a
dependent child in mental health facility, [i]f the department's moton, the guardian ad litem's
report, or another party based on communicaton with the child indicates that the child does
not agree with the department's moton, then the court shall appoint an atorney to represent
the child, if one has not already been appointed.
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
The Florida Supreme Court has found a right to counsel for civil commitment. Pullen v.
State, 802 So.2d 1113, 1119 (Fla. 2001) (While the right to appointed counsel in Baker Act
involuntary civil commitment proceedings is provided by Florida statute, the consttutonal
guarantee of due process would require no less.). Though the court did not specify which
consttuton it was relying on, its citaton to federal cases would suggest it was a holding under
the federal consttuton.
D. Sex Ofender Proceedings
Fla. Stat. 394.916(3) specifes that in proceedings for involuntary civil commitment of
sexually violent predators, [a]t all adversarial proceedings under this act, the person subject to
this act is enttled to the assistance of counsel, and, if the person is indigent, the court shall
appoint the public defender or, if a confict exists, other counsel to assist the person.
E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings
State Statutes and Court Decisions Interpretng Statutes
If an indigent person is to be hospitalized or placed in isolaton due to tuberculosis, she
or he has the right to appointed counsel at the hearing. See id. 392.56(3)(c).
4. CHILD CUSTODY
A. Appointment of Counsel for ParentState-Initated Proceedings
State Statutes and Court Decisions Interpretng Statutes

ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

Florida statutes provide indigent parents with a right to counsel in all dependency
proceedings. Fla. Stat. 39.013(1) (Parents must be informed by the court of their right to
counsel in dependency proceedings at each stage of the dependency proceedings. Parents who
are unable to aford counsel must be appointed counsel.); see also id. 39.013(9) (describing
courts responsibilites under this provision). There is, however, a split of authority as to
whether the term parent in 39.013(1) includes the non-ofending parent. See In re A.G., 40
So.3d 908 (Fla. App. 2010) (fnding non-ofending parent is enttled to appointed counsel, and
disagreeing with C.L.R. v. Department of Children & Families, 913 So.2d 764 (Fla. App. 2005)).
Dependency proceedings ofen determine whether children will be placed in shelters
temporarily or whether parental rights will be terminated permanently, and statutes expressly
mandate appointment of counsel in each of these partcular circumstances. See id.
39.013(10) (Court-appointed counsel representng indigent parents at shelter hearings shall be
paid from state funds appropriated by general law.); id. 39.402(5)(b)(2) (during hearings to
determine the placement of children in shelters, if indigent, the parents have the right to be
represented by appointed counsel). Id. 39.807(1)(a) (The court shall appoint counsel for
indigent parents for all stages of terminaton of parental rights proceedings).
If a parent voluntarily surrenders rights to a child, Florida statutory law does not provide
a right to counsel in dependency proceedings. See Fla. Stat. 39.807 (2011)(d) (right to counsel
not applicable to any parent who has voluntarily executed a writen surrender of the child and
consent to the entry of a court order therefor.) See also Justce Admin. Comm'n v. Goetel, 32
So. 3d 786, 787 (Fla. App. 2010) (Because the mother executed a writen surrender, she had
no right to appointed counsel for her terminaton proceeding.). Also, grandparents do not
have a statutory right to court-appointed counsel in dependency proceedings. Justce
Administratve Com'n v. Grover, 12 So. 3d 1256 (Fla. App. 2009). A legal guardian who is not a
parent similarly lacks a statutory right for appointment of counsel. B.M. v. Dep't of Children &
Families, 842 So. 2d 936, 937 (Fla. App. 2003) (As B.D. is not a parent of these children, there is
no fundamental liberty interest of a parent involved in these proceedings.).
Federal Statutes and Court Decisions Interpretng Statutes
The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in
state court,4 provides:
In any case in which the court determines indigency, the parent or Indian custodian shall
4

While the ICWA does not appear to have a defnitve statement about jurisdicton, 25 U.S.C. 1912(b) refers to
state law not providing for appointment of counsel. Additonally, 25 U.S.C. 1912(b) states: In any involuntary
proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or terminaton of parental rights to, an Indian child shall notfy the
parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of interventon. These provisions, plus the fact that child welfare
proceedings typically occur in state court, suggest that ICWA applies in state law proceedings.
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

have the right to court-appointed counsel in any removal, placement, or terminaton


proceeding.Where State law makes no provision for appointment of counsel in such
proceedings, the court shall promptly notfy the Secretary upon appointment of counsel,
and the Secretary, upon certfcaton of the presiding judge, shall pay reasonable fees
and expenses out of funds which may be appropriated pursuant to secton 13 of this
ttle.
25 U.S.C. 1912(b).
State Court Rules and Court Decisions Interpretng Court Rules
According to Fla. R. Juv. P. Rule 8.320 (2011), [a]t each stage of the dependency
proceeding the court shall advise the parent of the right to have counsel present. The court
shall appoint counsel to indigent parents or others who are so enttled to as provided by law,
unless appointment of counsel is waived by that person. Fla. R Juv. P. 8.517 (created in 2013)
specifes that trial counsel cannot withdraw afer a dependency or terminaton of parental
rights order untl determining whether the parent wants to appeal, and if so, untl an order
appointng appellate counsel has been entered.
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
In the seminal pre-Lassiter5 case of In the Interest of D.B. and D.S., 385 So. 2d 83 (Fla.
1980), the Florida Supreme Court found that due process under both the Florida and U.S.
Consttutons requires the appointment of counsel only where child dependency proceedings
result in the permanent loss of parental custody (i.e., are essentally combined with a
terminaton proceeding) or where the proceedings, because of their nature, may lead to
criminal child abuse charges. The court commented that there are numerous types of
juvenile dependency proceedings, but all concern the care, not the punishment, of the child.
Some provide very temporary types of relief and custody, while other dependency proceedings
permanently terminate the custody and care of a child. Id. at 90. The court reiterated its
general endorsement of the mult-factor test enunciated in Potvin v. Keller, 313 So. 2d 703 (Fla.
1975), which instructed courts to weigh various criteria when determining the need for counsel,
including the potental length of parent-child separaton, the degree of parental restrictons on
visitaton, whether there was parental consent, whether there were disputed facts, and the
complexity of the proceeding. See Potvin, 313 So. 2d at 706.6 The court found, however, that
5

Lassiter v. Department of Social Services, 452 U.S. 18, 25 (1981) (fnding no absolute Fourteenth Amendment right
to counsel in terminaton of parental rights proceedings).
6

Potvin in turn drew its test largely from Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974). As noted earlier, the right
to appointed counsel has since been statutorily extended to all dependency proceedings by Fla. Stat. 39.013 and
in S.B. v. Dept. of Children & Families, 851 So. 2d 689, 692 (Fla. 2003), the court noted that Fla. Stat. 39.013(1)
supersedes the Potvin factors by providing an absolute right to counsel in all dependency proceedings.
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

because there is a consttutonally protected interest in preserving the family unit and raising
ones children, In re D.B., 385 So. 2d at 90, the Potvin calculus always mandates appointment
of counsel for the parent when terminaton of parental rights is at stake: [A] consttutonal
right to counsel necessarily arises where the proceedings can result in permanent loss of
parental custody. In all other circumstances the consttutonal right to counsel is not
conclusive; rather, the right to counsel will depend upon a case-by-case applicaton of the test
adopted in Potvin . . . . Id. at 87.
The D.B. court concluded by notng that it was not departng from federal precedent:
The right to counsel in juvenile dependency proceedings has not been addressed by the United
States Supreme Court. Further, only one federal appellate court, the Ninth Circuit in Cleaver v.
Wilcox, has writen on the issue, and we have adhered to their view. Id. at 94. But since
Lassiter, the Florida Supreme Court has, without expressly notng the confict, 7 reafrmed its
view that, when terminaton of parental rights are at stake, state due process always mandates
appointment of counsel for the parent. See J.B. v. Florida Dept. of Children and Family Services,
768 So. 2d 1060, 1067-68 (Fla. 2000); In re E.H., 609 So. 2d 1289, 1290 (Fla. 1992).
Applying the Potvin factors, an intermediate appellate court found that due process
required counsel to be provided in a dependency proceeding even when terminaton of
parental rights was not at stake when the indigent parent was mentally ill and thus lacked the
ability to represent herself efectvely. See L.W. v. Dep't. of Health and Rehabilitatve Services,
695 So. 2d 724 (Fla. App. 1996). And in White v. Department of Health and Rehabilitatve
Services, 483 So. 2d 861 (Fla. App. 1986), the court found that the parents at issue were enttled
to appointed counsel at every stage of the dependency proceedings where their admissions
during the dependency proceeding resulted in an adjudicaton of their abuse and neglect
(which are two grounds for permanent commitment) and resulted in placement of the twins in
a foster home where lack of parental visitaton resulted in a charge of abandonment (a third
ground for permanent commitment) and resulted in a performance agreement (the failure to
perform being a fourth ground for permanent commitment). See also In re R.W., 429 So. 2d
711, 712 (Fla. App. 1983) (in dependency case, [m]erely informing an indigent parent of the
right to assistance of counsel, and referring that parent to a legal aid ofce, while withholding
court appointment and failing to establish a knowing waiver of record, does not pass
consttutonal muster.) But see In Interest of J.L.C., 501 So. 2d 92, 93 (Fla. App. 1987) (per
curiam) (rejectng mothers argument that failure to provide counsel untl terminaton
proceeding violated due process; court cites to D.B. and notes that it does not appear that the
trial court's determinaton was based on evidence previously adduced at a dependency hearing
at which the mother was not represented by counsel).

One intermediate appellate court did note the confict shortly afer Lassiter was decided. See In re D.D.W., 400
So. 2d 1310, 1311 (Fla. App. 1981).
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

In S.B. v. Dept of Children and Families, 851 So. 2d 689, 694 (Fla. 2003), in which counsel
was appointed pursuant to statute in a child dependency proceeding, the Florida Supreme
Court held that [b]ecause there is no consttutonal right to counsel under the circumstances
of this case, we likewise fnd that there is no right to collaterally challenge the efectveness of
counsel. However, there might be a right to efectve assistance in cases where the right to
counsel is consttutonally based. In In re E.K., 33 So. 3d 125, 127 (Fla. 2d DCA 2010), the
Second District Court of Florida took up this issue and called a right to efectve counsel one
without a means by which to enforce that right. The court noted that while the state
supreme court had not held that an individual has a right to efectve counsel, it appears that a
parent who is consttutonally enttled to appointed counsel in a terminaton proceeding is
implicitly enttled to efectve assistance of counsel. Id. at 127. The court outlined the history
of the problem in Florida courts and sought certfcaton on the issue. Id. It appears that none
of the partes in E.K. requested that the Supreme Court accept jurisdicton on certfcaton, and
no acton was taken on the issue. See Deborah A. Schroth, Role of the Lawyer in Dependency
Cases, JUVL FL-CLE 10-1 (2011).
State Court Decisions Addressing Courts Inherent Authority
In Makemson v. Martn County, 491 So. 2d 1109, 1112 (Fla. 1986), the Florida Supreme
Court held that the court has the authority to exceed legislatvely mandated statutory fee caps
in order to ensure reasonable compensaton for atorneys who had been appointed to
represent indigent clients in criminal cases. In Board of County Com'rs of Hillsborough County
v. Curry, 545 So.2d 930 (Fla. App. 1989), a Florida Court of Appeals extended the reasoning of
Makemson to non-capital cases, notng that the basis for the Makemson decision was the
judiciary's inherent power to ensure adequate representaton for indigent criminal defendants
by competent counsel, regardless of whether the defendant has been charged with a capital
crime. Further, the Scruggs court extended Makemson to terminaton of parental rights cases
due to the fundamental rights at stake and suggested that it would reach a similar holding in
any type of case where counsel was consttutonally required. See Id.
B. Appointment of Counsel for ParentPrivately Initated Proceedings
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
In a decision that involved the terminaton of a fathers parental rights pursuant to a
contested adopton proceeding, the court of appeals in the Second District found that an
indigent legal parent is enttled to appointed counsel in an adopton proceeding that involves
the involuntary terminaton of his or her parental rights . . . . O.A.H. v. R.L.A., 712 So. 2d 4 (Fla.
App. 1998). In O.A.H., the court found that although the applicable statute pursuant to which
the fathers parental rights were to be terminated (Fla. Stat. 63.072) (repealed in 2001) did
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS FLORIDA 2012

not contain an express statutory right to counsel, under Floridas Due Process Clause, the father
was nonetheless enttled to counsel, when the proceedings can result in a permanent loss of
parental rights. Id. at 10. In reaching its decision, the court in O.A.H. also found that an
adopton proceeding, and the resultng terminaton of parental rights, is not purely a private
dispute and that the State has exclusive authority to terminate legal relatonship of a parent
and child, and that this authority is a state acton sufcient to invoke due process concerns.
Id. at 8. Regarding state acton, the court relied upon U.S. Supreme Court precedent in M.L.B.
v. S.L.J., 519 U.S. 102, 117 n.8 (1996). See also M.E.K. v. R.L.K., 921 So. 2d 787 (Fla. App. 2006)
(in adopton case, Fifh District holds that trial court in adopton case erred in following Lassiter
instead of O.A.H.); In the Interest of M.C., 899 So. 2d 486 (Fla. App. 2005) (reafrming O.A.H);
G.C. v. W.J., 917 So.2d 998, 999 (Fla. App. 2005) (First District case where court followed O.A.H).
C. Appointment of Counsel for ChildState-Initated Proceedings
Federal Statutes and Court Decisions Interpretng Statutes
The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state
court,8 provides the following with regard to any removal, placement, or terminaton of
parental rights proceeding:
The court may, in its discreton, appoint counsel for the child upon a fnding that such
appointment is in the best interest of the child. Where State law makes no provision for
appointment of counsel in such proceedings, the court shall promptly notfy the
Secretary upon appointment of counsel, and the Secretary, upon certfcaton of the
presiding judge, shall pay reasonable fees and expenses out of funds which may be
appropriated pursuant to secton 13 of this ttle.
25 U.S.C. 1912(b).
The federal Child Abuse Preventon and Treatment Act (CAPTA) provides:
A State plan submited under paragraph (1) shall contain a descripton of the actvites
that the State will carry out using amounts received under the grant to achieve the
objectves of this subchapter, including (B) an assurance in the form of a certfcaton
by the Governor of the State that the State has in efect and is enforcing a State law, or
8

While the ICWA does not appear to have a defnitve statement about jurisdicton, 25 U.S.C. 1912(b) refers to
state law not providing for appointment of counsel. Additonally, 25 U.S.C. 1912(b) states: In any involuntary
proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or terminaton of parental rights to, an Indian child shall notfy the
parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of interventon. These provisions, plus the fact that child welfare
proceedings typically occur in state court, suggest that ICWA applies in state law proceedings.
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has in efect and is operatng a statewide program, relatng to child abuse and neglect
that includes-- (xiii) provisions and procedures requiring that in every case involving a
victm of child abuse or neglect which results in a judicial proceeding, a guardian ad
litem, who has received training appropriate to the role, including training in early
childhood, child, and adolescent development, and who may be an atorney or a court
appointed special advocate who has received training appropriate to that role (or both),
shall be appointed to represent the child in such proceedings.
42 U.S.C. 5106a(b)(2).
State Court Rules and Court Decisions Interpretng Court Rules
Although Fla. Stat. 39.807(2)(a) only provides that [t]he court shall appoint a guardian
ad litem to represent the best interest of the child in any terminaton of parental rights
proceedings, Fla. R. Juv. P. 8.217(a) provides: At any stage of the proceedings, any party may
request or the court may consider whether an atorney ad litem is necessary to represent any
child alleged to be dependent, if one has not already been appointed. Fla. R. Juv. P. 8.217(b)
adds that [t[he court may appoint an atorney ad litem to represent the child in any
proceeding as allowed by law.
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
In the pre-Lassiter9 case of In the Interest of D.B. and D.S., 385 So. 2d 83 (Fla. 1980), the
Florida Supreme Court summarily found that there is no consttutonal right to counsel for the
subject child in a juvenile dependency proceeding. Id. at 91.
D. Appointment of Counsel for ChildPrivately Initated Proceedings
No law could be located regarding the appointment of counsel for children in privately
initated child custody proceedings.
5. MISCELLANEOUS
A. Civil Contempt Proceedings
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
The Florida Supreme Court rejected a Fourteenth Amendment right to counsel in civil
contempt proceedings due to a failure to pay child support. Andrews v. Walton, 428 So. 2d 663
9

Lassiter v. Department of Social Services, 452 U.S. 18, 25 (1981) (fnding no absolute Fourteenth Amendment right
to counsel in terminaton of parental rights proceedings).
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(Fla. 1983). The high court reasoned that since civil contempt required ability to pay (and
willful failure to do so), those facing this sancton would never be sufciently indigent to merit
appointment of counsel. Id. at 666. However, one appellate court subsequently held that
where a contemnor willfully or unintentonally divests himself/herself of the ability to pay, then
counsel is required because the contemnor essentally no longer holds the keys to his/her own
prison. Bowen v. Bowen, 454 So. 2d 565 (Fla. App. 1984).
B. Paternity Proceedings
No law could be located regarding the appointment of counsel for indigent litgants in
paternity proceedings.
C. Proceedings for Judicial Bypass of Parental Consent for Minor to Obtain an
Aborton
State Statutes and Court Decisions Interpretng Statutes
The Florida Parental Notce of Aborton Act, Fla. Stat. 390.01114, provides that a minor
may petton a Florida circuit court for a waiver of the notfcaton requirements under the
aforementoned Act. Upon such a petton, the court shall advise the minor that she has a
right to court-appointed counsel and shall provide her with counsel upon her request at no cost
to the minor. Id. 390.01114(4)(a).10
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
The state supreme court has found appointed counsel necessary in hearings
determining the need for parental consent to aborton. See In re T.W., 551 So. 2d 1186, 1196
(Fla. 1989). The court stated: In [parental consent hearings] wherein a minor can be wholly
deprived of authority to exercise her fundamental right to privacy [by obtaining an aborton],
counsel is required under our state consttuton. Id. The court noted that the provision of
counsel in In re D.B. was based on the fact that an individuals interest in preserving the family
unit and raising children is fundamental, In re T.W., 551 So. 2d at 1196, and thus since a
womans right to decide whether or not to contnue her pregnancy consttutes a fundamental
consttutonal right, counsel is similarly required whenever one can be deprived of the
authority to exercise that right. Id. The court cited Indiana Planned Parenthood Afliates Assn
v. Pearson, 716 F.2d 1127, 1138 (7th Cir. 1983), for that courts analogous reasoning under
10

In North Florida Women's Health and Counseling Services, Inc. v. State, 866 So.2d 612 (Fla. 2003), the Florida
Supreme Court found that the notfcaton requirement violated the privacy provisions of the Florida Consttuton,
but in response, the state amended the consttuton to say that the legislature may require parental notfcaton
without violatng a young woman's state consttutonal right of privacy, as long as the parental-notfcaton law
provides for certain exceptons and a judicial bypass.
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federal law. In re T.W., 551 So. 2d at 1196. In Pearson, the court held that the statute
impermissibly fails to provide for the appointment of counsel to minors. 716 F.2d at 1138.
Despite this citaton to supportve federal precedent, the In re T.W. court maintained that it was
expressly decid[ing] this case on state law grounds. 551 So. 2d at 1196. 11
Also at stake in T.W. was the fact that the trial court had appointed counsel to act as
guardian ad litem for a fetus in a judicial bypass case. The trial court had appointed counsel
due to the trial courts concerns that the bypass statute was unconsttutonally vague and that
minors should be required to obtain parental consent in all cases. The guardian therefore
artculated these arguments essentally on behalf of the court. The Florida Supreme Court held
that the appointment was clearly improper and that it was the Atorney Generals job to
make such challenges to the statute, not the courts.12 The Florida Supreme Court passed on
the queston of whether appointment of counsel for a fetus would be proper absent motve by
a judge to challenge the consttutonality of the statute. 13
D. Unaccompanied Minors in Immigraton Proceedings
State Statutes and Court Decisions Interpretng Statutes
In cases where a child (i) has been adjudicated dependent, (ii) found not to be a citzen
of the United States, (iii) is found by the court to be eligible for special immigrant juvenile
status, and (iv) such status is in the best interest of the child, Fla. Stat. 39.5075 requires that
the [Florida] department [of child services], or community-based care provider shall, directly
or through voluntary or contractual legal services, fle a petton for special immigrant juvenile
status and the applicaton for adjustment of status to the appropriate federal authorites on
behalf of the child. Fla. Stat. 39.5075(5) (emphasis added).
E. Proceedings Involving Claims by and Against Prisoners

11

Note that this decision efectvely overruled a prior one from a Florida federal court ruling on federal grounds.
Jacksonville Clergy Consultaton Service, Inc. v. Martnez, 707 F.Supp. 1301 (M.D. Fla. 1989).
12

We are compelled to comment on the trial judge's fnding that the court, as the only entty otherwise involved
[i]n the proceeding which could possibly protect the state's interest, could have standing to challenge the
consttutonality of the statute. Under no circumstances is a trial judge permited to argue one side of a case as
though he were a litgant in the proceedings. The survival of our system of justce depends on the maintenance of
the judge as an independent and impartal decisionmaker. A judge who becomes an advocate cannot claim even
the pretense of impartality. T.W., 551 So.2d at 1190 n.3.
13

See also In re Guardianship of J.D.S., 864 So.2d 534 (Fla. App. 2004) (GAL for fetus not appropriate because GALs
can only be appointed for persons and fetus not a person under law).
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State Statutes and Court Decisions Interpretng Statutes


A few cases have addressed the reach of the public defenders scope of representaton
in civil maters involving prisoners, mostly as a queston of whether the public defenders
exceeded their statutory authority. State ex rel. enttes Smith v. Brummer, 443 So. 2d 957 (Fla.
1984) (habeas proceedings not one of the types of proceedings specifed in public defender
statute, so representaton inappropriate); State ex rel. Smith v. Jorandby, 498 So. 2d 948 (Fla.
1986) (representaton inappropriate for prisoners money damages claim against state);
Bentzel v. State, 585 So. 2d 1118 (Fla. App. 1991) (permitng public defender representaton in
extraditon proceeding due to potental loss of liberty); Graham v. Vann, 394 So. 2d 176 (Fla.
App. 1981) (public defenders ofce did not exist at common law and is a creature of Artcle V,
s 18, Florida Consttuton, with no authority outside of that provided by statute . There are
currently fve criminal actons pending against the pettoners, and the Ofce of the Public
Defender has represented each of the individuals within the past year. We cannot believe that
it was legislatve intent that under such circumstances the trial judge is free to appoint counsel,
but in so doing he may not consider the Ofce of the Public Defender.)
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
Generally, a pettoners right to the appointment of counsel in postconvicton
proceedings is not an organic right and is limited to either those instances specifed by statute
or those rare situatons where due process requires it. See State v. Weeks, 166 So. 2d 892 (Fla.
1964) (while Sixth Amendment does not require appointment of counsel for postconvicton
proceedings, Fifh Amendment due process would require such assistance if the postconvicton moton presents apparently substantal meritorious claims for relief and if the
allowed hearing is potentally so complex as to suggest the need Each case must be decided
in the light of Fifh Amendment due process requirements which generally would involve a
decision as to whether under the circumstances the assistance of counsel is essental to
accomplish a fair and thorough presentaton of the prisoner's claims); Keegan v. State, 293 So.
2d 351 (Fla. 1974) (fnding no exceptonal circumstance present in petton); Ulvano v. State,
479 So. 2d 809 (Fla. App 1985) (criminal trial counsels potental confict of interest warranted
appointment of counsel for postconvicton challenge to original representaton).
In Black v. Rouse, 587 So.2d 1359, 1362 (Fla. App. 1991), an appellate court rejected a
right to counsel for an inmate challenging medical treatment, citng to Lassiter v. Department of
Social Services, 452 U.S. 18 (1981), to hold that in a civil acton as opposed to a criminal acton,
appellant does not have a consttutonal right to appointed counsel, unless the proceedings
may result in his freedom being curtailed.
F. Forfeiture Proceedings
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State Court Decisions Addressing Consttutonal Due Process or Equal Protecton


In a case involving forfeiture of seized cash, a Florida appellate court summarily stated
that we reject Plaisted's argument that the trial court erred by failing to appoint counsel to
represent him in connecton with his moton for return of property. Plaisted v. State, 46 So.3d
148, 150 (Fla. App. (2010). The court relied entrely on United States v. Wade, 291 F.Supp.2d
1314, 1316-17 (M.D. Fla. 2003), which had held there is no right to efectve assistance of
counsel in civil cases.

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Law Addressing Authorizaton or Requirement to Appoint Counsel in


Civil Proceedings Generally
State Statutes and Court Decisions Interpretng Statutes
Fla. Stat. 29.007 (2011) (Court-appointed counsel) provides:
For purposes of implementng s. 14, Art. V of the State Consttuton [relatng to funding
of the judiciary], the elements of court-appointed counsel to be provided from state
revenues appropriated by general law are as follows:
(1)Private atorneys appointed by the court to handle cases where the defendant is
indigent and cannot be represented by the public defender or the ofce of criminal
confict and civil regional counsel.
(2)When the ofce of criminal confict and civil regional counsel has a confict of
interest, private atorneys appointed by the court to represent indigents or other classes
of litgants in civil proceedings requiring court-appointed counsel in accordance with
state and federal consttutonal guarantees and federal and state statutes.
...
This secton applies in any situaton in which the court appoints counsel to protect a
litgants due process rights.
A private atorney appointed by a court pursuant to 29.007 (2011) shall be
reimbursed for reasonable and necessary expenses incurred during representaton. Fla. Stat.
27.5304 (2011). Fla. Stat. 27.5304 lists the fat fees to be awarded to private atorneys.
Counsel may seek compensaton in excess of the fat fees listed in 27.5304 only if
compensaton on an hourly basis at a rate of $75.00 would be at least double the fat fee.
Justce Admin. Comm'n v. Shaman, 59 So. 3d 1231 (Fla. App. 2011).
Federal Statutes and Court Decisions Interpretng Statutes
The federal Servicemembers Civil Relief Act (SCRA), which applies to each state 14 and to
all civil proceedings (including custody),15 provides:
If in an acton covered by this secton it appears that the defendant is in military service,
14

50 App. U.S.C.A. 512(a) states, This Act [sectons 501 to 515 and 516 to 597b of this Appendix] applies to--
(2) each of the States, including the politcal subdivisions thereof
15
50 App. U.S.C. 521(a) states, This secton applies to any civil acton or proceeding, including any child custody
proceeding, in which the defendant does not make an appearance.
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the court may not enter a judgment untl afer the court appoints an atorney to
represent the defendant. If an atorney appointed under this secton to represent a
servicemember cannot locate the servicemember, actons by the atorney in the case
shall not waive any defense of the servicemember or otherwise bind the
servicemember.
50 App. U.S.C. 521(b)(2).
Additonally, 50 App. U.S.C. 522(d)(1), which also applies to all civil proceedings
(including custody),16 specifes that a service member previously granted a stay may apply for
an additonal stay based on a contnuing inability to appear, while 522(d)(2) states: If the
court refuses to grant an additonal stay of proceedings under paragraph (1), the court shall
appoint counsel to represent the servicemember in the acton or proceeding.
State Court Decisions Addressing Courts Inherent Authority
In Makemson v. Martn County, 491 So. 2d 1109, 1112 (Fla. 1986), discussed supra Part
4.A, the Florida Supreme Court held that the court has the authority to exceed legislatvely
mandated statutory fee caps in order to ensure reasonable compensaton for atorneys who
had been appointed to represent indigent clients in criminal cases. In Board of County Com'rs
of Hillsborough County v. Curry, 545 So.2d 930 (Fla. App. 1989), a Florida Court of Appeals
extended Makemson to terminaton of parental rights cases due to the fundamental rights at
stake and suggested that it would reach a similar holding in any type of case where counsel was
consttutonally required.

16

50 App. U.S.C. 522(a) applies to any civil acton or proceeding, including any child custody proceeding, in
which the plaintf or defendant at the tme of fling an applicaton under this secton-- (1) is in military service or is
within 90 days afer terminaton of or release from military service; and (2) has received notce of the acton or
proceeding.
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United States District Court - Middle District of Florida - Ocala Division


https://www.unitedstatescourts.org/federal/flmd/213312/
U.S. Judge Wm. Terrell Hodges - Case No. 5:08-cv-00165
Nature of Suit: 442 Civil Rights: Jobs
Antonio J. Ortiz-Carballo v. David R. Ellspermann, in his individual and in his Official capacity
as Clerk of the Circuit Court, Fifth Judicial Circuit In and For Marion County, Florida.
http://www.plainsite.org/dockets/igyh5mva/florida-middle-district-court/ortizcarballo-v-ellspermann/

David R. Ellspermann

Marion County Board of County Commissioners - BOCC

Settlement Agreement and General Release


$125,000.00 paid to Plaintiff Antonio J. Ortiz-Carballo
Settlement agreement by ANTONIO ORTIZ-CARBALLO ("PLAINTIFF") and DAVID
ELLSPERMANN, in his individual capacity and in his official capacity as the Clerk of the
Circuit Court, Fifth Judicial Circuit, Marion County, Florida (''Defendant").
B. As used in this Settlement Agreement and General Release the term "DEFENDANT" shall
mean DAVID ELLSPERMANN, in his individual capacity and in his official capacity as the
Clerk of the Circuit Court, Fifth Judicial Circuit, Marion County, Florida and MARION
COUNTY BOARD OF COUNTY COMMISSIONERS as well as their past and present
officials, commissioners, officers, directors, employees, boards, agents and attorneys, in both
their individual and official capacities, jointly or severally, singular or plural, where ever the
context so admits or requires.

Plaintiff alleged violations of his rights protected by Title VII of the Civil Rights Act of
1964, the Florida Civil Rights Act and 42 U.S.C. 1981 and 1983; and

PLAINTIFF specifically waives, releases, acquits, and forever discharges any claims, actions,
right of action whatsoever he may have against the DEFENDANT, its insurers and PGIT, under
the United States Constitution, the Florida Constitution, Title VII of the Civil Rights Acts of
1964, the Civil Rights Act of 1991, 42 U.S.C. 1983, 1985, 1988, the Age Discrimination in
Employment Act (ADEA), the Florida Human Rights Act, the Florida Civil Rights Act of 1992
( 760.01-760.11 and 509.092, Fla. Stat.), the Americans with Disabilities Act (42 U.S.C.
12132 et. seq) the Florida Whistle Blower Act( 112.3187 et. seq Fla. Statutes), the Florida
Workers' Compensation Act, 119.07, Fla. Stat., including attorneys' fees or costs, or any other
state, federal or administrative rule, statute; ordinance or law of any nature relating to
employment....read more in the attached Settlement Agreement and General Release.

Table of Contents
United States District Court - Middle District of Florida - Ocala Division
Antonio J. Ortiz-Carballo v. David R. Ellspermann, Case No. 5:08-cv-00165
Exhibit 1

Order of Dismissal, The Court has been notified that the above-styled cause has been settled
Case 5:08-cv-00165-WTH-DAB Document 87 Filed 02/01/11 Page 1 of 1 PageID 1407

Exhibit 2

Stipulation of Dismissal with Prejudice Pursuant to Rule 41(a)(1)(A)(ii), Fed.R.Civ.Pro.


Case 5:08-cv-00165-WTH-DAB Document 88 Filed 03/01/11 Page 1 of 2 PageID 1408

Exhibit 3

Letter February 8, 2011 Cindy A. Townsend to Ms. Jaime Acker, Claims Analyst,
Growth Enterprises, Insured: Marion County, Claimant: Anthony Ortiz-Carballo

Exhibit 4

Letter February 18, 2011 Cindy A. Townsend to Ms. Jaime Acker, Claims Analyst,
Growth Enterprises, Insured: Marion County, Claimant: Anthony Ortiz-Carballo

Exhibit 5

Settlement Agreement and General Release, February 2011Antonio J. Ortiz-Carballo v.


David R. Ellspermann, Case No. 5:08-cv-00165, February 2011

Exhibit 6

Court clerk settles discrimination lawsuit, Ocala Star-Banner, February 2, 2011


http://www.ocala.com/article/20110202/ARTICLES/110209928

Exhibit 7

Amended Complaint and Demand for Jury Trial, by Cynthia N. Sass for the Plaintiff
Case 5:08-cv-00165-WTH-DAB Document 9 Filed 06/11/08 Page 1 of 21 PageID 110

Exhibit 8

Motion for Leave to Withdrawal as Counsel for Plaintiff by Cynthia N. Sass et al.
Case 5:08-cv-00165-WTH-DAB Document 22 Filed 02/23/09 Page 1 of 4 PageID 385

Exhibit 9

Order by US Magistrate Jones, GRANTED without a hearing, a motion to withdrawal as


counsel, filed by Cynthia N. Sass et al., thereby leaving the Plaintiff unrepresented
Case 5:08-cv-00165-WTH-DAB Document 23 Filed 02/24/09 Page 1 of 2 PageID 389

Exhibit 10

Plaintiffs PRO SE Motion For A Federal Public Defender, Doc. 24, March 20, 2009
Case 5:08-cv-00165-WTH-DAB Document 24 Filed 03/20/09 Page 1 of 1 PageID 391

Exhibit 11

Order, DENIED counsel appointment, by US Magistrate Gary R. Jones


Case 5:08-cv-00165-WTH-DAB Document 25 Filed 03/23/09 Page 1 of 2 PageID 392

Exhibit 12

US 11th Circuit, Addendum Five, Non-Criminal Act Counsel Appointments (August 2007)
http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/RulesAddendum05AUG07.pdf

Exhibit 13

Plaintiffs PRO SE motion in opposition to Summary Judgment, Doc. 35


Case 5:08-cv-00165-WTH-DAB Document 35 Filed 08/14/09 Page 1 of 4 PageID 656

Exhibit 14

Entry of Appearance by David B. Sacks, Esquire for Plaintiff Antonio J. Ortiz-Carballo


Case 5:08-cv-00165-WTH-DAB Document 45 Filed 10/16/09 Page 1 of 2 PageID 750

Exhibit 15

CIVIL DOCKET FOR CASE #: 5:08-cv-00165-WTH-DAB, Ortiz-Carballo v. Ellspermann

Exhibit 16

Case Text Summary (incomplete), https://casetext.com/case/ortiz-carballo-v-ellspermann

Exhibit 17

Mediation documents, Fraxedas Mediation Firm

Case 5:08-cv-00165-WTH-DAB Document 87 Filed 02/01/11 Page 1 of 1 PageID 1407

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
O CALA D IVISION

ANTONIO J. ORTIZ-CARBALLO,
Plaintiff,
-vs-

Case No. 5:08-cv-165-Oc-10DAB

DAVID R. ELLSPERMANN, IN HIS


INDIVIDUAL AND IN HIS OFFICIAL
CAPACITY AS CLERK OF THE CIRCUIT
COURT, FIFTH JUDICIAL CIRCUIT IN AND
FOR MARION COUNTY, FLORIDA,
Defendant.
_____________________________________/

ORDER OF DISMISSAL
The Court has been notified that the above-styled cause has been settled, it is
ORDERED that this cause be and the same is hereby DISMISSED, subject to the
right of any party to move within 60 days of the date of entry of this Order, to reopen the
action, upon good cause shown, or to submit a stipulated form of final order or judgment.
BY ORDER OF THE COURT, this 1st day of February, 2011.

FOR THE COURT,


By: Maurya McSheehy
Maurya McSheehy, Deputy Clerk
Copies to:
Counsel of Record

Case 5:08-cv-00165-WTH-DAB Document 88 Filed 03/01/11 Page 1 of 2 PageID 1408

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

ANTONIO J. ORTIZ-CARBALLO,
Plaintiff,
vs.

CASE NO.: 5:08-cv-165-Oc-10GRJ

DAVID R. ELLSPERMANN, IN HIS


INDIVIDUAL AND IN HIS OFFICIAL
CAPACITY AS CLERK OF THE CIRCUIT
COURT, FIFTH JUDICIAL CIRCUIT IN AND
FOR MARION COUNTY, FLORIDA,
Defendant.
________________________________________/
STIPULATION OF DISMISSAL WITH PREJUDICE PURSUANT TO
RULE 41(a)(1)(A)(ii), FEDERAL RULES OF CIVIL PROCEDURE
Plaintiff,

ANTONIO

ORTIZ-CARBALLO,

and

Defendant,

DAVID

ELLSPERMANN, in his individual capacity and in his official capacity as the Clerk
of the Circuit Court, Fifth Judicial Circuit, Marion County, Florida, by and through
their undersigned counsel and pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), hereby
stipulate to the dismissal of this cause with prejudice as to Defendant, DAVID
ELLSPERMANN, in his individual capacity and in his official capacity as the Clerk
of the Circuit Court, Fifth Judicial Circuit, Marion County, Florida, with each party
to bear its own attorneys fees and costs.

Case 5:08-cv-00165-WTH-DAB Document 88 Filed 03/01/11 Page 2 of 2 PageID 1409

RESPECTFULLY SUBMITTED THIS 1st day of March, 2011.

/s/ David B. Sacks


DAVID B. SACKS, ESQ.
Florida Bar No. 0964409
david@sackslegal.com
The Law Office of David B. Sacks, P.A.
1017 Lasalle Street
Jacksonville, FL 32207
904-634-1122 - Telephone
904-355-8855
Attorney for Plaintiff

/s/ Cindy A. Townsend


MICHAEL J. ROPER, ESQ.
Florida Bar No. 0473227
mroper@bellroperlaw.com
CINDY A. TOWNSEND, ESQ.
Florida Bar No. 0788961
ctownsend@bellroperlaw.com
Bell & Roper, P.A.
2707 East Jefferson St.
Orlando, FL 32803
407-897-5150 - Telephone
407-897-3332 - Facsimile
Attorneys for Defendant

'

BELL

& RoPER, P.A. .

ATTORNEYS AT LAW
MICHAEl M. BEll
MICHAEl H. BOWliNG
HAEJ KIM
MICHAEl]. ROPER
JOSEPH D. TESSITORE

2707 EAST JEFFERSON STREET


ORlANDO, FlORIDA 32803
TELEPHONE (407) 897-5150
FAX (407) 897-3332
E-mail: office@bellroperlaw.com
www.bellroperlaw.com

DAVID B. BlESSING
GAll C. BRADFORD
ANNA E. ENGELMAN
CHRISTOPHER R. FAY
KATHRYN A. JOHNSON
ESTEBAN F. SCORNIK
DAlE A. SCOTT
CINDY A. TOWNSEND
MARY j. WAlTER

February 8, 2011

ATTORNEY CLIENT COMMUNICATION


ATTORNEY WORK PRODUCT
PRIVILEGED - CONFIDENTIAL
Ms. Jaime Acker
Claim~ Analyst, Growth Enterprises
Chartis Financial Liries Claims
Post Office Box 25947
Shawnee Mission, KS 66225
RE:

Insured:
Claimant:
Claim No.:

Marion County
Anthony Ortiz-Carballo
EV138237

Date ofLoss:
Our File No.:

June 11, 2007


026-296

Dear Ms. Acker:


Please find enclosed a copy of the Settlement Agreement and General Release
which was signed by the Plaintiff. Once Mr. Ellspermann signs the same I will provide
you with a copy. In the interim, pursuant to the Mediation Agreement and the terms
outlined in the Settlement Agreement and General Release, the settlement funds are due
to Plaintiff on or before February 28, 2011. In order to ensure that we comply with that
deadline, please forward the settlement check to the attention of the undersigned no later
than February 23, 2011 so that I can ensure its timely delivery to Plaintiffs counsel.
Please do not hesitate to contact me if you have any questions regarding the above.
Very truly yours,

~,~::~,~~
CAT/em
Enclosure
cc:

David Ellspermann
Katherine Glynn, Esq.
Yari Benitez
Henry Peavy
Sara Rothermel

Cindy A. Townsend

BELL & ROP)!:R,

P.A.

ATTORNEYS AT LAW
MICHAEl M. BEll
MICHAEl H. BOWliNG

2707 EAST JEFFERSON STREET


ORlANDO, FLORIDA 32803
TELEPHONE 1407) 8975150
FAX 1407) 8973332

HAEJ. KIM

MICHAEl). ROPER
JOSEPH D. TESSITORE

DAVID B. BlESSING
GAll C. BRADFORD
ANNA E. ENGELMAN
CHRISTOPHER R. FAY
KATHRYN A. JOHNSON
ESTEBAN F. SCORNIK
DALE A. SCOTT
CINDY A. TOWNSEND
MARY j. WALTER

E-mail: office@bellroperlow.com
www.bellroperlow.com

-----February 18, 2011


ATTORNEY CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
PRIVILEGED- CONFIDENTIAL

Ms Jaime Ack
Claims Analyst, owth Enterprises
Chartis Financial Lines-E;Isj'~i-------
Post Office Box 25947
Shawnee Mission, KS 66225

RE:

Insured:
Claimant:
Claim No.:
Date of Loss:
Our FileNo.:

Marion County
Anthony Ortiz-Carballo
EV138237
June 11, 2007
026-296

Dear Ms Acker:
Please find enclosed the original, fully executed, Settlement Agreement and
General Release in the above matter. As I am sure you are aware, the settlement
funds are due to Plaintiff on or before February 28, 2011. Please be sure to have
the settlement check in my possession prior to February 28th so I can ensure timely
delivery to Plaintiff's counsel.
Thank you for your attention to this matter and if there are any questions or
concerns, please do not hesitate to contact me.
Very truly yours,

CAT:em

Cindy A. Townsend

Jaime Acker
February 18, 2011
Page 2

cc:

Yari Benitez
David Ellspermann
Katie Glynn, Esq.
Henry Peavy
Sara Rothermel

"'

SETTLEMENT AGREEMENT AND GENERAL RELEASE


THIS Settlement Agreement and General Release (hereinafter "Agreement")
ts made and entered into by ANTONIO ORTIZ-CARBALLO (hereinafter
"PLAINTIFF") and DAVID ELLSPERMANN, in his individual capacity and in
his official capacity as the Clerk of the Circuit Court, Fifth Judicial Circuit, Marion
County, Florida (hereinafter ''Defendant").
DEFINITIONS
A.

As used in this Settlement Agreement and General Release the term

"PLAINTIFF" shall mean ANTONIO ORTIZ-CARBALLO, as well as his heirs,


executors, administrators, personal representatives, successors and assigns,
singular or plural, wherever the context so admits or requires.
B.

As used in this Settlement Agreement and General Release the term

"DEFENDANT" shall mean DAVID ELLSPERMANN, in his individual capacity


and in his official capacity as the Clerk of the Circuit Court, Fifth Judicial Circuit,
Marion County, Florida and MARION COUNTY BOARD OF COUNTY
COMMISSIONERS as well as their past and present officials, commissioners,
officers, directors, employees, boards, agents and attorneys, in both their individual
and official capacities, jointly or severally, singular or plural, where ever the
context so admits or requires.
Page 1 ofl3

RECITALS
Whereas PLAINTIFF, who was employed as a Clerk for the DEFENDANT,
contends that he was the subject of discrimination, hostile work environment
retaliation, and other personal injury, and subsequently filed a civil suit captioned:
11

Antonio Ortiz-Carballo, Plaintiff, vs. David Ellspermann, in his individual

capacity and in his official capacity as the Clerk of the Circuit Court, Fifth Judicial
Circuit, Marion County, Florida, Defendant; United States District Court, Middle
District of Florida, Orlando Division, Case No.: 5:08-CV-00165-0R-lOGRJ"
(hereinafter 11suit"), wherein he alleged violations of his rights protected by Title
VII of the Civil Rights Act of 1964, the Florida Civil Rights Act and 42 U.S.C.
1981 and 1983; and
WHEREAS, DEFENDANT has denied and continues to deny that he
violated any of PLAINTIFF's rights protected by either federal or state law and
denies the claims and allegations which were set forth in the above referenced
11

Suit" and any other cause of action that has or could arise out of PLAINTIFF's

employment relationship with the DEFENDANT, but is desirous of entering into


this compromise and settlement of a disputed claim in order to avoid further
litigation and attendant costs; and

Page2 of13

WHEREAS, PLAINTIFF and DEFENDANT have entered into good faith


settlement negotiations resulting in this Agreement and Release. The purpose of
this Agreement and Release is to settle and compromise any and all prior and
existing disputes, claims and controversies between the parties, without any future
costs and expenses of litigation and to bar any and all future disputes claims and
controversies between the parties which may arise out of any conflicts or events,
known or unknown, that have occurred up to the date of the execution of this
Agreement and Release, including but not limited to those which relate directly or
indirectly to PLAINTIFF's employment with the DEFENDANT; and
WHEREAS each party believes settlement of this dispute is in their mutual
best interest and acknowledge and agree that settlement of this claim does not
constitute an admission of liability or responsibility on the part of the
DEFENDANT; and
WHEREAS the parties desire to memorialize their Agreement.
NOW THEREFORE, in consideration of the mutual covenants to be
performed by each of the parties hereto and set forth in their entirety herein, the
parties agree as follows:

1.

Agreement
A.

Release and Discharge


Page 3 of13

In consideration for the payments and other good and valuable consideration
set forth in Paragraph (2) below, PLAINTIFF agrees, upon receipt of the
consideration due hereunder to file and serve a Notice of Dismissal with Prejudice
of the above referenced 11 Suit", and does further hereby agree to release, acquit, and
forever discharge DEFENDANT, its insurers and Preferred Governmental
Insurance Trust (PGIT) of and from any and all manner of action and actions,
cause and causes of action, suits, debts, dues, sums of money, accounts,
reckonings,

bonds,

bills,

specialties,

covenants,

contracts,

controversies,

agreements, promises, variances, trespasses, damages, judgments, claims for


attorneys' fees, interest, or costs, executions, claims and demands whatsoever, in
law or in equity, of whatever nature, which PLAINTIFF ever had, now has, or
which any personal representative, successor, heir or assign of PLAINTIFF,
hereafter can, shall or may have against DEFENDANT, its insurers and PGIT by
reason of any matter, cause or thing, occurring prior to the date of this Agreement,
including but not limited to those claims or demands which arise out of or are
related to ANTONIO ORTIZ-CARBALLO's employment with the DEFENDANT.
PLAINTIFF acknowledges and agrees that this is a General Release of any and all
claims, including but not limited to claims or charges for wages, salary, back pay,
front pay, and any an all employment benefits of any nature whatsoever; of breach
Page4 ofl3

of employment agreement or contract; defamation, including slander or libel;


battery; assault; employment discrimination, including age, race, sex, religion, or
natural origin discrimination; hostile work environment; discrimination based upon
actual or perceived disability or other protected characteristics; retaliation;
workers' compensation, or the violation of any administrative, local, State or
Federal Constitution, statute, rule, regulation, ordinance or law.

PLAINTIFF

specifically waives, releases, acquits, and forever discharges any claims, actions,
right of action whatsoever he may have against the DEFENDANT, its insurers and
PGIT, under the United States Constitution, the Florida Constitution, Title VII of
the Civil Rights Acts of 1964, the Civil Rights Act of 1991, 42 U.S.C. 1983,
1985, 1988, the Age Discrimination in Employment Act (ADEA), the Florida
Human Rights Act, the Florida Civil Rights Act of 1992 ( 760.01-760.11 and
509.092, Fla. Stat.), the Americans with Disabilities Act (42 U.S.C. 12132 et.
seq) the Florida Whistle Blower Act( 112.3187 et. seq Fla. Statutes), the Florida
Workers' Compensation Act, 119.07, Fla. Stat., including attorneys' fees or costs,
or any other state, federal or administrative rule, statute; ordinance or law of any
nature relating to employment.
B.

PLAINTIFF acknowledges and agrees that the Release and discharge

set forth above is a General Release of all claims. PLAINTIFF expressly waives
Page 5 of13

and assumes the risk of any and all claims, in law or in equity, which exist as of
this date, but of which PLAINTIFF does not know or suspect to exist, whether
through ignorance, oversight, error, negligence, or otherwise and, which, if known,
would materially affect PLAINTIFF's decision to enter this Settlement Agreement.
PLAINTIFF further agrees that he has agreed to accept payment of the sum
specified herein as a complete compromise of matters involving disputed issues of
law and fact. PLAINTIFF assumes the risks that the facts or law may be other than
he currently believes or understands.
C.

It is understood and agreed by the parties that this settlement is a

compromise of a litigated and disputed claim and neither this Agreement, nor any
consideration to be paid hereunder shall be construed as an admission by the
DEFENDANT, its insurers or PGIT of any unlawful, tortious or wrongful acts
whatsoever towards PLAINTIFF, and DEFENDANT, its insurers and PGIT
specifically disclaim any liability to PLAINTIFF or the propriety of any and all
factual or legal averments made by PLAINTIFF in the above referenced "suit".
D.

It is specifically agreed and understood that the terms of this

Settlement Agreement and General Release are contingent upon PLAINTIFF's


express promise to not apply for employment with the DEENDANT in the future,
and that if he makes or submits any such application, it shall be treated as and shall
Page6 of13

constitute a nullity.
E.

It is specifically agreed and understood that the terms of this

Settlement Agreement and General Release require the DEFENDANT to provide a


neutral employment reference in response to inquiries received regarding the
employment of ANTONIO ORTIZ-CARBALLO.

In response to inquiries,

DEFENDANT will provide only his dates of employment, position which he held
at the time he left DEFENDANT's employ and the salary he was earning at that
time. Notwithstanding, DEFENDANT will respond to any and all public records
requests made with respect to PLAINTIFF's employment records in accordance
with the guidelines established in Chapter 119, Florida Statutes.
F.

PLAINTIFF also agrees to indemnifY, protect and save harmless

DEFENDANT, its insurers and PGIT from all judgments and any and all liens,
costs and expenses whatsoever arising from the above described incident, and
agrees that PLAINTIFF will satisfY those claims or liens and will hold the
DEFENDANT, its insurers and PGIT harmless from such claims or liens,
including but not limited to any hospital liens, medical liens, liens held by
Medicaid and/or Medicare and any other governmental agency, insurance liens, tax
liens or attorneys charging liens.

Page 7 of13

2.

Consideration

A.

In consideration of the Agreement set forth above, DEFENDANT,

through its insurers, agrees to pay to the individual named below, the sum outlined
below.
B.

Payment due to PLAINTIFF within twenty (20) days following

receipt by the DEFENDANT of the signed Settlement Agreement and General


Release as follows:
i.

The amount of ONE HUNDRED AND TWENTY-FIVE

THOUSAND DOLLARS ($125,000.00) payable to DAVID SACKS,


P .A., TRUST ACCOUNT representing complete satisfaction of any
and

all

claims

which PLAINTIFF

may

have

against the

DEFENDANT, including all attorneys' fees and costs associated with


the above referenced "suit."

ii.

DEFENDANT will pay half of the mediation fee to J. Joaquin

Fraxedas, Esq.

iii.

PLAINTIFF will pay half of the mediation fee to J. Joaquin

Fraxedas, Esq.
C.

Although PLAINTIFF has waived and released all claims he may

have for wages or salary, the parties acknowledge and agree that the payments set
Page 8 ofl3

forth in subsection (A) above do not constitute wages or salary to PLAINTIFF, and
accordingly DEFENDANT will not take payroll deductions, withholding,
employee pension, contributions or other deductions from said payments; will not
make payment of appropriate payroll taxes, and will not report said income to the
Internal Revenue Service as reimbursement for wages of salary. Instead the parties
stipulate and agree that said amount represents reimbursement for compensatory
damages for personal physical injuries.

It is further agreed and understood that

future tax liabilities, if any, including penalties and interest, which may be incurred
by PLAINTIFF or DEFENDANT in association with said payments will be the
sole responsibility and liability of PLAINTIFF, and PLAINTIFF agrees to
indemnify and hold harmless DEFENDANT, its insurers and PGIT for any
additional tax liability which may arise from said payment. Said tax liability shall
not be a ground for avoiding or setting aside this Settlement Agreement.
3.

Age Discrimination in Employment Act

PLAINTIFF acknowledges and agrees that he has or had no claim of age


discrimination under the Age Discrimination in Employment Act (29 U.S.C. 623
et. seq) against the DEFENDANT and hereby releases and waives any and all
claims under the ADEA.

Page9 ofl3

PLAINTIFF understands that with respect to an ADEA claim only, that after
his execution of this Agreement he has seven days within which to revoke his
agreement to resolve such ADEA claim only by delivering written notice of said
revocation to counsel for the DEFENDANT at 2707 E. Jefferson Street, Orlando,
Florida 32803.

4.

Severability
If any clause or provision of this Agreement is found to be void, invalid, or

unenforceable, it shall be severed from the remaining provisions and clauses which
shall remain in full force and effect.

5.

Governing Law
The parties hereto agree that the law of the State of Florida shall govern this

Agreement and all respects in the event any action must be instituted for breach of
this Agreement, the parties agree that the sole venue shall be Marion County,
Florida.

6.

Miscellaneous
A.

PLAINTIFF expressly agrees and acknowledges and warrants that he

has read carefully and fully understands all provisions of this Agreement and that
he is entering into this Agreement of his own free will and with the advice of his
attorneys.

PLAINTIFF represents that he is voluntarily entering into this


Page 10 of13

Agreement with the intent to be bound thereby and he has not been coerced or
induced by anyone to enter into this Agreement. PLAINTIFF acknowledge that he
has read and fully understands the Agreement's terms, conditions, meaning and
intent, including but not limited to the fmal binding effect of the General Release.
B.

This Agreement constitutes the entire agreement between the parties,

and no other promises or agreements shall be binding unless signed by all parties.
All prior representations regarding the Agreement are hereby expressly disclaimed
by all parties unless incorporated herein.
C.

All parties shall take such further action and shall execute and deliver

such further documents as may be reasonably requested by the other party in order
to carry out the provisions and purposes of this Agreement.
D.

PLAINTIFF agrees that the terms, amount and fact of settlement and

any facts concerning his claims shall be kept confidential by him. PLAINTIFF
further agrees that he will not actively seek out media attention or publicity
regarding the terms, the amount or conditions of this Settlement Agreement and
General Release and will further not discuss this matter with anyone including
past, present or future employees of the DEFENDANT. If contacted, PLAINTIFF
agrees simply to indicate that the matter has been resolved and decline from any
further discussion concerning the details of his claim or the nature of the
Page 11 of13

settlement.
E.

The parties to this Agreement hereby confirm and agree that each of

them will refrain from making derogatory statements about any other party hereto
or about the policies and practices of any other party hereto, and that they will
make every effort to avoid denigrating each other in any manner. While it is
recognized that any party hereto may be required to testifY or provide information
in response to valid legal process, the parties agree that they will not voluntarily
provide information about the other that is derogatory.
F.

In the event one of the parties breaches the terms and conditions of the

Settlement Agreement and General Release, the prevailing party shall recover
attorney's fees.
G.

The recitals are incorporated herein by reference.

Page 12 ofl3

STATE OF FLORIDA
COUNTY OF MARION

::dw.

The foregoing was acknowledged before me this j_ day of


ucu.JO., ,
2011, by ANTONIO ORTIZ-CARBALLO, who is personally known to me or ~o
has produced
fL- vlas identification and who did/did not take an

oath.---~~----------~

~~~'.L;;ili.J

My Commission Expires: ~C"'-h ~. 2.o ?

s No~~
~

STATE OF FLORIDA
COUNTY OF MARION
The foregoing was acknowledged before me this ll\ day of ~ ~ ,
2011, by DAVID ELLSPERMANN, who i(j}ersonally kno\Yiiho me~as
produced
as identification and who did/did not take an oath.

-R

())_on~~

~otary Public

My Commission Expires:
i~~'rs:if';: PEGGY P. MCCLELLAN
:~:
Ji Commission DO 734392

!;,.!

,,

,,

Expires December 17,2011


Bemled ThN Trov Fain ln&~~ranee BOO.ll81HQ19

Page 13 ofl3

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Court clerk settles discrimination lawsuit


By Suevon Lee
Staff writer
Published: Wednesday, February 2, 2011 at 5:07 p.m.

A federal lawsuit brought against Marion County Clerk of Court David Ellspermann
by a former employee who alleges he was discriminated against because of his race
has tentatively settled, according to an attorney involved in the case.
The resolution comes several weeks before a nine-count complaint that had been
whittled down to just one claim by a federal magistrate in December was set to go to
trial.
Antonio Ortiz-Carballo filed suit against Ellspermann in April 2008 claiming he was
fired from his position as a deputy clerk in June 2007 in retaliation for speaking out
against what he felt was unfair treatment by a supervisor.
Cindy Ann Townsend, of Bell & Roper PA, the Orlando law firm representing
Ellspermann, confirmed there was a monetary amount agreed upon by both parties,
but could not disclose the terms until the settlement was finalized.
Until we get the final order, were still in litigation, Townsend said Wednesday.
The plaintiff has to execute the settlement agreement, then we have to advise the
court it is ready for dismissal.
Ortiz-Carballo, an Ocala resident hired by the Clerks Office in November 2005,
referred to a series of incidents in his complaint, including a remark in which
Ellspermann allegedly once told him, There is to be no Spanish spoken in my
office.
Later, in a deposition, Ellspermann clarified that the policy of the Clerks Office is
for all official business to be conducted in English, and that no Spanish should be
spoken in the work environment regardless of whether or not anyone else could
hear it.
The clerk, who is responsible for all hiring and firing of staff, denied he terminated
Ortiz-Carballo for any reason other than his professional conduct. He claimed the
firing resulted from his being disrespectful and disruptive to the operations of the
office and the relationships within the office after the employee directly
approached him about his belief that he felt a direct supervisor was sabotaging his
career.
It was to this supervisor that Ortiz-Carballo had previously complained concerning
insensitive and inappropriate remarks made by two co-workers towards another
Hispanic employee in the Domestic Violence division. He also allegedly refused to
comply with a request to turn the volume up on his phone ringer, a conflict that
required a conference with managers in the Clerks Office and led to that discussion
a month later in which Ellspermann advised the employee of the no-Spanish rule.
Whether any or all of these previous exchanges had any bearing on Ortiz-Carballos
termination is a matter the federal court took into consideration in December.
Orlando-based Magistrate David A. Baker granted Ellpermanns motion for
summary judgment on all counts except the one relating to disparate treatment

http://www.ocala.com/article/20110202/ARTICLES/110209928?template=printpicart

discrimination. Had there been a trial, the plaintiff would have used three avenues
to pursue it: the Florida Civil Rights Act, Title VII of the Civil Rights Act of 1964 and
Section 1983.
Although not addressed by the parties, it is plain that the alleged statements in this
case are not direct evidence of racial or national origin discrimination, the judge
wrote. He added, however, that the Clerk failed to articulate any legitimate reason
for terminating Plaintiff without using the progressive discipline policy.
Immediately after Ortiz-Carballo told Ellspermann he believed his direct supervisor
was sabotaging him, he was given just two options: resign or be fired. OrtizCarballo did not submit a resignation letter; therefore, he was fired.
The Ocala resident, who had received at least one promotion while employed by the
Clerk, had never been the subject of any disciplinary action during his two-year
employment.
Baker, a magistrate on the federal bench since December 1991, made clear in his
25-page order he felt no evidence demonstrated any historic ill-effect of the
no-Spanish policy in the Clerks Office: There is no evidence that Plaintiff had
previously been told to stop speaking Spanish; that he (or any other employee) was
ever disciplined for speaking Spanish in the workplace; or that the policy created a
hostile atmosphere for Hispanics, he wrote.
Federal court records show that a successful mediation hearing was held this past
Monday.
When reached by phone, Ortiz-Carballo denied comment, deferring to his attorneys.
Ellspermann, via a staff attorney in his office, also declined to comment.
Contact Suevon Lee at 867-4065 or suevon.lee@starbanner.com.
Copyright 2015 Ocala.com All rights reserved. Restricted use only.

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UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ANTONIO J. ORTIZ-CARBALLO,
Plaintiff,
v.

Case No. 5:08-cv-165-Oc-10GRJ

DAVID R. ELLSPERMANN, IN HIS


INDIVIDUAL AND IN HIS OFFICIAL
CAPACITY AS CLERK OF THE CIRCUIT
COURT, FIFTH JUDICIAL CIRCUIT IN AND
FOR MARION COUNTY, FLORIDA,
Defendant.
_____________________________________/
ORDER
Pending before the Court is the Motion For Leave To Withdraw As Counsel For
Plaintiff. (Doc. 22.) Plaintiffs counsel, Cynthia N. Sass and Kendra D. Presswood
represent that neither Plaintiff nor opposing counsel have any objection to the instant
motion.
Upon due consideration, the Motion For Leave To Withdraw As Counsel For
Plaintiff (Doc. 22) is GRANTED. Cynthia N. Sass and Kendra D. Presswood are hereby
relieved of further responsibility for the representation of Plaintiff, Antonio J. OrtizCarballo in this cause. On or before March 20, 2009, Plaintiff shall advise the Court in
writing that he intends to proceed pro se or if he chooses to retain counsel such counsel
shall file a notice of appearance. Until such time as Plaintiff retains substitute counsel all

Case 5:08-cv-00165-WTH-DAB Document 23 Filed 02/24/09 Page 2 of 2 PageID 390

further pleadings, motions and notices shall be served on Plaintiff at: 1748 NE 60th
Street, Ocala, Florida 34479-1741.
IT IS SO ORDERED.
DONE AND ORDERED in Ocala, Florida, on February 24, 2009.

Copies to:
All Counsel
Plaintiff
1748 NE 60th Street,
Ocala, Florida 34479-1741

Case 5:08-cv-00165-WTH-DAB Document 24 Filed 03/20/09 Page 1 of 1 PageID 391

10

Case 5:08-cv-00165-WTH-DAB Document 25 Filed 03/23/09 Page 1 of 2 PageID 392

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ANTONIO J. ORTIZ-CARBALLO,
Plaintiff,
v.

Case No. 5:08-cv-165-Oc-10GRJ

DAVID R. ELLSPERMANN, IN HIS


INDIVIDUAL AND IN HIS OFFICIAL
CAPACITY AS CLERK OF THE CIRCUIT
COURT, FIFTH JUDICIAL CIRCUIT IN AND
FOR MARION COUNTY, FLORIDA,
Defendant.
_____________________________________/
ORDER
Pending before the Court is Plaintiffs Motion For A Federal Public Defender
(Doc. 24.) For the following reasons, Plaintiffs motion is due to be DENIED.
Unlike criminal defendants, a civil litigant has no absolute constitutional right to
the appointment of counsel.1 Instead the appointment of counsel for a civil litigant is a
privilege that is justified only by exceptional circumstances, such as where the facts and
legal issues are so novel or complex as to require the assistance of a trained
practitioner.2 Moreover, the right to the appointment of the Federal Public Defender
only applies to cases covered by the Criminal Justice Act, 18 U.S.C. 3006A. As such
the Court has no authority to appoint the Federal Public Defender to represent a client,
indigent or otherwise, in a civil case.
With regard to the right to appointed private counsel in a civil case, although
there is no precise definition of what constitutes exceptional circumstances, courts have
1

Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).

Id.

11

Case 5:08-cv-00165-WTH-DAB Document 25 Filed 03/23/09 Page 2 of 2 PageID 393


considered various factors including: (1) the type and complexity of the case, (2)
whether the indigent is capable of adequately presenting his case, (3) whether the
indigent is in a position to investigate adequately the case, and (4) whether the
evidence will consist in large part of conflicting evidence and in cross examination.3 The
key to whether counsel should be appointed is whether the pro se litigant needs help in
presenting the essential merits of his or her position to the court.4 Where the facts and
issues are simple, he or she usually will not need such help.5
Here, Plaintiff offers no argument as to why he is unable to deal with the legal
requirements of his case and a review of the Complaint discloses that the legal issues
involved in Plaintiffs discrimination claims are neither complex nor novel. The Court,
therefore, concludes that this case does not involve any exceptional circumstances
sufficient for this Court to exercise its discretion and appoint counsel.6 Accordingly,
Plaintiffs Motion For A Federal Public Defender (Doc. 24) is due to be DENIED.
IT IS SO ORDERED.
DONE AND ORDERED in Ocala, Florida, on March 23, 2009.

Copies to:
All Counsel
Pro Se Plaintiff

Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)

Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993).

Id.

Even in cases where exceptional circumstances are present for appointment of counsel the
Court only has the authority to request an attorney to represent an indigent civil litigant and not the
authority to require an attorney to represent an indigent litigant. See Mallard v. United States District Court
for the S. Dist. of Iowa, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989).

ADDENDUM FIVE
NON-CRIMINAL JUSTICE ACT COUNSEL APPOINTMENTS
The court adopts these provisions for furnishing representation for persons financially unable
to obtain adequate representation in cases and situations which do not fall within the scope of 18
U.S.C. 3006A, as amended but in which the court believes that the interests of justice will be
served by the presence of counsel.
(a) Determination of Need.
In determining need for appointment of counsel, the court shall generally be governed by the
guidelines outlined in 18 U.S.C. 3006A.
(b) Appointment of Counsel.
(1) Counsel shall be selected from the same panels of attorneys designated or approved by
the district courts of the Eleventh Circuit as described in Addendum Four, which are hereby
approved by this court, or from a bar association, legal aid agency, or other approved organization.
In addition, any judge of this court may appoint competent counsel not otherwise included in the
preceding categories.
(2) Any person seeking relief under 29 U.S.C. 621, 42 U.S.C. 1981, 42 U.S.C. 1982,
42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986, 42 U.S.C. 2000a, 42 U.S.C. 2000d, and
42 U.S.C. 2000e or in such other cases as the court shall determine to be appropriate may be
eligible for representation. The court may approve such representation on a determination that the
interests of justice so require and that the person is financially unable to obtain representation.
(3) The court may at its discretion and in the interest of justice substitute one appointed
counsel for another at any stage of the proceedings on appeal.
(4) The court may at its discretion and where circumstances warrant make appointments of
counsel retroactive so as to include representation furnished prior to appointment.
(c) Withdrawal or Release of Appointed Counsel.
Counsel appointed under this rule to represent a party shall continue such representation until
relieved by order of the court of appeals.
(d) Duties of Appointed Counsel.
(1) Appointed counsel shall furnish the party represented, upon written request, with a copy
of motion papers and briefs filed for the party on the appeal, and shall send the party a copy of the
Rev.: 8/07

Addendum Five

12

court's decision when issued; the clerk will send appointed counsel an extra copy of the decision for
this purpose.
(2) Appointed counsel shall appear for oral argument only when directed by the court.
(3) In the event of affirmance or other decision adverse to the party represented appointed
counsel shall promptly advise the party in writing of the right to seek further review by the filing of
a petition for writ of certiorari with the Supreme Court.
(4) Appointed counsel shall advise the party represented in each case that, if the party wishes
to file a petition for a writ of certiorari with the Supreme Court, the party may have the right to do
so without prepayment of fees and costs or giving security therefor.
(5) No appointed representative under this rule shall accept a payment from or on behalf of
the person represented in this court without prior authorization by a United States circuit judge.
(e)

Payment of Claims for Expenses.

(1) In all appeals covered by this rule, the court of appeals may authorize reimbursement of
necessary expenses reasonably incurred in representing a party on appeal, consistent with the
limitations contained in the Criminal Justice Act, by any private attorney, bar association, legal aid
agency, or other approved organization appointed by the court for the purpose of representing a party
on appeal pursuant to this addendum. Compensation for attorney services as a fee for either in-court
or out-of-court time is not authorized.
(2) Travel expenses and other expenses reasonably incurred and necessary for adequate
representation on appeal may be claimed by an appointed attorney or other legal representative. The
clerk of court shall furnish each attorney or other representative at the time of appointment with
information as to expenses currently allowable and in accordance with rules, regulations and
guidelines promulgated by the Judicial Conference of the United States. Per diem may not be
claimed in lieu of actual travel and subsistence expenses. Meal and lodging expenses incurred
incident to representation on appeal, necessary long distance telephone calls or telegrams, and the
cost of photocopying (but not printing), are reimbursable expenses within the guidelines established
by the court. Expenses of general office overhead, personal items, filing fees and expenses of
printing of briefs are not reimbursable. Expenses of travel by private automobile may be claimed
on a straight mileage basis at the authorized rate. See (6) of the guidelines, below. Parking fees
and toll expenses are allowable. Transportation other than by private automobile may be claimed
on an actual cost basis, but first class fare is not permitted unless absolutely necessary and
documentation is provided that tourist or economy fares were not available.
(3) Unless otherwise ordered by the court for good cause shown, travel expenses other than
those incurred in connection with attending oral argument will not be reimbursed without a prior ex
parte application to and approval by the court.
Rev.: 8/07

Addendum Five

(4) All claims for reimbursement of expenses for representation on appeal shall be itemized
in detail and filed with the clerk of court on officially approved forms that the clerk's office will
provide. Claims should be filed as promptly as possible and in no event later than 60 days after
issuance of the mandate.
(5) After approval of allowable reimbursable expenses by the court, the claim form will be
forwarded to the circuit executive for payment.
(6) Reimbursable Expenses.
(a) Travel and transportation expenses. Travel and transportation must be accomplished by
the most economical means available. Only actual expenses may be claimed.
(i) Air transportation. Tourist or economy accommodations must be used except
where unavailable. A copy of the ticket must be attached to the claim form. If travel
by first class air transportation is claimed a detailed explanation of the reasons
therefor must be provided with the ticket copy.
(ii) Automobile transportation. The total mileage cost shall not exceed the fare
authorized for travel by tourist or economy air transport except in an emergency or
for other compelling reasons. Travel by privately owned automobile shall not exceed
the current government authorized rate for official travel per mile on a straight
mileage basis, plus parking fees, ferry, bridge, road, and tunnel fares.
(iii) Local transportation. Local travel will be accomplished by the most economical
means available and only actual expenses may be claimed. Transportation to and
from an airport should be by airport shuttle, if available.
(iv) Meals and lodging. Reasonable compensation for hotel or motel
accommodations and meals will be allowed on an actual expense basis subject to the
limitations governing compensation for federal employees traveling to the same
destination. Counsel will be notified by the clerk prior to the scheduled oral
argument session of the current limitations. A copy of the hotel or motel bill shall
be attached to the claim form.
(b) Photocopying. Actual costs not to exceed 25 cents per page will be paid if copy bill is
submitted. For in-house copying, actual costs not to exceed 15 cents per page will be paid.
(c) Express mail and other special arrangements. For delivery of items that could have been
mailed via U.S. Postal Service first class mail, additional expenses will be reimbursed only
if a satisfactory explanation is given why first class mail service was not utilized. In
non-emergency cases routine documents such as briefs and motions should be prepared early
enough to permit use of first class mail.
Rev.: 8/07

Addendum Five

(d) Computer Assisted Legal Research.


(i) By Court Appointed Counsel. The cost of use, by appointed counsel, of computer
assisted legal research services, may be allowed as a reimbursable out-of-pocket expense,
provided that the amount claimed is reasonable. Whenever appointed counsel incurs charges
for computer assisted legal research, counsel should attach to the claim form a copy of the
bill and receipt for the use of the legal research services or an explanation of the precise basis
of the charge (e.g., indicating the extent to which it was derived by proration of monthly
charges, or by charges identifiable to the specific research). If the amount claimed is in
excess of $500 or if it includes costs for downloading or printing, counsel should include a
brief statement of justification.
(ii) By Commercial Computer Assisted Legal Research Services. The court may in
advance authorize counsel to obtain computer assisted legal research services, where the
research is performed by employees of a commercial legal research firm or organization
rather than by appointed counsel, provided that the total amount charged for computer
assisted legal research services is reasonable. Requests by counsel for authority to obtain
such computer assisted legal research services should include the following:
a - a brief explanation of the need for the research services; and
b - an estimate of the charges.
(e) Miscellaneous Expenses. The lowest possible cost for expenses such as postage,
telephone calls, brief supplies, and parking, shall be incurred.
(f) Briefs.
Reimbursement will be provided only for the number of copies of briefs and record excerpts
required by the rules to be filed and served, plus two copies for each party signing the brief. The
number of copies and number of pages must be itemized on the claim form.
(g) Funding.
By resolution the court may allocate from time to time certain monies from its
nonappropriated fund account to support this program of non-CJA counsel appointments.

Rev.: 8/07

Addendum Five

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Case 5:08-cv-00165-WTH-DAB Document 45 Filed 10/16/09 Page 1 of 2 PageID 750

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ANTONIO J. ORTIZ-CARBALLO,
Plaintiff,
Case No.: 5:08-CV-165-Oc-10GRJ
vs.
DAVID R. ELLSPERMANN, IN HIS
INDIVIDUAL AND IN HIS OFFICIAL
CAPACITY AS CLERK OF THE CIRCUIT
COURT, FIFTH JUDICIAL CIRCUIT IN AND
FOR MARION COUNTY, FLORIDA,
Defendant.
/
NOTICE OF APPEARANCE
DAVID B. SACKS, ESQUIRE, hereby files his Notice of Appearance as counsel of record
on behalf of the Plaintiff in this case.
RESPECTFULLY SUBMITTED,
/s/ David B. Sacks
DAVID B. SACKS, ESQUIRE
Florida Bar No.: 964409
THE LAW OFFICE OF DAVID B. SACKS, P.A.
1017 Lasalle Street
Jacksonville, FL 32207
Tele: (904) 634-1122
Fax: (904) 355-8855
Emails:david@sackslegal.com
Attorney for Plaintiff

14

Case 5:08-cv-00165-WTH-DAB Document 45 Filed 10/16/09 Page 2 of 2 PageID 751

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 16, 2009, I presented the foregoing to the Clerk of
the Court for filing and uploading to the CM/ECF system which will send a notice of electronic
filing to the following: Michael J. Roper, Esq., Bell, Roper & Kohlmyer, P.A., 2707 East Jefferson
Street, Orlando, FL 32803. I further certify that I mailed the foregoing document and the notice of
electronic filing by first-class mail and to the following non-CM/ECF participants: None.

/s/ David B. Sacks


DAVID B. SACKS, ESQUIRE
Florida Bar No.: 964409

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

CLOSED

U.S. District Court


Middle District of Florida (Ocala)
CIVIL DOCKET FOR CASE #: 5:08-cv-00165-WTH-DAB

Ortiz-Carballo v. Ellspermann
Assigned to: Senior Judge Wm. Terrell Hodges
Referred to: Magistrate Judge David A. Baker
Case in other court: State Court - 3/6/08, 08-1109-CAB
Cause: 42:1983 Civil Rights (Employment Discrimination)

Date Filed: 04/30/2008


Date Terminated: 02/02/2011
Jury Demand: Plaintiff
Nature of Suit: 442 Civil Rights: Jobs
Jurisdiction: Federal Question

Plaintiff
Antonio J. Ortiz-Carballo

represented by Cynthia N Sass


Law Offices of Cynthia N. Sass, PA
601 W Dr MLK Jr Blvd
Tampa, FL 33603-3449
813/251-5599
Fax: 813/259-9797
Email: csass@sasslawfirm.com
TERMINATED: 02/25/2009
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
David B. Sacks
David B. Sacks, Esq.
4494 Southside Blvd., Suite 101
Jacksonville, FL 32216
904/634-1122
Fax: 904/355-8855
Email: sackslegal@gmail.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Kendra D. Presswood
Law Offices of Cynthia N. Sass, PA
601 W Dr MLK Jr Blvd
Tampa, FL 33603-3449
813-251-5599
Fax: 813-259-9797
Email: kpresswood@sasslawfirm.com
TERMINATED: 02/25/2009
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.
Defendant

15

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

David R. Ellspermann
Clerk of Circuit Court, Fifth Judicial
Circuit in and for Marion County, Florida

represented by Michael J. Roper


Bell & Roper, PA
2707 E Jefferson St
Orlando, FL 32803
407/897-5150
Fax: 407/897-3332
Email: mroper@bellroperlaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Cindy Ann Townsend
Bell & Roper, PA
2707 E Jefferson St
Orlando, FL 32803
407/897-5150
Fax: 407/897-3332
Email: ctownsend@bellroperlaw.com
ATTORNEY TO BE NOTICED

Date Filed

Docket Text

04/30/2008

1 NOTICE OF REMOVAL from 5th Judicial Circuit, Marion County, Florida, case
number 08-1109-CAB and filed in State Court on 3/6/08. Filing fee $ 350.00, receipt
number C-6638 filed by David R. Ellspermann. (Attachments: # 1 State Record, # 2
Civil Cover Sheet)(LMF) (Entered: 04/30/2008)

04/30/2008

2 MEMORANDUM in support re 1 Notice of removal filed by David R. Ellspermann.


(LMF) (Entered: 04/30/2008)

04/30/2008

3 COMPLAINT against David R. Ellspermann with jury demand filed by Antonio J.


Ortiz-Carballo. (filed in state court on 3/6/08)(LMF) (Entered: 04/30/2008)

05/02/2008

4 ANSWER and Affirmative Defenses to 3 Complaint by David R. Ellspermann.(Roper,


Michael) Modified on 5/5/2008 (LMF). (Entered: 05/02/2008)

05/05/2008

5 NOTICE of Designation under Local Rule 3.05-Track Two. (Attachments: # 1 consent


forms)(MAM) (Entered: 05/05/2008)

05/13/2008

6 CERTIFICATE of compliance (service) re 5 Notice of Designation with Local Rule 3.05


by Antonio J. Ortiz-Carballo. (Sass, Cynthia) Modified on 5/14/2008 (LMF). (Entered:
05/13/2008)

05/30/2008

7 MOTION to amend/correct Complaint and Memorandum of Law in Support by


Antonio J. Ortiz-Carballo. (Attachments: # 1 Exhibit A - Amended Complaint and
Demand for Jury Trial)(Sass, Cynthia) (Entered: 05/30/2008)

06/09/2008

8 ORDER granting 7 Plaintiff's Motion To Amend Complaint. Signed by Magistrate Judge


Gary R. Jones on 6/9/2008. (grj) (Entered: 06/09/2008)

06/11/2008

9 AMENDED COMPLAINT and Demand for Jury Trial against David R. Ellspermann
with Jury Demand filed by Antonio J. Ortiz-Carballo.(Sass, Cynthia) (Entered:
06/11/2008)

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

06/20/2008

10 ANSWER and affirmative defenses to 9 Amended complaint by David R. Ellspermann.


(Roper, Michael) Modified on 6/23/2008 (LMF). (Entered: 06/20/2008)

06/27/2008

11 CASE MANAGEMENT REPORT. (Presswood, Kendra) (Entered: 06/27/2008)

07/18/2008

12 MOTION for protective order from Deposition Scheduled for August 5, 2008 and
Memorandum of Law in Support by Antonio J. Ortiz-Carballo. (Attachments: # 1
Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7
Exhibit G)(Sass, Cynthia) Motions referred to Magistrate Judge Gary R. Jones.
(Entered: 07/18/2008)

07/20/2008

13 CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 5/8/2009,


Dispositive motions due by 8/4/2009, Pretrial Conference set for 10/21/2009 at 09:00
AM in Courtroom 1 before Judge Wm. Terrell Hodges, Jury Trial set for weeks of 11/2,
11/9, and 11/16/2009 in Courtroom 1 before Judge Wm. Terrell Hodges. Signed by
Deputy Clerk on 7/20/2008. (MAM) (Entered: 07/20/2008)

07/25/2008

14 RESPONSE to motion re 12 MOTION for protective order from Deposition Scheduled


for August 5, 2008 and Memorandum of Law in Support filed by David R. Ellspermann.
(Roper, Michael) (Entered: 07/25/2008)

07/31/2008

15 ORDER granting in part and denying in part 12 Plaintiff's Motion for Protective Order
From Deposition For August 5, 2008. Signed by Magistrate Judge Gary R. Jones on
7/31/2008. (grj) (Entered: 07/31/2008)

09/22/2008

16 NOTICE of mediation conference to be held on 9/25/08 at 9:30 a.m. before Dudley D.


Birder, Jr., Mediator. (LMF) (Entered: 09/23/2008)

10/01/2008

17 MEDIATION REPORT: Hearing held on 9/25/08. Hearing outcome: impasse. Dudley


D. Birder, Jr., Mediator.(LMF) (Entered: 10/01/2008)

01/07/2009

18 MOTION to compel Production of Documents from Non-Parties by David R.


Ellspermann. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Townsend,
Cindy) Motions referred to Magistrate Judge Gary R. Jones. (Entered: 01/07/2009)

01/13/2009

19 Amended MOTION to compel Production of Documents from Non-Parties by David


R. Ellspermann. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Townsend,
Cindy) Motions referred to Magistrate Judge Gary R. Jones. Modified on 1/14/2009
(LMF). (Entered: 01/13/2009)

01/14/2009

20 Second Amended MOTION to compel Production of Documents from Non-Parties by


David R. Ellspermann. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit
C)(Townsend, Cindy) Motions referred to Magistrate Judge Gary R. Jones. Modified on
1/15/2009 (LMF). (Entered: 01/14/2009)

02/02/2009

21 MEMORANDUM in opposition re 20 Motion to compel Production of Documents from


Non-Parties filed by Antonio J. Ortiz-Carballo. (Attachments: # 1 Exhibit A, # 2
Exhibit B, # 3 Exhibit C, # 4 Supplement Lexis Case Law)(Sass, Cynthia) Modified on
2/3/2009 (LMF). (Entered: 02/02/2009)

02/23/2009

22 MOTION for Cynthia N. Sass and Kendra D. Presswood to withdraw as attorney by


Antonio J. Ortiz-Carballo. (Sass, Cynthia) Motions referred to Magistrate Judge Gary R.
Jones. Modified on 2/24/2009 (LMF). (Entered: 02/23/2009)

02/24/2009

23 ORDER granting 22 Motion For Leave To Withdraw As Counsel for Plaintiff. Signed by
Magistrate Judge Gary R. Jones on 2/24/2009. (grj) (Entered: 02/24/2009)

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

03/20/2009

24 MOTION to appoint counsel - Federal Public Defender - by Antonio J. Ortiz-Carballo.


(AIQ) Motions referred to Magistrate Judge Gary R. Jones. (Entered: 03/20/2009)

03/23/2009

25 ORDER denying 24 Plaintiff's Motion For A Federal Public Defender. Signed by


Magistrate Judge Gary R. Jones on 3/23/2009. (grj) (Entered: 03/23/2009)

03/25/2009

26 MOTION to compel Plaintiff to Respond to Defendant's Third Request to Produce by


David R. Ellspermann. (Attachments: # 1 Exhibit A)(Townsend, Cindy) Motions
referred to Magistrate Judge Gary R. Jones. (Entered: 03/25/2009)

04/07/2009

27 ORDER granting in part and denying in part 20 Defendant's Second Amended Motion
To Compel Production of Documents From Non-Parties; granting 26 Defendant's
Motion To Compel Plaintiff To Respond To Defendant's Third Request To Produce.
Signed by Magistrate Judge Gary R. Jones on 4/7/2009. (grj) (Entered: 04/07/2009)

04/20/2009

28 RESPONSE re 26 MOTION to compel Plaintiff to Respond to Defendant's Third


Request to Produce and response to third request to produce filed by Antonio J. OrtizCarballo. (LMF) (Entered: 04/21/2009)

06/09/2009

29 NOTICE OF RESCHEDULING HEARING: The pretrial conference hearing previously


scheduled for 10/21/09 is rescheduled. New scheduling date and time: Pretrial
Conference set for 10/19/2009 at 09:00 AM in Ocala Courtroom 1 before Senior Judge
Wm. Terrell Hodges.(MAM) (Entered: 06/09/2009)

06/19/2009

30 MOTION for leave to file Motion for summary judgment in Excess of Twenty-Five (25)
Pages by David R. Ellspermann. (Townsend, Cindy) Modified on 6/22/2009 (LMF).
(Entered: 06/19/2009)

06/23/2009

31 ORDER granting 30 Defendant's Motion For Leave To File Motion In Excess of


Twenty-Five Pages. Signed by Magistrate Judge Gary R. Jones on 6/23/2009. (grj)
(Entered: 06/23/2009)

07/31/2009

32 MOTION for summary judgment and Incorporated Memorandum of Law filed on


behalf of David Ellspermann in his official capacity as Clerk of Court by David R.
Ellspermann. (Attachments: # 1 Appendix Exhibits filed in support of Motion for
Summary Judgment, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6
Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, #
12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17
Exhibit 16, # 18 Exhibit 17)(Townsend, Cindy) (Entered: 07/31/2009)

07/31/2009

33 MOTION for summary judgment and Incorporated Memorandum of Law filed on


behalf of David Ellspermann, in his individual capacity, by David R. Ellspermann.
(Townsend, Cindy) (Entered: 07/31/2009)

08/03/2009

34 SUMMARY JUDGMENT NOTICE: Re 32 MOTION for summary judgment and


Incorporated Memorandum of Law filed on behalf of David Ellspermann in his
official capacity as Clerk of Court and 33 MOTION for summary judgment and
Incorporated Memorandum of Law filed on behalf of David Ellspermann, in his
individual capacity,. Responses due within 14 days. (LMF) (Entered: 08/03/2009)

08/14/2009

35 RESPONSE in opposition re 32 MOTION for summary judgment and Incorporated


Memorandum of Law filed on behalf of David Ellspermann in his official capacity as
Clerk of Court and 33 MOTION for summary judgment and Incorporated
Memorandum of Law filed on behalf of David Ellspermann, in his individual capacity,
filed by Antonio J. Ortiz-Carballo. (LMF) (MJT). (Entered: 08/14/2009)

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

10/02/2009

36 WITNESS LIST by David R. Ellspermann. (Roper, Michael) (Entered: 10/02/2009)

10/02/2009

37 EXHIBIT LIST by David R. Ellspermann.. (Roper, Michael) (Entered: 10/02/2009)

10/02/2009

38 NOTICE of filing Deposition Designations by David R. Ellspermann (Roper, Michael)


Modified on 10/5/2009 (MJT). (Entered: 10/02/2009)

10/13/2009

39 PRETRIAL STATEMENT by David R. Ellspermann. (Roper, Michael) (Entered:


10/13/2009)

10/14/2009

40 AMENDED Pretrial Statement. Related document 39 Pretrial Statement by David R.


Ellspermann. (Roper, Michael) Modified on 10/15/2009 (LMF). (Entered: 10/14/2009)

10/14/2009

41 MOTION to strike 40 Amended Pretrial Statement by David R. Ellspermann.


(Townsend, Cindy) Motions referred to Magistrate Judge Gary R. Jones. Modified on
10/15/2009 (LMF). (Entered: 10/14/2009)

10/14/2009

42 MOTION for leave to file Amended Final Pretrial Statement by David R. Ellspermann.
(Townsend, Cindy) (Entered: 10/14/2009)

10/15/2009

43 ORDER denying 41 Defendant's Motion to Strike Docket Entry 40; granting 42


Defendant's Motion For Leave To File Amended Pretrial Statement. The Amended
Pretrial Statement 40 shall remain as filed. Signed by Magistrate Judge Gary R. Jones on
10/15/2009. (grj) (Entered: 10/15/2009)

10/15/2009

44 NOTICE by David R. Ellspermann Trial Conflict (Roper, Michael) (Entered:


10/15/2009)

10/16/2009

45 NOTICE of Appearance by David B. Sacks on behalf of Antonio J. Ortiz-Carballo


(Sacks, David) (Entered: 10/16/2009)

10/16/2009

46 MOTION for extension of time to file Pretrial Statement by Antonio J. Ortiz-Carballo.


(Sacks, David) Modified on 10/19/2009 (LMF). (Entered: 10/16/2009)

10/16/2009

47 MOTION for extension of time to complete discovery /Reopen Discovery and Stay
Ruling on Pending Summary Judgment Motions by Antonio J. Ortiz-Carballo. (Sacks,
David) Motions referred to Magistrate Judge Gary R. Jones. (Entered: 10/16/2009)

10/16/2009

48 MOTION to continue Trial by Antonio J. Ortiz-Carballo. (Sacks, David) (Entered:


10/16/2009)

10/16/2009

49 MEMORANDUM in opposition re 48 Motion to continue trial filed by David R.


Ellspermann. (Townsend, Cindy) (Entered: 10/16/2009)

10/16/2009

50 MEMORANDUM in opposition re 47 Motion for extension of time to complete


discovery filed by David R. Ellspermann. (Townsend, Cindy) (Entered: 10/16/2009)

10/18/2009

51 MEMORANDUM in opposition re 46 Motion for extension of time to file Pretrial


Statement filed by David R. Ellspermann. (Attachments: # 1 Exhibit A, # 2 Exhibit
B)(Townsend, Cindy) Modified on 10/19/2009 (LMF). (Entered: 10/18/2009)

10/19/2009

52 Minute Entry. Proceedings held before Senior Judge Wm. Terrell Hodges: PRETRIAL
CONFERENCE held on 10/19/2009. Court Reporter: Dennis Miracle (MAM) (Entered:
10/19/2009)

10/19/2009

53 NOTICE of Hearing: Pretrial Conference set for 1/20/2010 at 10:00 AM in Ocala


Courtroom 1 before Senior Judge Wm. Terrell Hodges. Jury Trial set for trial term

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

commencing 2/1/2010 in Ocala Courtroom 1 before Senior Judge Wm. Terrell Hodges.
(MAM) (Entered: 10/19/2009)
10/19/2009

54 NOTICE canceling pretrial conference scheduled for 1/20/10 and jury trial hearing
scheduled for trial term commencing 2/1/10. (MAM) (Entered: 10/19/2009)

10/19/2009

55 ORDER granting 46 Motion for extension of time to file joint pretrial statement;
granting 47 Motion for extension of time to complete discovery and to stay ruling on
pending summary judgment motions; granting 48 Motion to continue trial. The Clerk is
directed to remove this case from the trial term commencing November 2, 2009, and to
reschedule this case for final pretrial conference and trial as set forth in this Order.
Signed by Senior Judge Wm. Terrell Hodges on 10/19/2009. (LRH) (Entered:
10/19/2009)

10/20/2009

56 NOTICE of Hearing: Pretrial Conference set for 2/17/2010 at 11:30 AM in Ocala


Courtroom 1 before Senior Judge Wm. Terrell Hodges. Jury Trial set for trial term
commencing 3/1/2010 at 09:30 AM in Ocala Courtroom 1 before Senior Judge Wm.
Terrell Hodges. (MAM) (Entered: 10/20/2009)

10/29/2009

57 NOTICE of Filing Itemization of Fees and Costs re 55 Order by David R. Ellspermann.


(Roper, Michael) Modified on 10/29/2009 (LMF) (Entered: 10/29/2009)

11/06/2009

58 RESPONSE re 57 Notice of Itemization of Fees and Costs filed by Antonio J. OrtizCarballo. (Sacks, David) (Entered: 11/06/2009)

11/19/2009

59 MOTION for miscellaneous relief, specifically Leave to take Updated Deposition of


Plaintiff by David R. Ellspermann. (Townsend, Cindy) (Entered: 11/19/2009)

11/30/2009

60 NOTICE of withdrawal of motion by David R. Ellspermann re 59 MOTION for


miscellaneous relief, specifically Leave to take Updated Deposition of Plaintiff filed by
David R. Ellspermann (Townsend, Cindy) (Entered: 11/30/2009)

12/30/2009

61 MEMORANDUM in opposition re 32 Motion for summary judgment filed by


Defendant, David Ellspermann, in his Official Capacity as Clerk of the Court filed by
Antonio J. Ortiz-Carballo. (Attachments: # 1 Appendix Listing Attachments, # 2 Exhibit
One, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6 (a), # 8
Exhibit 6 (b), # 9 Exhibit 7, # 10 Errata 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit
11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, #
19 Exhibit 17, # 20 Errata 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24
Exhibit 22)(Sacks, David) (Entered: 12/30/2009)

12/30/2009

62 MEMORANDUM in opposition re 61 Memorandum in opposition corrected as to


Certificate of Service only filed by Antonio J. Ortiz-Carballo. (Sacks, David) (Entered:
12/30/2009)

12/31/2009

63 MEMORANDUM in opposition re 33 Motion for summary judgment by David


Ellspermann in his individual capacity filed by Antonio J. Ortiz-Carballo. (Sacks,
David) (Entered: 12/31/2009)

01/19/2010

64 REPLY to response to motion re 33 MOTION for summary judgment and Incorporated


Memorandum of Law filed on behalf of David Ellspermann, in his individual capacity,
filed by David R. Ellspermann. (Townsend, Cindy) (Entered: 01/19/2010)

01/19/2010

65 REPLY to response to motion re 32 MOTION for summary judgment and Incorporated


Memorandum of Law filed on behalf of David Ellspermann in his official capacity as

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

Clerk of Court filed by David R. Ellspermann. (Townsend, Cindy) (Entered:


01/19/2010)
01/26/2010

66 MOTION to strike Defendants' Reply memorandum (Doc. #'s 32 and 33) and
incorporated Memorandum in Support by Antonio J. Ortiz-Carballo. (Sacks, David)
Motions referred to Magistrate Judge Gary R. Jones. Attorney notified re blank pages,
will refile. Modified on 1/27/2010 (LMF). (Entered: 01/26/2010)

01/27/2010

67 MOTION to strike Defendants' Reply Memorandum (DKT NO.'s 32 and 33) and
Incorporated Memorandum in Support by Antonio J. Ortiz-Carballo. (Sacks, David)
Motions referred to Magistrate Judge Gary R. Jones. (Entered: 01/27/2010)

01/27/2010

68 MEMORANDUM in opposition re 67 Motion to strike filed by David R. Ellspermann.


(Townsend, Cindy) (Entered: 01/27/2010)

01/28/2010

69 ORDER denying 67 Plaintiff's Motion to strike Defendants' Reply Memorandum.


Signed by Senior Judge Wm. Terrell Hodges on 1/27/2010. (LRH) (Entered:
01/28/2010)

02/02/2010

70 Joint MOTION for miscellaneous relief, specifically Joint Motion to Remove Case from
March 1, 2010 Trial Docket by David R. Ellspermann, Antonio J. Ortiz-Carballo.
(Townsend, Cindy) (Entered: 02/02/2010)

02/04/2010

71 ORDER granting 70 Joint Motion to Remove Case from March 1, 2010 Trial Docket.
Signed by Senior Judge Wm. Terrell Hodges on 2/3/2010. (LRH) (Entered: 02/04/2010)

06/16/2010

72 Joint MOTION for miscellaneous relief, specifically to Schedule a Status Conference by


David R. Ellspermann, Antonio J. Ortiz-Carballo. (Townsend, Cindy) (Entered:
06/16/2010)

09/24/2010

73 Case reassigned to Magistrate Judge David A. Baker. New case number: 5:08-cv165-Oc-10DAB. Magistrate Judge Gary R. Jones no longer assigned to the case. (LMF)
Modified on 9/27/2010 (DFD). (Entered: 09/24/2010)

09/27/2010

74 NOTICE to the Court by David R. Ellspermann (Townsend, Cindy) Modified on


9/28/2010 (MJT). (Entered: 09/27/2010)

10/06/2010

75 ORDER referring motion for report and recommendation: 32 MOTION for summary
judgment and Incorporated Memorandum of Law filed on behalf of David
Ellspermann in his official capacity as Clerk of Court filed by David R. Ellspermann,
33 MOTION for summary judgment and Incorporated Memorandum of Law filed on
behalf of David Ellspermann, in his individual capacity, filed by David R. Ellspermann
Signed by Senior Judge Wm. Terrell Hodges on 10/6/2010. (LRH) Motions referred to
Magistrate Judge David A. Baker. (Entered: 10/06/2010)

11/01/2010

76 ORDER granting 72 Motion to schedule a status conference. The Court will conduct a
status conference and hear oral argument on the Motions for Summary Judgment on
11/16/10 at 10:30 a.m. at Orlando Courthouse, Courtroom # 6D. Signed by Magistrate
Judge David A. Baker on 11/1/2010. (LMF) (Entered: 11/01/2010)

11/16/2010

77 Minute Entry. Proceedings held before Magistrate Judge David A. Baker: Status
Conference and Oral Argument on Motion for Summary Judgment held on 11/16/2010.
(digital) (HSL) (Entered: 11/16/2010)

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

11/22/2010

78 ORDER that this case should be put back on the trial calendar. This matter is set for the
trial term commencing 2/28/11 with a final pretrial conference on 2/16/11, time to be set
by Clerk by separate notice. Signed by Magistrate Judge David A. Baker on 11/22/2010.
(LMF) (Entered: 11/22/2010)

11/23/2010

79 NOTICE of Hearing: Pretrial Conference set for 2/16/2011 at 10:00 AM in Ocala


Courtroom 3A before Senior Judge Wm. Terrell Hodges; Jury Trial set for trial term
commencing 2/28/2011 in Ocala Courtroom 3A before Senior Judge Wm. Terrell
Hodges. (MAM) (Entered: 11/23/2010)

12/14/2010

80 REPORT AND RECOMMENDATION re 32 MOTION for summary judgment and


Incorporated Memorandum of Law filed on behalf of David Ellspermann in his
official capacity as Clerk of Court and 33 MOTION for summary judgment and
Incorporated Memorandum of Law filed on behalf of David Ellspermann, in his
individual capacity, recommending that the motions be granted in part and denied in
part. Signed by Magistrate Judge David A. Baker on 12/14/2010. (LMF) (Entered:
12/14/2010)

12/28/2010

81 OBJECTION to 80 Report and Recommendations by Antonio J. Ortiz-Carballo.


(Attachments: # 1 Appendix, # 2 Exhibit 1: Deposition of David Ellspermann, # 3
Exhibit 2(a): Deposision of Antonio Ortiz-Carballo, # 4 Exhibit 2(b): Deposition of
Antonio Ortiz-Carballo (continue), # 5 Exhibit 3: Depositon of Ozieta Landers Reid, # 6
Exhibit 4: Deposition of Jennifer Rodriquez, # 7 Exhibit 5: Deposition of Denise
Kingsley, # 8 Exhibit 6: Letter dated March 5, 2007, to Reid from Carballo, # 9 Exhibit
7: E-Mail re: ringer volume, dated March 29, 2007, # 10 Exhibit 8: EmployeeSupervisor Conference form, dated April 3, 2007, # 11 Exhibit 9: Letter dated April 4,
2007, to Ellspermann from Carballo)(Sacks, David) Modified on 12/28/2010 (MJT).
(Entered: 12/28/2010)

12/28/2010

82 OBJECTION re 80 REPORT AND RECOMMENDATION filed by David R.


Ellspermann. (Attachments: # 1 Exhibit 1)(Townsend, Cindy) Modified on 12/28/2010
(MJT). (Entered: 12/28/2010)

01/10/2011

83 RESPONSE to objections to 80 Report and Recommendations by Antonio J. OrtizCarballo. (Attachments: # 1 Appendix, # 2 Exhibit 1: Employee-Supervisor Conference
form, dated April 3, 2007, # 3 Exhibit Personnel File of Tamela McIntyre, # 4 Exhibit
Termination Memo of Sandra Pruitt, Dated January 30, 2007, # 5 Exhibit Carballo
Termination Memo dated June 13, 2007, # 6 Exhibit Excerpts from Deposition of David
Ellspermann)(Sacks, David) (Entered: 01/10/2011)

01/11/2011

84 RESPONSE re 81 Objection to Report and Recommendations filed by David R.


Ellspermann. (Townsend, Cindy) (Entered: 01/11/2011)

01/14/2011

85 ORDER granting in part and denying in part 32 Motion for summary judgment; granting
in part and denying in part 33 Motion for summary judgment; adopting 80 Report and
Recommendations. Signed by Senior Judge Wm. Terrell Hodges on 1/14/2011. (LRH)
(Entered: 01/14/2011)

01/31/2011

86 MEDIATION REPORT: Hearing held on 1/31/11. Hearing outcome: completely settled.


J. Joaquin Frazedas, Mediator. (Fraxedas, J.) Modified on 2/1/2011 (LMF). (Entered:
01/31/2011)

02/01/2011

87 60 day ORDER dismissing case. Signed by Deputy Clerk on 2/1/2011. (MAM)


(Entered: 02/01/2011)

https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?102024748365511-L_1_0-1

03/01/2011

88 STIPULATION of Dismissal by David R. Ellspermann. (Townsend, Cindy) (Entered:


03/01/2011)

03/02/2011

89 ORDER dismissing this case with prejudice re 88 Stipulation of Dismissal filed by David
R. Ellspermann. Signed by Senior Judge Wm. Terrell Hodges on 3/2/2011. (LRH)
(Entered: 03/02/2011)

03/03/2011

90 JUDGMENT entered. Civil appeals checklist attached. (Signed by Deputy Clerk)


(LMF) (Entered: 03/03/2011)

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ORTIZ-CARBALLO v. ELLSPERMANN, Case No. 5:08-cv-165-Oc-10GRJ. (M.D. Fla. Apr 07, 2009)

United States District Court, M.D. Florida, Ocala Division.

ORTIZ-CARBALLO v. ELLSPERMANN
Case No. 5:08-cv-165-Oc-10GRJ. (M.D. Fla. Apr 07, 2009)
ANTONIO
J.
ORTIZ-CARBALLO,
Plaintiff, v. DAVID R. ELLSPERMANN,
IN HIS INDIVIDUAL AND IN HIS
OFFICIAL CAPACITY AS CLERK OF
THE
CIRCUIT
COURT,
FIFTH
JUDICIAL CIRCUIT IN AND FOR
MARION
COUNTY,
FLORIDA,
Defendant.
Case No. 5:08-cv-165-Oc-10GRJ.
United States District Court, M.D. Florida,
Ocala Division.
April 7, 2009

A. Second Amended Motion To


Compel Production Of Documents
From Non-Parties
Defendant seeks to subpoena medical records from
three of Plaintiff's treating physicians Violet D. Poetter, M.D. ("Dr. Poetter"), Poornam Warman, M.D.
("Dr. Warman") and Nidza Gomez, M.D. ("Dr.
Gomez.") Plaintiff has objected. As a result Defendant
has filed the instant motion requesting the Court to
enter an order compelling *2 the production of medical records from these three doctors, all of whom are
1
non-parties to this action.
1. The parties agree that the other issues
raised in the earlier versions of this motion
have been resolved.

ORDER
GARY JONES, Magistrate Judge
Pending before the Court is Defendant, David R.
Ellspermann, Clerk Of The Circuit Court, Fifth Judicial Circuit In And For Marion County, Florida's,
Second Amended Motion To Compel Production Of
Documents From Non-Parties (Doc. 20) to which
Plaintiff filed a response in opposition (Doc. 21) and
Defendant, David Ellspermann, Clerk Of The Circuit
Court, Fifth Judicial Circuit In And For Marion
County, Florida's Motion To Compel Plaintiff To Respond To Defendant's Third Request To Produce
(Doc. 26) to which Plaintiff has not filed a response.

Pursuant to Rule 26, Fed.R.Civ.P. parties may obtain


discovery regarding any non-privileged matter, if the
information sought "is relevant to any party's claim or
2
defense." Relevant information is not limited to that
which would be admissible at the trial. Rather, information is relevant if the discovery sought is "reasonably calculated to lead to the discovery of admissible
3
evidence." Rule 45, Fed.R.Civ.P. governs discovery
of non-parties by subpoena and the scope of permissible discovery is that set forth in Rule 26. Pursuant
to Rule 45(c)(3)(A), "on timely motion," the issuing
court must "quash or modify a subpoena that . . . requires disclosure of privileged or other protected mat4
ter, if no exception or waiver applies." Accordingly,
if the medical records requested by Plaintiff are privileged, this Court must quash or modify the subpoenas
served by Plaintiff on the non-party doctors. Where as

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16

ORTIZ-CARBALLO v. ELLSPERMANN, Case No. 5:08-cv-165-Oc-10GRJ. (M.D. Fla. Apr 07, 2009)
here, the Court's jurisdiction is premised upon a federal question, the federal law of privilege governs the
Court's determination of whether the requested med5
ical records are privileged. *3
2. Fed.R.Civ.P. 26(b)(1).
3. Id.
4. "Paragraph (c)(3) explicitly authorizes the
quashing of a subpoena as a means of protecting a witness from misuse of the subpoena
power." Fed.R.Civ.P. 45 advisory committee
notes, 1991 amendment.
5. See Hancock v. Hobbs, 967 F.2d 462,
th
466-47 (11 Cir. 1992.)

(1) Dr. Poetter


Dr. Poetter is a psychologist. Federal law recognize
a privilege between psychotherapists and their pa6
tients. As an initial matter in determining the application of the psychotherapist-patient privilege, the
Court must find that the relationship between Dr. Poetter and Plaintiff was a confidential relationship between a patient and a psychotherapist. Because Dr.
Poetter is a psychologist who treated or evaluated
Plaintiff, the Court concludes that she qualifies as a
psychotherapist such that the privilege would cover
her confidential communications with Plaintiff. Further, the Court finds that any psychological and medical records created by Dr. Poetter are presumably the
result of confidential communications between a patient, Plaintiff, and his psychotherapist. Therefore, the
Court finds that Dr. Poetter's records are covered by
the psychotherapist-patient privilege, unless it has
7
been waived.
6. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996)
(holding that "confidential communications
between a licensed psychotherapist and her

patients in the course of diagnosis or treatment are protected from compelled disclosure
under Rule 501 of the Federal Rules of Evidence.").
7. Defendant incorrectly refers to the "doctor/
patient privilege" throughout his Motion.
However, Plaintiff acknowledges that there is
no doctor-patient privilege and that he only
seeks application of the psychotherapist-patient privilege to those records related to
counseling he received from Dr. Poetter. See
Doc. 21 at page 3, n. 2.

Generally, in order to obtain psychiatric records, the


party requesting the records must show that the plaintiff has placed her mental condition "in controversy"
and there is "good cause" for production of the
8
records. The majority of federal courts that have addressed the issue have held that a party does not place
his mental condition in controversy merely by requesting damages for mental anguish or "garden vari9
ety" *4 emotional distress. In order to place a party's
mental condition in controversy the party must allege
a specific mental or psychiatric disorder or intend to
offer expert testimony to support their claim of emo10
tional distress.
8. See. e.g., Turner v. Imperial Stores, 161
F.R.D. 89 (S.D. Cal. 1995).
9. Stevenson v. Stanley Bostitch, Inc., 201
F.R.D. 551, 553 (N.D. Ga. 2001) (applying the
same analysis regarding medical examinations
under Fed.R.Civ.P. 35(a) to the issue of when
a patient waives the psychotherapist-patient
privilege).
10. E.g. Turner, 161 F.R.D. at 95 (reviewing
several cases and concluding that in addition
to a claim of emotional distress, a plaintiff usually must do one or more of the following to
put his mental condition "in controversy": (1)
a cause of action for intentional or negligent

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ORTIZ-CARBALLO v. ELLSPERMANN, Case No. 5:08-cv-165-Oc-10GRJ. (M.D. Fla. Apr 07, 2009)
infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury
or disorder; (3) a claim of unusually severe
emotional distress; (4) plaintiff's offer of expert testimony to support a claim of emotional
distress; and/or (5) plaintiff's concession that
his or her mental condition is "in controversy"
within the meaning of the rule).

Defendant argues that Plaintiff put his mental state "at


issue" because he "is asserting a claim for depression"
and because he identified Dr. Poetter as a potential
witness in his Rule 26(a) Initial Disclosures. However, in paragraph 43 of his Amended Complaint, Plaintiff merely alleges that he "has suffered lost wages and
benefits, emotional distress, loss of enjoyment of life,
mental anguish, damage to his professional reputation
11
and ability to obtain gainful employment . . ." Plaintiff does not allege in his Amended Complaint that
Defendant's actions caused him to suffer from depression or any other psychological condition. Nor does
his Amended Complaint include a claim where emotional distress is an element of the cause of action.
Moreover, in his response to the instant motion,
Plaintiff clarifies that he has not asserted a claim for
depression and that he does not intend to rely upon
the testimony of Dr. Poetter to support his claim for
12
damages. Accordingly, Plaintiff has not placed his
mental state "at issue." *5
11. Doc. 9, 43.
12. See Doc. 21, pages 5-6.

Nevertheless, Defendant argues that Plaintiff waived


the privilege because he put "at issue" his hearing condition which causes him to be startled by loud noises.
There is no question that Plaintiff's alleged hearing issue is a central issue in this case. Plaintiff, who is Hispanic, inter alia alleges that his supervisor retaliated
against him for making complaints regarding two
13
Caucasian co-workers. Specifically, Plaintiff alleges
that for a year prior to his complaints, Plaintiff's su-

pervisor allowed him to keep his telephone's ringer


volume low to accommodate a hearing condition
14
which caused him to be startled by loud noises.
However, Plaintiff alleges that after making complaints about his co-workers, Plaintiff's supervisor
suddenly demanded that Plaintiff keep his ring tone
15
on high. While Plaintiff alleges that this is evidence
of retaliation, Defendant is entitled to challenge the
legitimacy of this alleged medical condition and offer
other reasons as to why Plaintiff was directed to keep
16
his ring tone on high. Accordingly, medical records
related to Plaintiff's hearing condition are relevant to
the claims in this case.
13. See Doc. 9 at 11-18.
14. See id. at 19.
15. See id. at 19-22.
16. Based on Defendant's Answer and Affirmative Defenses to the Amended Complaint,
it is difficult to determine what defenses Defendant intends to raise. Indeed, while Defendant raises more than twenty affirmative defenses, they are generic boilerplate defenses
without any suggestion as to how these defenses might apply to this action. See Doc. 10.

However, in determining whether Plaintiff has


waived the psychotherapist-patient privilege, the
proper inquiry is not whether the medical records are
relevant, but rather, whether Plaintiff has put his
mental condition "at issue." Plaintiff testified that he
sought *6 counseling from Dr. Poetter "because of an
incident in the office where I was reprimanded be17
cause of the tone of the telephones that I was using."
Thus, Plaintiff went to Dr. Poetter to discuss the psychological impact of the reprimand not, the hearing
condition itself. That Plaintiff has put this physical
condition "at issue" does not change the Court's conclusion that Plaintiff has not put his mental state "at
issue."

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ORTIZ-CARBALLO v. ELLSPERMANN, Case No. 5:08-cv-165-Oc-10GRJ. (M.D. Fla. Apr 07, 2009)

(3) Dr. Gomez

17. Doc. 20, Exhibit C at page 191.

Therefore, based on the foregoing, Dr. Poetter's


records are subject to the psychotherapist-patient
privilege and are protected from disclosure. Accordingly, Defendant's Motion To Compel the records of
Dr. Poetter (Doc. 21) is due to be DENIED.

(2) Dr. Warman


Dr. Warman is Plaintiff's internal medicine doctor.
Under federal law, there is no doctor-patient privi18
lege. Accordingly, because there is no privilege that
19
applies to Dr. Warman's records, the Court need
not determine whether Plaintiff has placed his mental
and physical condition at issue. Instead, the Court
need only determine whether Dr. Warman's records
are relevant to the claims in this case.
18. See Taylor v. Dean, 2006 U.S. Dist. LEXIS
77849, *5-6 (M.D. Fla. 2006.)
19. See Stevenson, 201 F.R.D. 551, 558 (N.D.
Ga. 2001).

As discussed above, the medical records related to


Plaintiff's alleged hearing condition are relevant to
this case. Moreover, Plaintiff has testified that as a
result of the actions alleged in the Amended Complaint he suffers from medical conditions, including
high blood pressure. As such, Dr. Warman's medical
records from the period during which Plaintiff was
employed by the Clerk of Court are relevant to this action. *7
Accordingly, Defendant's Motion To Compel the
records of Dr. Warman (Doc. 21) is due to be
GRANTED to the extent that any subpoena served
upon Dr. Warman shall be limited to records related

to the period during which Plaintiff was employed by


the Clerk of Court until present.

Defendant seeks "[a]ny and all records" Dr. Gomez


has in his "possession, custody or control" for Plaintiff.
Dr. Gomez was Plaintiff's family physician over 10
20
years ago, when Plaintiff lived in Puerto Rico. Dr.
Gomez prescribed Plaintiff medication for depression
following a break up of a long-term relationship. Dr.
Gomez did not provide counseling and discontinued
the medications after only six months because according to Plaintiff they were no longer "necessary."
20. See Doc. 20, Exhibit C, (Plaintiff's Deposition) at pages 11-13.

As discussed above, because federal law does not recognize a doctor-patient privilege, the requested
records are subject to discovery under the Federal
Rules of Civil Procedure if the records are "relevant
to a claim or defense of any party." Here, Dr. Gomez'
records reflect treatment more than 10 years ago for a
six-month bout of depression. These records are not
relevant or reasonably calculated to lead to the discovery of relevant evidence in this action. Accordingly, Defendant's Motion To Compel the records of Dr.
Gomez (Doc. 21) is due to be DENIED.

B. Motion To Compel Plaintiff To


Respond To Defendant's Third
Request To Produce
On February 4, 2009, Defendant served Plaintiff with
his Third Request to Produce. Defendant represents
that Plaintiff has not provided responses to the *8 discovery. The deadline for doing so has long since
passed. Counsel for Defendant represents that despite
good faith efforts to resolve this matter with Plaintiff,
he has failed to produce the discovery.
Accordingly, Defendant, David R. Ellspermann, Clerk
Of the Circuit Court, Fifth Judicial Circuit In And For
Marion County, Florida's Motion To Compel Plaintiff
To Respond To Defendant's Third Request To Pro-

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ORTIZ-CARBALLO v. ELLSPERMANN, Case No. 5:08-cv-165-Oc-10GRJ. (M.D. Fla. Apr 07, 2009)
duce (Doc. 26) is GRANTED. Plaintiff shall serve re-

sponses to Defendant's Third Request to Produce on


or before April 20, 2009. Failure to comply with this
Order could result in the imposition of sanctions, including the award of attorney's fees.

IT IS SO ORDERED.
DONE AND ORDERED.

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BELL

& ROPER, P.A.

ATTORNEYS AT LAW
MICHAEL M. BEll
MICHAEL H. BOWLING
HAEJ. KIM
MICHAELJ. ROPER
JOSEPH D. TESSITORE

2707 EAST JEFFERSON STREET


ORLANDO, FLORIDA 32803
TELEPHONE 14071 B97-5150
FAX 14071 897-3332
E-mail: office@bellroperlow.com
www.bellroperlow.com

DAVID B. BLESSING
GAIL C. BRADFORD
ANNA E. ENGELMAN
CHRISTOPHER R. FAY
KATHRYN A JOHNSON
ESTEBAN F. SCORNIK
DALE A SCOTI
CINDY A TOWNSEND
MARY]. WALTER

February 7, 2011
ATTORNEY CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
PRIVILEGED - CONFIDENTIAL

Ms. Yari Benitez


Liability Specialist
Preferred Governmental Claims Solutions
P.O. Box 958456
Lake Mary, FL 32795-8456
RE:

Insured:
Claimant:
Claim No.:

Marion County
Anthony Ortiz-Carballo
EV138237

Dear Ms. Benitez:


Please find enclosed a Mediation Invoice in the above-captioned matter in
the amount of $93 7.50 which represents our portion of the bill for mediation
services. Kindly place this invoice in line for payment. Once you receive the
check you can send it directly to Fraxedas Mediation Firm or send it to us for
forwarding.
Please do not hesitate to contact me if there area any questions or concerns
relating to this matter.
Very truly yours,

CAT:em
cc:
Katherine Glynn, Esq.
David Ellspermann

Cindy A. Townsend

17

FRAXEDAS MEDIATION FIRM


2450 Maitland Center Pkwy, Suite 202
MAITLAND, FLORIDA 32751

Bill To

Mediation Invoice

Michael J. Roper, Esquire


Bell & Roper P.A.
2707 East Jefferson Street
ORLANDO, FL 32803

Date

Invoice#

1/31/2011

11JJF25B

Fed. Tax I.D.# 59-3561979

Description

Amount

ORTIZ-CARBALLO v. MARION COUNTY CLERK OF THE CIVIL COURT


Date of Mediation: January 31, 2011

937.50

Mediation services rendered by J. Joaquin Fraxedas, including review of mediation summaries and
materials; conduct mediation conference; and any travel. THE AMOUNT SHOWN BELOW IS YOUR
SHARE OF THE FEES AND COSTS (1/2 ). 5 hrs. x $375/hr.
***PLEASE DO NOT DIVIDE THE AMOUNT SHOWN***.

~ ~~O~~n
FEB - 2 2011

~------'~

PAYMENT FOR SERVICES IS DUE UPON RECEIPT. PLEASE MAKE CHECKS


PAY ABLE TO FRAXEDAS MEDIATION FIRM

Total

$937.50

Payments/Credits
***PLEASE RETURN A COPY OF THIS INVOICE WITH YOUR PAYMENT
AND INDICATE THE INVOICE NUMBER ON YOUR CHECK***

Balance Due

Phone#

Fax#

E-mail

Web Site

407-661-5757

407-661-9006

rfraxedas@ fraxedas.com

www.fraxedas.com

$0.00
$937.50

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

ANTONIO J. ORTIZ-CARBALLO
Plaintiff,

v.

CASE NO.: 5:08-CV-00165-WTH-GRJ

DAVID R. ELLSPERMANN,
CLERK OF THE CIRClJIT COURT,
FIFTH JUDICIAL CIRCUIT IN AND
FOR MARION COUNTY, FLORIDA
Defendant.

--------------------------~/
NOTICE OF MEDIATION
PLEASE TAKE NOTICE that, upon agreement of the parties, the
Mediation Conference has been scheduled and will now take place on Monday,
January 31, 2011 at 10:00 a.m. The Mediator will be Jay Fraxedas, Esquire and
the Mediation Conference will be held at the Offices of Fraxedas Mediation,
2450 Maitland Center Parkway, Suite 202, Maitland, Florida 32751.

BEU & ROPER, P.A.


ATTORNEYS AT LAW

117 EAST JEFFERSON STREET


ORLANOO, FLORIDA 32803
ffiEPHONE (407) 897-5150

Ortiz-Caballo v. Ellspermann
Case No. 05:08-CV-QOlGS-WTH-GRJ

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the within and
foregoing has been sent by U. S. Mail on January~~ , 2011, to David Sacks,
Esquire, 1017 LaSalle Street, Jacksonville, Florida 32201.

~~~~~

MICililliL J. ROPER, ESQ.


Florida Bar No. 0473227
mroper@bellroperlaw.com
CINDY A. TOWNSEND, ESQ.
Florida Bar No. 0788961
ctownsend@bellroperlaw.com
Bell, Roper & Kohlmyer, P.A.
2707 East Jefferson St.
Orlando, FL 32803
407-897-5150- Telephone
407-897-3332 -Facsimile
Attorneys for Defendant

BELL &ROPER, P.A.


ATTORNEYS AT LAW
107 EAST JEFFERSON STREET
ORLANDO, FLORIDA 32803
TELEPHONE (407) 8975150

BELL

& ROPER, P.A.

ATTORNEYS AT LAW
MICHAEL M. BELL
MICHAEL H. BOWLING
HAEJ. KIM
MICHAEL j. ROPER
JOSEPH D. TESSITORE

2707 EAST JEFFERSON STREET


ORlANDO, FLORIDA 32803
TELEPHONE !4071 8975150
FAX 14071 8973332
E-mail: ollice@bellroperlow.com
W>NW. bellroperlaw.com

DAVID B. BLESSING
GAll C. BRADFORD
ANNA E. ENGELMAN
CHRISTOPHER R. FAY
KATHRYN A. JOHNSON
ESTEBAN F. SCORNIK
DALE A. SCOTT
CINDY A. TOWNSEND
MARY J. WALTER

January 21, 2011


ATTORNEY CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
PRIVILEGED - CONFIDENTIAL

Ms. Jaime Acker


Claims Analyst, Growth Enterprises
Chartis Financial Lines Claims
Post Office Box 25947
Shawnee Mission, KS 66225

RE:

Insured:
Claimant:
Claim No.:
Date of Loss:
Our File No.:

Marion County
Anthony Ortiz-Carballo
EV138237
June 11, 2007
026-296

Dear Ms. Acker:


We take this opportunity to provide you with our interim status and
mediation report in accordance with PGIT's litigation guidelines.
PRESENT STATUS
This action arises from Plaintiffs employment with the Clerk. Plaintiff has
brought suit against the Clerk in his official capacity pursuant to 42 U.S.C. 1981
and 1983, Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights
Act of 1992. Plaintiff alleges he was subjected to (1) disparate treatment
discrimination (Counts I, II and III); (2) a hostile work environment (Counts IV, V
and VI); (3) retaliation (Counts II, III, V and VI); and (4) disparate impact
discrimination (Counts VII, VIII and IX).

Ms. Jaime Acker


January 21, 2011
Page 2 of 12
Plaintiff has brought suit against Ellspermann in his individual capacity
pursuant to 42 U.S.C. 1981 and 1983 for disparate treatment (Count III); hostile
work environment (Count VI); disparate impact discrimination (Count IX); and
retaliation (Counts III and VI). Plaintiff also seeks punitive damages against
Ellspermann.
This action is pending in the United States District Court Middle District of
Florida, Ocala Division before Judge W.M. Terrell Hodges. The Court recently
entered an Order partially granting and partially denying Ellspermann' s Motions
for Summary Judgment. The Court granted summary judgment in favor of
Ellspermann with respect to the claims of retaliation set forth in Counts II and III,
the hostile work environment and retaliatory harassment claims set forth in Counts
IV, V and VI and the claims of disparate impact discrimination set forth in Counts
VII, VIII and IX. Therefore, the only remaining claims are the claims of disparate
treatment set forth in Counts I, II and Count III.
This case is set for jury trial on the Court's three week trial docket
commencing February 28, 2011.
BASIC FACTS

Plaintiff was hired on November 18, 2005 as an at-will employee whose


employment could be terminated at any time with or without notice. On the date
Plaintiff was hired as a Clerk I, he signed a statement acknowledging the same. He
was promoted to the position of Clerk II on June 7, 2006. Plaintiffs direct
supervisor during the entire course of his employment was Denise Kingsley.
Kingsley's supervisor was Ozietta Landers Reid, Supervisor for Family Civil
Division. Landers' supervisor was Jaymi Kudary, Civil Courts Manager. During
the course of Plaintiffs employment he consistently received good evaluations
which were performed by Kingsley then reviewed and approved by the Clerk.
Indeed, Kingsley recommended Plaintiff for the promotion to the position of Clerk
II which was subsequently approved by the Clerk.
On March 5, 2007, Landers received a written memorandum from Plaintiff
alleging that two other Clerks, Jennifer Rodriguez and Roseanne Anderson, were
not performing their job functions, acted in an unprofessional manner and needed
to be more closely supervised. He also requested to be reassigned to another
division because he did "not want to deal with this immature behavior." The

. Ms. Jaime Acker


January 21, 2011
Page 3 of 12
Memorandum did not contain any allegations or complaints of harassment,
discrimination or disparate treatment. After receiving the Memorandum, Landers
met with Plaintiff and Kingsley to discuss the complaints. During that meeting,
Plaintiff reiterated the allegations contained in the Memorandum, but not once did
he complain about any improper treatment he was experiencing nor did he
complain of discrimination directed towards him or any other employee.
Plaintiff's request to be reassigned was also discussed and he ultimately agreed to
withdraw same. Landers informed Plaintiff she would meet with all the employees
involved and encourage them to do a better job of getting along
In late March of 2007, an issue arose concerning the volume of the ringer on
Plaintiff's telephone. At that time Plaintiff was one of four Deputy Clerks working
in the Domestic Violence Division. He routinely reduced the volume of the ringer
on his phone to a "low" level because he is allegedly startled by loud noises such
as the ringing of a telephone. On March 29, 2007, Kingsley advised all staff,
including Plaintiff, that the ring volume for all telephones was to remain at level 4
because calls transferred from the Family Civil Division were going unanswered.
Kingsley indicated she had personally raised the ring volume on two telephones,
but later that same day discovered the ring level had been reduced.
On April 3, 2007, Kingsley met with Plaintiff to discuss this issue during
which Plaintiff advised Kingsley he would not comply with her request because
having the ring volume at that level startled him. Kingsley advised Plaintiff the
directive in question was not just hers, but had been approved by her supervisor,
Landers. Plaintiff responded he still would not comply, and was then disciplined
for his refusal to comply with a direct request by his supervisor and provided with
an opportunity to respond to the discipline. Although he provided a written
response, his response is devoid of any complaint about harassment,
discrimination, or retaliation.
On April 4, 2007, Plaintiff directed a Memorandum to the Clerk
complaining of the discipline and accused Kingsley of abusing her authority. This
memorandum was also devoid of any allegations of race or national origin
discrimination. In response, on April 23, 2007, the Chief Deputy Clerk of
Administrative Services, Jack Suess, and Kudary met with Plaintiff to discuss the
issues raised in the memorandum. Suess advised Plaintiff that any direction from
his supervisor, which was not immoral or illegal, was to be complied with and

Ms. Jaime Acker


January 21, 2011
Page 4 of 12
considered to be a direct instruction from the Clerk.
discrimination or retaliation was raised during this meeting.

Again, no issue of

On May 1, 2007, another meeting was held between Plaintiff, Suess and
Kudary during which Plaintiff was presented with various options to deal with the
issue regarding the ring volume on his telephone. Plaintiff elected to keep the
ringer lowered while he was present at his desk, but agreed to increase the ring
volume on the telephone every time he stepped away from his desk.
As a result of the continuing administrative issues between Plaintiff and
Kingsley related to his work assignments and desk location, on June 11, 2007, the
Clerk met with Plaintiff, Kingsley, Kudary and Landers. During the meeting
Plaintiff, without any justification, accused Kingsley of trying to sabotage him and
set him up for termination.
The Clerk concluded this unsubstantiated,
disrespectful, and insubordinate accusation against Plaintiffs direct supervisor, in
the Clerk's presence, evidenced an irretrievable breakdown of the employeesupervisor relationship and Plaintiffs employment with the Clerk's Office.
The Clerk ended the conference and afforded Plaintiff the opportunity to
resign in lieu of termination, which Plaintiff accepted. At no point during this
meeting did Plaintiff complain about discrimination or retaliation based on a prior
complaint of discrimination. However, on June 12, 2007, Plaintiff called the
Clerk's Office to verbally rescind his resignation and was thereafter terminated.
On June 13, 2007, the Clerk sent a memorandum to Plaintiff confirming the
retraction of his resignation and summarizing the June 11, 2007 meeting. On June
25, 2007, Plaintiff responded to that memorandum and disputed he had been
disrespectful and disruptive to the operations of the office and the relationships
within the office. Yet again, Plaintiff never mentioned any complaint about
discrimination, harassment, or disparate treatment.
In support of his disparate treatment claim, Plaintiff has identified Sandra
Pruitt and Tammy Mcintyre, both Caucasians, as comparators. Like, Plaintiff,
Pruitt and Mcintyre were terminated for insubordination. Plaintiff asserts that
although Pruitt and Mcintyre engaged in similar behavior they were disciplined
less harshly, in that, they were afforded multiple opportunities to correct and
improve their behavior while he was not and which he contends violates the
Clerk's progressive discipline policy. In support of his argument that Ellspermann

Ms. Jaime Acker


January 21, 2011
Page 5 of 12
harbored discriminatory animus towards Hispanics, Plaintiff has identified Wanda
Cryer, a probationary Hispanic employee, who also terminated without the use of
the progressive discipline policy.
LEGAL ISSUES AND ANALYSIS
The only remaining claim is for disparate treatment regarding whether
Ellspermann treated Plaintiff differently than Pruitt and Mcintyre by not following
his progressive discipline policy with regard to Plaintiffs behavior.
I.

DISPARATE TREATMENT:

When a plaintiff alleges discriminatory discipline, to determine whether


employees are similarly situated, the Eleventh Circuit evaluates whether the
employees are involved in or accused of the same or similar conduct and are
disciplined in different ways. Burke-Fowler, 447 F.3d 1319, 1323 (11th Cir. 2006);
Thomas v. Dept. of Corrections, 377 Fed.Appx. 873 (11th Cir. 2010). When
making that determination, the Eleventh Circuit requires that the quantity and
quality of the comparator's misconduct be nearly identical to prevent courts from
second-guessing employers' reasonable decisions and confusing apples with
oranges. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). Thus, there is
a high bar in the Eleventh Circuit for comparator evidence to be viable.
The Middle District of Florida has specifically stated that in order to be
similarly situated, the individuals with whom the plaintiff seeks to compare his
treatment must have dealt with the same supervisor, have been subject to the same
standards, and must have also engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or
the employer's treatment. See Patterson v. Wal-Mart Stores, Inc., 1999 WL
1427751 (M.D. Fla. 1999) (citing Williams v. Publix Warehouse, 1995 WL
224423, 4 (M.D. Fla. 1995)).
Here, Plaintiff has identified Sandra Pruitt and Tammy Mcintyre as
comparators. Specifically, Plaintiff alleges that Pruitt and Mcintyre engaged in
similar behavior but were disciplined less harshly. However, the record is replete
with evidence that Pruitt and Mcintyre are not appropriate comparators because
they did not engage in "nearly identical" misconduct as Plaintiff, were not
overseen by the same supervisors, worked in different departments than Plaintiff,

Ms. Jaime Acker


January 21, 2011
Page 6 of 12
did not engage in multiple acts of insubordination prior to their termination and
agreed to improve their behavior after meeting with Ellspermann. (Plaintiffs
Exhibits 20, 21). Importantly, the quality of the misconduct by both Pruitt and
Mcintyre are different from Plaintiffs misconduct, in that, neither of them
committed the misconduct in Ellspermann's presence, unlike Plaintiff.
A.

SANDRA PRUITT:

Plaintiff claims that Pruitt is a proper comparator because she engaged in the
same misconduct but was treated more favorably than he was. This is simply not
true.
Pruitt was employed as a Clerk I in the Traffic Department. Her immediate
supervisor was Karen Rodgers. Prior to her termination, Ellspermann met with
Pruitt to discuss her profane language and aggressive behavior towards her Q:
workers. (Plaintiffs Exhibit 21) During that meeting, Pruitt acknowledged her
behavior and agreed to improve her attitude. Insubordination was never the subject
of any prior warnings to Pruitt.
On January 30, 2007, Ellspermann was advised that Pruitt had engaged in
two incidents of inappropriate behavior towards her supervisor. The first incident
involved Pruitt giving her supervisor, Rodgers, the finger and mouthing an
expletive behind Rodgers' back. The second incident involved Pruitt telling a coworker that she "hated her f---ing job." Ellspermann determined that Pruitt's
actions towards her supervisor were both disrespectful and unacceptable and
immediately terminated her employment.
Based on the above, it is clear that Pruitt and Plaintiff did not engage in
"nearly identical" misconduct. While Ellspermann did give Pruitt a warning
before her termination, that warning was based on Pruitt's behavior towards her
co-workers and not an act of insubordination. Conversely, the purpose of
Ellspermann's meeting with Plaintiff was to discuss his two prior incidents of
insubordination towards his supervisor which began when he refused to follow her
specific instructions regarding the volume of his telephone. Moreover, during
Plaintiffs meeting with Ellspermann, Plaintiff challenged and opposed his
supervisor's authority in Ellspermann's presence by accusing his supervisor of
sabotaging his career and trying to get him fired. Pruitt never engaged in any such
behavior during her meeting with Ellspermann, but instead admitted that she
needed to improve her behavior and committed to doing so. Contrary to Plaintiffs

Ms. Jaime Acker


January 21, 2011
Page 7 of 12
allegations, it is clear that Pruitt was not disciplined less harshly for committing the
same or similar misconduct.
Indeed, once Pruitt's behavior escalated to
insubordination towards her supervisor she, like Plaintiff, was immediately
terminated.

B.

TAMMY MCINTYRE:

Plaintiff has also identified Mcintyre as a comparator. However, like Pruitt,


Mcintyre is not a proper comparator. Mcintyre was a Clerk II in the Marriage
License/Passport Department. Her supervisor was Nicole Kendrick. On January
10, 2006, Ellspermann met with Mcintyre to discuss her inappropriate behavior
(rudeness, belittling and disrespect) towards her co-workers and supervisor.
(Plaintiffs Exhibit 20) Mcintyre had received a prior warning for inappropriate
behavior towards her co-workers, not insubordination towards her supervisor.
During the meeting with Ellspermann, Mcintyre, like Pruitt and unlike Plaintiff,
took responsibility for her actions and expressed a desire to improve her behavior.
In fact, Mcintyre even apologized for her behavior. Conversely, Plaintiff, during
his meeting with Ellspermann, did not express any desire to correct his
insubordinate behavior, but instead, directed accusations at his supervisor which
clearly indicated his complete lack of respect for her authority.
The incident which ultimately led to Mcintyre's termination occurred on
September 12, 2006, when Mcintyre was directed by her supervisor not to accept
any customers at 4:45 p.m. Instead, Mcintyre was instructed to count her cash
drawer. On that date, Kendrick asked another clerk, Betty Schenck, to perform a
civil ceremony. However, Mcintyre completely disregarded her supervisor's
instructions to count out her cash drawer and informed Shenck that she would
perform the civil ceremony. This was a direct violation of her supervisor's
instruction. As such, on September 18, 2006, Ellspermann met with Mcintyre and
immediately terminated her employment based on her failure to follow her
supervisor's instructions. Unlike Plaintiff, Mcintyre's misconduct was not
committed in Ellspermann's presence and did not involve a direct confrontation
with her supervisor. Notwithstanding, Mcintyre was not treated more favorably
than Plaintiff since, like Plaintiff, she was immediately terminated once she did
engage in insubordination. Based on the above, Mcintyre is not an appropriate
comparator.

Ms. Jaime Acker


January 21, 2011
Page 8 of 12
C.

WANDA CRYER:

Plaintiff alleges that Cryer, a Hispanic female, was also treated less
favorably by Ellspermann when he terminated her at the end of her probationary
period. However, Cryer, did not engage in similar or nearly identical misconduct
as either Pruitt or Mcintyre. Cryer was not terminated for insubordination; instead,
she was terminated due to excessive absenteeism, tardiness and poor work
performance. Moreover, Cryer was a probationary employee while Pruitt and
Mcintyre were full time employees. See Bricknell v. City of St. Petersburg,
F.Supp.2d *10 (M.D. Fla. 2006) (finding that probationary officer was not
similarly situated to officers who had completed their probationary period).
Further, Cryer's supervisor recommended her termination whereas Pruitt and
Mcintyre's supervisors did not. Clearly, Cryer is not similarly situated to either
Pruitt and Mcintyre and any evidence relating to her termination would not is
insufficient to rebut the legitimate non-discriminatory reasons proffered for
Plaintiffs termination.
D.

PRUITT, MCINTYRE AND PLAINTIFF'S MISCONDUCT


WERE NOT NEARLY IDENTICAL:

While it is true that Pruitt, Mcintyre and Plaintiff were all terminated for
insubordination, neither Pruitt nor Mcintyre made any accusations against or
engaged in insubordinate behavior towards their supervisors in the presence of
Ellspermann. Additionally, it is abundantly clear that the warnings given to Pruitt
and Mcintyre prior to their terminations were not for insubordination. Instead it
was for impatient, rude or angry behavior primarily towards their co-workers and
not for refusing to obey a directive from their supervisor on more than one
occasion. Like Pruitt and Mcintyre, it was Ellspermann's intention to utilize the
progressive discipline policy with Plaintiff. Thus, at the time Ellspermann held the
June 11, 2007 meeting there was no intent to terminate Plaintiffs employment.
Instead the meeting was held to try and resolve Plaintiffs complaints and issues
with his supervisor. This is supported by the termination memorandum sent to
Plaintiff on June 13, 2007 which clearly states that Ellspermann's decision to
terminate Plaintiff was based on the two previous incidents of insubordination as
well as Plaintiffs conduct during the June 11, 2007 meeting wherein he confronted
and accused his supervisor of sabotaging his career and trying to get him fired.

Ms. Jaime Acker


January 21, 2011
Page 9 of 12
Unlike Pruitt and Mcintyre, during his meeting with Ellspermann, Plaintiff
confronted and challenged his supervisor in Ellspermann's presence. Further,
unlike Pruitt and Mcintyre, whose actions were observed by their supervisors and
then reported to Ellspermann, here, Ellspermann was able to personally observe
Plaintiffs insubordinate behavior. That in and of itself is sufficient to distinguish
Plaintiffs misconduct from that of Pruitt and Mcintyre.
The courts have recognized that there are clearly different degrees of
insubordination and uncooperative work conduct, and different types and degrees
of misconduct may warrant different types and degrees of discipline. BurkeFowler, 447 F. 3d at 1325; Seldon v. Total System Services, Inc., 653 F.Supp. 1349,
1372 (M.D. Ga. 2009). Here, Plaintiff has failed to meet his burden of producing
evidence of a comparator who engaged in two prior incidents of insubordination
towards a supervisor, who was insubordinate to his supervisor in Ellspermann's
presence and who was afforded more favorable treatment. Since neither Pruitt nor
Mcintyre are appropriate comparators, Plaintiff cannot establish a prima facie case
of disparate treatment.
II.

TERMINATING
PLAINTIFF
WITHOUT
USING
THE
PROGRESSIVE DISCIPLINE POLICY IS NOT EVIDENCE OF
PRETEXT.

As an initial matter, Ellspermann did not violate the progressive discipline


policy as this policy provides that levels of discipline may be skipped for serious
offenses. Specifically, Section 12.01 of the Personnel Rules and Regulations
provides as follows:
B.

Different situations may require different treatment in terms of


disciplinary action. The Clerk retains the right to treat
situations differently based on extenuating circumstances.
The decision to impose discipline or to forego the imposition
of discipline in an individual case does not necessarily create
a precedent for future
cases
if
the
surrounding
circumstances differ.

C.

The following guidelines are not to be construed as limitations


upon the rights of the Clerk.
The policies provide
recommended penalties to apply to specific offenses. This

, Ms. Jaime Acker


January 21, 2011
Page 10 of 12
means that a more severe or less severe penalty may be issued
than that which
appears in the guidelines, if it is justified.
Here, the discipline policy allows Ellspermann to immediately terminate
Plaintiff without using progressive discipline. Thus, Plaintiffs termination was
not a violation of the progressive discipline policy since Ellspermann specifically
reserved the right to forego progressive discipline when extenuating circumstances
such as in the instant case exist. See also, Slater v. Progress Energy Serv. Co.,
2010 WL 3788824 (M.D. Fla. Sept. 24, 2010) (holding that mere allegation that
progressive discipline policy was violated is insufficient to establish pretext when
policy provides that levels of discipline may be skipped); Kaufman v. AutoNation,
Inc., F. Supp. 2d *12 (S.D. Fla. 2000) (holding that failure to follow progressive
discipline policy was not evidence of pretext in light of fact that discipline policy
also allowed for immediate termination without counseling sessions).
Even assuming arguendo that Ellspermann failed to follow the progressive
discipline policy, the Eleventh Circuit has clearly stated that deviation from
company policy, standing alone, does not raise an inference of discrimination.
Mitchell, 186 F.3d at 1355; see also Saunders v. Emory Healthcare, Inc., 360
Fed.Appx. 110, 115 (11th Cir. 2010) (holding that Emory's failure to follow its
hiring policies did not demonstrate that its proffered reason was pretexual); EEOC
v. Texas Instruments Inc., 100 F .3d 1173, 1182 (5th Cir. 1996) (deviation from
company policy not evidence of discrimination, absent a nexus between deviation
and employee's protected status), Friedel v. City of Madison, 832 F.2d 965, 973
(th Cir. 1987) (inaccurate application of departmental policy not enough to prove
discrimination).
The law is clearly established that a defendant's proffered reason is not
pretext for discrimination "unless it is shown both that the reason was false, and
that discrimination was the real reason." Brooks v. County Com 'n of Jefferson
County, 446 F.3d 1160, 1163 (11th Cir. 2006); Springer v. Convergys Customer
Mgmt. Group, Inc., 509 F.3d 1344, 1349 (11th Cir. 2007). Provided that the
proffered reason is one that might motivate a reasonable employer, an employee
must meet that burden head on and rebut it. Chapman v. AI Transport, 229 F.3d
1012, 1030 (11th Cir. 2000).
Here, Ellspermann has proffered several legitimate non-discriminatory
reasons for Plaintiffs termination, to wit: Plaintiffs admittedly outright refusal to

..

Ms. Jaime Acker


January 21, 2011
Page 11 of 12
comply with Kingsley's directive regarding the ring volume of his telephone; his
unfounded accusations against Kingsley during the June 11, 2007 meeting; his
utter lack of respect for his supervisor which demonstrated their relationship w
irretrievably broken; and his insubordinate behavior towards his supervisor n
Ellspermann's presence.
Nothing in the record establishes the falsity of
Ellspermann' s proffered reasons for terminating Plaintiff or that said reasons were
pretextual. Moreover, all the proffered reasons are ones that would motivate a
reasonable employer to take the same action as Ellspermann.
There is nothing to suggest that confrontational, challenging, insubordinate
and utterly disrespectful behavior committed in Ellspermann's presence is the type
of infraction that warrants the use of progressive discipline. Moreover, common
sense tells us that progressive discipline in this situation would be pointless since
the relationship between Plaintiff and his supervisor was irretrievably broken and
beyond repair. Thus, any argument that Ellspermann did not impose progressive
discipline on the Plaintiff is insufficient to permit a reasonable fact finder to
conclude that pretext exists especially in light of the fact that the discipline policy
specifically provides that Ellspermann can impose more severe discipline such as
immediate termination. Even assuming arguendo that Ellspermann failed to use
progressive discipline, it is merely a scintilla of evidence which does not show that
the proffered reasons for terminating Plaintiff were pretexts for discrimination.
DAMAGES

Plaintiff is seeking damages for emotional distress, mental anguish, loss


wages, front pay and punitive damages. He is also seeking an award of attorneys'
fees and costs.
ATTORNEY'S FEES

In this case, perhaps the most significant source of potential damages is


actually in attorney's fees. Pursuant to Title VII, a prevailing plaintiff is entitled to
attorney's fees, based upon time expended multiplied by a reasonable hourly rate.
That recovery is not tied to the damage award secured by Plaintiff. It is possible
that Plaintiffs attorney's fees through trial, regarding the claims against the Clerk,
may amount to at least $100,000.00.

Ms. Jaime Acker


January 21, 2011
Page 12 of 12
In the event we prevail on the claim for disparate treatment, Plaintiff would
not be entitled to recover attorney's fees.
EVALUATION

Mediation is tentatively scheduled for January 31, 2011.


In light of our prior agreement with Plaintiffs counsel, Plaintiffs opening
demand will be $250,000 to which the Defendant will respond with an offer of
$50,000. Based on the high/low presented by Plaintiff, it appears that he is hoping
to recover at least $150,000. We can try and get this resolved at mediation for
closer to $100,000. We hope that Plaintiffs counsel will negotiate in good faith to
significantly reduce the distance between our respective positions and that we are
able to reach a settlement that is acceptable to both parties.
FUTURE ANTICIPATED DEFENSE COST

This case will likely be moderately expensive to defend through trial. The
depositions of Plaintiff, the Clerk and several of his employees have already been
taken. We have currently scheduled meetings to prepare the Clerk and his staff for
the trial and continue to prepare for trial in the event this matter is not resolved at
mediation.
If you have any questions regarding the above, please do not hesitate to
contact me.

Very truly yours,

~~~~
Cindy A. Townsend
CAT/em
cc:

David Ellspermann
Katherine Glynn, Esq.
Yari Benitez