A.T. et al v. Harder et al

Filing 62

MEMORANDUM-DECISION AND ORDER: ORDERED that 1. Plaintiffs' 33 motion for class certification is GRANTED; 2. Plaintiffs' 45 motion for a preliminary injunction is GRANTED; 3. The official-capacity claim against Deputy Administra tor Moore is DISMISSED without prejudice; 4. Defendants, their agents, servants, employees, and officers, and all other persons in active concert or participation with them and who receive actual notice of this preliminary injunction, by personal service or otherwise, are hereby IMMEDIATELY ENJOINED AND RESTRAINED, pending the final determination of this action, from imposing 23-hour disciplinary isolation on juveniles at the Broome County Jail; 5. Defendants shall IMMEDIATELY only lock j uveniles in their cells for disciplinary purposes if the juvenile poses an immediate threat to the safety or security of the facility and only after less restrictive measures have been employed and found inadequate to address the particular threat at issue; 6. Under no circumstances shall a juvenile be locked in their cell for greater than four hours for disciplinary purposes; 7. If a juvenile remains an immediate threat to the safety and security of the facility after four hours, a psyc hiatrist shall be consulted and a plan put in place to ensure the juvenile's safe return to the general juvenile population; 8. Defendants shall IMMEDIATELY ensure all juveniles have access to at least three hours of educational instruction ea ch day as well as any IDEA-mandated special education and related services; and 9. If a juvenile with a mental health or intellectual disability will potentially lose access to the benefits, services, and programs offered at the facility as a resu lt of the disciplinary process, defendants shall ensure mental health staff will perform an individualized assessment of the juvenile as soon as possible. This assessment shall at minimum include: (a) a review of the individual's mental heal th needs; (b) a determination regarding whether any reasonable modifications can be made to eliminate future risk; (c) a determination regarding whether the individual with a disability continues to pose a risk; and (d) whether placement in segregation is medically appropriate. Signed by Judge David N. Hurd on 4/4/18. (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------A.T., a minor, by and through
his parent and natural guardian
Shakeema Tillman, and B.C.,
a minor, by and through Kristi
Cochardo,
Plaintiffs,
-v-

9:17-CV-817

DAVID HARDER, Broome
County Sheriff, in his official
capacity, MARK SMOLINSKY,
Jail Administrator of the
Broome County Correctional
Facility, in his official capacity,
and KEVIN MOORE, Deputy
Administrator, in his official
capacity,
Defendants.
---------------------------------APPEARANCES:

OF COUNSEL:

LEGAL SERVICES OF CENTRAL NEW YORK
Attorneys for Plaintiffs
221 South Warren Street, Suite 300
Syracuse, NY 13202

JOSHUA T. COTTER, ESQ.
SAMUEL C. YOUNG, ESQ.
SUSAN M. YOUNG, ESQ.

LEGAL SERVICES OF CENTRAL NEW YORK
Attorneys for Plaintiffs
168 Water Street
Binghamton, NY 13901

GEORGE B. HADDAD, ESQ.

BROOME COUNTY ATTORNEY'S OFFICE
Attorneys for Defendants
Broome County Office Building
60 Hawley Street, P.O. Box 1766
Binghamton, NY 13902

ROBERT G. BEHNKE, ESQ.

DAVID N. HURD
United States District Judge
TABLE OF CONTENTS
I.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II.

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
The Broome County Jail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B.
Solitary Confinement at the Jail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C.
Andrea Weisman, Ph.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
D.
Defendants' Opposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.
Proposed Regulatory Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.
Reports from Supervisory or Accrediting Bodies. . . . . . . . . . . . . . . . . . 8
3.
Affidavits from Broome County Jail Staff . . . . . . . . . . . . . . . . . . . . . . . . 8
i.
Sean Bell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ii.
James Borchardt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iii.
Marcus DeAngelo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv.
Jeff Katen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
v.
Jason Kirk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
vi.
Dennis Rowe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
vii.
Daniel Snyder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
viii.
Jennifer Vasquez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ix.
Adam Wilcox. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III.

DISCUSSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Class Certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Numerosity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Commonality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Typicality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Adequacy of Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.
Rule 23(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.
Ascertainability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11
12
15
18
20
22
24
25

B.

25
27
27
34
35
36
37
37

IV.

Preliminary Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Substantial Likelihood of Success. . . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Deliberate Indifference to Conditions of Confinement. . . . . . . .
ii.
Fourteenth Amendment Due Process & the IDEA.. . . . . . . . . .
iii.
The ADA & Section 504. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Strong Showing of Irreparable Harm. . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Public Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Balance of Hardships. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

-2-

MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Named plaintiffs A.T. and B.C.1 seek declaratory and injunctive relief on behalf of
themselves and a proposed class of fellow 16- and 17-year-olds ("juveniles") who have been
or will be held in some form of solitary confinement at the Broome County Correctional
Facility (the "Broome County Jail" or the "Jail").
The Broome County Jail is operated by defendants Broome County Sheriff David
Harder ("Sheriff Harder"), Jail Administrator Mark Smolinsky ("Administrator Smolinsky"), and
Deputy Jail Administrator Kevin Moore ("Deputy Administrator Moore") (collectively
"defendants"), each of whom is sued here in their official capacity.2
Plaintiffs' first amended complaint asserts five claims. In the first and second causes
of action, they assert 42 U.S.C. § 1983 claims alleging defendants routinely place juveniles in
solitary confinement and then deny them access to educational opportunities in violation of
the Eighth and Fourteenth Amendments (the proposed "juvenile class").
In plaintiffs' third cause of action, they assert a claim under the Individuals with
Disabilities in Education Act ("IDEA") alleging a subclass of juveniles placed in solitary
confinement are being denied the special education and related support serv ices to which
they are entitled under the statute (the proposed " IDEA subclass").

1

The named plaintiffs are (or were at the time of filing) minors. They appear here through their
parents or natural guardians and are referred to by their initials in accordance with FED. R. CIV. P. 5.2.
2
Initially, plaintiffs also sued the Chenango Valley Central School District. However, plaintiffs settled
their claims against the School District in an order approved on February 9 and stipulated to an agreement on
attorney's fees in an order approved on March 6. As of March 7, the School District has been terminated as a
defendant in this action.

-3-

In plaintiffs' fourth and fifth causes of action, they assert claims under the Americans
with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504")
alleging a separate subclass of qualifying juveniles are being denied access to certain
programs, services, and benefits without first receiving the individualized assessment
mandated by these federal laws (the proposed "disability subclass").
Plaintiffs have moved for class certification under Federal Rule of Civil Procedure
("Rule") 23. Plaintiffs have also moved for a preliminary injunction under Rule
65. Defendants oppose both requests. The parties have exchanged limited discovery on an
expedited basis and the motions were fully briefed in advance of oral argument, which was
heard on March 23, 2018 in Utica, New York. Decision was reserved.
II. BACKGROUND
Plaintiffs have submitted declarations and other evidence in support of their request
for class certification, see Cotter Class Cert. Decl. (detailing supporting submissions), and in
support of their motion for preliminary injunctive relief, see Cotter Prelim. Inj. Decl. (same);
Weisman Decl. (including supporting exhibits).
In opposition, defendants have submitted selected records from current or former
members of the proposed juvenile class, see Behnke Class Cert. Aff. (detailing submissions),
information about proposed regulatory changes, Behnke Prelim. Inj. Decl. Ex. A, reports from
the New York State Commission of Correction and the National Commission on Correctional
Health Care, Behnke Prelim. Inj. Decl. Exs. B & C, and a series of two- and three-page
affidavits from Broome County Jail staff members Sean Bell, James Borchardt, Marcus
DeAngelo, Jeff Katen, Jason Kirk, Dennis Rowe, Daniel Snyder, Jennifer Vasquez, and
Adam Wilcox.
-4-

All of these materials have been considered and the particularly relevant portions will
be summarized below. Notably, however, neither party has sought an evidentiary hearing in
connection with either of plaintiffs' motions, and an independent review of the submissions
has not revealed any genuine disputes over the facts essential to resolve the pending
requests. See, e.g., Matter of Defend H2O v. Town Bd. of the Town of E. Hampton, 147 F.
Supp. 3d 80, 96-97 (E.D.N.Y. 2015) (discussing circumstances where an evidentiary hearing
on a preliminary injunction may prove unnecessary). Accordingly, while disputes over certain
factual matters remain outstanding, their resolution is unnecessary at this juncture.
A. The Broome County Jail
The Broome County Jail is a 563-bed correctional facility located in Dickinson, New
York that houses pre-trial detainees, convicted individuals serving sentences, and technical
parole violators. The Jail primarily holds an adult inmate population. However, the facility is
also used to house juveniles, many of whom suffer from mental health or intellectual
disabilities.
Generally speaking, juveniles being held at the Broome County Jail are housed in their
own pod ("F-Pod"), where they are permitted outside their cells for about 12 hours a day for
recreation, showers, library use, class time, and other programming. The average length of
time a juvenile spends at the Jail is 37 days, and the vast majority of the juveniles held at the
Jail are pre-trial detainees.
B. Solitary Confinement at the Jail
Defendants' policies contemplate several different forms of disciplinary isolation or
segregation: (1) "informal discipline," where an inmate waives the right to a hearing and
simply accepts the corrections officer's proposed sanction, which is usually a 24-hour period
-5-

of confinement in a cell; (2) "administrative segregation," where an inmate is confined to their
cell or to the Secure Housing Unit ("SHU") for up to 15 business days pending a disciplinary
hearing; (3) "protective custody," a form of administrative segregation that can exceed the
15-day limit; and (4) "disciplinary segregation" or "keep-lock," an additional period of lock-in
or SHU time imposed as a punitive measure.
In each instance, the inmate is confined to a sparsely furnished cell measuring about
8 by 10 feet for approximately 23 hours a day. Plaintiffs contend these measures are
routinely imposed by Broome County Jail staff on members of the proposed juvenile class
regardless of mental health history and even for minor misbehavior, such as horseplay,
engaging in a water fight, tossing paper into a waste basket, or failing to clean their cell to a
guard's satisfaction. Plaintiffs assert that once a juvenile is placed in any of these forms of
solitary confinement, defendants deny them access to education or special education
instruction and related support services in violation of state and federal law.
In addition, plaintiffs contend the Broome County Jail's practices and policies fail to
distinguish between adults and juveniles, between pre-trial detainees and post-conviction
prisoners, or even between normal juveniles and those with mental or intellectual
disabilities. As a result, juveniles at the Jail often come in visual or physical contact with
members of the adult inmate population, who among other things have been known to try to
attack them, to throw urine at them, and to shout threatening messages to them.
C. Andrea Weisman, Ph.D
In support of their request for preliminary relief, plaintiffs have submitted a detailed
declaration from Andrea Weisman, Ph.D., a licensed clinical psychologist. Dr. Weisman
visited the Broome County Jail, interviewed two of the five juveniles being held there at the
-6-

time of her visit, reviewed the Jail's written policies, examined the records of various juveniles
who were held at the facility, and interviewed various members of the Jail staff.
Dr. Weisman opines in relevant part that "the policies and practices guiding the
placement of youth in solitary confinement are extraordinarily harsh and are extremely
damaging to youth so confined" and concludes that defendants' "adherence to these policies
place all juveniles who are, or will be, incarcerated at the Jail at substantial risk of serious
harm."
D. Defendants' Opposition
Defendants' submissions can be divided into three categories: (1) an explanation of
the salient features of a proposed amendment to state corrections law; (2) reports from
supervisory or accrediting bodies; and (3) a series of short affidavits from Broome County Jail
staff members offering context for defendants' penological decision-making vis-à-vis certain
juveniles who have submitted declarations in support of plaintiffs' pending requests for relief
or who are otherwise involved in this litigation.
1. Proposed Regulatory Amendment
On November 1, 2017, the New York State Commission of Corrections proposed
certain amendments to the current regulations "regarding inmate cell confinement and
essential services deprivation." According to defendants, these proposed changes will
"require any disciplinary or administratively segregated inmate who is under eighteen years
of age [to be] allowed out of their cell for a minimum of four hours per day."
Under the proposal, this four-hour requirement is not in stone but rather may be
denied to a juvenile any time the "chief administrative officer determines that [ ] denial is
necessary to preserve the safety, security or good order of the facility." The proposed
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changes will provide for weekly review of this kind of denial, which must also be
memorialized in writing and maintained in a centralized database.
In addition, the proposed regulations permit facility staff to restrict or even deny
educational services to juveniles provided that the denial is reviewed by the chief
administrative officer "within one school day and every school day thereafter while such
restriction or denial is in effect."
2. Reports from Supervisory or Accrediting Bodies
Defendants submitted two reports in an attempt to rebut certain of plaintiffs'
claims. First, defendants submitted a February 14, 2018 New York State Commission of
Correction Report entitled "The Worst Offenders." As defendants explain, this report does
not include the Broome County Jail even though Dr. Weisman opined in her report that the
Jail was "the worst facility she has seen in her thirty years." Second, defendants submitted a
September 25, 2017 accreditation report from the National Commission on Correctional
Health Care ("NCCHC"). According to defendants, this submission establishes that the
Broome County Jail is in compliance with NCCHC standards for "restraint and seclusion."
3. Affidavits from Broome County Jail Staff
i. Sean Bell
Officer Bell states that he currently works in D-pod, the SHU. He asserts that inmates
in the SHU "are able to exercise and jog around the perimeter of the yard." In addition,
Officer Bell explains SHU inmates have access to legal papers and a bible during the first 24
hours in the SHU. After that, they are "permitted three books and three magazines in their
cells." These inmates also have "daily access to three newspapers" if they want to read
them. According to Officer Bell, he passes the newspapers "from cell to cell each day so any
-8-

inmate who signs up for a paper has the opportunity to read it."
Officer Bell denies ever assaulting any inmates or witnessing any corrections officer
assault any inmate in his presence. To the contrary, Officer Bell claims that A.T., one of the
named plaintiffs, "would target any new person" in SHU and has previously assaulted
another inmate. According to Officer Bell, he also observed D.K., another juvenile, "throw
urine through the window of an adult's cell in F-pod" while the adult inmate was
asleep. Officer Bell states that he did not observe any adult inmates harassing any juveniles,
and opines that juveniles "were more likely" to harass the adults.
ii. James Borchardt
Officer Borchardt is the Inmate Grievance Coordinator at the Broome County Jail. He
explains that inmates are free to file grievances and appeal any decisions he makes, but
asserts that "[n]o juvenile inmates have filed a grievance regarding the issues raised in this
litigation."
iii. Marcus DeAngelo
In his affidavit, Officer DeAngelo explains that he penalized C.J., a juvenile inmate,
with "seven day keeplock" after he refused to "stand for a count." According to Officer
DeAngelo, C.J. claimed he was going to the bathroom but "was observed sitting on the toilet
with his pants up." Officer DeAngelo explains that C.J. was also uncooperative on other
occasions "during the count." Further, Officer DeAngelo denies ever observing C.J. talking to
himself or asking for help with his worksheets. Finally, Officer DeAngelo asserts that he
never witnessed any inmates "spying on the juveniles in the shower."
iv. Jeff Katen
Officer Katen's affidavit confirms Officer Bell's claim that an inmate is not permitted to
-9-

have anything other than legal materials and religious belongings during the first 24 hours
they spend in SHU. Officer Katen also recounts an incident with D.K., who was placed in
keeplock because "he informed the staff his listed birth date was wrong." According to
Officer Katen, staff placed D.K. in keeplock so they could investigate this claim.
v. Jason Kirk
Officer Kirk recounts an instance in which he was present for a "shakedown" in
F-pod. According to him, O.C., a juvenile, was restrained because he refused to "put his
head down" and became argumentative. Officer Kirk states that named plaintiffs A.T. and
B.C. were "given multiple chances . . . to comply with facility rules" but repeatedly violated
them. Like Officer DeAngelo, Officer Kirk denies being informed "of any complaints that the
adults were watching the juveniles in the shower." Officer Kirk also denies ever observing
any adults throwing urine or feces on the cell walls.
vi. Dennis Rowe
Like Officer Kirk, Sergeant Rowe recalls the "shakedown" where O.C. refused to
comply, but adds to it by denying that Jail staff "slammed" O.C.'s head on the floor. As with
Officer Bell, Sergeant Rowe opines that the juveniles are the instigators of any harassment
involving the adults. Finally, Sergeant Rowe denies hearing any complaints about adult
inmates watching juveniles in the showers.
vii. Daniel Snyder
Officer Snyder offers information about the discrepancy with D.K.'s date of birth
described in Officer Katen's affidavit. According to Officer Snyder, he was instructed to lock
D.K. in his cell until they could confirm his date of birth—it took seven days of keeplock to
confirm that D.K. was, in fact, correct about his own date of birth. Nevertheless, Officer
- 10 -

Snyder explains that this was necessary for D.K.'s protection and for the protection of other
inmates. Finally, Officer Snyder denies ever observing any adults threatening juveniles.
viii. Jennifer Vasquez
Officer Vasquez recounts an incident on November 23, 2016 with O.C., who
"persistently continued to make noise and was screaming" between the hours of one and two
in the morning. Officer Vasquez concluded that O.C. "was being intentionally disruptive and
seeking a physical altercation with an officer." After O.C. refused to comply with various
commands, staff removed him from F-pod.
ix. Adam Wilcox
Officer Wilcox's familiarity with the "shakedown" of O.C. comes through his review of
incident reports. According to Officer Wilcox, staff needed to control O.C.'s head for his own
protection and for the protection of other corrections officers. Officer Wilcox, like several
other officers, denies ever observing any adults "spying on the showers." In addition, Officer
Wilcox explains that inmates are only "shackled in the recreation yard" if they are "a threat to
themselves or another inmate or officer."
III. DISCUSSION
The fact pattern and procedural posture presented in this case are rem arkably similar
to a matter addressed just last year in V.W. v. Conway, 236 F. Supp. 3d 554 (N.D.N.Y. 2017)
("Conway"). There, the named plaintiffs were juveniles who sought relief on behalf of
themselves and a proposed class of minor detainees suffering virtually identical treatment at
the hands of Onondaga County officials. After plaintiffs' requests for class certification and
preliminary injunctive relief were granted, the parties entered into an interim agreement
before negotiating the terms of a final class action settlement.
- 11 -

The parties to the present case are well familiar with Conway. Plaintiffs' counsel in
this action successfully litigated the Conway matter, and they have relied heavily on the
reasoning and conclusions set forth in Conway in making the requests for class certification
and preliminary injunctive relief that are under consideration now. At oral argument,
defendants were tasked with articulating how the facts of this case could be understood to
give rise to the kind of meaningful distinctions that might ultimately warrant a series of legal
conclusions different from those reached in Conway. Defendants struggled to do so, and for
good reason: a careful review of the parties' submissions makes it clear that justice is best
served by treading Conway's path.
A. Class Certification
Plaintiffs seek to certify (1) a class composed of "[a]ll 16- and 17-year-olds who are
now or will be incarcerated at the Broome County Correctional Facility"; (2) a subclass of
"[a]ll 16- and 17-year-olds with disabilities, as defined by the Individuals with Disabilities
Education Act, who are now or will be incarcerated at the Broome County Correctional
Facility, who are in need of special education and related services"; and (3) a subclass of
"[a]ll 16- and 17-year-olds with psychiatric and/or intellectual disabilities, as defined by the
Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, who are
now or will be incarcerated at the Broome County Correctional Facility, who are at risk of
being placed in disciplinary segregation because of their disability." Pls.' Mem. Supp. Class
Cert. at 12.3
"A district court enjoys broad discretion when it comes to resolving questions of class

3

Pagination corresponds to CM/ECF.
- 12 -

certification because it 'is often in the best position to assess the propriety of the class and
has the ability, . . . , to alter or modify the class, create subclasses, and decertify the class
whenever warranted.'" Conway, 236 F. Supp. 3d at 572 (quoting Sumitomo Copper Litig. v.
Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d Cir. 2001)).
However, because the class action device is "an exception to the usual rule that
litigation is conducted by and on behalf of the individual named parties only," Califano v.
Yamasaki, 442 U.S. 682, 700-01 (1979), "[a] party seeking class certification must
affirmatively demonstrate [its] compliance with the Rule." Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 351 (2011) (emphasis added) ("Rule 23 does not set forth a mere pleading
standard.").
Accordingly, "the district court is required to make a 'definitive assessment of Rule 23
requirements, notwithstanding their overlap with merits issues,' and must resolve material
factual disputes relevant to each Rule 23 requirement." Brown v. Kelly, 609 F.3d 467, 476
(2d Cir. 2010) (quoting In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006)
("In re IPO")).4
First, Rule 23 requires a party seeking certification to demonstrate that:
(1)

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

(2)

there are questions of law or fact 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

4

At this stage, the merits should be considered only to the extent they overlap with Rule 23's
inquiry. Dukes, 564 U.S. at 351 ("Frequently that 'rigorous analysis' will entail some overlap with the merits of
the plaintiff's underlying claim. That cannot be helped.").
- 13 -

the interests of the class.
FED. R. CIV. P. 23(a).
Second, the Rule requires a party to satisfy at least one of three additional
requirements:
(1)

prosecuting separate actions by or against individual class
members would create a risk of:
(A)

inconsistent or varying adjudications with
respect to individual class members that would
establish incompatible standards of conduct for
the party opposing the class; or

(B)

adjudications with respect to individual class
members that, as a practical matter, would be
dispositive of the interests of the other
members not parties to the individual
adjudications or would substantially impair or
impede their ability to protect their interests;

(2)

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; or

(3)

the court finds that the 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 other available methods for fairly and efficiently
adjudicating the controversy.

FED. R. CIV. P. 23(b).
Finally, courts have written a third, "implied requirement" into the Rule: a party
seeking certification must demonstrate that the proposed class is "ascertainable." Sykes v.
Mel Harris & Assocs., LLC, 285 F.R.D. 279, 287 (S.D.N.Y. 2012). Under this additional
element, "[a]n identifiable class exists if its members can be ascertained by reference to
objective criteria." Stinson v. City of N.Y., 282 F.R.D. 360, 367 (S.D.N.Y. 2012) (quoting In re
- 14 -

Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 395 (S.D.N.Y. 2008)).
In sum, "[c]lass certification is appropriate where the proposed class meets, by a
preponderance of the evidence following a court's 'rigorous analysis,' the requirements of
Rule 23(a) and the proposed class constitutes one of the types of classes enumerated in
Rule 23(b)." Stinson, 282 F.R.D. at 367 (citation omitted).
1. Numerosity
The first element requires plaintiffs to demonstrate that "the class is so numerous that
joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1).
Ordinarily, a proposed class that exceeds forty members is considered presumptively
numerous for purposes of this requirement. Pa. Pub. Sch. Emps.' Ret. Sys. v. Morgan
Stanley & Co., Inc., 772 F.3d 111, 120 (2d Cir. 2014) (" Numerosity is presumed for classes
larger than forty members.").
However, the Second Circuit has cautioned that "the numerosity inquiry is not strictly
mathematical" but rather one that should take "into account the context of the particular case,
[and] in particular whether a class is superior to joinder based on other relevant factors
including: (i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of class
members, (iv) their ability to sue separately, and (v) request for injunctive relief that would
involve future class members." Morgan Stanley & Co., Inc., 772 F.3d at 120 (citation
omitted).
In other words, "[t]he numerosity requirement in Rule 23(a)(1) does not mandate that
joinder of all parties be impossible—only that the difficulty or inconvenience of joining all
members of the class make use of the class action appropriate." Cent. States Se. & Sw.
Areas Health & Welfare Fund v. Merck–Medco Managed Care, LLC, 504 F.3d 229, 244-45
- 15 -

(2d Cir. 2007).
Plaintiffs argue the proposed juvenile class is sufficiently numerous because the
record demonstrates that at least 110 juveniles spent time at the Broome County Jail during
the period between March 1, 2016 and November 1, 2017. Waldron Decl. ¶ 5. Defendants
respond that the Jail's internal records show that in 2017 only 18 juveniles "received any form
of discipline" at the Broome County Jail. Defs.' Mem. Opp'n at 10-11. Plaintiffs reply that
defendants' proffered number is not tied to any evidence in the present record and, even if it
were an accurate data point, it fails to account for the fact that the juvenile class proposed by
plaintiffs is not limited to just those juveniles actually placed in some form of solitary
confinement for disciplinary reasons. Pls.' Reply Mem. at 5-6.
Plaintiffs clearly have the better of this argument. They are correct that in
circumstances such as these, courts routinely certify classes that encompass not only those
members who have actually been subjected to a challenged policy or practice but also to
similarly situated individuals at reasonably foreseeable risk of facing the same fate. See,
e.g., Conway, 236 F. Supp. 3d at 574 (certifying class of all juveniles held at the facility now
or in the future); Hernandez v. Cty. of Monterey, 305 F.R.D. 132, 152 (N.D. Cal. 2015)
(certifying class of all inmates held at the facility).
Various contextual factors also point toward the appropriateness of certification. For
instance, plaintiffs' proposed class includes all future juveniles who will be detained at the
Broome County Jail, precisely the sort of revolving population that often makes joinder of
individual members impracticable. See, e.g., Clarkson v. Coughlin, 783 F. Supp. 789, 797
(S.D.N.Y. 1992) ("The class action device is particularly well-suited in actions brought by
prisoners due to the 'fluid composition' of the prison population . . . [and] generally tend[s] to
- 16 -

be the norm in actions such as this.").
And while the juvenile class members will obviously share the same geographic area
(that is, the Broome County Jail) at one point or another, the ability of any one individual
member of the class to maintain an individual civil rights suit will at the same time necessarily
be limited by the simple reality that their freedom has been severely restricted. Cf. Redmond
v. Bigelow, 2014 WL 2765469, at *3 (D. Utah June 18, 2014) (acknowledging that individual
members of a putative class of prisoners would face myriad practical difficulties in
maintaining individual suits because they "enjoy very little freedom in their daily lives" such as
the fact they "are not at liberty to meet and confer with counsel without permission" from
prison authorities).
Finally, litigating this suit as a class action promotes judicial economy, since it avoids
multiple individual suits that raise the same issues and seek the same relief—an end to
current solitary confinement practices for juveniles held at the Broome County Jail, and an
end to the deprivation of education and disability support services attendant to that kind of
treatment. Cf. Williams v. Conway, 312 F.R.D. 248, 251 (N.D.N.Y. 2016) (McAvoy, J.)
(certifying class of present and future deaf and hearing-impaired prisoners at the Justice
Center).
Plaintiffs' proposed subclasses meet Rule 23's numerosity requirement for
substantially the same reasons. Working from the 110 known members of the juvenile class,
plaintiffs cross-reference data from the New York State Department of Education to establish
that at least 51 members of the juvenile class were students with a qualifying disability under
the IDEA, and rely on studies from the National Center for Mental Health and Juvenile
Justice to establish that at least 55 members of the juvenile class would meet the criteria to
- 17 -

qualify for a disability under the ADA and Section 504.
Defendants respond that this method of estimating subclass membership cannot
satisfy the numerosity standard because it is "purely speculative." But as plaintiffs reply,
conclusions drawn from statistical data have been found sufficient for purposes of class
certification so long as they are demonstrably reasonable ones. See, e.g., Williams, 312
F.R.D. at 252 (finding numerosity satisfied where plaintiffs offered, inter alia, estimate of
class members based on statistical data cross-referenced against relevant public reports).
Upon review, that is the case here. In sum, plaintiffs have demonstrated by a
preponderance of the evidence that the proposed juvenile class and the two subclasses are
sufficiently numerous such that joinder of all members is impracticable. Accordingly, Rule
23's numerosity requirement is satisfied.
2. Commonality
This element requires plaintiffs to demonstrate there "are questions of law or fact
common to the class." FED. R. CIV. P. 23(a)(2).
Importantly, this "does not require all questions of law or fact to be common," and
"even a single common question will suffice." Sykes, 285 F.R.D. at 286; see also Marisol A.
v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997) ("The commonality requirement is met if
plaintiffs' grievances share a common question of law or of fact."); Trief v. Dun & Bradstreet
Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992) ("Commonality does not mandate that all class
members make identical claims and arguments, only that common issues of fact or law affect
all class members.").
"The common question must lend itself to 'classwide resolution' such that
'determination of its truth or falsity will resolve an issue that is central to the validity of each
- 18 -

one of the claims in one stroke.'" Sykes, 285 F.R.D. at 286 (quoting Dukes, 564 U.S. at
350). Importantly, "factual differences in the claims of the class do not preclude a finding of
commonality." Id. at 287 (citation and internal quotation marks omitted). Rather, what
matters is "the capacity of a classwide proceeding to generate common answers apt to drive
the resolution of the litigation." Id. at 286 (citation and internal quotation marks omitted).
Plaintiffs' submissions establish that they have also met their burden on this
element. See Pls.' Mem. Supp. Class Cert. at 16-22 (setting forth evidence in support of the
commonality inquiry in detail). Defendants' opposition submission is shot through with
attempted explanations for the different reasons that individual juveniles were placed in
solitary confinement and/or descriptions of the different circumstances in which such
confinement was imposed. But much of that is beside the point.
More importantly for purposes of evaluating this element is the fact that plaintiffs
allege defendants have engaged in a common course of unlawful conduct toward members
of the proposed class and subclasses, that def endants acted with deliberate indifference to
the substantial risk of serious harm posed by certain aspects of that common course of
conduct, and that defendants have collectively deprived class and subclass members of the
education, special services, and other related procedural protections to which they are
entitled.
As in Conway, "the common answers to these questions will drive the resolution of
the litigation—whether defendants' conduct violates the Constitution or federal law, and
whether defendants should therefore be enjoined from engaging in that course of
conduct." 236 F. Supp. 3d at 575 (collecting cases); see also, e.g., Williams, 312 F.R.D. at
253 (finding commonality requirement satisfied based on "jail's alleged failure to provide
- 19 -

class members with services for the deaf and hearing-impaired" because these grievances
share a common question of law or fact and arise from the same course of events). In sum,
plaintiffs have demonstrated by a preponderance of the evidence that there are questions of
law or fact common to the class and the subclasses.
3. Typicality
This requirement is satisfied if "the claims or defenses of the representative parties
are typical of the claims or defenses of the class." FED. R. CIV. P. 23(a)(3).
"Rule 23(a)(3) is satisfied when each class member's claim arises from the same
course of events, and each class member makes similar arguments to prove the defendant's
liability." Stinson, 282 F.R.D. at 370-71 (citation omitted). "When the same unlawful conduct
was directed at or affected both the named plaintiffs and the prospective class, typicality is
usually met." Id. at 371. Generally speaking, minor variations in the fact patterns underlying
the individual claims will not preclude a finding of typicality unless there are "unique
defenses" that threaten to become the focus of the litigation. See Baffa v. Donaldson, Lufkin
& Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000).
Plaintiffs have carried their burden on this element for substantially the same reasons
as set forth above—the members of the proposed class and subclasses share the sam e
legal arguments because their claims are based on the common application of certain
challenged policies. Sykes, 285 F.R.D. at 287 ("The commonality and typicality requirements
of Rule 23(a) tend to merge such that similar considerations inform the analysis for both
prerequisites."); see also e.g., Butler v. Suffolk Cty., 289 F.R.D. 80, 99 (E.D.N.Y.
2013) (finding typicality satisfied where, for example, "whether exhaustion should be excused
because administrative remedies were unavailable . . . is a question common to all members
- 20 -

of the class").
Defendants argue that typicality cannot be satisfied in this case "because the claims of
A.T. and B.C. are moot and they have failed to exhaust their administrative remedies." Defs.'
Opp'n Mem. at 12. According to defendants, these are unique defenses that will be "an
important focus of the litigation." Id.
These arguments are rejected as bases to defeat class certification. As plaintiffs point
out in reply, defendants' claim of mootness appears based on a colloquial usage of the term
rather than an attempt at setting forth, much less satisfying, the formal legal standard
presumably being referenced. But even assuming for present purposes that defendants are
correct, it adds little to the certification inquiry because the inherently transitory nature of the
pre-trial detention setting brings this matter within the "narrow class of cases in which the
termination of a class representative's claim does not moot the claims of the unnamed
members of the class." Gerstein v. Pugh, 420 U.S. 103, 110 n.1 (1975); see also W illiams,
312 F.R.D. at 254.
Defendants' exhaustion argument fares no better. They contend the named plaintiffs
have failed to comply with administrative exhaustion requirements. Although it is left uncited
in their brief, this is apparently a reference by defendants to the requirement set forth in the
Prison Litigation Reform Act ("PLRA"). The 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 such
administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
Importantly, though, failure to exhaust is an affirmative defense and therefore
"inmates are not required to specifically plead or demonstrate exhaustion in their
- 21 -

complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). Accordingly, "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 it; or (3) 'special circumstances'
justify non-exhaustion." Butler, 289 F.R.D. at 93 (quoting Hemphill v. New York, 380 F.3d
680, 686 (2d Cir. 2004)). As the Supreme Court recently explained, "an administrative
procedure is unavailable when, (despite what regulations or guidance materials may
promise) it operates as a simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates." Ross v. Blake, 136 S. Ct. 1850, 1859 (2016).
In this case, the named plaintiffs and others have introduced declarations specifically
attesting that their requests to see the Jail's grievance officer went unanswered, and on a few
occasions they were told that certain issues about which they sought to complain were not
grievable at all. In the face of these specific assertions, Officer Borchardt's short, blanket
affidavit essentially claiming that no grievances from any juveniles have happened to reach
his desk is woefully insufficient to defeat certification at this stage of the proceedings.
In sum, plaintiffs have demonstrated by a preponderance of the evidence that the
claims or defenses of the representative parties are typical of the claims or defenses of the
class and the subclasses.
4. Adequacy of Representation
This requirement is satisfied if "the representative parties will fairly and adequately
protect the interests of the class." FED. R. CIV. P. 23(a)(4).
"[T]he adequacy requirement is twofold: the proposed class representative must
have an interest in vigorously pursing the claims of the class, and must have no interests
antagonistic to the interests of other class members." Denney v. Deutsche Bank AG, 443
- 22 -

F.3d 253, 268 (2d Cir. 2006). In addition, class counsel m ust be "qualified, experienced and
able to conduct the litigation." Baffa, 222 F.3d at 60.
This inquiry "serves to uncover conflicts of interest between the parties and the class
they seek to represent." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). "Not
every conflict, however, precludes a finding of adequacy." Sykes, 285 F.R.D. at 287. "The
conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be
fundamental, and speculative conflict should be disregarded at the class certification
stage." Id. (citation omitted).
"In order to defeat class certification, there must be a showing of a genuine conflict
between the proposed class representative's interests and those of the other members of the
class, and only a conflict that goes to the very subject matter of the litigation will defeat a
party's claim of representative status." Stinson, 282 F.R.D. at 371 (quoting in part Hirschfeld
v. Stone, 193 F.R.D. 175, 183 (S.D.N.Y. 2000) (internal citation and quotation marks
omitted)).
Plaintiffs have also carried their burden here. Defendants' principal argument on this
element is that "potential conflicts" exist because A.T. and B.C. "were disciplined for fighting
with each other" while being detained at the Broome County Jail. Defs.' Opp'n Mem. at 12.
But as plaintiffs point out, that kind of interpersonal conflict does not go to "the very subject
matter of the litigation," which for reminder's sake is not the abandonment of measures that
might result in safety and good order at the Jail but rather the question of whether the
widespread use of solitary confinement on the Jail's juvenile population is a legally
permissible shortcut toward achieving that end.
As discussed above, the representatives of the class and the subclasses have been
- 23 -

subjected to the same common course of treatment by the same officials on the basis of the
same policies. Each named plaintiff has expressed a clear desire to seek prospective
injunctive relief from these policies. That outcome will benefit the other juveniles currently
detained at the Broome County Jail, and it will also benefit the juveniles who will be held at
the Jail in the future.
Further, class counsel have extensive litigation experience in the class action context
and in effectively seeking classwide injunctive relief in federal forums. See, e.g., Conway,
236 F. Supp. 3d at 577 (collecting cases). Accordingly, plaintiffs have demonstrated by a
preponderance of the evidence that the representative parties will fairly and adequately
protect the interests of the class and the subclass.
5. Rule 23(b)
Plaintiffs also satisfy this requirement. They rely on Rule 23(b)(2), which applies when
"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." FED. R. CIV. P. 23(b)(2).
"The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory
remedy warranted—the notion that the conduct is such that it can be enjoined or declared
unlawful only as to all of the class members or as to none of them." Dukes, 564 U.S. at 360.
The members of the class and the subclasses would benefit from the same
remedy—an order enjoining defendants from application of the policies and practices
resulting in the deprivations at issue. Dukes, 564 U.S. at 360 ("Rule 23(b)(2) applies only
when a single injunction or declaratory judgment would provide relief to each member of the
class."). Accordingly, plaintiffs have met their burden on this element.
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6. Ascertainability
Plaintiffs have also satisfied this final requirement. Among other things, the members
of both the class and the subclasses are readily identifiable pursuant to objective criteria,
such as records maintained by defendants. In sum, plaintiffs have affirmatively
demonstrated their compliance with each of the requirements for class
certification. Accordingly, plaintiffs' motion for class certification will be granted.
B. Preliminary Injunction
Plaintiffs contend preliminary injunctive relief is warranted in this case for substantially
the same reasons it was justified in Conway. According to plaintiffs, defendants routinely
place teenagers being held at the Broome County Jail in various forms of solitary
confinement, exposing them to the sort of extreme conditions that pose a serious risk of
substantial harm to a segment of the Jail's population that is already vulnerable.
Plaintiffs emphasize that policy makers in the federal government and in 21 states
around the country have abandoned this practice precisely because the risks of serious harm
far outweigh any countervailing considerations. Plaintiffs point to a large and growing body
of research that confirms the use of solitary on juveniles is actually counterproductive to the
penological goals of facility safety and security.
"A preliminary injunction is an extraordinary remedy never awarded as of right." Gen.
Mills, Inc. v. Chobani, LLC, 158 F. Supp. 3d 106, 114 (N.D.N.Y. 2016) (quoting Winter v. Nat'l
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). "The party seeking the injunction carries the
burden of persuasion to demonstrate, 'by a clear showing,' that the necessary elements are
satisfied." Reckitt Benckiser Inc. v. Motomco Ltd., 760 F. Supp. 2d 446, 452 (S.D.N.Y. 2011)
(quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
- 25 -

As a general matter, the party seeking preliminary relief must show: "(1) a likelihood
of irreparable harm; (2) either a likelihood of success on the merits or sufficiently serious
questions as to the merits plus a balance of hardships that tips decidedly in their favor;
(3) that the balance of hardships tips in their favor regardless of the likelihood of success;
and (4) that an injunction is in the public interest." Gen. Mills, Inc., 158 F. Supp. 3d at 115;
see also Chobani, LLC v. Dannon Co., Inc., 157 F. Supp. 3d 190, 199 (N.D.N.Y . 2016).
However, in cases like this one, where the movant is not seeking to restore the status
quo ante but rather requesting an order that commands an affirmative act or mandates a
specific course of conduct, a heightened standard applies: this type of preliminary injunction
should issue only "upon a clear showing that the moving party is entitled to the relief
requested, or where extreme or very serious damage will result from a denial of preliminary
relief." Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (citation om itted); see
also N.Y. ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (requiring a
"clear" or "substantial" likelihood of success as well as a "strong showing" of irreparable
harm); N.J. v. New York, 872 F. Supp. 2d 204 (E.D.N.Y. 2011) ("This higher standard is
particularly appropriate when a plaintiff seeks a preliminary injunction against a government
body such as a school district.").
"In the prison context, a request for injunctive relief must always be viewed with great
caution so as not to immerse the federal judiciary in the management of [ ] prisons." Fisher
v. Goord, 981 F. Supp. 140, 167 (W .D.N.Y. 1997) (citing Farmer, 511 U.S. at 846-47). Under
the PLRA, preliminary injunctive relief in any civil action with respect to prison conditions
must be narrowly drawn, extend no further than necessary to correct the harm, and be the
least intrusive means necessary to correct that harm. See 18 U.S.C. § 3626(a)(2)). In
- 26 -

considering a request for injunctive relief, a court must give "substantial weight" to any
adverse impact on public safety or the operation of a criminal justice system the relief might
have. § 3626(a)(1)(A).
1. Substantial Likelihood of Success
Plaintiffs assert three kinds of claims: first, they allege defendants' routine use of
solitary confinement on juveniles violates the Eighth and Fourteenth Amendments; second,
they allege defendants deny juveniles in solitary confinement the minimum educational
instruction guaranteed by state law in violation of the Fourteenth Amendment and the special
education services and other procedural protections to which they are entitled under the
IDEA; and third, they allege defendants categorically deny disabled juveniles access to
available programs, services, and benefits by placing them in solitary confinement without
performing the individualized assessment mandated by federal law.
i. Deliberate Indifference to Conditions of Confinement
Generally speaking, a plaintiff asserting a § 1983 claim based on the allegedly
unconstitutional conditions of his or her confinement must show that: "(1) objectively, the
deprivation . . . was sufficiently serious that he was denied the minimal civilized measure of
life's necessities, and (2) subjectively, the defendant official acted with a sufficiently culpable
state of mind . . . , such as deliberate indifference to inmate health or safety." Walker v.
Schult, 717 F.3d 119, 125 (2d Cir. 2013). T he objective element requires a plaintiff to "show
that the conditions, either alone or in combination, pose an unreasonable risk of serious
damage to his health." Id. The subjective element requires a plaintiff to show the prison
official knew of, and disregarded, "an excessive risk to inmate health or safety." Id.
This relatively straightforward standard has always applied to evaluate a § 1983 claim
- 27 -

brought by a convicted inmate serving a sentence. And in 2009, the Second Circuit
instructed lower courts that this same standard should apply to pre-trial detainees
challenging the conditions of their confinement. Caiozzo v. Koreman, 581 F.3d 63, 72 (2d
Cir. 2009) ("Claims for deliberate indifference to a . . . serious threat to the health or saf ety of
a person in custody should be analyzed under the same standard irrespective of whether
they are brought under the Eighth [which protects convicted prisoners] or Fourteenth [which
protects citizens detained pending trial] Amendment.").
But that is no longer the case. Recently, the Second Circuit overruled its holding in
Caiozzo "to the extent that it determined that the standard for deliberate indifference is the
same under the Fourteenth Amendment as it is under the Eighth Amendment." Darnell v.
Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (footnote omitted). In Darnell, the Second Circuit
modified the "subjective prong" of the deliberate indifference analysis for pre-trial detainees,
explaining it should be "defined objectively." 849 F.3d at 35. In other words, a pre-trial
plaintiff can now succeed on a § 1983 conditions-of-confinement claim in the Second Circuit
by showing defendants "knew, or should have known, that the condition posed an excessive
risk to health or safety." Id.
In this case, as in Conway, the vast majority of the class members are pre-trial
detainees and thus entitled to the more protective version of this standard. However, in this
case, as in Conway, plaintiffs seek to establish their entitlement to injunctive relief using the
more inclusive, and more stringent, Eighth Amendment standard.
Under this version of the standard, "there is no' static test' to determine whether a
deprivation is sufficiently serious; '[t]he conditions themselves must be evaluated in light of
contemporary standards of decency.'" Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)
- 28 -

(quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)). As relevant here, prisoners
may not be exposed "to conditions that 'pose an unreasonable risk of serious damage to
[their] future health."" Id. (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per
curiam)).
The subjective element requires a plaintiff to show "that the defendant acted with more
than mere negligence." Farmer, 511 U.S. at 835. "To constitute deliberate indifference,
'[t]he prison official must know of, and disregard, an excessive risk to inmate health or
safety.'" Walker, 717 F.3d at 125 (quoting Jabbar, 683 F.3d at 57); see also Lapierre v. Cty.
of Nassau, 459 F. App'x 28, 29 (2d Cir. 2012) (summary order) ("Subjectively, the official
charged with deliberate indifference must have acted with the requisite state of mind, the
equivalent of criminal recklessness").
For instance, "[e]vidence that the risk was 'obvious or otherwise must have been
known to a defendant' may be sufficient for a fact finder to conclude that the defendant was
actually aware of the risk." Walker, 717 F.3d at 125 (quoting Brock v. Wright, 315 F.3d 158,
164 (2d Cir. 2003)). In addition, conduct that is not " reasonably calculated to restore prison
discipline and security" may also be considered. Trammell v. Keane, 338 F.3d 155, 163 (2d
Cir. 2003); see also Crawford v. Cuomo, 796 F.3d 252, 257-58 (2d Cir. 2015) (drawing
distinction between good-faith efforts to maintain or restore discipline and conduct
undertaken for the purpose of causing harm).
Plaintiffs contend they are substantially likely to succeed on the merits of this claim by
offering the same rationales accepted in Conway: objectively, that juveniles are
developmentally vulnerable, that placing them in close proximity to adult inmates presents a
risk of physical and emotional harm, and that states and the federal government are
- 29 -

abandoning the practice nationwide; and subjectively, that Broome County Jail officials have
been on actual notice of the serious risks of harm through complaints from juveniles, through
this litigation, and through their own accrediting agency, which has disapproved of the use of
solitary confinement on juveniles.
Plaintiffs are correct. Their submissions convincingly demonstrate that juveniles face
an objectively sufficiently serious risk of harm from the solitary confinement practices at the
Broome County Jail. They have also identified substantial, compelling evidence in support of
a finding that defendants are specifically aware of, and have consciously chosen to
disregard, the serious risk of harm posed by the solitary confinement practices as they relate
to juveniles at the facility.
As plaintiffs establish, there is a broad and growing consensus among the scientific
and professional community that juveniles are psychologically more vulnerable than
adults. See, e.g., Graham v. Florida, 560 U.S. 48, 68 (2010) ("[D]evelopments in psychology
and brain science continue to show fundamental differences between juvenile and adult
minds."); Roper v. Simmons, 543 U.S. 551, 569 (2005) (recognizing the "comparative
immaturity and irresponsibility of juveniles).
The Supreme Court has continued to stress that these f undamental differences are
consequential in the Eighth Amendment context. See, e.g., Miller v. Alabama, 132 S. Ct.
2455 (2012) (observing that youth "is a moment and condition of life when a person may be
most susceptible to influence and to psychological damage"). For instance, the Court has
forbidden the imposition of the death penalty on juveniles, Roper, 543 U.S. at 578, concluded
that juveniles cannot be sentenced to life without parole for offenses short of homicide,
Graham, 560 U.S. at 82, and held that, even in cases of homicide, juveniles cannot be
- 30 -

subjected to a mandatory sentencing scheme that automatically imposes a sentence of life
without parole. Miller, 132 S. Ct. at 2475.
Plaintiffs persuasively analogize the circumstances at issue in this case to numerous
examples from around the country where courts have found that the imposition of solitary
confinement violated the constitutional rights of adult inmates with mental conditions. As
plaintiffs' submissions demonstrate, many of the juveniles in the plaintiff class also suffer
from similar, pre-existing mental conditions.
And as for all members of the class, plaintiffs' submissions further establish that the
risks posed here are even greater, given that juveniles share the same increased
vulnerability to long-term, or even permanent, psychological damage. Cf. Peoples v.
Annucci, 180 F. Supp. 3d 294, 299 (S.D.N.Y. 2016) ("After even relatively brief periods of
solitary confinement, inmates have exhibited systems such as . . . hallucinations, increased
anxiety, lack of impulse control, severe and chronic depression, . . . sleep problems, and
depressed brain functioning."). Further, the federal government and at least 21 states have
prohibited the use of disciplinary isolation for juveniles (and in fact, the State of New York
has also largely eliminated the practice). Cf. Graham, 560 U.S. at 62 (considering "national
consensus" in determining "contemporary values" of society).
Plaintiffs have also identified significant evidence demonstrating defendants have
been on notice of the specific risks of serious risk of harm from these practices through
complaints from the juveniles themselves, their own continued observations, and the fact that
these practices have continued unabated despite this pending litigation. Farmer, 511 U.S. at
846 (permitting court to consider "developments that postdate the pleadings and pretrial
motions" when considering subjective culpability). Further, plaintiffs have identified data from
- 31 -

other jurisdictions as well as their own expert showing that the use of disciplinary
confinement on juveniles is typically not reasonably calculated to restore prison safety and,
even when it is, disciplinary isolation undermines that goal when it continues after immediate
safety concerns have abated.
In opposition, defendants fail to overcome this substantial showing. First, they
contend that the proposed regulations, when implemented, will address the myriad concerns
identified here. But at least at this juncture, these proposed reg ulations are just
that—proposed. It should go without saying that federal courts are not in the business of
speculating about whether a proposed regulation might pass constitutional muster.
And even if defendants were somehow in a position to submit a concrete timeline for
the good-faith implementation of every single one of the proposed changes, that proffer
would do nothing to ameliorate the substantial, ongoing risk of harm at the Jail right
now. Further, as plaintiffs point out in reply, even perfect paper standards are meaningless if
the officials charged with implementing them decide to bend the rules.
Second, defendants cite to Hughes v. Judd, 108 F. Supp. 3d 1167 (M.D. Fla. 2015), to
argue that the line of Supreme Court precedent on which plaintiffs rely to establish that
juveniles are "constitutionally different" than adults extends only to sentencing
considerations. See id. at 1182 (deriding the plaintiffs' argument as "catchy but insubstantial"
and concluding that "Miller says little, if anything, about the constitutional standard applicable
to juvenile detention").
However, to the extent Hughes's reasoning clashes with that set forth in Conway, it is
rejected. See, e.g., Camreta v. Greene, 563 U.S. 692, 709 n.7 ("A decision of a federal
district court judge is not binding precedent in either a different judicial district, the same
- 32 -

judicial district, or even upon the same judge in a different case.").
Third, defendants contend plaintiffs cannot succeed on a claim based on
"administrative classifications of pretrial detainees" because those determinations "do not
give rise to a liberty interest absent evidence of an intent to punish." Defs.' Mem. Opp'n at
12. However, plaintiffs' persuasively argue that defendants' assertion appears to conflate the
standard for a procedural claim brought by a pre-trial detainee with the kind of conditions-ofconfinement due process theory being pursued here.
Fourth, defendants contend that Dr. W eisman's opinion about the conditions of the
Broome County Jail is too "conclusory" and thus "should be give [sic] no weight." In support
of this rebuttal, defendants submitted the February 14, 2018 New York State Commission of
Correction Report entitled "The Worst Offenders." As defendants explain, this report does
not include the Broome County Jail.
Even if this dispute were resolved in defendants' favor, it would add little or nothing to
the relevant inquiry. After all, the Broome County Jail might not be among the five worst
facilities ever evaluated by the state's commission. But nothing about that fact would bear on
the issue of whether it was the worst facility plaintiffs' expert psychologist has ever seen in
her many years of professional practice.
Finally, and relatedly, defendants' submissions seek to establish a variety of minor
factual disputes surrounding the imposition of various forms of confinement on various
juveniles at various times. But as discussed at the outset, any such disagreements are
immaterial to the question presented at this juncture; i.e., whether plaintiffs are substantially
likely to succeed on their claim that the Jail's widespread, excessive usage of solitary
confinement on juveniles is unconstitutional. In sum, defendants' arguments are insufficient
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to undermine plaintiffs' clear and persuasive showing on this claim.
ii. Fourteenth Amendment Due Process & the IDEA
"In a § 1983 suit brought to enforce procedural due process rights, a court must
determine (1) whether a property interest is implicated, and, if it is, (2) what process is due
before the plaintiff may be deprived of that interest." Singh v. Joshi, 152 F. Supp. 3d 112,
124 (E.D.N.Y. 2016) (quoting Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011)).
Relatedly, "[t]he IDEA offers federal funds to States in exchange for a commitment: to
furnish a 'free appropriate public education'—more concisely known as a FAPE—to all
children with certain physical or intellectual disabilities." Conway, 236 F. Supp. 3d at 586
(citation omitted). "As defined in the Act, a FAPE comprises 'special education and related
services'—both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive
services' to permit the child to benefit from that instruction.'" Id.
With respect to their due process claim, plaintiffs assert a constitutionally protected
property interest in receiving a certain amount of minimum education under New York's
Education Law. With respect to their IDEA claim, plaintiffs assert defendants routinely fail to
adhere to the procedural requirements mandated by federal law, such as a "manifestation
hearing," before changing a qualifying juvenile's "current placement."
These arguments are accepted for the same reasons set forth in Conway. In
opposition, defendants again suggest these claims are "moot," this time by claiming they
"intend to work with the School District to implement [the] settlement" reached between
plaintiffs and the School District. Defs.' Mem. Opp'n at 10. But a statement of good
intentions is insufficient, especially since defendants do not appear to be bound in any way
by the settlement they mention. In sum, plaintiffs have demonstrated at this juncture that
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they are substantially likely to succeed on the merits of these claims.
iii. The ADA & Section 504
Although plaintiffs acknowledge that Broome County Jail officials have authority to
"impose legitimate safety requirements necessary for the safe operation" of the facility, they
contend defendants violate the ADA and Section 504 by routinely placing juveniles with
disabilities in solitary confinement without ever conducting the type of "individualized
assessment" of their disability that these laws require.
To establish a prima facie violation under either the ADA or Section 504, a plaintif f
must show (1) he is a qualified individual with a disability; (2) defendant is an entity subject to
the statutes; and (3) he was denied an opportunity to participate in or benefit from the
defendant's services, programs, or activities, or otherwise discriminated against by reason of
his disability. Wright v. N.Y. State Dep't of Corr. & Cmty. Supervision, 831 F.3d 64, 72 (2d
Cir. 2016) (holding DOCCS' "blanket ban" on use of motorized wheelchair fails to "make an
individualized assessment of a disabled inmate's particular needs").
Plaintiffs contend most if not all of the behavior that leads to juveniles with disabilities
being placed in solitary confinement is attributable to their adolescence, or to un- or
under-treated mental health or intellectual disabilities. Plaintiffs argue that defendants
routinely place these individuals in solitary without consulting a mental health worker and
without assessing whether solitary confinement is appropriate. According to plaintiffs, "a
correctional facility cannot categorically deny an inmate with a disability access to available
programs, services and benefits without first performing an individualized assessment." Pls.'
Mem. Supp. Class Cert. at 24. Upon review of the briefing, plaintiffs are also substantially
likely to succeed on the merits of this claim.
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2. Strong Showing of Irreparable Harm
"The showing of irreparable harm is perhaps the single most important prerequisite for
the issuance of a preliminary injunction." Weinstein v. Krumpter, 120 F. Supp. 3d 289, 297
(E.D.N.Y. 2015) (citation and internal quotation marks omitted). "The concept of irreparable
harm has been described 'as certain and imminent harm for which a monetary award does
not adequately compensate.'" Donohue v. Mangano, 886 F. Supp. 2d 126, 149-50 (E.D.N.Y.
2012) (quoting Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 113-14 (2d
Cir. 2003)).
As in Conway, plaintiffs have made such a showing here. "First, as a general matter,
there is a presumption of irreparable harm when there is an alleged deprivation of
constitutional rights." Donohue, 886 F. Supp. 2d at 150. In addition, plaintif fs have
submitted substantial, convincing evidence that defendants' continued use of solitary
confinement on juveniles puts them at serious risk of short- and long-term psychological
damage, and that the related deprivation of education services by both defendants hinders
important aspects of their adolescent development. See, e.g., New York, 872 F. Supp. 2d at
214 ("[I]nterruption of a child's schooling causing a hiatus not only in the student's education
but also in other social and psychological developmental processes that take place during
the child's school, raises a strong possibility of irreparable injury." (citation omitted));
Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 392 (N.D.N.Y .
2001) (McAvoy, J.) ("It is almost beyond dispute that wrongful discontinuation of a special
education program to which a student is entitled subjects that student to actual irreparable
harm."). Accordingly, this element weighs in favor of granting a preliminary injunction.

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3. Public Interest
The public interest generally supports a grant of preliminary injunctive relief where, as
here, a plaintiff has demonstrated a substantial likelihood of success on the merits and a
strong showing of irreparable harm. This interest is particularly strong where the rights to be
vindicated are constitutional in nature. Ligon v. City of N.Y., 925 F. Supp. 2d 478, 541
(S.D.N.Y. 2013) ("[T]he public interest lies with the enforcement of the Constitution.").
Plaintiffs have submitted compelling evidence to rebut defendants' conclusory
assertion that facility safety and security provide an overriding justification for the current
implementation of the policy and practice at issue in this case. Plaintiffs have also clearly
shown that juveniles in solitary confinement only sporadically receive the educational
instruction and related disability services contemplated by state and federal
law. Accordingly, the public interest is served by the grant of a preliminary injunction.
4. Balance of Hardships
No one disputes that defendants have a strong interest in maintaining safety and
security at the Broome County Jail. But as discussed above, plaintiffs have submitted
sufficient evidence to undermine defendants' assertion that safety and security are
legitimately served by the current iteration of these practices when applied to
juveniles. Accordingly, the balance of hardships favors the grant of a preliminary injunction.
IV. CONCLUSION
Plaintiffs have affirmatively demonstrated compliance with Rule 23's requirements and
therefore the motion for class certification will be granted. Plaintiffs have also shown a
substantial likelihood of success on the merits of their claims and demonstrated that the
other relevant factors weigh in their favor. Accordingly, their request for a preliminary
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injunction will also be granted.
Therefore, it is
ORDERED that
1. Plaintiffs' motion for class certification is GRANTED;
2. Plaintiffs' motion for a preliminary injunction is GRANTED;
3. The official-capacity claim against Deputy Administrator Moore is DISMISSED
without prejudice5;
4. Defendants, their agents, servants, employees, and officers, and all other persons
in active concert or participation with them and who receive actual notice of this preliminary
injunction, by personal service or otherwise, are hereby IMMEDIATELY ENJOINED AND
RESTRAINED, pending the final determination of this action, from imposing 23-hour
disciplinary isolation on juveniles at the Broome County Jail;
5. Defendants shall IMMEDIATELY only lock juveniles in their cells for disciplinary
purposes if the juvenile poses an immediate threat to the safety or security of the facility and
only after less restrictive measures have been employed and found inadequate to address
the particular threat at issue;
6. Under no circumstances shall a juvenile be locked in their cell for greater than four
hours for disciplinary purposes;
7. If a juvenile remains an immediate threat to the safety and security of the facility
after four hours, a psychiatrist shall be consulted and a plan put in place to ensure the

5

Defendants indicate that Deputy Administrator Moore retired on January 15, 2018. Ordinarily, Rule
25 of the Federal Rules of Civil Procedure would provide for the automatic substitution of Deputy
Administrator's Moore's successor as a defendant. However, defendants indicate that the Deputy
Administrator position at the Jail remains vacant. If and when it is filled, defendants shall so notify the Court
and plaintiffs may then move to add an official-capacity claim against the successor if appropriate.
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juvenile's safe return to the general juvenile population;
8. Defendants shall IMMEDIATELY ensure all juveniles have access to at least three
hours of educational instruction each day as well as any IDEA-mandated special education
and related services; and
9. If a juvenile with a mental health or intellectual disability will potentially lose access
to the benefits, services, and programs offered at the facility as a result of the disciplinary
process, defendants shall ensure mental health staff will perform an individualized
assessment of the juvenile as soon as possible. This assessment shall at minimum
include: (a) a review of the individual's mental health needs; (b) a determination regarding
whether any reasonable modifications can be made to eliminate future risk; (c) a
determination regarding whether the individual with a disability continues to pose a risk; and
(d) whether placement in segregation is medically appropriate.
IT IS SO ORDERED.

Dated: April 4, 2018
Utica, New York.

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