Lynch et al v. DeMarco et al

Filing 375

MEMORANDUM AND ORDER granting in part and denying in part 344 Motion to Dismiss for Failure to State a Claim; granting 347 Motion to Certify Class. For the foregoing reasons, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART, and the claims against Defendants DeMarco, Caracappa, and Meyerricks are DISMISSED WITHOUT PREJUDICE. All other claims survive. The Named Plaintiffs are GRANTED leave to file a Second Consolidated Class Action Complaint that corrects th e pleading defects with respect to the claims against the Individual Defendants. Such amended pleading shall be filed within thirty days (30) of the date of this Memorandum and Order. Further, the Named Plaintiffs' motion for class certifica tion is GRANTED. It is therefore hereby: ORDERED that the following classes and subclasses are certified: (1) an Injunctive Class comprised of all persons who, now or at any time in the future, are or will be detainees or prisoners in the custody of the Suffolk County Sheriff's Department and housed in the SCCF, with separate subclasses for those persons detained in Riverhead and Yaphank; and (2) a Damages Class comprised of all persons who are or were detainees or prisoners in the cust ody of the Suffolk County Sheriff's Department and housed in the SCCF and who were or will be released from the SCCF on or after April 5, 2009, with separate subclasses for those persons detained in Riverhead and Yaphank. The Injunctiv e Class and subclasses are certified to seek declaratory and injunctive relief only; whereas the Damages Class and subclasses is certified to seek any and all monetary relief available to the class. It is further ORDERED that Butler and Sims are a ppointed the class representatives for the Riverhead Injunctive Subclass; that Lofton and Alver are appointed class representatives for the Yaphank Injunctive Subclass; that King is appointed class representative for the Riverhead Damages Subclass; and that Lynch is appointed class representative for the Yaphank Damages Subclass. It is further ORDERED that the Named Plaintiffs' attorneys of record are appointed class counsel. So Ordered by Judge Joanna Seybert on 3/19/2013. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MACK BUTLER, DASHAUN SIMS, CLYDE
LOFTON, PAUL ALVER, KEVIN KING, and
RICKEY LYNCH, on behalf of themselves
and all others similarly situated,
Plaintiffs,
-against-

MEMORANDUM & ORDER
11-CV-2602(JS)(GRB)

SUFFOLK COUNTY, VINCENT F. DeMARCO,
in his individual and official
capacity, JOSEPH T. CARACAPPA, in his
individual and official capacity, and
JOHN P. MEYERRICKS, in his individual
and official capacity,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Daniel Hector Rees LaGuardia, Esq.
Alexis Scott Berkowitz, Esq.
Edward Garth Timlin, Esq.
Melissa Jane Godwin, Esq.
Sheila Jane, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Corey Stoughton, Esq.
Taylor Scott Pendergrass, Esq.
New York Civil Liberties Union
125 Broad Street
New York, NY 10004
For Defendants:

Brian C. Mitchell, Esq.
Arlene S. Zwilling, Esq.
Suffolk County Attorney’s Office
H. Lee Dennison Building, Fifth Floor
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Pending

before

the

Court

are

Defendants

Suffolk

County, Vincent F. DeMarco, Joseph T. Caracappa, and John P.
Meyerricks’ (collectively, “Defendants”) motion to dismiss the
Consolidated Amended Class Action Complaint (the “Consolidated
Amended Complaint” or “CAC”) (Docket Entry 344) and Plaintiffs
Mack Butler, Dashaun Sims, Clyde Lofton, Paul Alver, Kevin King,
and Rickey Lynch’s (the “Named Plaintiffs”) motion for class
certification (Docket Entry 347).

For the following reasons,

Defendants’ motion is GRANTED IN PART and DENIED IN PART, and
the Named Plaintiffs’ motion is GRANTED.
BACKGROUND
I.

Procedural History
This action was commenced on May 27, 2011 by Plaintiff

Rickey Lynch and nineteen others who were then-confined in the
Suffolk County Correctional Facility (“SCCF”).

The action was

brought pro se on behalf of those individuals and all others
similarly situated against Suffolk County, Vincent DeMarco as
Sheriff

of

Suffolk

County,

and

various

John

Doe

Defendants

seeking damages arising out of the allegedly unconstitutional
conditions in the jail.

(Docket Entry 1.)

The plaintiffs all

sought leave to proceed in forma pauperis.

(Docket Entries 2-

21.)

The plaintiffs filed an Amended Complaint on June 17,

2011,

adding

an

additional

eight
2

plaintiffs

detained

in

the

SCCF.

(Docket

pauperis

Entry

status

were

49.)

Their

granted

applications

shortly

for

forma

but

thereafter,

in

their

request to proceed as a class action was denied due to the fact
that all of the class representatives were proceeding pro se.
(Docket Entry 62.)
On June 30, 2011, the plaintiffs filed a motion to
join an additional four plaintiffs (Docket Entry 67), which the
Court granted on October 7, 2011 (Docket Entry 244).

Thus,

there were a total of thirty-one plaintiffs asserting claims for
damages arising out of the conditions at the SCCF.

On November

22, 2011, the Court determined that the appointment of pro bono
counsel was appropriate and directed the Court’s Pro Se Office
to find counsel willing to represent the plaintiffs pro bono.
(Docket

Entry

Shearman

&

286.)

Sterling

On
LLP

January
were

23,

2012,

appointed

pro

attorneys
bono

from

counsel.

(Docket Entry 327.)
In the interim, the Court began receiving an influx of
substantially similar complaints from inmates at the SCCF, all
seeking damages arising out of the unsanitary conditions in the
facility.
nine

By January 23, 2012, the Court had received fifty-

separate

unhealthy,

complaints

unsanitary,

and

asserting
hazardous

(i)

the

conditions

existence
at

the

of

SCCF,

including the presence of black mold, fungus, soap scum, and
rust in the shower areas of the SCCF, drainage problems causing
3

back-ups of sewage and rusty water, and ventilation problems;
(ii)

injuries

resulting

from

these

conditions

including

headaches, breathing problems, skin rashes, itching, swelling,
and

infections;

and

(iii)

that

their

grievances

complaints about these conditions were ignored.

and/or

(See Docket

Entry 327.)

Given the similar conditions alleged in each of the

complaints,

the

Court

determined

that

consolidation

of

all

fifty-nine actions would be in the interests of judicial economy
and

efficiency

and

thus

consolidated

them

into

the

present

action.

Also, to save judicial time and resources, the Court

directed

the

Clerk

of

the

Court

to

consolidate

any

future

complaints received complaining of the conditions at the SCCF
into the present action.1

As of the date of this Memorandum and

Order, 111 separate complaints naming 163 plaintiffs have been
consolidated

into

this

action.

Shearman

&

Sterling’s

appointment was extended to all of the plaintiffs in the nowconsolidated action.
Shearman

&

(Docket Entry 327.)
Sterling

filed

the

Consolidated

Amended

Complaint on April 5, 2012, dropping all plaintiffs but the
Named Plaintiffs--Butler, Sims, Lofton, Alver, King, and Lynch-but seeking to represent the interests of all 163 plaintiffs by

1

Any plaintiff that did not wish to proceed as part of the
consolidated action was directed to inform the Court in writing.
To date, the Court has not received any requests to proceed
independently from this consolidated action.
4

proceeding

as

a

class

action.

(Docket

Entry

Consolidated Amended Complaint asserts four claims:

334.)

The

(1) a claim

on behalf of the pretrial detainees in the SCCF for violation of
the Constitution’s prohibition of cruel and inhuman treatment
under the Fourteenth Amendment; (2) a claim on behalf of all
sentenced

prisoners

in

the

SCCF

for

violation

of

the

Constitution’s prohibition of cruel and inhuman treatment under
the Eighth Amendment; and (3) a claim on behalf of the pretrial
detainees

in

the

SCCF

for

violation

of

the

New

York

Constitution’s due process clause; and (4) a claim on behalf of
all plaintiffs for negligence and ministerial negligence arising
under New York common law.
II.

Allegations in the Consolidated Amended Class Action
Complaint
A.

The Suffolk County Correctional Facility
The

SCCF

is

comprised

of

two

facilities:

the

Riverhead Correctional Facility (“Riverhead”), a medium/maximum
security

jail,

(“Yaphank”),
Riverhead

a

and

and

the

minimum
Yaphank

sentenced prisoners.

Yaphank

security
house

jail.

pretrial

(CAC ¶ 29.)

Correctional
(CAC

¶

detainees

Facility

29.)
as

well

Both
as

The sentenced prisoners are

either serving a local jail sentence of one year or less or are
awaiting transfer to a New York State prison.

(CAC ¶ 29.)

The

stated capacity for the SCCF is 1,327 persons, yet Riverhead and

5

Yaphank house a daily combined average of 1,732 persons.

(CAC

¶ 33.)
The Consolidated Amended Complaint asserts that the
men

detained

unhygienic,

in

the

and

SCCF

are

hazardous

“forced

living

to

live

conditions

in

squalid,

that

pose

a

substantial and ongoing risk to the men’s physical and mental
health.”

(CAC ¶ 38.)

The Court will summarize the allegations

with respect to Riverhead and Yaphank separately.
1.

Riverhead

The Consolidated Amended Complaint asserts that the
individuals housed at Riverhead are exposed to human waste on a
regular and ongoing basis.

(CAC ¶ 40.)

This is due to what the

Consolidated Amended Complaint describes as “ping-pong toilets.”
(CAC ¶¶ 41-42.)

When one inmate flushes his toilet, his waste

is not disposed of, but instead rises up in a nearby toilet in
an adjacent cell.

(CAC ¶ 41.)

On occasion, this has occurred

while someone is using the nearby toilet resulting in “other
men’s fecal matter and waste ris[ing] up through the pipes and
spout[ing]
toilet.”

onto

[an

inmate’s]

(CAC ¶ 42.)

buttocks

when

using

[his]

own

This also means that at night, while the

men are sleeping, the toilets--which are located in each cell a
mere two-to-three feet from the beds--accumulate fecal matter
and other waste.
“regularly

vomit,

(CAC ¶¶ 44-45.)
cough,

and

suffer
6

This causes the men to
from

nausea

and

severe

headaches due to the fumes.”

(CAC ¶ 45.)

Further, the toilet

seats have accrued “filth” over time as a result of the constant
“ping-ponging” of waste, which has caused the men to suffer from
rashes on their buttocks.

(CAC ¶ 43.)

“The showers in Riverhead are decrepit, coated with
thick, black mold, and reek of mildew” and “[t]he faucets and
pipes are rusted over.”

(CAC ¶ 50.)

The water is often brown

and smells of sewage, and at times actual sewage has backed up
out

of

the

shower

drains.

(CAC

¶¶

51-53.)

Due

to

the

unsanitary conditions in the shower, the men have suffered from
severe fungal infections on their feet, dry and itchy feet,
discolored

green

or

black

toenails,

painful

and

itchy

skin

rashes that bleed and scab when scratched, and bumps on their
backs, chests, arms, and buttocks.

(CAC ¶ 53.)

The mold and

rust, however, are not limited to the showers, and they cover
the walls and communal sinks where the inmates access their
drinking water.

(CAC ¶ 58.)

The drinking water is “regularly

brown or yellow in color, contains particles of unidentified
sediment, tastes metallic, and smells ‘like a cesspool.’”
¶ 113.)

(CAC

Drinking the tap water has caused the men to suffer

from stomach aches and cramps, nausea, vomiting, and diarrhea.
(CAC ¶ 117.)

The food is also unsafe and inadequate as it is

prepared with the drinking water, and it often contains flakes
of rust, paint, and rodent droppings.
7

(CAC ¶ 126.)

Riverhead

also

suffers

from

a

pest

and

infestation, and the facility is not properly heated.
62, 64.)

rodent
(CAC ¶¶

The cold temperature is compounded by the cold (often

brown) water leaking from the ceilings.

(CAC ¶ 68.)

According

to the Consolidated Amended Complaint, the ceilings are believed
to be lined with asbestos, so the leaking water puts the men at
risk of exposure to asbestos.
2.

(CAC ¶ 71.)

Yaphank

The conditions at Yaphank are not dissimilar to those
at Riverhead.

Yaphank also suffers from plumbing issues, and

the toilets and showers are often overflowing with sewage.
¶¶ 82-83, 87.)

(CAC

The overflow will sometimes flood the sleeping

or communal eating areas.

(CAC ¶¶ 82-83.)

The showers are

covered with mold and mildew, and the water is sometimes brown
and smells like sewage.
similarly
caused

brown

the

vomiting.

men

(CAC ¶¶ 86-87.)

The drinking water is

and

smells

like

waste,

to

suffer

from

stomach

(CAC ¶¶ 134-36.)

and

drinking

aches,

it

has

nausea,

and

Many men forego drinking the water

altogether and suffer from dehydration.

(CAC ¶ 139.)

Rust and

mold cover the bars, walls, and vents throughout the facility,
and bits of rust and mold often flake off of the walls and bars
and fall onto the men’s beds and into their food.
94, 96, 142-43.)

(CAC ¶¶ 93-

Yaphank also suffers from a pest and rodent

infestation as well as inadequate heating, leaking ceilings, and
8

exposure to asbestos.
conditions,
severe

the

men

headaches,

(CAC ¶¶ 97, 99, 102-03.)
regularly

suffer

migraines,

from

dizziness,

Due to these

nausea,
nose

vomiting,

bleeds,

skin

rashes, severe fungal infections, and intestinal and respiratory
problems.

(CAC ¶ 150.)

B.

The Named Plaintiffs
The Named Plaintiffs have all been detained at the

SCCF.

Butler has been detained in Riverhead since January 2011;

he

awaiting

is

trial.

(CAC

¶

9.)

Sims

was

detained

Riverhead from May 2010 through April 20, 2012.
Defs. Mot. 21; Pls. Opp. 11.)

in

(CAC ¶ 10;

Lofton has been detained in

Yaphank since September 2011; he is awaiting trial.

(CAC ¶ 11.)

Alver was detained at Yaphank from September 2011 through May
18, 2012.
detained

(CAC ¶ 12; Defs. Mot. 21; Pls. Opp. 11.)
in

Riverhead

(CAC ¶ 13.)

from

January

2011

through

King was

April

2012.

And Rickey Lynch was detained in Yaphank from July

2010 through November 2010 and in Riverhead from November 2010
through October 2011.
each

of

the

Named

(CAC ¶ 14.)

Plaintiffs

was

While detained at the SCCF,
exposed

to

the

conditions

described above, which caused them to suffer from intestinal
issues,

skin

infections,
dizziness.

conditions,

nose

bleeds,

respiratory
headaches,

(CAC ¶¶ 9-15.)

9

infections,
blurred

fungal

vision,

and

C.

The Defendants
Defendant Suffolk County operates the SCCF through its

Sheriff’s Office.

(CAC ¶ 17.)

Defendant DeMarco has been the

Sheriff of Suffolk County since November 8, 2005.
Defendants
DeMarco’s

Caracappa

and
(CAC

deputies.

Meyerricks
¶

19.)

are
The

(CAC ¶ 18.)

undersheriffs

Consolidated

and

Amended

Complaint asserts that Defendants “knew or should have known” of
the inhumane conditions at SCCF due to, among other things,
reports from the Suffolk County Budget Review Office, testimony
before the Public Safety and Public Information Committee of the
Suffolk County Legislature, a study published by the Suffolk
County

Criminal

Justice

Coordinating

Council,

and

statements

made by the New York State Commission of Corrections regarding
the

“seriously

deficient”

conditions at the SCCF.

and

possibly

unconstitutional

(CAC ¶¶ 152-184.)
DISCUSSION

On

May

16,

2012,

Defendants

moved

to

dismiss

the

Consolidated Amended Complaint, and, on May 17, 2012, the Named
Plaintiffs moved for class certification.
presently pending before the Court.

These motions are

The Court will address both

motions here, starting with Defendants’ motion to dismiss.
I.

Motion to Dismiss
The

Court

will

discuss

the

applicable

standards

review before addressing the merits of Defendants’ arguments.
10

of

A.

Standards of Review
Although Defendants purport to move to dismiss solely

under Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim, their motion also seeks dismissal on
the grounds that this Court lacks subject matter jurisdiction,
which is governed by Rule 12(b)(1).
1.
“A

Under Rule 12(b)(1)
case

is

properly

dismissed

for

lack

of

subject

matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see
also Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008), aff’d, ––– U.S. ––––, 130 S. Ct. 2869, 177 L. Ed. 2d
535

(2010).

In

resolving

a

motion

to

dismiss

for

lack

of

subject matter jurisdiction, the Court may consider affidavits
and

other

materials

jurisdictional questions.

beyond

the

pleadings

to

resolve

See Makarova, 201 F.3d at 113.

The

Court must accept as true the factual allegations contained in
the complaint, but it will not draw argumentative inferences in
favor of the plaintiff because subject matter jurisdiction must
be shown affirmatively.

See Morrison, 547 F.3d at 170; Atlanta

Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198
(2d Cir. 1992).

The plaintiff bears the burden of establishing

11

subject matter jurisdiction by a preponderance of the evidence.
Morrison, 547 F.3d at 170.
2.
In

Under Rule 12(b)(6)
deciding

Rule

12(b)(6)

motions

to

dismiss

for

failure to state a claim, the Court applies a “plausibility
standard,”

which

is

guided

by

“[t]wo

working

principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 71-72
(2d

Cir.

2009).

allegations

as

First,
true,

although

the

Court

“tenet”

is

“inapplicable

this

must

accept
to

all

legal

conclusions;” thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”

Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)); accord Harris, 572 F.3d at 72.

Second, only complaints

that state a “plausible claim for relief” can survive a Rule
12(b)(6) motion to dismiss.
Twombly, 550 U.S. at 556).

Iqbal, 556 U.S. at 679 (citing

Determining whether a complaint does

so is “a context-specific task that requires the reviewing court
to

draw

on

its

judicial

experience

and

common

sense.”

(citation omitted); accord Harris, 572 F.3d at 72.

Id.

Further,

although Defendants have attached exhibits in support of their
motion, in deciding a motion to dismiss for failure to state a
claim,

the

Court

is

confined

to
12

“the

allegations

contained

within the four corners of [the] complaint.”

Pani v. Empire

Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998).
B.

Subject Matter Jurisdiction
Defendants

raise

two

arguments

in

support

of

their

application to dismiss for lack of subject matter jurisdiction:
(1)

the

claims

Named

for

Plaintiffs

injunctive

lack

relief

standing

are

now

and

moot.

(2)

some

The

of

Court

the
will

address each argument separately.
1.

Standing

Under Article III of the United States Constitution,
federal courts are confined “to adjudicating actual ‘cases’ and
‘controversies.’”

Allen v. Wright, 468 U.S. 737, 750, 104 S.

Ct. 3315, 82 L. Ed. 2d 556 (1984); see also U.S. CONST., art. III,
§ 2.

“This limitation is effectuated through the requirement of

standing.”

Cooper v. U.S. Postal Serv., 577 F.3d 479, 489 (2d

Cir. 2009) (citing Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, Inc., 454 U.S. 464, 471-72,
102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)); see also United States
v. Grundhoefer, 916 F.2d 788, 791 (2d Cir. 1990).
three requirements to establish Article III standing:

There are
“(1) the

plaintiff must have suffered an injury-in-fact; (2) there must
be a causal connection between the injury and the conduct at
issue; and (3) the injury must be likely to be redressed by a
favorable decision.”

Cooper, 577 F.3d at 489; see also Allen,
13

468 U.S. at 751 (“A plaintiff must allege personal injury fairly
traceable

to

the

defendant’s

allegedly

unlawful

conduct

and

likely to be redressed by the requested relief.”); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119
L. Ed. 2d 351 (1992).

Here, Defendants argue that the Named

Plaintiffs have failed to plead that they suffered an injury-infact.

The Court disagrees.
“To qualify as a constitutionally sufficient injury-

in-fact,

the

asserted

injury

must

be

‘concrete

and

particularized’ as well as ‘actual or imminent, not conjectural
or hypothetical.’”

Baur v. Veneman, 352 F.3d 625, 632 (2d Cir.

2003) (quoting Lujan, 504 U.S. at 560); cf. Amnesty Int’l U.S.A.
v. Clapper, 667 F.3d 163, 171 (2d Cir. 2011) (“The critical
inquiry

for

standing

is

whether

the

plaintiffs

are

simply

citizens with an abstract claim that some action was unlawful,
or whether they, in some particular respect not shared by every
person who dislikes the action, are injured by that action.”).
Injury is “concrete and particularized” if it “affect[s] the
plaintiff in a personal and individual way,” Lujan, 504 U.S. at
560 n.1; accord Baur, 352 F.3d at 632, and injury is “actual or
imminent” if the plaintiff “has sustained or is immediately in
danger of sustaining some direct injury,” City of Los Angeles v.
Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675
(1983) (internal quotation marks and citation omitted).
14

Here, the Consolidated Amended Complaint asserts that
the Named Plaintiffs were all “exposed to the conditions” in the
SCCF (CAC ¶¶ 9-14) and that they suffered “intestinal illnesses,
skin conditions, respiratory infections, fungal infections, nose
bleeds, headaches, blurred vision, and dizziness” (CAC ¶ 15).2
The

Court

finds

that

these

injuries

are

sufficiently

particularized and actual to satisfy the standing requirement at
this stage of the litigation.

See Lujan, 504 U.S. at 561 (“At

the

factual

pleading

stage,

general

allegations

of

injury

resulting from the defendant’s conduct may suffice, for on a
motion to dismiss we ‘presum[e] that general allegations embrace
those specific facts that are necessary to support the claim.’”
(alteration in original) (quoting Lujan v. Nat’l Wildlife Fed.,
497 U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)).
Accordingly,

to

the

extent

that

Defendants

seek

to

dismiss for lack of standing, their motion is DENIED.

2

Defendants appear to take issue with the fact that this
paragraph refers to the Named Plaintiffs as “Plaintiffs,” as
opposed to the “named Plaintiffs” as they are defined earlier in
the CAC. Thus, Defendants argue that paragraph 15 must be
referring to the class plaintiffs and not the Named Plaintiffs
specifically. The Court disagrees. Paragraph 15 follows
descriptions of each of the Named Plaintiffs and is in a
subsection titled “the Named Plaintiffs.” On the other hand,
elsewhere in the CAC, the purported class members are referred
to generally as “the men” housed in the facilities and never as
“Plaintiffs.” Thus, the Court finds that it is clear that
paragraph 15 is discussing the injuries sustained by the Named
Plaintiffs.
15

2.

Mootness

“A case is moot, and accordingly the federal courts
have no jurisdiction over the litigation, when ‘the parties lack
a legally cognizable interest in the outcome.’”

Fox v. Bd. of

Trustees of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994)
(quoting Cnty. of L.A. v. Davis, 440 U.S. 625, 631, 99 S. Ct.
1379, 59 L. Ed. 2d 642 (1979)); see also Cnty. of Suffolk v.
Sebelius, 605 F.3d 135, 140 (2d Cir. 2010) (stating that under
the doctrine of mootness, a court’s “subject matter jurisdiction
ceases

when

‘an

event

occurs

during

the

course

of

the

proceedings or on appeal that makes it impossible for the court
to grant any effectual relief whatever to a prevailing party.’”
(quoting United States v. Quattrone, 402 F.3d 304, 308 (2d Cir.
2005)).

Defendants

argue

that

Plaintiffs

Alvers

and

Sims’

claims for injunctive and declaratory relief must be dismissed
as moot because they are no longer incarcerated at SCCF.3

The

Court disagrees.4

3

Plaintiffs King and Lynch are also no longer confined in the
SCCF; however, they are not seeking declaratory or injunctive
relief.
4

The Court notes that this entire discussion is academic. Two
of the Named Plaintiffs are still incarcerated in the SCCF and,
thus, unquestionably have standing to seek the declaratory and
injunctive relief requested in the Consolidated Amended
Complaint, and the Named Plaintiffs that are no longer at SCCF
may still seek monetary relief.
16

Although “[i]n this [C]ircuit, an inmate’s transfer
from a prison facility generally moots claims for declaratory
and

injunctive

relief

against

officials

of

that

facility,”

Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006); see also
Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996), in class
actions, “an individual plaintiff may continue to represent the
interests

of

others

even

after

any

prospect

of

individual

recovery has vanished,” Comer v. Cisneros, 37 F.3d 775, 798 (2d
Cir.

1994)

(collecting

(internal
Supreme

quotation

Court

marks

decisions);

and
see

citation
also

id.

omitted)
(“[C]lass

certification will preserve an otherwise moot claim.”).

That a

class has not yet been certified does not necessarily deprive
this

Court

of

jurisdiction.

See

Cnty.

of

Riverside

v.

McLaughlin, 500 U.S. 44, 52, 111 S. Ct. 1661, 114 L. Ed. 2d 49
(1991); see also Krimstock v. Kelly, 306 F.3d 40, 70 n.34 (2d
Cir. 2002).

The Supreme Court has held that a class plaintiff’s

standing will “relate back” to the filing of the complaint if
the claims asserted are “so inherently transitory that the trial
court will not have enough time to rule on a motion for class
certification
expires.”

before

McLaughlin,

the
500

proposed
U.S.

at

representative’s
52;

see

also

interest

Swisher

v.

Brady, 438 U.S. 204, 213 n.11, 98 S. Ct. 2699, 57 L. Ed. 2d 705
(1978).

For example, in Gerstein v. Pugh, 420 U.S. 103, 95 S.

Ct. 854, 43 L. Ed. 2d 54 (1975), the Supreme Court found that
17

claims challenging pretrial detention conditions were not moot,
even

though

detainees,

the

named

because

plaintiffs

“[p]retrial

temporary, and . . .

were

no

detention

longer

is

by

pretrial

its

nature

[i]t is by no means certain that any given

individual, named as a plaintiff, would be in pretrial custody
long enough for a district judge to certify a class.”

Id. at

110 n.11; see also Amador v. Andrews, 655 F.3d 89, 100-101 (2d
Cir. 2011).

The Court finds that the same rationale applies

here, as inmates at the SCCF are either pretrial detainees or
men serving sentences of one year or less.
Accordingly,
standing

the

Court

relates

to

filing

back

finds
of

that

the

Alvers

and

Consolidated

Sims’

Amended

Complaint, at which time they were both incarcerated at the
SCCF,5

and

Defendants’

motion

to

dismiss

their

claims

for

injunctive and declaratory relief is DENIED.
C.

Failure to State a Claim
Defendants also move to dismiss for failure to state a

claim.

The Court will address the arguments as they pertain to

the Named Plaintiffs’ federal and state claims separately.

5

Although Sims was no longer at SCCF when the motion for class
certification was filed, it is the date of the complaint, not
the date of the certification motion, that is relevant. See,
e.g., Mental Disability Law Clinic v. Hogan, No. 06-CV-6320,
2008 WL 4104460, at *10 (E.D.N.Y. Aug. 29, 2008) (“[T]here is no
requirement in the Second Circuit that a representative’s claim
must be live at the time that the motion to certify is filed.”
(collecting cases)).
18

1.
The
§ 1983

Section 1983 Claims
Named

for

Plaintiffs

violations

of

assert

both

the

claims

under

Eighth

42

and

U.S.C.

Fourteenth

Amendments of the United States Constitutions arising out of the
allegedly “cruel and inhumane prison conditions” at SCCF.
¶¶ 186, 188.)

(CAC

The Eighth Amendment prohibits “cruel and unusual

punishments,” and the Supreme Court has held that this requires
the

conditions

of

a

prisoner’s

confinement

to

be

“humane,”

Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L.
Ed.

2d

811

(1994),

although

not

necessarily

“comfortable,”

Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 69 L. Ed.
2d 59 (1981).
Cir.

2012);

2001).

See also Jabbar v. Fischer, 683 F.3d 54, 57 (2d

Gaston

v.

Coughlin,

249

F.3d

156,

164

(2d

Cir.

Although the Eighth Amendment’s protection only applies

to convicted prisoners, the right of pretrial detainees not to
be subjected to cruel or unusual punishment is protected by the
Fourteenth Amendment.

See United States v. Walsh, 194 F.3d 37,

47 (2d Cir. 1999) (citing Graham v. Connor, 490 U.S. 386, 392
n.6, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Bell v. Wolfish,
441 U.S. 520, 535, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)).
The same legal standard governs conditions-of-confinement claims
brought under the Eighth and Fourteenth Amendments.

See Caiozzo

v. Koreman, 581 F.3d 63, 71 & n.4 (2d Cir. 2009) (collecting
cases).
19

Defendants argue that these claims must be dismissed
because the Named Plaintiffs have failed to plead: (1) that they
exhausted

their

administrative

suffered any physical injury.
Named

Plaintiffs

assert

remedies

and

(2)

that

they

Further, to the extent that the

their

Section

1983

claims

against

Defendants DeMarco, Caracappa, and Meyerricks, Defendants assert
that they must be dismissed for failure to adequately plead
supervisory liability.

The Court will address each argument in

turn.
a.

Failure to Exhaust

The Prison Litigation Reform Act (“PLRA”) provides, in
relevant part, that:

“No action shall be brought with respect

to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison,
or

other

correctional

facility

until

remedies as are available are exhausted.”

such

administrative

42 U.S.C. § 1997e(a).

This exhaustion requirement “applies to all inmate suits about
prison

life,

whether

they

involve

general

circumstances

or

particular episodes, and whether they allege excessive force or
some other wrong.”

Porter v. Nussle, 534 U.S. 516, 532, 122 S.

Ct. 983, 152 L. Ed. 2d 12 (2002).

Defendants argue that the

Consolidated Amended Complaint must be dismissed because none of
the

Named

Plaintiffs

filed

any

20

grievances

regarding

the

conditions at SCCF prior to commencing this action.

The Court

disagrees.
Because failure to exhaust is an affirmative defense,
“inmates

are

not

required

to

specially

exhaustion in their complaints.”

plead

or

demonstrate

Jones v. Bock, 549 U.S. 199,

216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).

“Dismissal under

Rule 12(b)(6) for failure to exhaust is thus appropriate only
where nonexhaustion is apparent from the face of the complaint.”
Roland v. Smith, --- F. Supp. 2d ----, 2012 WL 601071, at *2
(S.D.N.Y. Feb. 22, 2012) (citing McCoy v. Goord, 255 F. Supp. 2d
233,

251

(S.D.N.Y.

2003)).

Here,

the

Consolidated

Amended

Complaint asserts that “the men have raised the[] unsanitary and
hazardous
many

conditions

occasions”

unabated.”

but

[at

SCCF]

that

with

the

(CAC ¶¶ 78, 109.)

corrections

“conditions

officials

have

on

persisted

Thus, it is not clear from the

face of the Consolidated Amended Complaint whether the Named
Plaintiffs

have

exhausted

their

administrative

remedies,

dismissal is inappropriate at this stage of the litigation.

so
See

McCoy, 255 F. Supp. 2d at 249 (“[I]f, as is usually the case, it
is

not

clear

from

the

face

of

the

complaint

whether

the

plaintiff exhausted, a Rule 12(b)(6) motion is not the proper
vehicle.”); see also, e.g., Benjamin v. Flores, No. 11-CV-4216,
2012 WL 5289513, at *5 (E.D.N.Y. Oct. 23, 2012) (collecting
cases).
21

Further, even if the Named Plaintiffs6 did not formally
exhaust their administrative remedies, exhaustion may be excused
if:

(1)

administrative

remedies

were

unavailable;

(2)

the

defendants forfeited the defense or acted in such a way as to
estop

them

from

raising

justify non-exhaustion.

it;

or

(3)

“special

circumstances”

Hemphill v. New York, 380 F.3d 680, 686

(2d Cir. 2004); see also Messa v. Goord, 652 F.3d 305, 309 (2d
Cir.

2011).

Such

undeveloped record.

a

determination

cannot

be

made

on

an

See Harris v. Westchester Cnty. Dep’t of

Corrs., No. 06-CV-2011, 2008 WL 953616, at *4 (S.D.N.Y. Apr. 3,

6

The Named Plaintiffs assert that, even though Plaintiff King
was in custody when he was joined as a party, he is not subject
to the exhaustion requirement because he was released from
custody prior to the filing of the CAC. (Pls. Opp. 19.)
Although the exhaustion requirement does not apply to a former
prisoner who institutes an action after he is released from
custody, see Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999),
it does apply to prisoners who, like King, are released from
custody during the pendency of the action, see Berry v. Kerik,
366 F.3d 85, 88 (2d Cir. 2003). That Plaintiff King filed the
CAC after being released from custody does not relieve him of
the PLRA’s exhaustion requirement. See Prescott v. Annetts, No.
No. 09-CV-4435, 2010 WL 3020023, at *4 (S.D.N.Y. July 22, 2010)
(“There is no reason why his failure to exhaust should be
excused merely because he amended his complaint after being
released from custody.”); see also DeFreitas v. Montgomery Cnty.
Corr. Facility, No. 08-CV-5330, 2012 WL 2920219, at *6-7 (E.D.
Pa. July 18, 2012). The cases cited by the Named Plaintiffs in
their brief (Pls. Opp. 13 n.7) are either distinguishable or no
longer good law. See, e.g., Gibson v. Comm’r of Mental Health,
No. 04-CV-4350, 2006 WL 1234971, at *6 (S.D.N.Y. May 8, 2006)
(discussing the “three-strikes” rule); Prendergast v. Janecka,
No. 00-CV-3099, 2001 WL 793251 (E.D. Pa. July 10, 2001),
abrogated by Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir.
2002).
22

2008); Brown v. Austin, No. 05-CV-9443, 2007 WL 2907313, at *3
(S.D.N.Y. Oct. 3, 2007).
Accordingly,

to

the

extent

that

Defendants

seek

to

dismiss the Consolidated Amended Complaint for failure to comply
with

the

PLRA’s

exhaustion

requirement,

their

argument

is

premature and their motion is DENIED.
b.
PLRA

The

Failure to Plead Physical Injury
further

provides

that

“[n]o

Federal

civil

action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.”

42

Consolidated
Named

U.S.C.
Amended

Plaintiffs

§

1997e(e).

Complaint

have

failed

Defendants

must
to

suffered any physical injury.

be

plead

argue

dismissed
that

that

the

because

the

they

personally

The Court disagrees.

Although

the majority of the Consolidated Amended Complaint discusses the
conditions that were faced by “the men” confined in the SCCF and
not specifically the Named Plaintiffs, the Consolidated Amended
Complaint also states that the Named Plaintiffs, “[a]s a result
of their confinement in the SCCF and exposure to the conditions
described”

therein,

“suffered

conditions,

respiratory

intestinal

infections,

fungal

illnesses,

skin

infections,

nose

bleeds, headaches, blurred vision, and dizziness.”
See also supra note 2.

(CAC ¶ 15.)

These conditions clearly constitute
23

“physical injury” sufficient to satisfy the PLRA.

See Waters v.

Andrews, No. 97-CV-0407, 2000 WL 1611126, at *8 (W.D.N.Y. Oct.
16, 2000) (“A reasonable jury could find that the term ‘physical
injury’

as

odors,

including

‘dreadful’

used

in

§

1997e(e)

body

odors

conditions

of

includes
from

exposure

human

confinement

.

.

to

noxious

discharges,
.

.”).

and

Further,

“Section 1997e(e) does not limit the availability of nominal [or
punitive] damages for the violation of a constitutional right”
or

the

Thompson

ability
v.

to

seek

Carter,

declaratory

284

F.3d

411,

or

injunctive

418

(2d

relief.

Cir.

2002).

Accordingly, to the extent that Defendants seek to dismiss the
Consolidated

Amended

Complaint

for

failure

to

plead

physical

injury, their motion is DENIED.
c.

Failure to Plead Supervisory Liability

A prison official may be held personally liable for a
claim of cruel and inhuman treatment “only if he knows that
inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.”
Farmer,

511

U.S.

at

847.

Here,

the

Consolidated

Amended

Complaint asserts that DeMarco, Caracappa, and Meyerricks “knew
or

should

have

unconstitutional

known”

of

conditions”

the
at

“visibly

SCCF

due

deplorable
to

the

and

numerous

complaints made by inmates as well as reports from the State and
several

Suffolk

County

offices
24

and

agencies

describing

the

conditions in the facilities.

(CAC ¶¶ 179-182 (emphasis added),

see also id. ¶¶ 30-31, 34-36, 155-71.)

However, the Supreme

Court has made clear that “[a]n official’s failure to alleviate
a significant risk that he should have perceived but did not,
while

no

cause

for

commendation,”

constitutional violation.
added).

does

not

amount

to

a

Farmer, 511 U.S. at 838 (emphasis

Rather, the official must “be aware of facts from which

the inference could be drawn that a substantial risk of serious
harm exists.”

Id. at 837; see also Salahuddin, 467 F.3d at 280

(finding that the official must have “act[ed] or fail[ed] to act
while actually aware of a substantive risk that serious inmate
harm

will

result”);

Caiozzo,

581

F.3d

at

69-71.

As

the

Consolidated Amended Complaint does not plead actual knowledge,
but rather constructive knowledge, the claims against Defendants
DeMarco,
Goodson

Caracappa,
v.

Wright,

and

Meyerricks

No.

11-CV-0541,

must
2012

be
WL

dismissed.
3686222,

See
at

*5

(N.D.N.Y. May 23, 2012), adopted by 2012 WL 3655505 (N.D.N.Y.
Aug. 24, 2012); see also Broschart v. O’Connor-Ryerson, No. 11CV-0405,

2012

WL

555307,

at

*3

(N.D.N.Y.

Jan.

17,

2012)

(“‘[K]new or should have known’ is not the applicable test for
deliberate indifference.”), adopted by 2012 WL 555407 (N.D.N.Y.
Feb.

21,

2012);

Miller

v.

Rosini,

No.

09-CV-7300,

2011

WL

924230, at *7 (S.D.N.Y. Mar. 17, 2011) (“[N]egligent conduct, no
matter how serious the resulting injury, does not rise to the
25

level

of

a

constitutional

violation.”

(citing

Cnty.

of

Sacramento v. Lewis, 523 U.S. 833, 848, 855, 118 S. Ct. 1708,
140 L. Ed. 2d 1043 (1998)).7
In the alternative, the Named Plaintiffs argue that
DeMarco, Caracappa, and Meyerricks can be held liable under a
theory

of

supervisory

liability.

Although

“‘[i]t

is

well

settled in this Circuit that personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983,’” Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994)); Iqbal, 556 U.S. at 676 (“[A] plaintiff must
plead

that

official’s

each

Government-official

own

individual

defendant,

actions,

has

through
violated

the
the

Constitution.”), a supervisory official can nonetheless be held
liable

if

he

“participated

directly

in

the

alleged

constitutional violation [or] . . . created a policy or custom
under which the unconstitutional practices occurred, or allowed
the continuance of such a policy or custom,” Colon, 58 F.3d at

7

The Court notes that Plaintiffs’ opposition brief asserts that
the individual defendants did, in fact, have knowledge of the
allegedly unconstitutional conditions at SCCF. (Pls. Opp. 2021.) However, the Court, in reviewing a motion to dismiss for
failure to state a claim, is limited to the allegations in the
complaint, and, here, the Consolidated Amended Complaint asserts
that the individual defendants “knew or should have known” of
the conditions (CAC ¶¶ 179-182).
26

873.8

The

Named

Plaintiffs

argue

that

“the

Individual

Defendants’ refusal to allocate funds” to the SCCF was part of
“a longstanding policy created or continued by the Individual
Defendants

to

allow

overcrowding

in

the

SCCF

in

a

specific

effort to lessen the financial burden of alternative housing,
and to otherwise administer the SCCF as cheaply as possible.”
(Pls. Opp. 23.)
void

of

any

However, the Consolidated Amended Complaint is

allegations

financially

in

improving

individual

Defendants.

that
the

the
SCCF

Rather,

decision

not
by

to

was

made

any

the

Consolidated

invest
of

the

Amended

Complaint appears to assert that this decision was made by the

8

The Second Circuit in Colon actually listed five ways that a
plaintiff can establish supervisory liability--not just the two
described above--including failure to remedy a wrong after being
informed of the violation, grossly negligent supervision of
subordinates who committed the wrongful acts, and deliberate
indifference to the rights of inmates. 58 F.3d at 873.
However, the “continuing vitality” of these additional methods
has “engendered conflict within our Circuit” due to the Supreme
Court’s decision in Iqbal. Reynolds v. Barrett, 685 F.3d 193,
206 (2d Cir. 2012). In Iqbal, the Supreme Court rejected the
argument that “a supervisor’s mere knowledge of his
subordinate’s discriminatory purpose amounts to the supervisor’s
violating the Constitution.” 556 U.S. at 677. Although the
Second Circuit has yet to determine the effects of Iqbal on the
Colon-factors, the weight of authority among the district courts
in the Eastern District of New York suggests that only two of
the Colon-factors--direct participation and the creation of a
policy or custom--survive Iqbal. See, e.g., Firestone v.
Berrios, --- F. Supp. 2d ----, 2013 WL 297780, at *9-10
(E.D.N.Y. Jan. 22, 2013); Doe v. New York, No. 10-CV-1792, 2012
WL 4503409, at *8 n.3 (E.D.N.Y. Sept. 28, 2012); Warrender v.
United States, No. 09-CV-2697, 2011 WL 703927, at *5 n.1
(E.D.N.Y. Feb. 17, 2011). This Court agrees and, thus, will
limit its discussion to only those two factors.
27

County.

(See CAC ¶¶ 157-59 (discussing the County’s allocation

of funds to the SCCF.)
asserted

against

Accordingly, the Section 1983 claims

DeMarco,

Caracappa,

and

Meyerricks

are

DISMISSED WITHOUT PREJUDICE.
2.

State Law Claims

Defendants

argue

that

the

Named

Plaintiffs’

state

common law claim for negligence must be dismissed for failing to
serve a notice of claim pursuant to New York’s General Municipal
Law.

Section

plaintiff

to

50-e

file

of

a

the

notice

General
of

Municipal

claim

prior

Law

to

requires

commencing

a
an

action in tort against a municipality or one of its employees.
N.Y. GEN. MUN. LAW § 50-e; see also id. § 50-m (extending the
notice of claim requirement of Section 50-e to police and peace
officers
“appl[ies]

employed

by

equally

to

Suffolk
state

County).

tort

claims

This

requirement

brought

as

pendent

claims in a federal civil rights action,” Warner v. Vill. of
Goshen Police Dep’t, 256 F. Supp. 2d 171, 175 (S.D.N.Y. 2003),
and a plaintiff’s failure to file a notice of claim “prior to
the commencement of litigation ordinarily requires dismissal,”
Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 62, 484 N.Y.S.2d
533, 535, 473 N.E.2d 761, 763 (1984).
The Named Plaintiffs do not deny that they failed to
file a notice of claim prior to commencing suit.

Instead, they

argue that they are exempt from this requirement pursuant to
28

“the well-settled public interest exemption.”
The Court agrees.

(Pls. Opp. 24.)

The New York Court of Appeals has stated that

“the failure to timely file a notice of claim shall be fatal
unless

the

action

interest . . . .”

has

been

brought

to

vindicate

a

public

Mills v. Monroe Cnty., 59 N.Y.2d 307, 308,

464 N.Y.S.2d 709, 709, 451 N.E.2d 456, 456 (1983); see also
Union Free Sch. Dist. No. 6 v. N.Y. State Human Rights Appeal
Bd., 35 N.Y.2d 371, 379-80, 362 N.Y.S.2d 139, 144-45, 320 N.E.2d
859, 862-63 (1974).9
interest

and

is

An action seeks to vindicate a public

“deserving

of

special

treatment”

if

it

was

“brought to protect an important right, and seek[s] relief for a
similarly situated class of the public, and whose resolution
would

directly

affect

the

rights

of

that

class

or

group.”

Mills, 59 N.Y.2d at 311, 464 N.Y.S.2d at 711, 451 N.E.2d at 458.
The Court finds that this action, which is seeking injunctive
and declaratory relief regarding the conditions at SCCF, more
than satisfies this test.

9

Defendants argue that the exemption articulated in Mills only
applies to N.Y. COUNTY LAW § 52, which requires plaintiffs to file
a notice of claim in any action against a county to recover
damages under New York’s Human Rights Law. (Defs. Reply 9-10.)
Although the Court of Appeals in Mills applied the public
interest exemption in the context of COUNTY LAW § 52’s notice of
claim requirement, courts in New York have extended the
exemption to GENERAL MUNICIPAL LAW § 50-e’s notice of claim
requirement as well. See, e.g., Garcia v. Bloomberg, 865 F.
Supp. 2d 478, 491 (S.D.N.Y. 2012); Green v. City of N.Y., 438 F.
Supp. 2d 111, 125 (E.D.N.Y 2006). Thus, Defendants’ argument is
without merit.
29

Defendants argue that the exemption does apply here
because no class has been certified.
argument

is

illogical.

If

(Defs. Reply 9.)

class

certification

This
was

a

prerequisite to the court’s application of the public interest
exemption, then the exemption would never apply.
would

just

move

to

dismiss

as

early

as

Defendants

possible

in

the

litigation--before plaintiffs have an opportunity to move for
class certification.

Further, courts in New York have applied

the exemption to cases without a certified class.

See, e.g.,

Green, 438 F. Supp. 2d at 125; Scaggs v. N.Y. Dep’t of Educ.,
No. 06-CV-0799, 2007 WL 1456221, at *1 n.1, 20 (E.D.N.Y. May 16,
2007).
Accordingly, Defendants’ motion to dismiss the state
law claims is DENIED.
II.

Motion for Class Certification
The Named Plaintiffs seek to certify two classes:

Injunctive Class and a Damages Class.

an

The Injunctive Class is

comprised of those seeking injunctive and declaratory relief and
is defined as follows:
All persons who, now or at any time in the
future,
are
or
will
be
detainees
or
prisoners in the custody of the Suffolk
County Sheriff’s Department and housed in
the Suffolk County Correctional Facilities
located in Riverhead, New York and Yaphank,
New York.

30

(CAC ¶ 21.)

Plaintiffs Butler, Sims, Lofton, and Alver are the

proposed class representatives for the Injunctive Class.
Mot.

5.)

The

Damages

Class

is

comprised

of

those

(Pls.
seeking

monetary relief and is defined as follows:
All persons who are or were detainees or
prisoners in the custody of the Suffolk
County Sheriff’s Department and housed in
the Suffolk County Correctional Facilities
(“SCCF”) located in Riverhead, New York and
Yaphank, New York, and who were or will be
released from the SCCF on or after April 5,
2009.
(Compl.

¶

22.)

Plaintiff

King

representative for the Damages Class.

is

the

proposed

class

(Pls. Mot. 6.)

For these putative classes to be certified under Rule
23, the Named Plaintiffs must establish, by a preponderance of
the

evidence,

that

the

proposed

classes

meet

the

four

prerequisites set forth in subsection (a) and fit into one of
the categories of class actions enumerated in subsection (b).
FED. R. CIV. P. 23; see also Teamsters Local 445 Freight Div.
Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir.
2008).
after

Although “a district judge may certify a class only
making

determinations

that

each

of

the

Rule

23

requirements has been met,” Miles v. Merrill Lynch & Co. (In re
Initial Pub. Offerings Sec. Litig.), 471 F.3d 24, 41 (2d Cir.
2006); see also Teamsters, 546 F.3d at 204 (“[A] court [must]
receive enough evidence, by affidavits, documents, or testimony,

31

to be satisfied that each Rule 23 requirement has been met.”
(internal

quotation

marks

and

citation

omitted)),

the

requirements should be “given liberal rather than restrictive
construction,” Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d
Cir. 1997).
A.

Rule 23(a) Prerequisites
To be certified under Rule 23, a putative class must

establish that:
(1)

the class is so numerous that joinder
of all members is impracticable;

(2)

there are questions
common to the class;

(3)

the
claims
or
defenses
of
the
representative parties are typical of
the claims or defenses of the class;
and

(4)

the representative parties will fairly
and adequately protect the interests of
the class.

FED. R. CIV. P. 23(a).
spelled

out

requirement

in
of

definition.”
F.R.D.

75,

Rule

of

law

or

fact

“Additionally, while it is not explicitly
23,

courts

ascertainability’

have

with

added

respect

an
to

‘implied
the

class

Colozzi v. St. Joseph’s Hosp. Health Ctr., 275
83

(N.D.N.Y.

2011)

(citing

In

Offerings, 471 F.3d 24, 30 (2d Cir. 2006)).
address each requirement separately.

32

re

Initial

Pub.

The Court will

1.

Numerosity

The first prerequisite that the Named Plaintiffs must
establish is that “the class is so numerous that joinder of all
members is impracticable.”
argue

that

the

Named

FED. R. CIV. P. 23(a)(1).

Plaintiffs

have

failed

Defendants

to

establish

numerosity because: (1) the number of actual potential class
members is based on speculation because the Named Plaintiffs
have

“present[ed]

no

evidence

that

any

particular

plaintiff,

named or potential, has actually suffered harm as a result of
defendants’

purported

conduct”

(Defs.

Opp.

6);

(2)

“a

presumption that there would be so many [class members] as to
render joinder impracticable is dubious in light of the history
of this class” (Defs. Opp. 7); (3) is it “questionable” that
judicial economy would be furthered by a class action (Defs.
Opp. 8), and (4) there is no evidence “that there are sufficient
exhausting plaintiffs who may now proceed to sue” (Defs. Opp.
6).
Defendants’
frivolous,
injuries

as

more

resulting

first

three

than

100

from

the

arguments

separate

are

complaints

unsanitary

and

beyond
alleging

purportedly

unconstitutional conditions at the SCCF have been consolidated
into this action, and “numerosity is presumed at a level of 40
members.”

Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d

473, 483 (2d Cir. 1995).

Further, if the motion for class
33

certification is denied, the claims of each of the plaintiffs
whose complaints have been consolidated herein shall be severed,
their prior cases reopened and reinstated, and their actions
litigated separately because their interests will no longer be
represented

in

“questionable”

the

instant

that

action.

proceeding

as

a

Thus,

it

class

is

far
will

action

from
save

significant time and resources for both the Court and defense
counsel.
Defendants’ fourth argument warrants more discussion.
Defendants

argue

that

each

class

member

must

exhaust

its

administrative remedies, whereas the Named Plaintiffs argue that
exhaustion is limited to the class representatives.

Although

there is no case law in the Second Circuit directly on point,
other

circuit

PLRA’s

courts

exhaustion

representatives.

across

the

requirement

country
is

have

limited

held
to

that

the

the

class

See Chandler v. Crosby, 379 F.3d 1278, 1287

(11th Cir. 2004) (holding that “a class of prisoner-plaintiffs
certified

under

administrative
exhaustion,’

Rule

exhaustion
i.e.,

when

23(b)(2)

satisfies

requirement
one

or

more

the

through
class

PLRA’s

‘vicarious

members

ha[s]

exhausted his administrative remedies with respect to each class
claim raised by the class” (alteration in original) (internal
quotation marks and citation omitted)); Gates v. Cook, 376 F.3d
323,

330

(5th

Cir.

2004)

(stating
34

that

one

class

member’s

exhaustion

“is

enough

to

satisfy

[the

PLRA’s

exhaustion]

requirement for the class”); Jackson v. Dist. of Columbia, 254
F.3d 262, 269 (D.C. Cir. 2001) (explaining that so long as one
member

of

the

prisoner-class

pursued

the

available

administrative remedies, “the plaintiff class has met the filing
prerequisite” (quoting Foster v. Gueory, 655 F.2d 1319, 1321-22
(D.C.

Cir.

1981);

see

also

In

re

Nassau

Cnty.

Strip

Search

Cases, No. 99-CV-2844, 2010 WL 3781563, at *8 (E.D.N.Y. Sept.
22, 2010) (“[G]iven that exhaustion allows prison officials an
opportunity to address the merits of a claim and that requiring
all class members to exhaust could unduly burden a complaint
system, tethering exhaustion to named plaintiffs makes sense.”);
cf. U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1130 (2d Cir.
1974) (finding that a class of prisoners seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254 satisfied the exhaustion
requirement through vicarious exhaustion).

Therefore, the Court

finds that whether the purported class members have exhausted
their

administrative

remedies

is

irrelevant

to

the

class

certification analysis.
Thus,

as

there

are

at

least

163

members

of

the

purported class, numerosity has been satisfied.
2.

Commonality

Although

Rule

23(a)(2)

states

that

the

commonality

requirement is met if “there are questions of law or fact common
35

to the class,” FED. R. CIV. P. 23(a)(2), the Supreme Court has
recently

clarified

the

meaning

of

the

Rule,

stating

that

“[c]ommonality requires the plaintiff to demonstrate that the
class members ‘have suffered the same injury’” as opposed to
simply “suffer[ing] a violation of the same provision of law.”
Wal-Mart Stores, Inc. v. Dukes, --- U.S. ----, 131 S. Ct. 2541,
2551, 180 L. Ed. 2d 374 (2011) (quoting Gen. Tele. Co. of Sw. v.
Falcon, 457 U.S. 147, 157, 102 S. Ct. 2364, 72 L. Ed. 2d 740
(1982)); see also M.D. ex rel. Stukenberg v. Perry, 675 F.3d
832,

840

(5th

Cir.

2012)

(“After

Wal-Mart,

Rule

23(a)(2)’s

commonality requirement demands more than the presentation of
questions that are common to the class because ‘any competently
crafted

class

complaint

literally

raises

(quoting Wal-Mart, 131 S. Ct. at 2551)).
to

class

certification

‘questions’--even

in

.

.

.

is

droves--but,

not

common

questions.’”

Thus, “[w]hat matters
the

rather

raising
the

of

capacity

common
of

a

classwide proceeding to generate common answers apt to drive the
resolution of the litigation.”

Wal-Mart, 131 S. Ct. at 2551

(omission in original) (internal quotation marks and citation
omitted).

In other words, the class claims “must depend upon a

common contention . . . of such a nature that it is capable of
classwide resolution--which means that the determination of its
truth or falsity will resolve an issue that is central to the
validity of each of the class claims in one stroke.”
36

Id.

The

Court

contention” here.

finds

that

there

is

such

a

“common

To state a claim for violation of the Eighth

and Fourteenth Amendment’s prohibition against cruel and unusual
punishment, the Named Plaintiffs must show: “(1) a deprivation
that is ‘objectively, sufficiently serious’ that [they] w[ere]
denied the ‘minimal civilized measure of life’s necessities,’
and (2) a ‘sufficiently culpable state of mind’ on the part of
the

defendant

official,

such

inmate health or safety.”

as

deliberate

indifference

to

Gaston v. Coughlin, 249 F.3d at 164

(quoting Farmer, 511 U.S. at 834); accord Jabbar, 683 F.3d at
57.

Whether

the

County

was

aware

of

and

deliberately

indifferent to the conditions at the SCCF is a common question
subject to class-wide resolution.
2556

(“[F]or

the

purposes

of

See Wal-Mart, 131 S. Ct. at

Rule

23(a)(2)

[e]ven

a

single

[common] question will do.” (second and third alterations in
original) (internal quotation marks and citation omitted)).
The Named Plaintiffs argue that there is an additional
common contention subject to class-wide resolution:

“whether

inmates have experienced chronic exposure to human waste, moldcovered,

rusty

showers

smelling

of

sewage,

inadequate

ventilation, prolonged exposure to mold, rust, vermin, freezing
temperatures, and leaking water, and contaminated drinking water
and food.”
disagrees.

(Pls. Mot. 10-11 (citations omitted).)
The

allegations

in
37

the

Consolidated

The Court
Amended

Complaint

relate

to

two

separate

facilities:

Riverhead

and

Yaphank.

And although the conditions in the two facilities are

alleged to be similar, a determination that the conditions at
Riverhead are “objectively, sufficiently serious” enough to deny
the Riverhead inmates “the minimal civilized measure of life’s
necessities,” Gaston, 249 F.3d at 164 (internal quotation marks
and citation omitted), does not answer the question of whether
the conditions at Yaphank were also unconstitutionally inhumane
and vice versa.
However,

the

Court

“is

not

bound

by

the

class

definition proposed in the complaint,” Robidoux v. Celani, 987
F.2d 931, 937 (2d Cir. 1993), and “is empowered under [Rule
23(c)(5)]

to

carve

out

an

appropriate

class--including

the

construction of subclasses,” Lundquist v. Sec. Pac. Auto. Fin.
Servs. Corp., 993 F.2d 11, 14 (2d Cir. 1993).

Thus, the Court

finds that the Injunctive and Damages classes must be divided
into

subclasses--one

for

facility10--so

each

that

the

actual

nature of the conditions at Riverhead and Yaphank and whether
those

conditions

fall

below

constitutionally

acceptable

standards will be subject to (sub)class-wide resolution.

See,

e.g., Langley v. Coughin, 715 F. Supp. 522, 555 (S.D.N.Y. 1989)
Butler and Sims shall represent the Riverhead Injunctive
Subclass; Lofton and Alver shall represent the Yaphank
Injunctive Subclass. King shall represent the Riverhead Damages
Subclass, and Lynch shall represent the Yaphank Damages
Subclass.

10

38

(finding the commonality requirement satisfied for a proposed
class

of

inmates

asserting

conditions-of-confinement

claims

arising out of their confinement to the special housing unit
(“SHU”)

at

the

Bedford

Hills

Correctional

Facility

because

“common issues include[d] whether the alleged conditions on SHU
--including noise, smell, lack of hygiene, smoke and fire, and
potentially
violation

of

traumatic

unusual

constitutional

incidents--can

standards;

the

amount

actual

to

a

nature

of

conditions on SHU throughout the time period in question; and
the effect that such conditions are likely to have on a person
confined in SHU”).
3.

Typicality

Rule 23(a)’s typicality requirement “requires that the
claims of the class representatives be typical of those of the
class, and ‘is satisfied when each class member’s claim arises
from the same course of events, and each class member makes
similar legal arguments to prove the defendant’s liability.’”
Marisol A., 126 F.3d at 376 (quoting S.E.C. v. Drexel Burnham
Lambert Grp., Inc. (In re Drexel Burnham Lambert Grp., Inc.),
960 F.2d 285, 291 (2d Cir. 1992)).

“When it is alleged that the

same unlawful conduct was directed at or affected both the named
plaintiff and the class sought to be represented, the typicality
requirement is usually met irrespective of minor variations in
the fact patterns underlying individual claims.”
39

Robidoux, 987

F.2d at 936-37.
for

the

Riverhead

typicality
injuries

Here, the Court finds that the Named Plaintiffs
and

Yaphank

requirement,

arising

conditions.
conditions

out

as,

of

the

subclasses

for

each

same

have

satisfied

subclass,

allegedly

they

the

allege

unconstitutional

Although the extent of their exposure to these
and

the

exact

nature

of

their

injuries

will

necessarily differ from those of the proposed class members,
“[t]he representative claims need not be identical to the claims
of

every

class

requirement.”

member

in

order

to

meet

the

typicality

Marriot v. Cnty. of Montgomery, 227 F.R.D. 159,

172 (N.D.N.Y. 2005) (citing McNeill v. N.Y.C. Hous. Auth., 719
F. Supp. 233, 252 (S.D.N.Y. 1989)).
Defendants argue that typicality is not satisfied here
because:

(1) the Injunctive Class seeks to include all future

inmates and (2) the Named Plaintiffs’ claims are subject to
defenses

separate

and

apart

from

the

rest

of

the

class--

specifically mootness and failure to exhaust.
First, with respect to the Injunctive Class, it is not
only proper, but preferred, to include future detainees.

See

Inmates of Lycoming Cnty. Prison v. Strode, 79 F.R.D. 228, 231
(M.D.

Pa.

1978)

(“In

the

context

of

challenging

prison

conditions any action taken or not taken will, of course, have
an effect on those who are incarcerated at the prison in the
future.

The use of the class form is a desirable and logical
40

way to challenge prison conditions and it only make sense to
include future inmates.”); see also, e.g., Clarkson v. Coughlin,
145

F.R.D.

339,

346-47

(S.D.N.Y.

1993)

(defining

classes

to

include all present and future inmates); Powell v. Ward, 487 F.
Supp. 917, 921 (S.D.N.Y. 1980) (certifying class of “all persons
who

are

now

Correctional

and

who

may

Facility”).

be

incarcerated

If,

as

in

Defendants

Bedford
suggest,

Hills
the

conditions at SCCF improve dramatically, then the class will not
be entitled to injunctive relief.

This remote possibility of

improvement does not preclude the certification of a class of
all present and future detainees.
Second,
typicality

is

although
not

Defendants

satisfied

“where

are
a

correct
putative

that
class

representative is subject to unique defenses which threaten to
become the focus of the litigation,” Baffa v. Donaldson, Lufkin
& Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000) (internal
quotation marks and citation omitted), no such defenses exist
here.

The Court previously rejected the mootness argument.

supra pp. 15-18.

See

And the exhaustion defense is not unique to

the Named Plaintiffs because, as Defendants assert, none of the
proposed class members incarcerated in the SCCF has exhausted
his administrative remedies.

Thus, whether exhaustion should be

excused because administrative remedies were unavailable, or due

41

to estoppel or other special circumstances, see Hemphill, 380
F.3d at 686, is a question common to all members of the class.
Therefore,

the

Court

finds

that

the

typicality

requirement is satisfied here.
4.

Adequacy of Class Representation

The

adequacy

requirement

under

Rule

23(a)(4)

“is

twofold: the proposed class representative must have an interest
in vigorously pursuing the claims of the class, and must have no
interests antagonistic to the interests of other class members.”
Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006).
Further, class counsel must be “qualified, experienced and able
to conduct the litigation.”
a.

Baffa, 222 F.3d at 60.

Class Representatives

Defendants argue that the class representatives are
inadequate:

(1)

“due

to

the

fatal

effects

of

the

PLRA

and

mootness defenses” (Defs. Opp. 15); (2) because some of the
class representatives are now serving lengthy jail sentences in
facilities across the state, which will make communications with
counsel difficult (Defs. Opp. 16); (3) because “they have not
shown

that

they

have

the

financial

ability

to

fund

this

litigation” (Defs. Opp. 16); and (4) because some of the class
representatives have failed to provide Defendants with executed
releases for their grievance and medical files (Zwilling Decl.

42

¶¶ 7-10).

The Court finds that none of these arguments have any

merit.
“Courts that have denied class certification based on
the inadequate qualifications of plaintiffs have done so only in
flagrant cases, where the putative class representatives display
an

alarming

unfamiliarity

with

the

suit,

display

an

unwillingness to learn about the facts underlying their claims,
or are so lacking in credibility that they are likely to harm
their case.”
F.R.D.

31,

In re Frontier Ins. Grp., Inc. Sec. Litig., 172
47

(E.D.N.Y.

citations omitted).
has

already

defenses.

1997)

(internal

quotation

This is not such a case.

rejected

Defendants’

and

First, the Court

exhaustion

See supra pp. 15-18, 20-22, 41.

marks

and

mootness

Second, that some of

the class representatives remain incarcerated does not affect
their interest in vigorously pursuing the claims of the class.
Third, Shearman & Sterling and the New York Civil Liberties
Union (“NYCLU”) have agreed to take on this case pro bono; thus,
the Named Plaintiffs will not be responsible for legal fees and
costs.

And finally, the purported discovery abuses alleged by

Defendants

are

not

the

type

of

“‘glaring

violations

of

the

discovery rules’ that typically lead to the disqualification of
class

representatives

for

discovery

violations.”

Koss

v.

Wackenhut Corp., No. 03-CV-7679, 2009 WL 928087, at *7 (S.D.N.Y.
Mar. 30, 2009) (quoting Dubowski v. Ash (In re AM Int’l, Inc.
43

Sec.

Litig.),

Accordingly,

108

the

F.R.D.

Court

190,

finds

that

197
the

(S.D.N.Y.
Named

1985)).

Plaintiffs

are

adequate class representatives.
b.

Class Counsel

Defendants
Shearman

&

represent

argue

Sterling
the

disagrees.
adequacy

of

attorneys

are

class

the

NYCLU--are

and

class.

As

that

The

Court

strongly
in

counsel

experienced

not

acknowledge

Defendants

class

counsel--attorneys

is

in

qualified
and

their
“where

field

have

or

to

fervently
brief,

satisfied

the

from

the

the
class

demonstrated

professional competence in other ways, such as by the quality of
the briefs and the arguments during the early stages of the
case.”

Schwab v. Philip Morris USA, Inc., 449 F. Supp. 2d 992,

1106 (E.D.N.Y. 2006), rev’d on other grounds, McLaughlin v. Am.
Tobacco

Co.,

522

F.3d

215

(2d

Cir.

2008).

Here,

it

is

undisputed that Corey Stoughton and Tyler Pendergrass of the
NYCLU

have

significant

experience

in

litigating

large-scale

civil rights actions and the Shearman & Sterling attorneys who
have

appeared

Melissa

J.

demonstrated

in

this

Godwin,
that

action--namely,

Edward

they

G.

are

Timlin,

more

than

Daniel
and

H.R.

Laguardia,

Sheila

Jain--have

competent.

They

have

invested significant time, money, and effort in investigating
the

potential

claims

in

this

class

action--including

communicating with a significant number of the plaintiffs in the
44

111

cases

that

were

consolidated

into

the

present

action--

drafting and filing a comprehensive consolidated amended class
action complaint, successfully opposing a motion to dismiss, and
filing the present motion for class certification.

Their papers

to date reflect their skill and initiative, and the Court finds
that they will fairly and adequately represent and protect the
interests of the class.
B.

Rule 23(b) Categories
In

addition

to

satisfying

the

prerequisites

articulated in Rule 23(a), a party seeking class certification
must also establish that the putative class fits into one of the
categories

enumerated

in

Rule

23(b).

The

Named

Plaintiffs

assert that the Injunctive Class may be maintained under Rule
23(b)(2) and the Damages Class may be maintained under Rule
23(b)(3).

The Court will address each separately.
1.

Rule 23(b)(2)

Rule

23(b)(2)

provides

that

a

class

action

may

be

maintained if “the party opposing the class has acted or refused
to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.”
23(b)(2).

FED. R. CIV. P.

The Supreme Court recently clarified the standard

under Rule 23(b)(2) as follows:

45

Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would
provide relief to each member of the class.
It does not authorize class certification
when each individual class member would be
entitled
to
a
different
injunction
or
declaratory judgment against the defendant.
Similarly, it does not authorize class
certification when each class member would
be entitled to an individualized award of
monetary damages.
Wal-Mart, 131 S. Ct. at 2557.

The Named Plaintiffs seek to

certify a class under Rule 23(b)(2) to obtain declaratory and
injunctive

relief

as

well

as

monetary

incidental to the equitable relief.
certification

is

impossible

craft

to

inappropriate
“meaningful

damages

that

are

Defendants argue that class

because:

(1)

it

equitable

relief”

would
that

be

would

apply equally to all inmates housed in the SCCF; (2) the class,
which includes all future inmates, is not ascertainable; and (3)
it includes classmates’ claims for incidental damages.
With

respect

to

Defendants’

first

argument,

they

assert that the only equitable relief that will effectively cure
all of the alleged constitutional violations is an injunction
barring

Defendants

from

violating

impermissibly broad under Rule 65.

the

law,

which

would

The Court disagrees.

be
An

injunction can both restrain actions or mandate that certain
actions be taken, see FED. R. CIV. P. 65(d)(1)(C); thus the Court
can

draft

an

injunction

that

requires

Defendants

to

take

specific actions to eliminate the allegedly cruel and inhuman
46

conditions in the SCCF.

For example, the Court can set a limit

on the number of inmates to be housed in Riverhead and Yaphank,
order that the plumbing systems be repaired/replaced and that
inmates be provided with proper cleaning supplies, and/or set
minimum standards of cleanliness that must be maintained.
Next,

Defendants

argue

that

the

class

is

not

ascertainable because it includes all unknown future inmates.
Ascertainability

requires

that

the

class

be

“defined

by

objective criteria that are administratively feasible, without a
subjective determination.”

McBean v. City of N.Y., 260 F.R.D.

120, 133 (S.D.N.Y. 2009); see also Dunnigan v. Metro. Life Ins.
Co., 214 F.R.D. 125, 135 (S.D.N.Y. 2003).

Here, the Injunctive

Class and subclasses are defined solely by objective criteria:
whether the class members are currently confined in Riverhead or
Yaphank or will be confined in Riverhead or Yaphank prior to the
date of judgment.

This class is sufficiently ascertainable to

support class certification.

See, e.g., Mitchell v. Cnty. of

Clinton, No. 06-CV-0254, 2007 WL 1988716, at *1, 4, 7 (N.D.N.Y.
July 5, 2007) (finding a class of inmates placed in the custody
of the Clinton County Jail “from October 24, 2003 through the
date on which the Clinton County Sheriff’s Department and/or the
County

of

Clinton

cease

or

ceased,

or

are

enjoined

from,

enforcing their unconstitutional policy, practice and custom of

47

conducting

strip

searches

absent

reasonable

suspicion”

was

“ascertainable”).
Finally, Defendants argue that the Injunctive Classes
and

subclasses

cannot

be

certified

because

they

seek

unidentified incidental damages in addition to equitable relief.
“Generally, when monetary relief is requested in tandem with
injunctive
whether

and

the

declaratory

requested

relief,

monetary

claims for equitable relief.”

equitable

injunctive

or

Plaintiffs,

relief

unless

declaratory

however,

do

relief

must

predominates

determine
over

the

“[M]onetary relief predominates
it

is

incidental

relief.”

not

court

Parker v. Time Warner Entm’t Co.,

331 F.3d 13, 18 (2d Cir. 2003).
over

the

Id.

specify

at

what

to

19.

requested
The

their

Named

“incidental”

damages are and how they are distinct from the damages sought by
the

Damages

determine

Class

whether

equitable relief.
Class

and

and
they

subclasses;

thus,

“predominate”

over

the

Court

the

cannot

claims

for

Therefore, the Court certifies the Injunctive

subclasses

only

to

the

extent

that

they

seek

declaratory and injunctive relief.
2.
Rule

Rule 23(b)(3)
23(b)(3)

provides

that

a

class

action

may

be

maintained if “the court finds that questions of law or fact
common to class members predominate over any questions affecting
only individual members, and that a class action is superior to
48

other available methods for fairly and efficiently adjudicating
FED. R. CIV. P. 23(b)(3).

the controversy.”
a.

Predominance

“The predominance requirement is met if the plaintiff
can

establish

that

the

issues

in

the

class

action

that

are

subject to generalized proof, and thus applicable to the class
as a whole, . . . predominate over those issues that are subject
only to individualized proof.”

Cordes & Co. Fin. Servs., Inc.

v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 107-08 (2d Cir.
2007).

The Court finds that the following questions are common

to the class:

(1) whether the conditions at Yaphank and/or

Riverhead are cruel or inhuman in violation of the Eighth and
Fourteenth Amendments; (2) whether Defendants were deliberately
indifferent

to

the

conditions

at

the

SCCF;

and

(3)

whether

administrative remedies were unavailable, whether Defendants are
estopped from raising failure to exhaust as a defense and/or
whether
Court

special
finds

that

circumstances
these

justify

issues

non-exhaustion.

predominate

over

the

The
issues

subject to individualized proof--namely the extent of each class
members’ damages.

Further:

There are a number of management tools
available to a district court to address any
individualized damages issues that might
arise in a class action, including: (1)
bifurcating liability and damage trials with
the same or different juries; (2) appointing
a magistrate judge or special master to
49

preside over individual damages proceedings;
(3)
decertifying
the
class
after
the
liability trial and providing notice to
class
members
concerning
how
they
may
proceed to prove damages; (4) creating
subclasses; or (5) altering or amending the
class.
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141
(2d Cir. 2001), superseded by statute on other grounds as stated
in Attenborough v. Constr. & Gen. Bldg. Laborers' Local 79, 238
F.R.D. 82, 100 (S.D.N.Y. 2006).

Thus, as the Court has the

flexibility to deal with issues regarding the management of this
class

action

questions

as

they

regarding

arise,

the

damages

existence

does

not

of

individualized

warrant

denying

certification of the Damages Class and subclasses.11
b.

Superiority

“For Rule 23(b)(3) certification to be proper, a class
action also must be the most ‘fair and efficient’ method of
resolving this case.”

Augustin v. Jablonsky (In re Nassau Cnty.

Strip Search Cases), 461 F.3d 219, 230 (2d Cir. 2006) (quoting
FED. R. CIV. P. 23(b)(3)).

In analyzing whether proceeding as a

11

Defendants also argue that class certification is
inappropriate because the class members were incarcerated during
varying periods from 2009 through the present. Thus, Defendants
assert that the class members have not been subject to the same
conditions--in other words, the conditions may have worsened or
improved over time. The Named Plaintiffs, however, assert that
the conditions have persisted unabated. To the extent that
during the course of discovery, it is determined that different
classes of inmates incarcerated during different periods were
exposed to different conditions, the Court can redefine and/or
decertify the class at that time.
50

class

action

is

superior

to

other

options,

the

Court

shall

consider:
(1) the interest of the class members in
maintaining
separate
actions;
(2)
“the
extent
and
nature
of
any
litigation
concerning the controversy already commenced
by or against members of the class;” (3)
“the
desirability
or
undesirability
of
concentrating the litigation of the claims
in the particular forum;” and (4) “the
difficulties likely to be encountered in the
management of a class action.”
Id. (quoting FED. R. CIV. P. 23(b)(3)).

The first two factors

weigh heavily in favor of class certification.

Every complaint

filed in the District related to the allegedly unconstitutional
conditions at the SCCF has been consolidated into the present
action.

And upon consolidation each plaintiff was given the

opportunity to proceed independently, but not a single plaintiff
opted to litigate his case separately.

Further, the Court finds

that the difficulties likely to be encountered in managing this
class action far outweigh the difficulties in managing over 100
separate actions litigating identical issues.
34.

See supra pp. 33-

Thus, the Court finds that proceeding as a class action is

by far the superior method of adjudicating this controversy.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

to

dismiss is GRANTED IN PART and DENIED IN PART, and the claims
against

Defendants

DeMarco,

Caracappa,

51

and

Meyerricks

are

DISMISSED WITHOUT PREJUDICE.

All other claims survive.

The

Named Plaintiffs are GRANTED leave to file a Second Consolidated
Class Action Complaint that corrects the pleading defects with
respect to the claims against the Individual Defendants.

Such

amended pleading shall be filed within thirty days (30) of the
date of this Memorandum and Order.
Further,

the

Named

certification is GRANTED.

Plaintiffs’

motion

for

class

It is therefore hereby:

ORDERED that the following classes and subclasses are
certified:
(1)

(2)

The

an Injunctive Class comprised of all persons who, now
or at any time in the future, are or will be detainees
or prisoners in the custody of the Suffolk County
Sheriff’s Department and housed in the SCCF, with
separate subclasses for those persons detained in
Riverhead and Yaphank; and
a Damages Class comprised of all persons who are or
were detainees or prisoners in the custody of the
Suffolk County Sheriff’s Department and housed in the
SCCF and who were or will be released from the SCCF on
or after April 5, 2009, with separate subclasses for
those persons detained in Riverhead and Yaphank.

Injunctive

declaratory

and

Class

and

subclasses

injunctive

relief

are

only;

certified
whereas

to

the

seek

Damages

Class and subclasses is certified to seek any and all monetary
relief available to the class.
It

is

further

ORDERED

that

Butler

and

Sims

are

appointed the class representatives for the Riverhead Injunctive
Subclass;

that

Lofton

and

Alver
52

are

appointed

class

representatives for the Yaphank Injunctive Subclass; that King
is

appointed

class

representative

for

the

Riverhead

Damages

Subclass; and that Lynch is appointed class representative for
the Yaphank Damages Subclass.
And it is further ORDERED that the Named Plaintiffs’
attorneys of record are appointed class counsel.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
19 , 2013
Central Islip, NY

53