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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 11-10278EE

PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC D.C. Docket No. 5:09-cv-00384-WTH-KRS

DOUGLAS E. NALLS, MD Sui Juris, Plaintiff-Appellant, Versus COLEMAN LOW FEDERAL INSTITUTION, Unknown Correctional Officer, Unknown Medical Officers, Warden and Administrative Personnel, BUREAU OF PRISONS, UNKNOWN PARTIES, Defendants-Appellees

Douglas Earl Nalls, MD SUI JURIS 1175 98th Street Apartment 22 Bay Harbor Islands Florida 33154 Phone 305-910-7878 Email: keymakeer@atlanticbb.net

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CERTIFICATE OF INTERESTED PERSONS
DOUGLAS E. NALLS, MD, Sui Juris, v. COLEMAN LOW ET AL

The persons listed below are interested in the outcome of this case:

1. Albritton, A. Brian, former United States Attorney; Federal Bureau of Prisons; 2. Hodges, William Terrell, Senior U. S. District Court Judge, Middle District of Florida 3. Kelton, Zachary James, Lead Attorney for Defendants, U. S. Department of Justice Middle District of Florida 4. Lammens, Philip R., Attorney for Defendants, U. S. Attorney‟s Office, Southern District of Florida 5. Lawrence, Nathan Rosen, AUSA, Attorney for Defendants, Southern District of Florida 6. Nalls, Douglas, MD Plaintiff 7. O‟Neill, Robert E., United States Attorney 8. Rhodes, David P., Assistant United States Attorney,Chief, Appellate Division; Seitz, Patricia A., U. S. District Court Judge, Southern District of Florida 9. Spaulding, Karla R., U. S. Magistrate Judge, Middle District of Florida 10. Taylor, Michelle Thresher, AUSA, Attorney for Defendants, Appellate Division, Middle District of Florida

11.Warden, Coleman Low Federal Institution.

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PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC My Statement I, Douglas E. Nalls, MD, SUI JURIS, respectfully submit this petition for rehearing and suggestion for rehearing en banc pursuant to Rules 35 and 40 of the Federal Rules of Appellate Procedure. It is my judgment this case meets the appropriate standards for rehearing and/or rehearing en banc, as provided in the Local Rules of this Court and F. R. App. Pr. 35 and 40, for several reasons. Additionally, there appears to my mind that the Panel decision is contrary to the
decisions of the Supreme Court of the United States and/or the precedents of this Circuit and that consideration by the full Court is necessary to secure and maintain uniformity of decisions of this Court:

DOUGLAS EARL NALLS, MD, SUI JURIS

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TABLE OF CONTENTS Contents Page(s)

Certificate of Interested Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … . 2 Statement of Counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … . . 3 Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ………..4 Table of Citations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..............5 Statement of the Facts Relevant to Rehearing…... . . . . . . . . . . . . . . . . . . . . ........6 Course of Proceedings and Disposition of the Case. . . . . . . . . . . . . . . . . . . . . . . .6 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … … … . . . 1 5 Appendices
A. Copy Decision 11th Circuit Court of Appeals Case No.11-10278, Nalls v. Coleman Low et. al. B. Docket, Middle District of Florida, Case No. 09-00384, Nalls v. Coleman Low et. al. C. Original Copy of Joint Scheduling Report [Document 20]from personal records and as filed in the Southern District of Florida D. Altered Version of Joint Scheduling Report [Document 29] available in Middle District of Florida

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Table of Citations Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) Haines v. Kerner, 404 U.S. 519-421 McCormick v Peterson CV 93-2157, USDC, EDNY 1993 Nalls v COLEMAN LOW et al, Case# 11-10278, unpublished, 11th Circuit Paolo State of the Federal Republic of Braz. V Am. Tobacco Co., 535 U.S. 229, 232-33, 122 S. Ct. 1290, 1292 (2002). Platsky v. CIA, 953 F. 2d, 25 Powell v US, 945 F. 2d, 374, 375 (11th Circuit)
28 U.S.C.§ 144; 28 U.S.C. § 1391(b 28 U.S.C. § 1331

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STATEMENT OF THE Facts Relevant to Rehearing Whether I, Douglas E. Nalls, MD sustain injury to my United States Constitutional Rights or no. Whether the Court has extended consideration to Douglas E. Nalls, MD as a pro se litigant Whether the Appeals Court failed to apply the provisions of Bivens to Douglas E. Nalls, MD Whether the District Court failed to recuse itself for cause Whether this Appeals Court has misapplied the law against Douglas E. Nalls, MD

COURSE OF PROCEEDINGS AND DISPOSITION OF THE CASE Whether I, Douglas E. Nalls, MD sustain injury to my United States Constitutional Rights or no.

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)[1], was a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated. Nalls filed a Bivens Action in Federal District Court for the Southern District of Florida for violations of Plaintiffs Fourth, Eighth and Fourteenth Amendment C o n s t i t u t i o n a l Rights on January 02, 2008i. Nalls asserted „…that jurisdiction in this case
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is vested in the District Court under 28 USC 1331‟ and not under the District Court‟s diversity jurisdictional authority. Plaintiff identified himself as “…a human being, who was taken as a federal prisoner from approximately August 2000 until February 4, 2005 by the United States Government (corporation). (and as) a citizen of the State of Florida.” Plaintiff also stated in his Verified Complaint that Defendant‟s engaged in various physical, administrative and medical measures by which to affect Plaintiff‟s death in a conspiratorial fashion, in full violation of Plaintiff‟s United States Constitutional Rights, as “unknown agents of the federal government”.

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All case references for the case having been initially filed in the Southern District of Florida as Case #08-20009 have been erased from the District Clerk’s record for the Southern District of Florida so that no reference can be made that the case was ever filed there officially.

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Defendants‟ responded to my Verified Complaint, filing a motion to dismiss for lack of subject matter jurisdiction. In the motion to dismiss from their counsel, the Defendants opening statement read as follows “The defendants, United States of America and Bureau of Prisons, by and through the undersigned counsel, respectfully, moves this Court to dismiss…” [MDCC# 0900384 Doc 15, page 1]. The Defendant‟s statement drew no distinctions among the various named and un-named Defendants of the lawsuit. By this statement, in the court record, all Defendants in this case acknowledged service of process, thereby waiving any later claims of lack of service of process. Additionally, I, as the Plaintiff noticed the Court of the time of appearance of Defendants‟ Counsel [MDCC# 09-00384 Notice of Time of Defendants‟ Appearance Doc 17]. In fact, throughout this case, all the Defendants have been represented by the very same counsel with no notice given that their clients have changed. It was only after the 11th Circuit Court of Appeals reversed and remanded the case to the Southern District of Florida that the Defendant‟s dredged up the issue of client distinction o avoid the obvious consequences of their poor judicial understanding of the law regarding Bivens and regarding the protections afforded pro se litigants. Had the 11th Circuit Court of Appeals affirmed and not reversed and remanded the case back to the Southern District of Florida, I, as Plaintiff, could have not proceeded against any of the Defendants under Bivens with the same case. Allowing Defendants, effectively, to have second and third bites of the “apple of justice” is patently inequitable for Plaintiff and shows the court‟s bias for Defendants, despite the courts own procedural rules. Even in my effort to tentatively identify specific Defendants this case, which I, proceeding under the provisions of Bivens, have no responsibility to do, I met with judicial roadblocks from the court [MDCC# 09-00384: Document 4, Order of Instructions to Pro Se
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Litigants; Document 7, Judge Seitz Order; Document 8 Order of Instructions to Pro Se Litigants; Document 13, Notice of Non Receipt of Orders by Douglas E. Nalls;, Document 14, Motion for Extension of Time to Effectuate Service upon undiscovered Defendants by Douglas E. Nalls; Document 16, Order Denying Motion to Extend Time To Effect Service]. After receiving and reviewing initial discovery from Defendants, I gleaned the names of certain individuals who signed record entries from the discovery provided. As I was held in prison as an inmate, I had no personal knowledge of these individuals. As far as their names are concerned in the environment in which I was held, their names were, in fact, secret, and their persons anonymous. To my mind, they were just the instruments of a murderous government seeking to kill me. Moreover, they inflicted such damage on my brain that I lost considerable memory from their injuries. I do not see how I could be expected to remember them to identify them. That is the very reasoning of the Bivens Decision of the Supreme Court. Even when I attempted to serve un-named Defendants in the case, by Federal Marshalls, they were refused service, with the statement recorded by the Federal Marshall that “…Would not accept for FCI Coleman…”[Document 10, Summons Returned Unexecuted by Douglas E. Nalls as to Unknown Warden and Administrative Personnel of Coleman Low Federal Institution.; and Document 11, Summons Returned Unexecuted as to Unknown Medical Officers and Personnel of Coleman-Low, by Douglas E. Nalls as to Coleman Low Federal Institution. To my mind, the best of my knowledge beliefs, and honor, I never signed the Joint Scheduling Report [Doc 20] that states at paragraph 3 sentence 2, “…Defendant has filed a motion to dismiss with respect to Defendants Bureau of Prisons and the United States.”. See Appendix D. I never signed any such thing. I submit that this document is a fraudulent document that is being used to give credence that the Defendants anticipated that I would appeal
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the District Court‟s dismissal of my complaint; and that Defendant‟s knew beforehand that the 11th Circuit Court of Appeals would remand the case. It is an attempt to separate Defendants in my complaint with my agreement. I never agreed at any point prior to The 11 th Circuit Court of Appeals remand of the case to separate any Defendants. The Court will note that the referred to entry was inserted with different colored ink than what the original Joint Scheduling Report document was done in. Additionally, I have attached my original copy of the Joint Scheduling Report (See Appendix C) without signature to compared to the forged document in the record, as Appendix D. The Court should also take notice that the Joint Scheduling Report on the Docket of the Middle District of Florida is not an original document (Appendix D). The original document was submitted to the District Court for the Southern District of Florida. The Joint Scheduling Report on the record for the Middle District (Appendix D) is labeled as if were submitted to the Middle District. There is one final note on this issue. I really would appreciate it if the court would conduct an investigation to get to the bottom of this occurrence.

Whether the Court has extended consideration to Douglas E. Nalls, MD as a pro se litigant I, Douglas E. Nalls, MD, Sui Juris, filed this Bivens Complaint in a pro se capacity. There are certain considerations for a pro se litigator afforded by the Court. Pro Se litigants are held to less stringent pleading standards than are bar licensed attorneys.. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to the opportunity to submit evidence in support of their claims. (Haines v. Kerner, 404 U.S. 519-421). Prior to dismissing this case, the Court has responsibility to this pro se litigant to advise him of the steps he must pursue in order to perfect his petition before a court of competent jurisdiction. (Platsky v. CIA, 953 F. 2d, 25). All pleadings of pro se Defendants are self verifying and can not be refuted by lawyers.
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(McCormick v Peterson CV 93-2157, USDC, EDNY 1993). The court must consider if relief is possible under any set of facts which can be established that are consistent with the allegations. Guerro v Hauck 502 F 2d, 579(5th Circuit), Powell v US, 945 F. 2d, 374, 375 (11th Circuit). This court has upheld Dr. Nalls Complaint as qualified under Bivens in their remand of his appeal (Nalls v COLEMAN LOW et al, Case# 08-14228, unpublished, 11th Circuit). However the court never addressed any salient issues in the case remaining after its remand. For example, the court never directed that mooted plaintiff‟s motions for summary judgment and default judgment be reactivated by the District Court. In Bivens, “The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.” When the 11th Circuit Court of Appeals remanded my case back to the District Court for the Southern District of Florida there was no direction given to District Court as to how to proceed. (Nalls v COLEMAN LOW et al, Case# 08-14228, unpublished, 11th Circuit).

Whether the Appeals Court failed to apply the provisions of Bivens to Douglas E. Nalls, MD A Bivens Complaint is a judicially created cause of action to remedy circumstances in which the federal government has violated the United States Constitutional Rights of a citizen of the states, and provides the right to obtain monetary damages. In Bivens, the agents were not named in petitioner's complaint, and the District Court ordered that the complaint be served upon "those federal agents who it is indicated by the records of the United States Attorney participated in the November 25, 1965, arrest of the [petitioner]."[Footnote 2]. In my case, I was afforded no such assistance by the District Court to affect service of process against Defendants. Rather, the District Court denied me an extension of time to effect service, after Defendants‟ initial refusal.
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Whether the District Court failed to recuse itself for cause The 11th Circuit Court erred in its opinion that the district court did not abuse its discretion in dismissing as moot (my) requests for recusal. In my motion for recusal I cited judicial conspiracy, bias, and issuance of a void judgment as cause for recusal. 28 U.S.C.§ 144; See Sao Paolo State of the Federal Republic of Braz. V Am. Tobacco Co., 535 U.S. 229, 232-33, 122 S. Ct. 1290, 1292 (2002). 28 U.S.C.§ 144 requires the following

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. My filing of a demand for recusal was not negotiable. It was simply a trick to draw Judge Seitz out to admit her bias by granting the motion as part of an alternative that was not as unpleasant as recusal itself. It was unacceptable for her to continue in the case as the law provides. No excuses. For the 11th Circuit Court of Appeals to state that the District Court in this matter, did not abuse its discretion is a travesty of modern justice and a violation of the Federal Rules of Civil Procedure Whether this Appeals Court has misapplied the law against Douglas E. Nalls, MD The 11th Circuit Court of Appeals again erred when it affirmed the sua spointe transfer of my case from the Southern District of Florida to the Middle District of Florida. In this case the 11th Circuit Court of Appeals, misapplied the law. The 11th Circuit Court of Appeals employed 28 U.S.C. § 1391(b). as justification for affirming the transfer of my case to the Middle District of Florida. The rule applies to cases wherein jurisdiction is founded upon a diversity question. It

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does not apply to diversity founded upon a federal question as a Bivens Action is. I submit the 11th Circuit Court of Appeals erred in affirming the transfer of my case. 28 U.S.C. § 1331 states as follows: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. (e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party. In this Bivens Matter, there has been no determination of the individual identities of the Defendants. As the Bureau of Prisons is a nationwide agency, there is no expectation that any one or two of the individual defendants were located in the Middle District and the 11th Circuit Court of Appeals opinion is unreasonable in that case. The Bureau of Prisons also has its unidentified agentys working for the federal government in the Southern District of Florida

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Whether service of process of individual defendants a requirement to proceed in a Bivens Action

The Supreme Court established in Bivens ( Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971)), the method for service of process upon Bivens Defendants. In the footnotes
of Bivens the Supreme Court stated In Bivens, the agents were not named in petitioner's complaint, and the District Court ordered that the complaint be served upon "those federal agents who it is indicated by the records of the United States Attorney participated in the November 25, 1965, arrest of the [petitioner]."[Footnote 2]. The 11th Circuit Court of Appeals erred in its interpretation of this Bivens reference. The footnote itself plainly states “…the District Court ordered that the complaint be served upon "those federal agents who it is indicated by the records of the United States Attorney…” (Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) indicating that the Court and US Attorney are responsible for service upon Defendants. Therefore the 11th Circuit Court of Appeals misapplied this law.

Conclusion Wherefore this 11th Circuit Court of Appeals has demonstrated significant error in its decision, Nalls ask that this court reverse itself and grant Nalls‟ petition for relief.

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U. S. CCOURT OF APPEALS CERTIFICATE OF SERVICE Douglas Nalls, MD, Sui Juris v Remaining Defendant Agents of The Federal Government: Appeal No. 11-10278-EE

Frap 25(b) through (d) require that at or before the time of filing a paper, a party must serve a paper, a party must serve a copy on the other parties to the appeal or review. In addition, the persons who made3 service must certify that the other party has been served, indicating the date and manner of service, the names of the persons served and their addresses I hereby certify that on October 10, 2011, a true and correct copy of appeal of judgment dismissing Nalls‟ complaint was deposited in the U.S. Mail and properly addressed to the persons whose names and addresses appears listed below.

Zachary James Kelton U.S. Department of Justice, P.O. Box 1029, Coleman, FL 33521-1029

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