COLON et al v. PASSAIC COUNTY et al
Filing
106
OPINION. Signed by Judge Dennis M. Cavanaugh on 4/24/2012. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANGEL COLON, et al.,
Plaintiffs.
V.
Hon. Dennis M. Cavanaugh
OPINION
Civil Action No, 08-443 9 (DMC)(MF)
PASSAIC COUNTY, et al.,
Defendants.
DENNIS M. CAVANAUGH, U.S.D.J,
This matter comes before the Court upon the Settlement Agreement reached between the
parties. ECF Nos, 94, 101. After considering the submissions of the parties, and based upon the
Fairness Hearing conducted before the Court on April 23, 2012, it is the decision of the Court, for
the reasons herein expressed, that the Settlement Agreement is approved.
I.
BACKGROUND
This action was commenced on September 3, 2008 by Plaintiffs Angel Colon. Roy Schmitt.
Jubra’eel Lebron, Winifred Gates, Mark Harkings, Matthew Carley, Cecilio Toledano and Andrew
Crawfort (Plaintiffs”), seeking declaratory and injunctive relief on behalf ofa class of inmates at
the Passaic County Jail (“PCJ”). Plaintiffs are entering into a Settlement Agreement with Passaic
County, the Sheriff of Passaic County, the Passaic County Board of Chosen Freeholders and the
Warden of PCJ (the Passaic County Settlement”), and are also entering into a separate Settlement
Agreement with Defendant Gary Lanigan, in his official capacity as Commissioner ofthe New Jersey
Department of Corrections (the “Lanigan Settlement”) (collectively, the “Settlement Agreement”).
The Complaint was brought pursuant to 24 U.S.C.
§
1983 and seeks redress for alleged
violations of the First, Fifth, Eighth, and Fourteenth Amendments ofthe United States Constitution.
These allegations include complaints that PCJ suffers from (1) overcrowding, leading to a lack of
privacy, loss of sleep and the threat of inmate violence; (2) unsanitary living conditions; (3)
inadequate medical care; (4) unsafe and inadequate food; (5) inadequate temperature control and
ventilation; (6) inadequate clothing; (7) inadequate fire detection and alarm systems; (8) use of
excessive force by Correction Officers, including the use of dogs for intimidation; (9) restrictions
on religious freedom; and (10) retaliation for airing grievances. Defendants filed Answers denying
these allegations. ECF Nos. 14, 47.
On May 28, 2009, this Court entered an Opinion and Order certiiing a class of “All persons
who are now or will become incarcerated at Passaic County Jail during the pendency of this lawsuit.”
ECF Nos. 44, 45. Following the entry of that Opinion and Order, the parties exchanged informal
discovery, and engaged in extensive settlement negotiations, eventually culminating in the
Settlement Agreement that the Court now considers. On January 13, 2012, this Court entered an
Order directing notice of the settlement and scheduling a Fairness Hearing. ECF No. 95. On April
16, 2012. Plaintiffs filed a Declaration in support of the Settlement Agreement. and attached
communications received from class members regarding the Settlement Agreement. ECF No. 103.
On April 23, 2012, during the Fairness Hearing, counsel for both Plaintiffs and Defendants further
voiced their approval of the Settlement Agreement. No party present at the Fairness Hearing
objected. The matter of the approval of the Settlement Agreement is now before the Court.
II.
LEGAL STANDARDS
A.
Settlement Approval
Federal Rule of Civil Procedure 23(e), provides that “[a] class action shall not be dismissed
or compromised without the approval of the court, and notice of the proposed dismissal or
compromise shall be given to all members of the class in such a manner as the court directs.” FED.
R. Civ. P. 23(e). In determining whether to approve a class action settlement pursuant to Rule 23(e).
“the district court acts as a fiduciary who must serve as a guardian of the rights of absent class
members.” In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir, 1995)
(quoting
Grunin v
mt
1 House ot Pancakes, 5 13 1 2d 114 123 (8th Cir 1975), cert demed, 423 U S
864 (1975) (citation omitted)).
Before giving final approval to a proposed class action settlement, the Court must determine
that the settlement is fair adequate, and ieasonable
Lazy Oil Co v Witco Corp 166 F 3d 581
588 (3d Cir. 1999); Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 965 (3d Cir. 1983). In Girsh
v. Jepson, the Third Circuit identified nine factors, so-called ‘Girsh factors,” that a district court
should consider when making this determination: (1) the complexity, expense and likely duration
of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and
the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing
damages: (6) the risks of maintaining the class action through the trial; (7) the ability of the
defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund
in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a
possible recovery in light of all the attendant risks of litigation. 521 F.2d 153, 157 (3d Cir.1975).
“These factors are a guide and the absence of one or more does not automatically render the
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settlement unfair.” In re American Family Enterprises, 256 B.R. 377, 41 8 (D.N.J. 2000). Rather,
the court must look at all the circumstances of the case and determine whether the settlement is
within the range of reasonableness under Girsh.
S In re Orthopedic Bone Screw Prods. Liab.
Litig., 176 F.R.D. 158, 184 (ED. Pa.1997); see also In re AT&T Corp. Sees. Litig., 455 F.3d 160
(3d Cir. 2006). In sum, the Court’s assessment of whether the settlement is fair, adequate and
reasonable is guided by the Girsh factors, but the Court is in no way limited to considering only those
enumerated factors and is free to consider other relevant circumstances and facts involved in this
settlement.
ilL
1
DISCUSSION
1. Complexity, Expense and Likely Duration of Litigation
This factor is concerned with assessing the “probable costs, in both time and money, of
continued litigation.” In re Cendant Corp. Litig., 264 F.3d 201, 234 (3d Cir. 2001). Significant
delay in recovery if this case proceeds to trial favors settlement approval. See, e.g., In re Warfarin
Sodium Antitrust Litig., 391 F.3d 516, 536 (3d Cir. 2004); Weiss v. Mercedes-Benz ofN. Am., Inc.,
899 F. Supp. 1297, 1301 (D.N.J. 1995). Plaintiffs note that this litigation has continued tbr three
years since 2008, during which time the parties have spent vast resources consulting experts and
conducting discovery. The parties have not yet prepared summary judgment or pre-trial motions,
the expense of which this proposed settlement avoids. A delay in the resolution of this case would
also postpone the implementation of measures that will help remedy the complained of conditions
While this matter encompasses two separate settlement agreements (the Passaic County
Settlement and the Lanigan Settlement), in most instances the issues presented are identical.
Accordingly, except where noted, the Court does not provide additional duplicative analysis.
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at PCJ. Accordingly, this factor weighs in favor of approval of the Settlement Agreement.
2. Reaction of the Class to Settlement
This factor requires the Court to evaluate whether the number of objectors. in proportion to
the total class, indicates that the reaction of the class to the settlement is favorable. The Court also
notes that the second Girsh factor is especially critical to its fairness analysis, as the reaction of the
class “is perhaps the most significant factor to be weighed in considering [the settlement’sj
adequacy.” Sala v. National R.R. Passenger Corp., 721 F. Supp. 80, 83 (ED. Pa. 1989): Fanning
v. AcroMed Corp. (In re Orthopedic Bone Screw Prods. Liab. Litig.). 176 F.R.D. 1 58, 185 (E.D. Pa.
1997) (stating that a “relatively low objection rate militates strongly in favor of approval of the
settlement” (internal citations omitted)). Further, silence constitutes tacit consent to the agreement.
The Passaic County Settlement and the Lanigan Settlement had separate objections periods, and
accordingly, the Court will address the objections to each settlement separately.
For the Passaic County Settlement, PlaintifIs note that while the class consists of about 1070
inmates, they have received only sixty seven comments regarding the settlement, and of those, only
twelve actually voice objections. A number of the comments express gratitude for the efforts to
improve the facility. Additionally, many of the comments received complain about the conditions
of PCJ itself, which the settlement intends to alleviate. The twelve actual objections generally fall
into two main categories: concerns that PCJ will not follow through with the corrections. and
comments that PCJ should be closed all together.
For the first concern, the Court notes that the enforcement mechanisms negotiated by the
parties have been a substantial focus of the settlement discussions. Susan McCampbell. a
correctional management expert with thirty years of experience. will conduct regular visits to PCJ
for
monitoring.
Further, Plaintiffs’ counsel will continue to communicate with the class members
about the conditions at PCJ. Accordingly, the Court is not swayed by this concern. As to the
objectors’ preference for simply closing PCJ, the Court agrees with Plaintiffs’ assertion that while
this would be an effective means of providing an improved environment for the class, such a result
could not reasonably be achieved in light of the Prison Litigation Reform Act, which requires
narrowly tailored reliefto correct violations of Federal rights, and does not permit some unrealistic”
expectations. See. e.g.. Hawkerv. Consovoy, 198 F.R.D. 619, 628-31 (D.N.J. 2001).
The Court is also not swayed by the objections that have been filed with respect to the
Lanigan Settlement. Plaintiffs’ counsel received a total of thirteen comments from class members,
and again, the majority voice concerns with the present conditions at PCJ, and not with the Lanigan
Settlement itself Two of the comments express a desire to see PCJ closed, but for the reasons
expressed above, the Court does not find any merit to this objection. Another objection to the
Lanigan Settlement questions whether bi-annual site inspections will provide a sufficient basis to
ensure compliance. The Lanigan Settlement alleviates this concern, however, by providing for
additional site visits” for up to five additional days each year. and by permitting the monitor. at her
discretion, to conduct one of the two annual site inspections on an unscheduled basis.
A review of the relatively small number of objections convinces the Court that the overall
reaction of the class to the Settlement Agreement is favorable, Further, the objections that have been
filed do not convince the Court that the Settlement Agreement is unfair or unreasonable.
Accordingly, this factor weighs in favor of approval of the Settlement Agreement.
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3. Stage of the Proceedings and Amount of Discovery Completed
For the third Girsh factor, the Court must consider the “degree of case development that
Class Counsel have accomplished prior to Settlement,” including the type and amount of discovery
already undertaken. GMC, 55 F.3d at 813. In short, under this factor the Court considers whether
the amount of discovery completed in the case has permitted counsel [to havel an adequate
appicciation of the ments of the case before negotiating
In re Schering-PloughiMerck Muger
Litig.. No. 09-1099, 2010 U.S. Dist. LEX1S 29121 at *30 (Mar. 26, 2010). The discovery analyzed
encompasses both formal and ‘informal” discovery, including discovery from parallel proceedings,
companion cases and even third parties, such as experts or witnesses. j In this case, the parties
have exchanged extensive informal discovery, and Plaintiffs have conducted nearly fifty site visits
and reviewed 17,000 pages of documents. Further, the Court notes that efforts of class counsel in
this matter warrant particular commendation, both for class counsel’s skill in pursuing the matter,
and for the amount of time they have devoted to this case. Considering the amount of effort
expended by class counsel in this matter. as well as class counsel’s extensive experience litigating
class actions generally and working on prisoners’ rights litigation specifically, the Court is convinced
that Plaintiffs have a sufficient understanding of the merits ofthis case. This factor therefore weighs
in favor of approval of the Settlement Agreement.
4.-S. Risks of Establishing Liability and Damages
A trial on the merits always entails considerable risk, Weiss, 899 F. Supp. at 1301. ‘By
evaluating the risks of establishing liability, the district court can examine what the potential rewards
(or downside) of litigation might have been had class counsel elected to litigate the claims rather than
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settle them.” GMC, 55 F.3d at 814. “The inquiry requires a balancing of the likelihood of success
if ‘the case were taken to trial against the benefits of immediate settlement.”
In re Safety
Components Int’l, 166 F. Supp. 2d 72, 89 (D.N.J. 2001). In this case, while Plaintiffs overcame one
motion to dismiss, no motions for summary judgment have been filed, and if Plaintiffs’ claims
survive that likely impediment, they would still have to face the always risky proposition of a trial,
Accordingly, the Court finds that the risks in establishing liability ‘weigh in favor of approval of the
Settlement Agreement.
2
6. Ability of Defendants to Maintain Class Certification
Plaintiffs notes that the class is comprised of “all persons who are now or will become
incarcerated at PCJ during the pendency of this lawsuit.” Plaintiffs therefore state that they would
not have faced any risks in maintaining the class action through trial. Accordingly. the Court does
not place significant weight on this factor. See, e.g., Hawker, 198 F.R.D. at 633 (“Although the
possibility of decertification would remain if litigation continued, it is not particularly likely.
Therefore, this Girsh factor does not play a significant role in the Court’s determination whether to
approve the Settlement Agreement.”).
7. Ability of Defendants to Withstand a Greater Judgment
To evaluate whether the Settlement Agreement is fair to Plaintiffs, the Court must evaluate
whether Defendants could withstand a judgment much greater than the amount of the settlement.
2
The damages factor is not applicable as Plaintiffs only sought injunctive relief in this
action.
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In re Schering-Plough/Merck Merger Litig., 2010 U.S. Dist. LEXIS 29121 at
*37W
Because the
settlement agreement provides relief of a non-pecuniary nature, the Court is not in a position to say
whether Defendants could withstand a greater judgment. As a result, this factor does not weigh
against or in favor of approval. Unite Nat. Retirement Fund v. Watts, No. 04-3 603, 2005 WL
2877899, at *4 (D.N.J. Oct. 28, 2005).
8-9. Reasonableness of the Settlement Fund in Light of the Best Possible Recovery, and in Light
of the Attendant Risks of Litigation
“According to Girsh, courts approving settlements should determine a range of reasonable
settlements in light of the best possible recovery (the eighth Girsh factor) and a range in light of all
the attendant risks of litigation (the ninth factor).” GMC, 55 F.3d at 806. “The last two Girsh factors
evaluate whether the settlement represents a good value for a weak case or a poor value for a strong
case.” In re Schering-Plough/Merck Merger Litig., 2010 U.S. Dist. LEXIS 29121 at *3g39, The
Settlement Agreement alleviates a substantial amount of the problems motivating this litigation,
especially those related to high inmate population and the stress of overcrowding at PCi. The
Settlement Agreement addresses problems related to inadequate ventilation and heating, unhygienic
conditions, potentially unsafe food, lack of sufficient clothing, overcrowding, the use of force by
correctional officers, and inmates’ medical and psychiatric conditions. The Court has reviewed the
Settlement Agreement’s proposed solutions to these problems, and finds that they provide a
substantial benefit to the class. Accordingly, the last two Girsch factors weigh in favor of approval
of the Settlement Agreement.
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10. Summary of Factors
In sum, the Court finds that a balancing of the Girsch factors weighs in favor of approval of
the Settlement Agreement. The Court further emphasizes the overwhelming class approval for the
Settlement Agreement. Additionally, the Court notes that the Settlement Agreement was reached
as the result of extensive, arms length negotiation between experienced and skilled counsel. The
rights of inmates may not always be at the forefront of tax payers’ minds, especially in the current
political and economic climate, but it is with the efforts of counsel for both parties, and with the
efforts of the Honorable Mark Falk. U.S.M.J., that this matter has been brought to an appropriate
resolution. The Court finds that the Settlement Agreement is fair, adequate, reasonable, and in the
best interests of the class. Accordingly, the Court approves the Settlement Agreement.
IV
CONCLUSION
For the foregoing reasons, the Court approves the Settlement Agreement. An appropriate
Order accompanies this Opinion.
Dennis M.Cavanaugh,
Date:
Orig.:
cc:
April ?, 2012
Clerk
All Counsel of Record
Hon. Mark Falk, U.S.M.J.
File
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8frJ.
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