IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA MARK ONDREY, vs. Appellant/Petitioner, FLORENCE PATTERSON, as Personal Representative of the Estate of JOHN WILLIAM PATTERSON, deceased. Case No.: SC04-961 L.T. No.: 2D03-2338 Appellee/Respondent. JURISDICTIONAL BRIEF OF APPELLEE/RESPONDENT FLORENCE PATTERSON ON PETITION FOR REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL, SECOND DISTRICT OF FLORIDA Roy L. Glass, Esquire LAW OFFICES OF ROY L. GLASS, P.A. 5501 Central Avenue St. Petersburg, FL 33710 (727) 384-8888 (727) 345-3008 fax Attorney for Appellee FBN: 210781

TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND THE FACTS... 1 PREFACE TO ARGUMENT... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. THE SECOND DISTRICT COURT S DECISION DOES NOT EXPRESSLY AFFECT A CLASS OF STATE OFFICERS... 3 II. THE SECOND DISTRICT S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS... 5 III. THE SECOND DISTRICT S DECISION DOES NOT EXPRESSLY CONSTRUE A PROVISION OF THE FEDERAL CONSTITUTION... 7 CONCLUSION... 10 CERTIFICATE OF SERVICE... 10 CERTIFICATE OF COMPLIANCE... 10 i

TABLE OF AUTHORITIES Cases Page No Armstrong v. City of Tampa, 106 So. 2d 407 (Fla. 1958)... 7 Christian v. Overstreet Paving Co., 679 So. 2d 839 (Fla. 2d DCA 1996)... 9 City of Jacksonville v. Fla. First Nat l Bank of Jacksonville, 339 So. 2d 632 (Fla. 1976)... 6 Dept. of Health & Rehabilitative Services v. National Adoption Counseling Services, Inc., 498 So. 2d 888 (Fla. 1986)... 6 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981)... 6 Greason v. Kemp, 891 F. 2d 829 (11th Cir. 1990)... 7, 8 Green v. Inman, 539 So. 2d 614 (Fla. 4th DCA 1989)...5-7 Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1983)... 7 Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002)... 8 Hutchinson v. W. Miller, 548 So. 2d 883 (Fla. 5th DCA 1989)... 5, 6 Ludlow v. Brinker, 403 So. 2d 969 (Fla. 1981)... 3 McDaniel v. Woodard, 886 F. 2d 311, 313 (11th Cir. 1989)... 8 ii

Ogle v. Pepin, 273 So. 2d 391 (Fla. 1973)... 7 Reaves v. State, 485 So.2d 829 (Fla. 1986)... 1, 3 School Board of Pinellas County v. District Court of Appeal, 467 So. 2d 985, 986 (Fla. 1985)... 4 Schutz v. Schutz, 481 So. 2d 1290 (Fla. 1991)... 7 Spradley v. State, 293 So. 2d 697 (Fla. 1974)... 3 Constitutions Art. V, 3(b)(3), Art. VIII, 1(d), Fla. Const.... 3 Statutes 42 U.S.C. 1983... 8 Rules Fla.R.App.P. 9.030(a)(2)(A)(I)... 7 Fla.R.App.P. 9.030(a)(2)(A)(ii)... 7 Fla.R.App.P. 9.030(a)(2)(A)(iii)... 3 iii

STATEMENT OF THE CASE AND THE FACTS Respondent, FLORENCE PATTERSON, necessarily agrees with Petitioner ONDREY s Statement of the Case and the Facts because this Court has made it clear, long ago, that [t]he only facts relevant to our decision to accept or reject such petitions are those facts contained within the four corners of the decisions allegedly in conflict.... Reaves v. State, 485 So.2d 829, 830 at fn.3 (Fla. 1986). To the extent that footnote 1 on page 5 of Petitioner s Jurisdictional Brief is intended as an extended statement of the facts based upon what a review of the record may reveal, it is pointless, misleading and inappropriate. Id. PREFACE TO ARGUMENT Patently noteworthy, and close to being dispositive, is Petitioner ONDREY s complete and inexcusable avoidance of the genuine material disputed conflict in testimony between Deputy Ondrey and a witnessing inmate, Tajhon Wilson. On perusal of the Second District s decision, attached hereto for convenience at A-1, this Court may summarily deny review on these jurisdictional briefs by observing the following: Mr. Wilson s testimony, even though disputed by Corporal Ondrey, is evidence that Corporal Ondrey disregarded the danger that Mr. Patterson posed to himself. (A-1, pg 6) 1

The trial court found that Mr. Wilson s deposition testimony raised a substantial question of material fact for resolution by the jury concerning Corporal Ondrey s immunity. Assuming that a jury believes Mr. Wilson s testimony, we agree with the trial court that the jury could conclude that Corporal Ondrey s failure to act under the circumstances amounted to a wanton and willful disregard of Mr. Patterson s safety. (A- 1, pg 7). The record evidence reflects a genuine issue of material fact: whether a reasonable person in Corporal Ondrey s position would have known that his actions and omissions, under all of the circumstances, amounted to a deliberate indifference to Mr. Patterson s psychiatric needs and constitutional rights. (citation omitted). Accordingly, the trial court did not depart from the essential requirements of law by denying Corporal Ondrey s motion for summary judgment as to qualified immunity. (A-1, pg 8). SUMMARY OF THE ARGUMENT Reviewing the four corners of the Second District Court s fact dependent decision, 29 Fla. L. Weekly D522 (A-1), it is clear it does not directly and expressly conflict with decisions of any other district court of appeal and certainly not those cited by the Petitioner; does not expressly affect a class of constitutional or state officers as the decision does not directly and exclusively effect the duties of a particular class of such officers but only modifies, construes, or adds to the case law which comprises the substantive and procedural law of this State; nor, does the Second District decision expressly construe a provision of the Federal Constitution; 2

rather, it simply addresses existing Federal law in the 1983 context implicating the Eighth Amendment to the United States Constitution. Petitioner Ondrey s Petitioner for Review should be readily and summarily denied as there are no sufficient jurisdictional grounds for this Court to properly accept this Petition. ARGUMENT I. THE SECOND DISTRICT COURT S DECISION DOES NOT EXPRESSLY AFFECT A CLASS OF STATE OFFICERS While it is certainly undisputed that the Sheriffs are constitutional officers and their deputies appointed officers, that does not, in and of itself, establish that the Second District s decision expressly affects a class of state officers as contemplated in Art. V, 3(b)(3), Art. VIII, 1(d), Fla. Const.; and Fla.R.App.P. 9.030(a)(2)(A)(iii). Even before the 1980 Amendments to the Florida Rules of Appellate Procedure, the applicable Rule, supra, provided a very limited or restricted basis for discretionary review which did not include a decision which only indirectly and generally affected the duties of a particular class of constitutional or state officers. See Spradley v. State, 293 So. 2d 697, 701 (Fla. 1974). In the instant case, factually dependent as it is, the Second District Court of Appeal simply construed or added to the case law 3

which would be insufficient to invoke jurisdiction under the predecessor Florida Rule of Appellate Procedure. Now, expressly in the Rule further limits the basis for invoking jurisdiction. See Ludlow v. Brinker, 403 So. 2d 969 (Fla. 1981) (district court ruling specifically denying indigent party s right to record judgment without charge expressly effects all court clerks). Expressly means within the written district court opinion. School Board of Pinellas County v. District Court of Appeal, 467 So. 2d 985, 986 (Fla. 1985). The review of the Second District Court s written opinion reveals that it would not affect other deputy detention officers unless, of course, they were specifically told by an inmate that another psychological observation inmate was going to commit suicide, they disregarded the other inmate s notification that the deceased tied a shoelace to the towel rack, and the involved detention officer merely told the reporting inmate not to worry about it, did not refer to medical, and then did not remove a shoelace from the inmate who eventually commits suicide. (A-1, pg 6-7). Contrary to Petitioner Ondrey s contention, the Second District Court s decision does not impose an unreasonable bar to qualified immunity for detention officers nor does it require these deputies to evaluate potential problems and reach the right diagnosis. All it requires is that when presented with the facts that an inmate is at risk of suicide, the law has been well established that jail personnel do not simply 4

and indifferently ignore that; and, that there is an operational policy that they refer psychological observation inmates to medical. This implicitly does not require detention officers to make a diagnosis. Rather, they are necessarily the custodial eyes and ears on the line for medical personnel in giving the medical personnel an opportunity to evaluate and make the appropriate diagnosis and determination for further inmate placement within the jail confines. Again, the Second District Court of Appeal properly denied Petitioner Ondrey s Petition for Certiorari on this point. Given the fact dependent decision by the trial court and that of the Second District Court of Appeal, there does not exist a sufficient jurisdictional basis upon which this Court should accept the Petition for Review because the decision simply does not expressly affect a class of constitutional officers. The Second District Court of Appeal properly denied Petitioner Ondrey s Motion for Rehearing, for Clarification and Certification as is evidenced simply by review of Respondent s Memorandum of Law in Opposition to Petitioner s Motion for Rehearing, for Clarification, Rehearing En Banc, and for Certification to the Florida Supreme Court. So, too, should this Court deny the Petition for Review on this basis. II. THE SECOND DISTRICT S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS 5

Again, on the face of the Second District s decision, it can not be said that the two (2) cases cited by Petitioner Ondrey, Hutchinson v. W. Miller, 548 So. 2d 883 (Fla. 5th DCA 1989) or Green v. Inman, 539 So. 2d 614 (Fla. 4th DCA 1989), are in express and direct conflict for the simple reason that neither one of those cases is cited by the Second District Court of Appeal in its written decision. Implied conflict may no longer serve as a basis for this Court s jurisdiction. Dept. of Health & Rehabilitative Services v. National Adoption Counseling Services, Inc., 498 So. 2d 888, 889 (Fla. 1986). True, the conflict of decisions may not be expressly identified in the district court opinion, Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981), but as a general rule conflict must exist either (1) where an announced rule of law conflicts with other appellate expressions of law, or (2) where a rule of law is applied to produce a different result in a case which involves substantially the same controlling facts as a prior case. City of Jacksonville v. Fla. First Nat l Bank of Jacksonville, 339 So. 2d 632, 633 (Fla. 1976). Neither exist here. First, it is obvious that the Second District Court s decision does not involve substantially the same controlling facts as either Hutchinson v. W. Miller or Green v. Inman, supra. Nor, upon the perusal of these cases is the Second District Court s announced rule of the law in conflict with expressions of law in either Hutchinson v. W. Miller or Green v. Inman, supra. 6

Ironically, it is the Respondent who first cited Hutchinson v. W. Miller, supra, in response to Petitioner Ondrey s Petition for Certiorari to the Second District Court of Appeal for the wholly consistent observation that non-medical personnel have an operational duty to refer inmates to medical. Respondent is at a loss to surmise how the Second District Court s fact dependent decision in any way conflicts with the announced expressions of law in Green v. Inman -- particularly since in this case there was an official policy that jail personnel were to immediately refer psychological observation inmates to medical, no matter how questionable an inmate s behavior may be. III. THE SECOND DISTRICT S DECISION DOES NOT EXPRESSLY CONSTRUE A PROVISION OF THE FEDERAL CONSTITUTION Again, expressly as used in the language of Fla.R.App.P. 9.030(a)(2)(A)(I) or (a)(2)(a)(ii) is intended to limit or restrict the jurisdictional basis for this Court s discretionary review. Nowhere in the Second District Court s written decision is a United States Constitutional provision explained or construed. Rather, mere reference to the Eighth Amendment is made in relationship to the citation of some Federal cases on the issue of qualified immunity. This is an insufficient basis to invoke jurisdiction. See Ogle v. Pepin, 273 So. 2d 391 (Fla. 1973); Armstrong v. City of Tampa, 106 So. 2d 407 (Fla. 1958). But see Schutz v. Schutz, 481 So. 2d 1290 (Fla. 1991); Haven 7

Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1983). Petitioner Ondrey s contention is that the Second District misapplied the constitutional law of the Eighth Amendment by relying upon Greason v. Kemp, 891 F. 2d 829 (11th Cir. 1990). The Second District Court of Appeal properly denied Petitioner Ondrey s Petition for Certiorari recognizing that Greason v. Kemp was sufficiently similar in facts to be of appropriate application. Suffice it to state that the panel, including Judge Altenbernd dissenting on other grounds, were unanimous in their conclusion that the material disputed issues of fact precluded the determination as a matter of law that Corporal Ondrey was entitled to qualified immunity under 42 U.S.C. 1983. Further, Petitioner Ondrey attempts to support this misguided contention by citing to Federal decisions predating Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002), which is significant in the development of 1983 liability by clarifying that the stringent similar material fact case requirements misapplied by Federal courts in determining whether qualified immunity would attach is not the law of the land. Rather, the United States Supreme Court clarified that the question is not whether an individual officer has knowledge of an actual case on point; rather, that the individual officer had fair warning that his acts may be unconstitutional. 8

The Second District Court s decision is in full consonance with Hope v. Pelzer, supra. Since a review of the qualified immunity claim involves assumption that the facts are as Plaintiff alleges them, see McDaniel v. Woodard, 886 F. 2d 311, 313 (11th Cir. 1989); and, established Florida law is that if the record reflects the existence of any genuine issue of material fact, or even the possibility of such an issue, or even the slightest doubt that an issue might exist, summary judgment is improper, e.g. Christian v. Overstreet Paving Co., 679 So. 2d 839 (Fla. 2d DCA 1996), the trial court denying Petition Ondrey s Motion for Summary Judgment on the issue of qualified immunity and the Second District Court of Appeal agreeing with that disposition, establishes no jurisdictional bases under which this Honorable Court should accept jurisdiction. Indeed, since the Second District Court of Appeal has issued its Mandate and this matter has been scheduled for jury trial in November, 2004, it is urged that the Florida Supreme Court summarily deny Petitioner Ondrey s Petition for Review so that this matter may proceed to jury trial as scheduled. By separate Motion filed in conjunction herewith, Respondent Patterson respectfully requests that this Court award attorney s fees. Given the facial inadequacy of a basis to invoke the jurisdiction of this Court, it is respectfully 9

submitted that any reluctancy to award attorney s fees at the jurisdictional briefing level should be considered in favor of awarding such fees given the circumstances here. 10

CONCLUSION Facially, this fact dependent decision by the Second District Court of Appeal reveals absolutely no sufficient jurisdictional grounds and this Court should readily and summarily deny Petitioner Ondrey s improvident Petition for Review. CERTIFICATE OF SERVICE I CERTIFY that a true copy of the foregoing has been furnished by U. S. Mail to Thomas E. Spencer, Esquire, 315 Court St., Clearwater, FL 33756 this day of June, 2004. LAW OFFICES OF ROY L. GLASS, P.A. Roy L. Glass, Esquire 5501 Central Avenue St. Petersburg, FL 33710 (727) 384-8888 (727) 345-3008 fax Attorney for Plaintiff FBN: 210781 CERTIFICATE OF COMPLIANCE I CERTIFY that this Brief was prepared and printed in Times New Roman 14- point font, comporting with the font requirements of Fla.R.App.P. 9.210(a)(2). 11

Roy L. Glass, Esquire 12