Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 1 of 27

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
Tallahassee Division
WILLIAM DEMLER, individually,
and on behalf of all others similarly situated,
Plaintiff,
vs.

Case No.

MARK S. INCH, in his official capacity as
Secretary of the Florida Department of
Corrections,
Defendant.
_____________________________________/
CLASS ACTION COMPLAINT
FOR INJUNCTIVE AND DECLARATORY RELIEF
The Florida Department of Corrections (FDOC) has effectively stolen
millions of dollars of digital music and books from the prisoners in its custody.
After years of selling these digital media files to FDOC prisoners for listening
during their incarceration, the FDOC recently implemented a statewide policy
forcing prisoners to surrender their digital media players, rescinding access to all of
their digital music and books, and requiring them to re-purchase their digital media
files from the FDOC’s new contractor. This policy has resulted in the confiscation
of the lawfully purchased property of thousands of prisoners, for which the FDOC
has not paid just compensation, in violation of the Takings Clause of the Fifth
Amendment, and the Due Process Clause of the Fourteenth Amendment. Plaintiff,
1

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 2 of 27

William Demler, brings this class action lawsuit to redress the confiscation of his
property and the property of thousands of other prisoners that was unlawfully taken
by the FDOC pursuant to its unconstitutional policy.
Preliminary Statement
1.

Like many state prison systems, the FDOC permits its prisoners to

access electronic music files and books. This is not a purely altruistic exercise; the
FDOC also profits from the availability of electronic media files to prisoners in its
custody.
2.

To induce prisoners to purchase files, the FDOC explicitly promised

that prisoners would own any purchased files forever.

The promise had its

intended effect: From 2011 to 2017, the FDOC, through its prior vendor, sold
nearly 6.7 million digital media files, at a cost of roughly $11.3 million to prisoners
and their families.

The FDOC itself realized approximately $1.4 million in

commissions on these sales during the same time period.
3.

In April 2017, however, the FDOC terminated its contract with its

existing vendor, in favor of a competing vendor contract with higher profit
margins. But to achieve such profits, the FDOC realized that financial concessions
would have to be made. Rather than make those concessions itself, the FDOC
decided that its prisoners would pay the price.

2

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 3 of 27

4.

As such, and for the sole purpose of making its new vendor contract

more profitable for both itself and its vendor, the FDOC instituted and
implemented a formal, statewide policy and practice which mandated the
confiscation of all digital media files that had been lawfully purchased by current
FDOC prisoners, without just compensation, forcing prisoners to re-purchase these
songs from the FDOC’s new vendor (the “Multimedia Tablet Policy”).
5.

Plaintiff, William Demler, individually and on behalf of all others

similarly situated, brings this class action lawsuit against Defendant, Mark S. Inch,
in his official capacity as Secretary of the FDOC, challenging the constitutionality
of the FDOC’s policy and actions under the Takings and Due Process Clauses of
the Fifth and Fourteenth Amendments to the U.S. Constitution, and seeks
declaratory and injunctive relief on behalf of all such persons.
Jurisdiction and Venue
6.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331 in

that this is a civil action arising under the Constitution of the United States, and
pursuant to 28 U.S.C. § 1343(a)(3) in that this action seeks to redress the
deprivation, under color of state law, of rights secured to Plaintiff and the putative
class by the Constitution and laws of the United States.
7.

Plaintiff’s claims for relief are predicated, in part, upon 42 U.S.C. §

1983, which authorizes actions to redress the deprivation, under color of state law,

3

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 4 of 27

of rights, privileges, and immunities secured by the Constitution and laws of the
United States, and upon 42 U.S.C. § 1988, which authorizes the award of
attorneys’ fees and costs to prevailing plaintiffs in actions brought pursuant to 42
U.S.C. § 1983.
8.

Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201

and 2202, as well as Rules 57 and 65 of the Federal Rules of Civil Procedure.
9.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and §

1391(c), as Defendant does business in this judicial district and division, and many
of the events or omissions giving rise to the claims occurred in this judicial district
and division.
Parties
10.

Plaintiff, William Demler, is an individual currently incarcerated at

the FDOC’s South Florida Reception Center, South Unit, at 13910 N.W. 41st
Street, Doral, Florida 33178-3014. Mr. Demler is serving a life sentence.
11.

Plaintiff has exhausted all available administrative remedies.

12.

Defendant, Mark S. Inch, is the Secretary of the Florida Department

of Corrections. In this capacity, he is responsible for the overall operation of the
FDOC, including the operation of Florida’s prison facilities, compliance with the
U.S. Constitution and federal laws, and the promulgation and enforcement of all

4

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 5 of 27

FDOC rules, regulations, policies and practices, including, but not limited to, the
Multimedia Tablet Program.
13.

Defendant Inch has statutory authority to implement the relief sought

in this Complaint. See Fla. Stat. § 20.315.
14.

The actions of Defendant Inch and his agents were performed under

color of state law and constitute state action. All staff members mentioned herein
were employees or agents of Defendant and acted within the scope of their
employment or agency at all relevant times.
15.

Defendant Inch is sued in his official capacity for injunctive and

declaratory relief, and as such may be referred to herein as the “Florida
Department of Corrections” or the “FDOC.”
General Factual Allegations
History of the FDOC’s Digital Music Player Program
16.

Started in 2011 in select facilities, the stated purpose of the FDOC’s

Digital Music Player Program was to provide a secure method by which FDOC
prisoners could browse, select, purchase and download digital content to
specialized digital media (MP3/MP4) players made explicitly for use by inmates in
a correctional setting.
17.

In or about 2014, the FDOC decided to expand the program, and

attempted to secure a single contractor for the provision and operation of its Digital

5

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 6 of 27

Music Player Program statewide. As such, the FDOC invited proposals from
qualified vendors that had experience in the provision of large-scale MP3 player
program services in correctional or other security and law enforcement settings.
18.

As part of this bidding process, both the FDOC’s Invitation to

Negotiate Contractual Services, as well as the FDOC’s Request for Proposal for
Contractual Services, explicitly stated that compatibility with the FDOC’s prior
vendor was a mandatory requirement of the contract, in order to ensure that
prisoners would not bear the cost of the transition between vendors:
[T]he proposed system must allow for inmates who currently have a
device and/or songs purchased from the current Contractor to transfer
and/or obtain updated equipment and/or music compatible with the
successful contractor’s Digital Music Player Program. It is the intent
of the Department that the implementation of a new Digital Player
Program to have little or no financial impact on inmates presently
participating in the Department’s current program.
19.

In or about 2014, pursuant to these guidelines, the FDOC granted the

Digital Music Player Program contract to Keefe Commissary Network, LLC, doing
business as Access Corrections.
20.

Under the Digital Music Player Program, FDOC prisoners had the

ability to purchase one of two specially designed digital media players, for either
$99.95 or $119.95 depending on storage capacity, as well as various accessories
for the players, including ear buds ($16.00), armbands ($15.00), and screen
protectors ($6.00).

6

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 7 of 27

21.

Under the Digital Music Player Program, FDOC prisoners also had

the ability to purchase digital media files – including music and audiobooks – for
use with the specially designed media player, using funds from their inmate
accounts. In order to purchase digital media files—available to FDOC prisoners at
a cost of $1.70 per file or song—FDOC prisoners were required to purchase blocks
of “Prepaid Media Credits,” which required FDOC prisoners to purchase a
minimum of five files or songs at a cost of $8.50.
22.

FDOC prisoners purchased these blocks of credits using a Florida

Department of Corrections MP4 Order Form, which was available at each FDOC
institution. These forms were then picked up and processed by Access Corrections’
representatives, on a bi-monthly basis, acting on behalf of, and at the direction of,
the FDOC.
23.

FDOC prisoners could then use these prepaid credits by securely

connecting their digital media player to a kiosk at their FDOC institution, allowing
them to access the MP3/MP4 Player Music Library and download available files or
songs to a cloud-based library reserved for their use.
24.

FDOC prisoners also used the kiosks to transfer their downloaded

digital media files from their cloud-based library to their specific digital media
player device. While FDOC prisoners could only transfer the number of digital
media files that would fit within the memory capacity of his or her digital media

7

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 8 of 27

player, there was no limit on the number of credits, files, or songs that an FDOC
prisoner could purchase, own, or maintain in their cloud-based library.
25.

In order to utilize the digital media player, FDOC prisoners were also

required to connect their players to one of the kiosks at their FDOC institution at
regular intervals, in order to extend the device’s Security Timer. If an FDOC
prisoner failed to, or was unable to, connect his or her digital media player to a
kiosk every thirty (30) days, the digital media player would be automatically
disabled, in order to prevent fraudulent use of the device as well as its use outside
of the FDOC’s facilities.
26.

Pursuant to the FDOC’s rules and regulations, at all relevant times,

FDOC prisoners were not permitted to purchase, obtain, or otherwise own any
digital media player other than the one offered by, and purchased through, the
Digital Music Player Program, nor were FDOC prisoners permitted to purchase,
obtain, or otherwise own any digital media files other than those offered by, and
purchased through, the Digital Music Player Program.
27.

In order to encourage prisoners to purchase digital media players,

digital media files, and accessories, the FDOC published numerous advertisements
that were posted in various FDOC institutions and provided to prisoners. These
advertisements touted various qualities of the digital media players offered by the
FDOC, including their memory capacity, operating power, and screen size.

8

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 9 of 27

28.

In addition to touting the qualities of the digital media players

themselves, at least one widely-distributed advertisement, which appeared on the
digital media player order form itself, also touted various qualities of the Digital
Music Player Program, including the following representation:
Browse, search and preselect songs from updated music catalogs
holding millions of song titles representing a wide array of music
genres. You have the ability to purchase and listen to unlimited music
utilizing the re-download feature free of charge. Once music is
purchased, you’ll always own it! (emphasis supplied).
29.

This representation was made by the FDOC to Plaintiff, and all

participating FDOC prisoners, to induce them into purchasing digital media files.
30.

This advertisement also included information about restrictions that

the FDOC placed on the purchase or use of digital media players and/or files
purchased through the Digital Music Player Program, pursuant to its internal rules
and regulations.

Notably, the same advertisement that promised participating

FDOC prisoners that they would “always own” the digital media files they had
purchased listed only one restriction – that each FDOC prisoner was only
permitted to possess one digital media player at any given time.
31.

Similarly, the FDOC repeatedly represented to prisoners that they

were permitted to delete and re-order digital media files that they had purchased
from the cloud-based library, at any time and at no additional cost. In explaining
this system, the user guide that accompanied many of the digital media players

9

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 10 of 27

emphasized this re-ordering capability, and explicitly stated that prisoners would
never have to purchase the same song or book twice:
You can delete and Re-Order songs as often as you want. You will
never be charged for a song that is ordered from the Re-Order
Manager. After all, you have already paid for the song once; we don’t
think you should ever have to pay for it again.
32.

Upon information and belief, none of the materials provided to FDOC

prisoners regarding the operation of the Digital Music Player Program suggested or
informed participating FDOC prisoners that their digital media file purchases
would only be available for use during the span of the FDOC’s contract with
Access Corrections, including, but not limited to, notices, advertisements, order
forms, and/or user guides.
33.

Similarly, upon information and belief, none of the FDOC’s internal

rules or regulations ever suggested or informed participating FDOC prisoners that
their digital media file purchases would only be available for use during the span
of the FDOC’s contract with Access Corrections.
34.

Based in no small part on the belief by FDOC prisoners that any

purchases they made through the Digital Music Player Program could be accessed
at least for the duration of their incarceration with the FDOC, the Digital Music
Player Program was a financial success for the FDOC.
35.

From 2011 to 2017, FDOC prisoners purchased approximately 6.7

million digital media files through the Digital Music Player Program, at a cost of
10

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 11 of 27

roughly $11.3 million to those prisoners and their families, while the FDOC itself
realized approximately $1.4 million in commissions on these sales during the same
time period.
36.

FDOC prisoners purchased these electronic media files specifically to

listen to them in prison. FDOC prisoners do not have Internet access, and many do
not have ready access to AM/FM radios. Many do not have jobs or meaningful
work assignments. Prison can be a stressful environment, and many prisoners have
large amounts of idle time. FDOC prisoners purchased these songs for their use in
prison, to alleviate some of the stress and difficulties that come with prison life.
The FDOC’s Transition to the Current Multimedia Tablet Program
37.

In April 2017, the FDOC terminated its contract with Access

Corrections and entered into a new contract with a competing vendor – Jpay, Inc. –
that allows the FDOC to realize even higher profit margins.
38.

In order to implement its new contract, the FDOC ended the Digital

Music Player Program and began to transition to the current Multimedia Tablet
Program.
39.

Under the Multimedia Tablet Program, the FDOC offers two

multimedia tablets for sale to FDOC prisoners, for either $79.99 or $129.99,
depending on the screen size of the tablet. Similar to the previous program, the

11

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 12 of 27

Multimedia Tablet Program also allows prisoners to purchase digital music and
other files and listen to those files on their tablets.
40.

However, the Multimedia Tablet Program came with a significant

downside for all prisoners who had participated in the previous program: they
would be required to surrender their digital media players to the FDOC and lose
access to all of their digital music and books, regardless of whether they chose to
participate in the Multimedia Tablet Program or not.
41.

In order to implement the Multimedia Tablet Program, the FDOC first

cut off access to those prisoners’ cloud-based libraries in January 2018, preventing
them from downloading their own previously purchased music and books.
42.

Then, pursuant to the Multimedia Tablet Program, the FDOC has

forced, and is forcing, all FDOC prisoners who had participated in the previous
Digital Media Player Program to surrender their lawfully purchased digital media
players—including all of the digital media files on the player—to the FDOC, on
the date that they receive a new tablet under the Multimedia Tablet Program. For
those prisoners who chose not to receive a new tablet, the FDOC set a deadline of
January 23, 2019 to surrender their digital media player.
43.

Pursuant to the Multimedia Tablet Policy, on the date that the FDOC

forces a prisoner to surrender their digital media player and files, that prisoner is
given the option to mail their digital media player to Access Corrections to have

12

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 13 of 27

the Security Timer removed and mailed to someone outside of prison (for a fee of
$24.95), or have the digital media files that were stored on the player transferred to
a CD and then mailed to someone outside of prison (for the same fee).1
44.

The option to send the player and/or files to someone outside of prison

does not cure the problem. As noted above, FDOC prisoners purchased the digital
players and music to listen to them and enjoy them while in prison—not at some
unspecified time in the future. Further, many FDOC prisoners are serving life
sentences (or a term so long it is the functional equivalent of life), or have no
family or friends on the outside to whom to send the player or CD. For these
prisoners in particular, the option to mail out the player is completely illusory.
45.

Moreover, upon information and belief, for digital music files that

were stored in prisoners’ cloud-based library but not on their digital media player,
there was no option to retrieve them and send them to someone outside of prison;
these files were simply gone forever.
46.

Despite previous assurances from the FDOC that prisoners would

“always own” the digital media files they had purchased under the previous
program, the FDOC did not permit prisoners to transfer any of the digital media
files that they had purchased under the previous program to the new multimedia

1

It is unclear whether any prisoners have been able to utilize either of these options, however,
and whether the FDOC and/or Access Corrections have complied with any such requests.
13

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 14 of 27

tablets, regardless of whether such digital media files were contained on the
prisoner’s digital media player itself or in the prisoner’s cloud-based library.
47.

If prisoners want to listen to the digital music and books they had

under the previous program, they are required to re-purchase them under the
current Multimedia Tablet Program.
48.

Prisoners were forced to surrender their digital media players, and lost

access to their digital files as described above, regardless of whether they chose to
additionally purchase a multimedia tablet through the Multimedia Tablet Program,
the length of their sentence, or whether they have identifiable family members to
whom to send their property.
49.

In order to incentivize prisoners to participate in the Multimedia

Tablet Program, the FDOC offered the multimedia tablets to all prisoners at a 50%
discount for the first 60 days of availability. Prisoners who had purchased a digital
media player under the previous program also had the opportunity to obtain a
multimedia tablet during the same time period, at either no cost (a $40 discount) or
for $50.00 (a $15 discount), depending on the screen size of the tablet, and were
also supposed to receive a $10.00 media credit within two weeks of placing their
tablet order.
50.

These same incentives were offered to all FDOC prisoners who had

purchased a digital media player through the previous Digital Media Player

14

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 15 of 27

Program, regardless of the number of digital media files any particular inmate had
purchased or the value of such property at the time of its confiscation by the
FDOC. The FDOC offered no other compensation for the taking of these digital
media player and digital files.
51.

Since the implementation of the Multimedia Tablet Program, FDOC

prisoners have written hundreds of grievances and administrative appeals
complaining about the arbitrary confiscation of their property without
compensation.

The FDOC, through its Bureau of Contract Management, has

denied all such grievances and appeals.
52.

In response to the outpouring of grievances and appeals, the FDOC

developed standard response language.

That language acknowledges the

significant investment that FDOC prisoners and their families have made in the
Digital Media Player Program, stating, among other things, “we understand that
some inmates have made a significant investment in music with their current
digital music players,” and “we are aware that family members over the years have
provided funds for their loved one to add music to their current MP3 player.”
53.

Despite these acknowledgements, the FDOC has denied all such

grievances and appeals and continues to move forward with the Multimedia Tablet
Program without modification.

15

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 16 of 27

54.

Moreover, the FDOC has even explicitly admitted that the

confiscation of lawfully purchased property without compensation was done to
allow the FDOC and its new vendor to realize additional profits, stating in several
grievance responses that the confiscation of all prisoners’ digital media files is
“necessary” because “the download of content purchased from one vendor to
another vendor’s device would negate the new vendor’s ability to be compensated
for their services.”
55.

In addition, the FDOC’s standard grievance response language simply

tells prisoners that their loss of property will be good for them in the long run,
stating, “It is unfortunate that the music cannot be transferred, however, we hope
that overtime [sic] the family and the inmate will see the added value of the new
program.”
Factual Allegations Regarding Plaintiff William Demler
56.

Plaintiff, William Demler, is a current FDOC prisoner who has been,

and continues to be, deprived of his constitutional rights as a result of the FDOC’s
Multimedia Tablet Program.
57.

In 2012, while incarcerated at the FDOC’s Hamilton Correctional

Institution in Jasper, Florida, Mr. Demler purchased a digital media player through
the FDOC’s Digital Media Player Program for $99.95.

16

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 17 of 27

58.

Having viewed the FDOC’s advertisements for its Digital Media

Player Program, Mr. Demler believed that he would “always own” any digital
media files purchased by him through the Digital Media Player Program and for
use with his digital media player.
59.

Relying on this belief, Mr. Demler subsequently purchased

approximately 335 digital media files through the FDOC’s Digital Media Player
Program. Mr. Demler spent $569.50 on the purchase of these digital media files,
excluding additional costs for the digital media player, as well as ear buds and
other necessary accessories.
60.

Then, in 2017, despite assurances from the FDOC that he would

“always own” the digital media files he had purchased, the FDOC informed Mr.
Demler not only that it was terminating the Digital Media Player Program and
replacing it with the Multimedia Tablet Program, but also that he would not be
permitted to retain any of his digital media files, regardless of whether those files
were contained on his digital media player or in his cloud-based library and even if
he chose to purchase a tablet through the FDOC’s new program, and would instead
be forced to surrender his property to the FDOC’s custody.
61.

FDOC informed Mr. Demler that he would now only be permitted to

keep the digital media player and/or files he had purchased through the Digital
Media Player Program until the earlier of a) his receipt of a multimedia tablet

17

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 18 of 27

through the Multimedia Tablet Program, if he chose to purchase one, or b) January
23, 2019.
62.

While the FDOC informed Mr. Demler that he could have his digital

media player and/or files mailed to a family member for an additional fee, Mr.
Demler is serving a life sentence, and the only family with whom Mr. Demler has
any contact is a 92-year old uncle, who has no use for Mr. Demler’s digital music
player and/or files.
63.

As such, and with no other options at his disposal, in October 2018,

Mr. Demler surrendered his digital media player and all of his digital media files to
the FDOC’s custody, pursuant to the Multimedia Tablet Program. While Mr.
Demler accepted the smaller-sized multimedia tablet at no cost, he was completely
deprived of the use and enjoyment of all of his lawfully purchased songs and
digital media files. The money he had invested in his digital media files has been
effectively stolen from him.
Class Action Allegations
64.

Plaintiff brings this action as a class action, pursuant to Rule 23(a) and

23(b)(2), Federal Rules of Civil Procedure, for declaratory and injunctive relief on
behalf of himself and a class of all persons similarly situated.
65.

Plaintiff brings this class action pursuant to the Takings Clause of the

Fifth Amendment to the U.S. Constitution and the Due Process Clause of the

18

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 19 of 27

Fourteenth Amendment to the U.S. Constitution, and is a member of, and seeks to
represent, a class of persons and entities (“Plaintiff Class”) defined as:
“All FDOC prisoners whose digital media files were taken, or will be
taken, pursuant to the Multimedia Tablet Program.”
66.

Class Size (Fed. R. Civ. P. 23(a)(1)): Plaintiff avers that the proposed

class is in excess of 50 persons. The class size is so numerous that joinder of all
members is impracticable.
67.

Commonality (Fed. R. Civ. P. 23(a)(2)): There are questions of law

and fact common to all members of the Plaintiff Class.

Common material

questions of fact and law include, but are not limited to, the following:
a. the scope and nature of Defendant’s Multimedia Tablet Program;
b. whether Defendant offered just compensation to inmates whose property
was confiscated pursuant to the Multimedia Tablet Program;
c. whether the implementation and enforcement of the Multimedia Tablet
Program violates the Takings Clause of the Fifth Amendment to the U.S.
Constitution;
d. whether the implementation and enforcement of the Multimedia Tablet
Program violates the Due Process Clause of the Fourteenth Amendment
to the U.S. Constitution;
e. whether Plaintiff and the other members of the class are entitled to
declaratory relief; and
19

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 20 of 27

f. whether Plaintiff and the other members of the class are entitled to
injunctive relief.
68.

Typicality (Fed. R. Civ. P. 23(a)(3)): The claims of the named

Plaintiff are typical of the claims of all members of the class. The named Plaintiff
has suffered injuries similar in kind and degree to the injuries suffered by the
members of the class. The Defendant has acted the same with respect to the named
Plaintiff and all class members. The named Plaintiff makes the same claims and
seeks the same relief for himself and for all class members.
69.

Fair and Adequate Representation (Fed. R. Civ. P. 23(a)(4)): The

named Plaintiff will fairly and adequately represent and protect the interests of the
class members. Plaintiff is committed to this cause, will litigate it vigorously, and
is aware of the fiduciary duties of a class representative. Plaintiff’s interests are
consistent with and not antagonistic to the interests of the other class members.
Plaintiff has a strong personal interest in the outcome of this action and has
retained experienced class counsel to represent him and the other class members.
70.

Class Counsel is experienced in civil rights and class action litigation

on behalf of prisoners and has successfully litigated such claims.
71.

Fed. R. Civ. P. 23(b)(2): Defendant has acted or refused to act on

grounds generally applicable to the members of the class, thereby making

20

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 21 of 27

appropriate final injunctive and declaratory relief with respect to the class as a
whole.
CAUSES OF ACTION
Count 1
Takings Clause of the Fifth Amendment to the U.S. Constitution
via 42 U.S.C. § 1983
72.

Plaintiff reasserts and incorporates herein by reference all averments

set forth in all paragraphs preceding the Causes of Action section, above.
73.

Plaintiff’s claim for relief on this Count One is predicated upon 42

U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of
state law, of rights, privileges and immunities secured by the Fifth and Fourteenth
Amendments to the U.S. Constitution and the laws of the United States, and upon
42 U.S.C. § 1988, which authorizes the award of attorneys’ fees and costs to
prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983.
74.

Plaintiff and the putative class have a constitutionally protected and

fundamental right to property in their purchased digital media files.
75.

Pursuant to the Takings Clause of the Fifth Amendment to the U.S.

Constitution, made applicable to the states and their agencies through the
Fourteenth Amendment to the U.S. Constitution, private property shall not be
taken without just compensation.

21

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 22 of 27

76.

Through the implementation of the Multimedia Tablet Program,

Defendant FDOC has violated the Takings Clause by taking the private property of
prisoners who purchased digital media files without just compensation.
77.

The implementation and enforcement of the Multimedia Tablet

Program is facially unconstitutional under the Takings Clause, as it requires the
taking of private property of prisoners without just compensation.
78.

Plaintiff and the putative class purchased digital media files through

the Digital Media Player Program with funds from their inmate accounts, and at
the time of purchase the digital media files were authorized property for Plaintiff
and the putative class to possess.
79.

Defendant’s Multimedia Tablet Program has invaded and interfered

with Plaintiff’s and the putative class’s legally protected property interests.
80.

Defendant has deprived Plaintiff and the putative class of their

possessory right, use, and enjoyment of the digital media files they purchased
through the Digital Media Player Program, without just compensation, through the
implementation and enforcement of its Multimedia Tablet Program.
81.

The Multimedia Tablet Program constituted a direct government

appropriation of private property.
82.

Defendant’s Multimedia Tablet Program has or will result in the

permanent deprivation of Plaintiff and the putative class’s possessory rights, use,

22

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 23 of 27

and enjoyment of the digital media files they purchased through the Digital Media
Player Program.
83.

Defendant’s Multimedia Tablet Program was not implemented to

address any improper use of the digital media files purchased through the Digital
Media Player Program by Plaintiff and the putative class, and was not implemented
to address any security concern.
84.

Plaintiff and the putative class are entitled to and have not been

provided with just compensation for the taking.
85.

Plaintiff and the putative class have no adequate state court remedies

to redress this taking.
86.

As a direct and proximate cause of Defendant’s official policy and

actions, Plaintiff and the putative have suffered, and will continue to suffer, from
violation of their rights under the Takings Clause of the Fifth Amendment. These
harms will continue unless enjoined by this Court.
Count 2
Fourteenth Amendment to the U.S. Constitution: Substantive Due Process
via 42 U.S.C. §1983
87.

Plaintiff reasserts and incorporates herein by reference all averments

set forth in all paragraphs preceding the Causes of Action section, above.
88.

Plaintiff’s claim for relief on this Count Two is predicated upon 42

U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of

23

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 24 of 27

state law, of rights, privileges and immunities secured by the Fourteenth
Amendments to the U.S. Constitution and the laws of the United States, and upon
42 U.S.C. § 1988, which authorizes the award of attorneys’ fees and costs to
prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983.
89.

Plaintiff and the putative class have a constitutionally-protected and

fundamental right to property in their purchased digital media files.
90.

Plaintiff and the putative class purchased digital media files through

the Digital Media Player Program with funds from their inmate accounts, and at
the time of purchase the digital media files were authorized property for Plaintiff
and the putative class to possess. Accordingly, Plaintiff and the putative class have
a right to the digital media files through the Digital Media Player Program.
91.

Defendant has deprived Plaintiff and the putative class of their

possessory right, use, and enjoyment of the digital media files they purchased
through the Digital Media Player Program.
92.

Defendant’s Multimedia Tablet Program was not implemented to

address any improper use of the digital media files purchased through the Digital
Media Player Program by Plaintiff and the putative class.
93.

Defendant’s implementation and enforcement of the Multimedia

Tablet Program was, and is, arbitrary and irrational under color of law.

24

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 25 of 27

94.

The Multimedia Tablet Program was implemented in Defendant’s

legislative capacity, as the Program has broad-ranging impacts for large segments
of the FDOC population, rather than being directed at a particular person.
95.

The Multimedia Tablet Program is arbitrary and capricious, does not

bear a substantial relation to the public health, safety, morals, or general welfare,
has no rational basis, was undertaken for an improper motive, and is therefore an
invalid exercise of the police power.
96.

The Multimedia Tablet Program is facially unconstitutional under the

substantive Due Process Clause of the Fourteenth Amendment.
97.

The deprivation of Plaintiff’s and the putative class’s property was the

result of an abuse of governmental power.
98.

These actions are essentially theft and breach of contract, and as such,

shock the conscience.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, individually and on behalf of all others similarly
situated, demands judgment in his favor and against Defendant and requests an
order:
A. certifying this action as a class action pursuant to Rule 23(b)(2),
appointing Plaintiff William Demler as the representative of the

25

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 26 of 27

members of the class defined above, and appointing the undersigned
as counsel for the members of the class;
B. finding and declaring that Defendant has violated the Takings Clause
of the Fifth Amendment to the U.S. Constitution through its
implementation of the Multimedia Tablet Program;
C. finding and declaring that Defendant has violated the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution by
violating the substantive due process rights of Plaintiff and the
putative class through its implementation of the Multimedia Tablet
Program;
D. granting Plaintiff and the putative class preliminary and permanent
injunctive relief that will restore their access while in prison to the
digital media files they purchased through the Digital Media Player
Program;
E. awarding Plaintiff attorneys’ fees and costs pursuant to 42 U.S.C. §
1988; and
F. granting such other and further relief as this Court deems appropriate.

26

 Case 4:19-cv-00094-MW-CAS Document 1 Filed 02/19/19 Page 27 of 27

Respectfully submitted,
Shawn A. Heller, Esq.
Florida Bar No. 46346
shawn@sjlawcollective.com
Joshua A. Glickman, Esq.
Florida Bar No. 43994
josh@sjlawcollective.com
Social Justice Law Collective, PL
974 Howard Ave.
Dunedin FL 34698
Tel: (305) 323-6433
Dante P. Trevisani, Esq.
Florida Bar No. 72912
dtrevisani@floridajusticeinstitute.org
Ray Taseff, Esq.
Florida Bar No. 352500
rtaseff@floridajusticeinstitute.org
Florida Justice Institute, Inc.
100 S.E. 2nd Street
3750 Miami Tower
Miami, Florida 33131-2309
305-358-2081
305-358-0910 (FAX)
By:

27

s/Joshua A. Glickman
Joshua A. Glickman, Esq.