Lynch et al v. DeMarco et al

Filing 528

ORDER granting 500 Motion to Substitute; ORDERED that Plaintiffs' Substitution Motion (ECF No. 500) is GRANTED to the extent that they may add: (1) Williams and Miller as Named Plaintiffs for the Injunctive Class; and (2) McMahon and Yates as Named Plaintiffs for the Damages Class. So Ordered by Judge Joanna Seybert on 8/9/2023. (CV)

Case 2:11-cv-02602-JS-ST Document 528 Filed 08/09/23 Page 1 of 9 PageID #: 9574

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

ORDER on PLAINTIFFS’
MOTION TO SUBSTITUTE
11-CV-2602(JS)(ST)

SUFFOLK COUNTY,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Daniel H.R. LaGuardia, Esq.
John F. Cove Jr., Esq.
George B. Adams, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
Erin B. Harrist, Esq.
New York Civil Liberties Union
125 Broad Street, 19th Floor
New York, New York 10004
For Defendant:

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

SEYBERT, District Judge:
This is a prisoners’ conditions-of-confinement class
action suit (hereafter, the “Action”) with which the Court assumes
the parties’ familiarity regarding its relevant background and

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procedural history. 1

Presently before the Court is Plaintiffs’

“Motion to Intervene Additional Class Representatives” (hereafter,
the “Substitution Motion”) (see ECF No. 500; see also Support Memo,
ECF No. 501; Reply, ECF No. 514) filed in response to the Court’s
September 19, 2019 Electronic Order.
said Substitution Motion.

Defendant County opposes

(See Opp’n, ECF No. 513-5.)

For the

reasons that follow, the Substitution Motion is GRANTED.
Having previewed the parties’ cross-motions for summary
judgment, on September 19, 2019, the Court entered the following
docket text order:
In its summary judgment motion, the County
argues that Plaintiffs’ claims are unexhausted
and must be dismissed pursuant to the Prison
Litigation Reform Act (“PLRA”).
The County
points out that none of the Representative
Plaintiffs
filed
grievances
regarding
conditions at the Yaphank Facility and that
while one Representative Plaintiff filed a
pre-suit grievance concerning the Riverhead
Facility, he did not grieve the conditions
about which Plaintiffs complain in this
action. ([C-Support Memo, ECF No.] 483-29, at
15.) In response, Plaintiffs contend that the
exhaustion requirement does not apply to their
claims, that exhaustion was excused because
the grievance process was a “simple dead end,”
that exhaustion was excused because inmates
were hindered and intimidated from grieving,
and as relevant here, that class members other
than the Representative Plaintiffs (with the
Terms of art defined in the Court’s August 9, 2023 Memorandum &
Order ruling upon the parties’ Cross-Motions for Summary Judgement
(hereafter, the “Cross-Motions Order”) (see ECF No. 527) are
incorporated herein, familiarity with which the Court assumes.
Further, for brevity, the Court will refer to said Cross-Motions
for Summary Judgement simply as the “Cross-Motions”.
1

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limited exception of Sims ([P-Opp’n, ECF No.]
488, at 4-5 & n.3)) either properly exhausted
under the PLRA or were excused from exhausting
because they “are not incarcerated (or [] were
not incarcerated at the time of joining the
class action).”
(See [P-Opp’n] at 4-6, 1315, 22.)
Upon review of several complaints
that were consolidated into this action, the
Court notes that other inmates purport to have
filed grievances prior to filing suit. (E.g.,
Compl., Case No. 11-CV-5569, [ECF No.] 1, at
2 (Yaphank Facility inmate claiming that he
filed a grievance but was not given a
response); Compl., Case No. 11-CV-4562, [ECF
No.] 1, at 2 (Riverhead Facility inmate
claiming that he “[f]iled numerous grievances
about the conditions”).) The Court does not
pass on the parties’ arguments at this
juncture. Rather, to the extent certain class
members
fully
exhausted
administrative
remedies or “are not incarcerated (or [] were
not incarcerated at the time of joining the
class action) and are therefore not subject to
the exhaustion requirement,” the Court directs
Plaintiffs to file a motion . . . proposing
those class members as substitute class
representatives
[i.e.,
the
Intervention
Motion].
(Sept. 19, 2019 Elec. Order.)

Having ruled on the Cross-Motions

(see Cross-Motions Order, ECF No. 527), the Court issues this
corresponding order on the Substitution Motion.
Plaintiffs argue that no substitution or addition is
necessary (see Support Memo at 1, 13), but, nonetheless, propose
as

additional

Named

Plaintiffs

and

class

representatives:

(1) Daryl Miller (“Miller”) and Kenneth Williams (“Williams”) as
to the Injunctive Class,; and (2) Richard McMahon (“McMahon”) and

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Jermaine Yates (“Yates”) as to the Damages Class. 2

(See Support

Memo at 2.)
In opposition, the County argues neither Miller nor
Williams should be substituted as Injunctive Class members since:
(1) Miller has not been incarcerated in the SCCF since August 2012,
before the March 2013 date when the Class was certified (see Opp’n
at 8); and (2) Williams did not fully exhaust his grievance (see
id. at 9).

It also opposes adding McMahon and Yates as additional

representatives of the Damages Class arguing: (3) McMahon is not
a class member “because he was not incarcerated in the SCCF in the
Damages Class period” (id. at 13-14); and (4) Yates is “not a
member

of

the

Riverhead

Damages

Subclass

because

he

was

not

incarcerated in Riverhead in the Damages Subclass period” (id. at
14).
In this Circuit, when a question exists regarding the
suitability of existing class representatives, it is appropriate
to permit the intervention or substitution of named plaintiffs.
See Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234,
253 (2d Cir. 2011) (“[I]f, for some reason it is later determined
Plaintiffs had also proposed Robert Reid as a substitute class
representative.
(See Support Memo at 2.)
However, while the
Substitution Motion was being fully briefed, Mr. Reid passed away.
(See Suggestion of Death, ECF No. 510.)
While Plaintiffs
originally
planned
to
“substitute
the
representative
or
administrator of Mr. Reid’s estate as a named party in this action”
(Feb. 28, 2020 Letter, ECF No. 511), they ultimately determined
not to do so. (See Nov. 1, 2021 Letter, ECF No. 523, at 2.)
2

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by the court that the representative Plaintiffs are inadequate,
the

court

could

substitute

another

class

plaintiff

for

the

representative plaintiff in question or simply allow the remaining
representative Plaintiffs to proceed with the class action.”).
Indeed, “the Second Circuit’s preferred approach where the named
plaintiff is no longer an adequate class representative is to
afford plaintiffs’ counsel a reasonable period of time for the
substitution

or

intervention

of

a

new

class

representative.”

Monaco v. Michael Hogan, Ph.D., No. 98-CV-3386, 2016 WL 3212082,
at *2 (E.D.N.Y. June 8, 2016) (internal quotations and citations
omitted); see also, e.g., McAnaney v. Astoria Fin. Corp., No.
04-CV-1101, 2007 WL 2702348, at *13 (E.D.N.Y. Sept. 12, 2007).
“Intervention

‘should

be

liberally

allowed,’

especially

since

members of a class are normally bound by the judgment in the class
action.”

Guadagna v. Zucker, No. 17-CV-3397, 2021 WL 4150802, at

*5 (E.D.N.Y. July 9, 2021) (quoting Diduck v. Kaszycki & Sons
Contractors, Inc., 149 F.R.D. 55, 57-58 (S.D.N.Y. 1993) (citing
Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d
§ 1799)), report and recommendation adopted by 2021 WL 4147420
(E.D.N.Y. Sept. 13, 2021).

This is so because “a class has a legal

status separate from the named plaintiff;” therefore, “should the
class

representative

become

inadequate,

substitution

of

an

adequate representative is appropriate to protect the interests of
the class.”

In re Currency Conversion Fee Antitrust Litig., MDL
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No. 1409, M 21-95, 2005 WL 3304605, at *3 (S.D.N.Y. Dec. 7, 2005)
(“Moreover, where it appears that a named plaintiff ‘is unable
adequately to represent the class, [the court has] ample power
under Rule 23(c) and (d) to replace him.’” (quoting Billet v.
Storage

Tech.

Corp.,

72

F.R.D.

583,

587

(S.D.N.Y.

1976))

(collecting cases).
Here, considering its Cross-Motions Order and having
considered the papers submitted in support of and in opposition to
the Substitution Motion, the Court grants the Substitution Motion
to the extent that Plaintiffs may add the proposed class members
as Named Plaintiffs.
The

Court

The Court’s reasoning is elaborated below.
finds

the

County’s

substitution of Miller unavailing.

argument

against

the

As an initial matter, as

Plaintiffs argue, in certifying the Classes in this Action, the
Court “rejected the exact argument the County makes here,” i.e.,
that Miller is not a member of the Injunctive Class.

(Reply at

5-6 (citing 2013 Order, 289 F.R.D. at 91-92 & n.5 (rejecting
County’s argument that certain Plaintiffs no longer incarcerated
at SCCF at the time of the class certification motion lacked
standing to seek injunctive relief)).)

Instead, the Court noted

“it is the date of the complaint, not the date of the certification
motion, that is relevant.”

2013 Order, 289 F.R.D. at n.5.

Since

Miller was incarcerated when his complaint was filed, he has
standing to request injunctive relief and is a member of the
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Injunctive Class.

In any event, as the Court stated in its Cross-

Motions Order, because the Court has determined that grievances
such as Williams’ regarding the Facilities’ toilets were not within
the Warden’s control, they also were not subject to exhaustion.
(See Cross-Motions Order at 67-70.)
Similarly, the County’s contention that Williams cannot
serve as a class representative because he did not exhaust his
grievance is both unpersuasive and disingenuous.

As Plaintiffs

highlight, pursuant to the SCCF’s grievance procedure, a grievance
-- such as Williams’ -- that was “accepted” cannot be appealed;
therefore, the County’s reliance upon Williams’ failure to sign
the “accepted” grievance is specious. Indeed, in its Cross-Motions
Order, the Court found this grievance procedure illusory, thereby
excusing exhaustion.

(See Cross-Motions Order at 71-73.)

And, to the extent the County argues McMahon and Yates
cannot serve as Damages Class representatives because they were
not incarcerated during the Damages Class period, that argument
lacks merit. 3 Rather, as countered by Plaintiffs, and as supported
While the Court would like to believe this is simply a
misapprehension by the County, it hesitates to reach that
conclusion in light of “orders by this Court and other courts in
this District consolidating cases by inmates incarcerated at the
SCCF after the Class Certification Order with this class action.”
(Reply at 7; see also id. at n.10.) As the Plaintiffs’ astutely
observe, “it would have been nonsensical, and the Court did not
intend, to assign these plaintiffs to a class that excluded them.”
(Id.)
If anything, the County’s position appears disingenuous
given that “the County itself affirmatively sought consolidation
3

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by the record:

“This position is inconsistent with the language

of the [Class Certification] Order, the Class Notice, and the
subsequent course of litigation.”

(Reply at 6.)

Indeed, “[a]s

the Class Notice published in 2016 made clear, the certified Class
in this action consists of ‘[a]ll persons who are or, at any time
since April 5, 2009, have been detained and housed in the SCCF.’” 4
of the Benloss complaint[, Case No. 16-CV-3930,] with the Butler
class action on the basis that the ‘complaint alleges mold exposure
on June 20, 2016 while [plaintiff] was housed in the Dormitory
South 3 location.’” (Id. (quoting Benloss v. Warden of Yaphank
Corr. Facility, No. 16-CV-3930, Mot. To Consol. Cases, ECF No. 19,
at 1); see also Benloss, No. 16-CV-3930, Consolidation Order, ECF
No. 21, at 2 n.1 (stating class definitions).)
Regarding McMahon, the Court rejects the County’s contention
that “McMahon is not a member of the Damages Class since he was
not in the SCCF at any time between March 12, 2002 and July 5,
2013” (Opp’n at 10 (citing Bogert Decl. ¶¶7, 8)), because the
County’s own submission shows that McMahon was, indeed, housed at
both Riverhead and Yaphank at various times between July 2013 and
early 2019. (See McMahon Incarceration Audit, ECF No. 513-3; see
also McMahon Decl., ECF No. 515, ¶2 (averring to being detained in
Yaphank Facility in or around 2015 and 2016 for approximately 10
months and being briefly detained at the Riverhead Facility during
that period).) Hence, McMahon may be added as a representative
for both Damages Subclasses.
Similarly, as to Yates, the County’s contention that “Yates
is not a member of the Riverhead Damages Subclass because he was
not assigned to housing in Riverhead during the class period”
(Opp’n at 10 (citing Bogert Decl. ¶¶11, 12)), is rejected because
the County’s own submission shows that Yates was, indeed, housed
at Riverhead three different times in 2009 and 2010, which is
within the Damages Class Period: (1) from May 1, 2009 to May 12,
2009; (2) from August 2009 to August 20, 2009; and (3) from October
31, 2010 to November 1, 2010. (See Yates Incarceration Audit, ECF
NO. 513-4; see also Yates Decl., ECF No. 503, ¶2 (averring to
having been detained in the Yaphank Facility “on and off during
the period of approximately 2006-2011, for a total of approximately
24 months, including approximately six months after April 2009”
and having been detained at the Riverhead Facility “during that
4

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(Id. at 6-7 (quoting Proposed Alternative Class Action Notice, ECF
No. 423-2, approved by Court in 2016 Adoption Order, ECF No. 428).)
As such, the County’s opposition to the substitution by or addition
of McMahon and Yates as Damages Class representatives based upon
its interpretation that the Damages Class period ended in March
2013 is inapposite to the Court’s definition of the Damages Class
and

the

language

the

Court

approved

for

Class

Notice

and,

therefore, fails to sustain the County’s Opposition.
***
Accordingly,

IT

IS

FURTHER

ORDERED

that

Plaintiffs’

Substitution Motion (ECF No. 500) is GRANTED to the extent that
they may add: (1) Williams and Miller as Named Plaintiffs for the
Injunctive Class; and (2) McMahon and Yates as Named Plaintiffs
for the Damages Class.

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

August 9, 2023
Central Islip, New York

time period for approximately four months, including approximately
two months after April 2009”).) The County does not dispute that
Yates is a member of the Yaphank Damages Subclass who, thus, may
represent that Subclass.
Hence, Yates may be added as a
representative for both Damages Subclasses.
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