IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT ORANGE COUNTY, FLORIDA SCOTT R. ZABRISKIE, PLAINTIFF, V.

ORANGE COUNTY CORRECTIONS DEPARTMENT, JOHN DOE NO. 1, JOHN DOE NO. 2, JOHN DOE NO. 3, AND JOHN DOE NO. 4 DEFENDANTS. CASE NO.: 2012-CA-2114 NOTICE OF UNAVAILABILITY/NOTICE OF CANCELLATION OF HEARING/MOTION FOR CONTINUANCE

1.

The Plaintiff doesnt reside in Florida and cant cover expenses for the hardship of out-of-state travel for the purposes of an in-person hearing. The Plaintiff suggests a future telephonic hearing might alleviate this problem.

2. The Plaintiff is currently seeking representation for this matter however there is no existing retainer agreement between the Plaintiff and an attorney. 3. Defendants scheduled a hearing unilaterally and without asking whether Plaintiff or his attorney would be available. Neither Plaintiff nor his attorney is available at this time. 4. Defendants failed to comply with E.C.F. electronic notice requirements until 5/15/2012, far after the 7-day deadline for notice of hearing. The Plaintiffs email address was available to Defendants far before this date. 5. The Plaintiff is currently experiencing a number of health related problems many of which are directly related to the damages inflicted by the Defendants as described in the complaint. He is further experiencing some additional physiological symptoms

which might be depression and/or P.T.S.D. related and which cause him to have energy and motivation levels that are well below normal and that prevent him from appropriately handling complex and distressing issues such as this lawsuit. He is currently pursuing treatment with a new doctor out-of-state. In any case he is neither physically nor mentally capable of handling the Defendants demands at this time and he finds Defendants demands for this hearing excessively distressing. 6. There is a pending motion to appoint counsel by order of the court. No other motion should be considered until this motion is resolved. This motion is not scheduled for hearing at this time. 7. Defendants motion appears to be frivolous in its entirety and viciously attempts to take advantage of the naivety of an unrepresented pro se plaintiff: a) Defendants claim they do not have capacity to be sued: this is patently absurd and at best a small technical matter of naming the governmental parties, which the court must allow correction of on amendment. b) Defendants have made a false representation to the court that they were not given presuit notice. They were given presuit notice. Upon proof of this false representation to the court the court must issue appropriate sanctions against Defendants. In any case state statutes such as F.S.S. 768 do not govern claims filed under the federal statute, Felder v. Casey, 487 U.S. 131. c) Defendants have falsely attempted to claim sovereign immunity under state law. State law does not govern claims filed under the federal statute, Felder v. Casey, 487 U.S. 131. In any case a duty of reasonable care exists under Florida law which is a nondiscretionary duty to which said sovereign immunity does not apply, see Harris v. Monds, 696 So. 2d 446. d) This case was timely filed, signed, stamped, and placed in the mail to the best of the mentally disabled plaintiffs ability on or about the date of Feb. 4th, 2012, or the first business day thereafter since Feb. 4th fell on a Saturday. Therefore Defendants unsubstantiated assertion that the incident occurred Feb. 7th, 2008 is irrelevant and frivolous as a defense pleading. Even if it were not, such a pleading cannot be made until after completion of discovery. Further, this case involves blunt allegations of falsification of records by Defendants and therefore such an assertion by Defendants must involve heightened scrutiny from the court.

e) The allegations of the complaint clearly constitute a number of violent felony crimes including and not limited false imprisonment and aggravated battery upon a disabled person. They comprise a heinous assault and battery without legal authority that is tantamount to torture. Defendants assertions that they do not constitute assault and battery and intentional infliction of emotional distress are patently frivolous and merit sanctions against Defendants. f) Florida common law provides for both premises liability and vicarious liability for the actions of an agent acting in the scope of his employment on the employers premises. Item 14 of Defendants motion is patently frivolous and merits sanctions against Defendants insofar as it attempts to abolish these fundamental tenets of the common law of Florida in defiance of existing precedents. g) Florida law regarding a motion to strike claims for punitive damages requires the court to conduct an examination of evidence presented. No evidence has been presented by Defendants to contradict the true and correct allegations of the complaint. The court does not have discretion to strike at this time. Forthcoming discovery demands for video and audio evidence will prove the allegations of the complaint are true and correct. Defendants have knowingly filed a frivolous defense which merits sanctions against defendants insofar as they demand the court violate its discretion and strike punitive damages claims without considering available evidence. Further, there is a pending motion for the court to order a criminal investigation into the allegations and in no case should any motion related to punitive damages be considered before the Plaintiffs motion is resolved appropriately. Further, the John Doe Defendants, who are not represented for this hearing, have not been identified and must be identified by the present Defendants during the course of future discovery. h) Finally, not only do the allegations of the complaint clearly evidence grossly negligent supervision, it is alleged that at least one supervisor directly participated in and encouraged the incident. Therefore Defendants assertion to the contrary in item 11 of its motion is patently frivolous and merits sanctions against Defendants. i) In conclusion, there is no part of Defendants motion that is not frivolous. It is not worthy of consideration by the court and merits sanctions against Defendants.

WHEREFORE, the court should not consider Defendants motion until after the resolution the Plaintiffs motion to appoint counsel and until after such a time when an appropriate hearing time can be scheduled at which the Plaintiff can be represented by competent professional counsel or he can competently represent himself. If the Plaintiff is to represent himself then an appropriate hearing would have to be an out-of-area telephonic hearing. The Plaintiff reserves the right to amend the complaint under both Florida and Federal law.

SIGNED:_______________________ Scott R. Zabriskie srz24@ymail.com 5/16/2012