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Case 1:11-cv-24145-PAS Document 14 Entered on FLSD Docket 12/16/2011 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA



Case No: 1:11-cv-24145-PAS



PRISON LEGAL NEWS,
a project of the HUMAN RIGHTS DEFENSE CENTER,
a not-for-profit, Washington charitable corporation,















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Plaintiff,

v.






































THE GEO GROUP, INC.,
a Florida Corporation,

CORRECTIONS CORPORATION OF AMERICA,
a Tennessee Corporation, registered in and doing


business in the state of Florida, and

KENNETH S. TUCKER, in his official

capacity as Secretary of the Florida Department of
Corrections,





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Defendants.




















FIRST AMENDED COMPLAINT

Introduction

1.

Plaintiff, PRISON LEGAL NEWS, brings this action pursuant to 42 U.S.C. § 1983,

to enjoin Defendants, THE GEO GROUP, INC., a Florida Corporation, CORRECTIONS

CORPORATION OF AMERICA, a Tennessee Corporation registered in and doing business in the

state of Florida, and KENNETH S. TUCKER, in his official capacity as Secretary of the Florida

Department of Corrections (“FDOC”), from barring, in violation of the First and Fourteenth

Amendments to the U.S. Constitution, the receipt by inmate subscribers of the journal Prison Legal

News, and to require Defendants to provide Plaintiff with constitutionally required notice as well as

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an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored

by Defendants. Plaintiff also seeks a declaratory judgment that Rule § 33-501.401(3), F.A.C., is

unconstitutional as applied by the Defendants to Plaintiff, because it is used by the Defendants to

justify the prohibition on sending literature to inmates, which has adversely affected Plaintiff’s

services to Florida’s inmates.

2.

Plaintiff brings this action because the Defendants have repeatedly ignored their

constitutional duty to allow Plaintiff’s publications into their institutions. In fact, the FDOC –

through the Defendant Secretary – has disregarded previous rulings by the Eleventh Circuit on this

issue, and has continued to censor these publications despite previously changing its policy to allow

these same publications and rendering an earlier identical lawsuit moot.

3.

Plaintiff has worked for years to provide news and information to inmates regarding

their education, well-being, and safety, while abiding by the guidelines of the institutions into which

they send their publications. Defendants’ policies have injured Plaintiff, as well as the inmates with

whom they correspond, because Defendants continue to deny Plaintiff the right to send inmates

publications designed to benefit them, both while incarcerated and after their release.

Jurisdiction and Venue

4.

Jurisdiction of this Court is invoked under 28 U.S.C. § 1331 (federal question), as this

action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343

(civil rights), as this action seeks redress for civil rights violations under 42 U.S.C. § 1983.

5.

Plaintiff’s claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes

actions to redress the deprivation, under color of state law, of rights, privileges and immunities

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secured to the Plaintiff by the First, Fifth, and Fourteenth Amendments to the U.S. Constitution and

laws of the United States.

6.

This Court has jurisdiction over claims seeking declaratory and injunctive relief

pursuant to 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.

7.

Plaintiff’s claim for attorneys’ fees and costs is predicated 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.

Venue properly lies in the Southern District of Florida pursuant to 28 U.S.C. § 1391

and Local Rule 3.4(d), S.D. Fla. Defendant The Geo Group, Inc’s corporate World Headquarters

and principal place of business is located within the Southern District of Florida, Defendant

Corrections Corporation of America’s registered agent resides in the Southern District of Florida,

Defendant Tucker has a Regional office, eight facilities and thousands of inmates in the Southern

District of Florida, and “a substantial part of the events or omissions giving rise to the claim”

occurred in the Southern District of Florida.

9.

Plaintiff seeks temporary, preliminary, and permanent injunctive relief pursuant to

Rule 65, Federal Rules of Civil Procedure.

Parties

10.

Plaintiff, Prison Legal News (“PLN”), is a project of the Human Rights Defense

Center, a not-for-profit, Washington charitable corporation under IRS Code § 501(c)(3), with offices

in Brattleboro, Vermont. PLN publishes Prison Legal News, a monthly journal of prison news and

analysis.

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11.

Defendant, The GEO Group, Inc. (hereinafter “GEO”), is a Florida, for-profit

corporation with its corporate World Headquarters located in Boca Raton, Florida. GEO provides

correctional operation and management services to state and local governments around the world.

12.

At all times material to this action, GEO contracted with the Florida Department of

Management Services (hereinafter “DMS”) to assume the full operation and management of

Blackwater River Correctional Facility (hereinafter “Blackwater”) in Milton, Florida. Blackwater

confines a large number of inmates who have sought and been prohibited by Defendant GEO from

receiving Plaintiff’s publications. Defendant GEO has authority pursuant to Rule § 33-501.401,

F.A.C., to impound incoming mail, including Plaintiff’s publications, and is required by Rule § 33-

501.401, F.A.C., to notify Plaintiff that its mail has been censored. Defendant GEO is sued for

injunctive and declaratory relief, damages, attorneys’ fees and costs.

13.

Defendant, Corrections Corporation of America (hereinafter “CCA”), is a Tennessee,

for-profit corporation registered and doing business in the state of Florida. CCA provides

correctional operation and management services to federal, state, and local facilities across the

country.

14.

At all times material to this action, CCA contracted with the Florida Department of

Management Services to assume the full operation and management of Graceville Correctional

Facility (hereinafter “Graceville”) in Graceville, Florida. Graceville confines a large number of

inmates who have sought and been prohibited by Defendant CCA from receiving Plaintiff’s

publications. Defendant CCA has authority pursuant to Rule § 33-501.401, F.A.C., to impound

incoming mail, including Plaintiff’s publications, and is required by Rule § 33-501.401, F.A.C., to

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notify Plaintiff that its mail has been censored. Defendant CCA is sued for injunctive and

declaratory relief, damages, attorneys’ fees and costs.

15.

Defendant, Kenneth S. Tucker, is the Secretary of the FDOC. Under Defendant

Tucker’s control, the FDOC manages all correctional facilities within the state of Florida, with the

exception of those facilities managed by Defendants GEO and CCA. Defendant Tucker has ultimate

responsibility for the promulgation and enforcement of all FDOC rules, policies and procedures, and

administrative code provisions, and is responsible for the overall management of the Florida prison

system. As Secretary, Defendant Tucker is the highest ranking official of the FDOC, and is

responsible for the enactment and enforcement of Rule § 33-501.401(3), F.A.C. Defendant Tucker

is sued in his official capacity for injunctive and declaratory relief, attorneys’ fees and costs.

16.

At all times material to this action, the actions of all Defendants as alleged herein

were taken under the authority and color of state law.

Factual Allegations

17.

Plaintiff, PLN, is the publisher of a monthly magazine, Prison Legal News, and a

distributor of books and other materials pertaining to the legal rights of prisoners and the conditions

affecting prisoners.

18.

The purpose of PLN, as stated in its Articles of Incorporation, Article III, Part 6, is to

educate prisoners and the public about the destructive nature of racism, sexism, and the economic

and social costs of prisons to society.

19.

For the past 21 years, the core of PLN’s mission has been public education, advocacy

and outreach on behalf of, and for the purpose of assisting, prisoners who seek legal redress for

infringements of their constitutionally guaranteed and other basic human rights.

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20.

Prison Legal News is comprised of writings from legal scholars, attorneys, inmates

and news wire services. Prison Legal News has approximately 7,000 subscribers in the United

States and abroad, including subscribers in prisons in all 50 states. Prison Legal News has numerous

prisoner subscribers in the Florida state correctional system, including facilities organized and run

by the Defendants. Subscribers to Prison Legal News also include attorneys, judges, journalists,

academics, and others who have an interest in topics included in the magazine.

21.

Plaintiff’s publications, books and other materials, as described above, are political

speech and social commentary, which are at the core of First Amendment values and are entitled to

the highest protection afforded by the U.S. Constitution.

22.

Rule § 33-501.401(3), F.A.C., provides:

(3) Inmates shall be permitted to receive and possess publications per terms and
conditions established in this rule unless the publication is found to be detrimental to
the security, order or disciplinary or rehabilitative interests of any institution of the
department, or any privately operated institution housing inmates committed to the
custody of the department, or when it is determined that the publication might
facilitate criminal activity. Publications shall be rejected when one of the following
criteria is met:



(l) It contains an advertisement promoting any of the following where the
advertisement is the focus of, rather than being incidental to, the publication
or the advertising is prominent or prevalent throughout the publication.





1. Three-way calling services;
2. Pen pal services;
3. The purchase of products or services with postage stamps; or
4. Conducting a business or profession while incarcerated.

(m) It otherwise presents a threat to the security, order or rehabilitative
objectives of the correctional system or to the safety of any person.










(emphasis added).


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23.

Defendants, by and through their application of Rule § 33-501.401(3), F.A.C., have

caused substantial harm to Plaintiff. The effect of Rule § 33-501.401(3), F.A.C., is to deny Plaintiff

its right to send literature to its inmate subscribers. Since Defendants’ application of Rule § 33-

501.401(3), F.A.C., to Plaintiff, Plaintiff has been unable to send its publications to inmate

subscribers in the Defendants’ custody. As such, Rule § 33-501.401(3), F.A.C., substantially chills

Plaintiff’s ability to communicate with its inmate subscribers, impedes Plaintiff’s ability to

disseminate its political message, frustrates Plaintiff’s organizational mission and diverts its limited

resources, and violates Plaintiff’s rights under the First and Fourteenth Amendment.

24.

This is not the first time that Plaintiff has been forced to file suit to ensure that the

Defendants comply with their constitutional obligations with regard to these publications. Initially,

Plaintiff was able to send its publications to Florida inmate subscribers without incident. Beginning

in approximately February 2003, the FDOC – through the Defendant Secretary – refused to allow

delivery of Prison Legal News, citing Rule § 33-501.401, F.A.C. This censorship was based on

advertisements in Prison Legal News, which included three-way calling services, pen-pal services,

and advertisements concerning the sale of postage stamps and inmate artwork. This censorship and

refusal to allow delivery of Prison Legal News occurred even though the FDOC had previously

approved subscriptions to Prison Legal News. Nonetheless, the FDOC refused to deliver the

subscriptions, and Plaintiff filed suit.

25.

During the lawsuit that ensued, the FDOC – through the Defendant Secretary –

amended Rule § 33-501.401, F.A.C., three separate times to allow Prison Legal News, and

Plaintiff’s other publications, to be sent into FDOC institutions. See Prison Legal News v.

McDonough, 200 Fed. App’x 873, 875-76 (11th Cir. 2006). Based solely on these changes in

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policy, as well as the FDOC’s representation to the Court that they would not resume the

impoundment of Prison Legal News, the Middle District of Florida, and later the Eleventh Circuit,

found the case to be moot. See id. at 878 (“[A]lthough the FDOC previously wavered on its decision

to impound [Prison Legal News], it presented sufficient evidence to show that it has ‘no intent to ban

PLN based solely on the advertising content at issue in this case’ in the future … and that the

magazine will not be rejected based on its advertising content … We have no expectation that FDOC

will resume the practice of impounding publications based on incidental advertisements.”).

26.

Despite the FDOC’s representation to the district court and the Eleventh Circuit, the

FDOC – through the Defendant Secretary – again revised the challenged rule in 2009 and began to

again impound and censor Prison Legal News and Plaintiff’s other publications based solely on their

advertising content, despite the fact that the prevalence of advertisements in the impounded

publications had not been altered in any way since the FDOC’s misrepresentations to the district

court and the Eleventh Circuit.

27.

Since the FDOC’s latest revision to the challenged rule and Defendants’ resumed

censorship of Prison Legal News, Plaintiff has been unable to fulfill its stated mission of educating

prisoners and has been unable to distribute its constitutionally protected materials to inmates in

Defendants’ custody.

28.

None of the publications at issue in this case violate Defendants’ policies or

regulations and the censorship of these materials furthers no legitimate penological interest.

Nonetheless, Defendants are refusing to allow these publications to be delivered to Florida inmate

subscribers on the basis that they “present a threat to the security, order, or rehabilitative objectives

of the correctional system or the safety of any person,” for the sole reason that the publications

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contain “advertising [which is] prevalent throughout the publication for (1) three-way calling

services; (2) pen-pal services; (3) the purchase of products or services with postage stamps; or (4)

conducting a business or profession while incarcerated.” See Admissible Reading Material Rule,

Rule § 33-501.401(3)(l) and (m), F.A.C.

29.

Since the Defendants’ resumed censorship of Plaintiff’s publications, Defendants

have failed and refused to provide Plaintiff with notice and an opportunity to be heard and/or protest

the decision each time Plaintiff’s publications are censored by the Defendants.

30.

Since the FDOC – through the Defendant Secretary – began to again impound and

censor Prison Legal News and Plaintiff’s other publications in 2009, Plaintiff has filed numerous

appeals regarding the rejection of Prison Legal News and Plaintiff’s other impounded publications

with the FDOC’s Literature Review Committee when Plaintiff is informed by its inmate subscribers

that its publications have been rejected by the Defendants. All of Plaintiff’s appeals have been

denied.

31.

There is not a valid, rational connection between the Defendants’ application of Rule

§ 33-501.401(3), F.A.C., to Plaintiff’s publications, and any legitimate governmental interest put

forward to attempt to justify it.

Count One - Unconstitutional Censorship of PLN

Defendant The GEO Group, Inc.

32.

Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31



of this Complaint, as if set forth fully herein.

33. Defendant The GEO Group, Inc.’s actions, as alleged herein, constitute state action.

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34.

Plaintiff sends publications to inmates throughout the nation, including those in

Defendant The GEO Group, Inc.’s custody; this behavior enjoys protection under the First and

Fourteenth Amendments.

35. Defendant The GEO Group, Inc’s actions in refusing to deliver or allow delivery of

Plaintiff’s publications to Florida inmates in its custody, solely because of the presence of certain

advertisements within these publications, violate Plaintiff’s rights of free speech, press and

association as protected by the First and Fourteenth Amendments to the U.S. Constitution and 42

U.S.C. § 1983.

Count Two - Unconstitutional Censorship of PLN
Defendant Corrections Corporation of America

36. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31

of this Complaint, as if set forth fully herein.

37. Defendant Corrections Corporation of America’s actions, as alleged herein, constitute

state action.

38.

Plaintiff sends publications to inmates throughout the nation, including those in

Defendant Corrections Corporation of America’s custody; this behavior enjoys protection under the

First and Fourteenth Amendments.

39. Defendant Corrections Corporation of America’s actions in refusing to deliver or

allow delivery of Plaintiff’s publications to Florida inmates in its custody, solely because of the

presence of certain advertisements within these publications, violate Plaintiff’s rights of free speech,

press and association as protected by the First and Fourteenth Amendments to the U.S. Constitution

and 42 U.S.C. § 1983.

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Count Three - Unconstitutional Censorship of PLN

Defendant Kenneth S. Tucker, in his official capacity as

Secretary of the Florida Department of Corrections

40. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31

of this Complaint, as if set forth fully herein.

41. The FDOC’s actions – through Defendant Tucker – as alleged herein, constitute state

action.

42.

Plaintiff sends publications to inmates throughout the nation, including those in

Defendant Tucker’s custody; this behavior enjoys protection under the First and Fourteenth

Amendments.

43. The FDOC’s actions – through Defendant Tucker – in refusing to deliver or allow

delivery of Plaintiff’s publications to Florida inmates in its custody, solely because of the presence

of certain advertisements within these publications, violate Plaintiff’s rights of free speech, press and

association as protected by the First and Fourteenth Amendments to the U.S. Constitution and 42

U.S.C. § 1983.





Count Four – Violation of Due Process

Defendant The GEO Group, Inc.

44. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31

of this Complaint, as if set forth fully herein.

45. Defendant The GEO Group, Inc., in denying Plaintiff its right to communicate with its

current and potential inmate subscribers, has deprived Plaintiff of constitutionally protected liberty

and/or property interests without due process of law.

46. Defendant The GEO Group, Inc.’s actions, as alleged herein, constitute state action.

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47. Defendant The GEO Group, Inc.’s failure and refusal to provide Plaintiff with

constitutionally required notice and an opportunity to be heard and/or protest the decision each time

Plaintiff’s publications are censored by Defendant The GEO Group, Inc. violates Plaintiff’s rights to

due process of law protected by the Fifth and Fourteenth Amendments to the U.S. Constitution and

by 42 U.S.C. § 1983.

Count Five – Violation of Due Process

Defendant Corrections Corporation of America

48. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31



of this Complaint, as if set forth fully herein.

49. Defendant Corrections Corporation of America, in denying Plaintiff its right to

communicate with its current and potential inmate subscribers, has deprived Plaintiff of

constitutionally protected liberty and/or property interests without due process of law.

50. Defendant Corrections Corporation of America’s actions, as alleged herein, constitute

state action.

51. Defendant Corrections Corporation of America’s failure and refusal to provide

Plaintiff with constitutionally required notice and an opportunity to be heard and/or protest the

decision each time Plaintiff’s publications are censored by Defendant Corrections Corporation of

America violates Plaintiff’s rights to due process of law protected by the Fifth and Fourteenth

Amendments to the U.S. Constitution and by 42 U.S.C. § 1983.







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Count Six – Violation of Due Process

Defendant Kenneth S. Tucker, in his official capacity as

Secretary of the Florida Department of Corrections

52. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31



of this Complaint, as if set forth fully herein.

53. Defendant Tucker, in denying Plaintiff its right to communicate with its current and

potential inmate subscribers, has deprived Plaintiff of constitutionally protected liberty and/or

property interests without due process of law.

54. Defendant Tucker’s actions, as alleged herein, constitute state action.

55. Defendant Tucker’s failure and refusal to provide Plaintiff with constitutionally

required notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s

publications are censored by Defendant Tucker violates Plaintiff’s rights to due process of law

protected by the Fifth and Fourteenth Amendments to the U.S. Constitution and by 42 U.S.C. §

1983.

Request for Relief

WHEREFORE Plaintiff respectfully requests that this Court grant the following relief:

(a)

Declare that Defendants’ conduct violates Plaintiff’s rights under the First, Fifth, and

Fourteenth Amendments to the U.S. Constitution;

(b)

Declare that Rule § 33-501.401(3), F.A.C., as applied to Plaintiff by Defendants,

violates Plaintiff’s rights under the First, Fifth, and Fourteenth Amendments to the U.S.

Constitution;

(c)

Enter preliminary and permanent injunctive relief establishing that Rule § 33-

501.401(3), F.A.C., is unconstitutional as applied by Defendants to Plaintiff’s publications,

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prohibiting Defendants from refusing to deliver Plaintiff’s publications to Florida inmate

subscribers, ordering Defendants to deliver all past issues of Plaintiff’s publications which have

previously been censored and withheld from their Florida inmate subscribers, and requiring

Defendants to provide Plaintiff with individualized notice and an opportunity to be heard and/or

protest the decision each time Plaintiff’s publications are censored by Defendants;

(d)

Award Plaintiff nominal and compensatory damages against Defendants The GEO

Group, Inc. and Corrections Corporation of America, of a sufficient amount to compensate Plaintiff

for, among other things, Defendants The GEO Group, Inc. and Corrections Corporation of

America’s failure and refusal to deliver past issues of Plaintiff’s publications to Florida inmate

subscribers in accordance with the law and failure and refusal to provide Plaintiff with

constitutionally required notice and an opportunity to be heard and/or protest the decision each time

Plaintiff’s publications are censored by Defendants The GEO Group, Inc. and Corrections

Corporation of America, as well as the impediment of Plaintiff’s ability to disseminate its political

message, frustration of Plaintiff’s organizational mission, diversion of resources, loss of potential

subscribers and customers, inability to recruit new subscribers and supporters, loss of reputation,

costs of printing, handling and mailing costs, costs of staff time, and other damages to be proven at

trial;

(e)

Award Plaintiff its costs and attorneys’ fees arising out of this litigation, pursuant to

42 U.S.C. § 1988; and

(f)

Grant Plaintiff such other and further relief as the Court may deem just and equitable.







Respectfully submitted,

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Randall C. Berg, Jr., Esq.
Florida Bar No. 318371
Joshua A. Glickman, Esq.
Florida Bar No. 43994
Shawn A. Heller, Esq.
Florida Bar No. 46346
Dante P. Trevisani, Esq.
Florida Bar No. 72912

Florida Justice Institute, Inc.
3750 Miami Tower
100 S.E. Second Street
Miami, Florida 33131-2309
305-358-2081
305-358-0910 (FAX)
E-mail: [email protected]
E-mail: [email protected]
E-mail: [email protected]

Randall C. Marshall, Esq.
Florida Bar No. 181765

American Civil Liberties Union Found. of Fla.
4500 Biscayne Blvd.
Suite 340
Miami, Florida 33137
786-363-2700
786-363-1108 (FAX)
E-mail: [email protected]

Lance Weber, Esq.
Human Rights Defense Center
P.O. Box 2420, Brattleboro, VT 05303
802-579-1309
866-228-1681 (FAX)
E-Mail: [email protected]

Attorneys for the Plaintiffs


By: s/ Randall C. Berg, Jr. .
Randall C. Berg, Jr., Esq.
Florida Bar No. 318371


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CERTIFICATE OF SERVICE






I HEREBY CERTIFY that on December 16, 2011, I electronically filed the foregoing

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is

being served this day on all counsel or pro se parties identified on the attached Service List in the

manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in

some other authorized manner for those counsel or parties who are not authorized to receive Notices

By: s/ Randall C. Berg, Jr. .
Randall C. Berg, Jr., Esq.



of Electronic Filing.


























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SERVICE LIST



Case No. 11-24145-CIV – Seitz/Simonton

United States District Court, Southern District of Florida

By CM/ECF Electronic Filing:

Susan A. Maher, Esq.
Chief Assistant Attorney General
Corrections Litigation
Florida Bar No. 0438359
Office of the Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
Telephone: (850) 414-3300
Facsimile: (850) 488-4872
E-mail: [email protected]
Counsel for Kenneth S. Tucker, in his official capacity as Secretary of the Florida Department of
Corrections

By First Class U.S. Mail:

John J. Bulfin, Esq.
General Counsel
The Geo Group, Inc.
World Headquarters
One Park Place, Suite 700
621 Northwest 53rd Street
Boca Raton, Florida 33487
Telephone: (561) 999-7350
Facsimile: (561) 999-7647

Steve E. Groom, Esq.
General Counsel
Corrections Corporation of America
10 Burton Hills Boulevard
Nashville, Tennessee 37215
Telephone: (615) 263-3000
Facsimile: (615) 263-3140



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