Milburn v. Dogin et al

Filing 813

ORDER PRELIMINARILY APPROVING MODIFIED CONSENT ORDER, DIRECTING NOTICE TO CLASS AND SCHEDULING A FAIRNESS HEARING: NOW, THEREFORE, it is hereby ORDERED as follows: Pursuant to Fed. R. Civil P. 23(e) the Court will hold a Fairness Hearing on January 3 1, 2024 at 2:30 p.m. to address final approval of the Modified Consent Order before the Honorable Loretta A. Preska, District Judge for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, Courtroom 1 2A, New York, New York 10007. The Court may adjourn the Fairness Hearing and reconvene it at some other date without further notice to Class Members and may approve the Modified Consent Order, enter a final Order at or after the Fairness Hearing or a ny adjournment of the Fairness Hearing. and as set forth herein. SO ORDERED., ( Fairness Hearing set for 1/31/2024 at 02:30 PM in Courtroom 12A, 500 Pearl Street, New York, NY 10007 before Judge Loretta A. Preska.) (Signed by Judge Loretta A. Preska on 11/30/2023) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
:
:
PABLO BERIQUETE, DIOGENES FILPO,
:
MARVIN HOLMES, LAWRENCE LEWIS,
:
LUIS TORRES, MILAN HEGGS, ALONZO
:
JACOBS, and DAVID RHODES,
:
:
Plaintiffs, :
:
:
v.
:
:
DANIEL F. MARTUCELLO III, Acting
:
Commissioner, New York State
:
Department of Corrections and
:
Community Supervision, and MARK
:
MILLER, Superintendent, Green
:
Haven Correctional Facility
:
:
Defendants. :
:
:

ECF CASE

79-cv-5077 (LAP)
ORDER PRELIMINARILY
APPROVING MODIFIED
CONSENT ORDER,
DIRECTING NOTICE TO
CLASS AND SCHEDUING
A FAIRNESS HEARING

WHEREAS Plaintiffs Pablo Beriquete, Diogenes Filpo, Marvin
Holmes, Lawrence Lewis, Luis Torres, Milan Heggs, Alonzo Jacobs
and David Rhodes (collectively “Class Representatives”) and
Daniel F. Marucello III, Acting Commissioner of the New York
State Department of Corrections and Community Supervision and
Mark Miller Superintendent of Green Haven (collectively
“Defendants”) have reached a proposed settlement in the form of
a Modified Consent Order;
WHEREAS, on November 7, 2023 Class Counsel moved the Court
to preliminarily approve the Modified Consent Order, to approve
the Notice and manner of providing notice to the Class and to

schedule a Final Fairness Hearing;
WHEREAS, the Defendants did not oppose the motion, and the
Court has considered all the submissions made by Class Counsel;
WHEREAS, the Court held a conference on the record on
October 31, 2023 to discuss remaining issues regarding Notice
and the manner of notice to the Class;
WHEREAS, the Court finds the proposed Modified Consent
Order is likely to receive final approval pursuant to Federal
Rule of Civil Procedure 23(e)(2), and the Class has already been
certified and that notifying the Class about the terms and
conditions of the Modified Consent Order and the date and time
of the fairness hearing is warranted; and
WHEREAS, all terms of the Modified Consent Order remain
subject to the Court’s final approval;
NOW, THEREFORE, it is hereby ORDERED as follows:
1.

The Court preliminarily finds that the proposed Modified

Consent Order is likely to be approved pursuant to Federal Rule
Civil Procedure 23(e)(2) as fair, reasonable, and adequate and
warrants providing notice of the terms of the Modified Consent
Order to the Class and scheduling a Fairness Hearing for final
approval of the proposed Modified Consent Order.

In making these

findings, the Court has considered various factors including the
nature

of

the

Class’s

and

Defendants’

respective

claims

and

defenses, the information available to the Parties, whether the

Class

Representatives

and

Class

Counsel

have

adequately

represented the Class, whether the Modified Consent Order was
negotiated at arm’s length, whether the relief provided to the
Class is adequate, and whether the Modified Consent Order treats
the Class members equitably relative to each other. Based on these
considerations, the Court preliminarily concludes that (i) the
proposed Modified Consent Order is within the range of possible
approval and that the Modified Consent Order resulted from serious,
informed, non-collusive negotiations conducted at arm’s length by
the Parties and their counsel; and (ii) none of the terms and
conditions

of

the

Modified

Consent

Order

has

any

obvious

deficiencies or improperly grants preferential treatment to any
individual Class Representative or Class Member.

Accordingly, the

Court preliminarily approves the Modified Consent Order.
2.

Pursuant to Fed. R. Civil P. 23(e) the Court will hold

a Fairness Hearing on January 31, 2024 at 2:30 p.m. to address
final

approval

Honorable
District

of

the

Modified

Consent

Order

before

the

Loretta A. Preska, District Judge for the Southern
of

New

York,

Daniel

Patrick

Moynihan

United

States

Courthouse, 500 Pearl Street, Courtroom 12A, New York, New York
10007.

The

reconvene

it

Court
at

some

Class

Members

and

enter

a

Order

final

may

adjourn

other

may
at

Fairness

date without

approve
or

the

further

the Modified

after

adjournment of the Fairness Hearing.

Hearing
notice

Consent

and
to

Order,

the Fairness Hearing or any

3.

At the Fairness Hearing, the Court will consider, among

other things:
a.

Whether

the

Court

should

approve

the

Modified

Consent Order as fair, reasonable, and adequate pursuant to
Federal Rule of Civil Procedure 23(e)(2);
b.

Whether the Court should find that the terms of the

Modified Consent Order extend no further than necessary to
correct the violations of Federal rights and whether the
relief is narrowly drawn, extends no further than necessary
to correct the violations of Federal rights and is the least
intrusive means necessary to correct the violations;
c.

Whether adequate and sufficient notice was given in

accordance with this Order;
d.

Whether Class Representatives and Class Counsel

fairly and adequately represented the Class for purposes of
entering into and implementing the Modified Consent Order;
e.

Whether the Court should grant the Law Office of

Amy Jane Agnew, P.C.’s application for attorney’s fees and
expenses, if submitted along with the request for final
approval of the Modified Consent Order; and/or
f.

Any other matters relating to the approval and

implementation of the Modified Consent Order that the Court
may deem appropriate.
4.

The Court hereby approves, as to form and content, the

Notice and all of the terms, conditions, and procedures set forth
in the proposed Modified Consent Order.

The Court finds that the

proposed Notice and notice plan will meet the requirements of due
process, Fed. R. Civ. P. 23, the Rules of this Court, and any other
applicable

law,

and

constitutes

appropriate

notice

under

the

circumstances and constitutes due and sufficient notice to all
persons and entities entitled to such notice.
5.

Class Counsel and counsel for Defendants may by written

agreement make any amendments or modification to the Notice or
plan for notice without notice or approval to the Court so long as
such changes are not materially inconsistent with this Order and
do not materially limit the rights of Class Members.
6.

Together with the motion for final approval of the

Modified Consent Order, Class Counsel shall file or cause to be
filed with the Court a declaration from a person with knowledge
confirming that notice was provided consistent with all Orders
concerning notice entered by the Court.
7.

The Court orders Co-Class Counsel, Law Office of Amy

Jane Agnew, P.C. to pay the costs of reproducing the Notice and
Modified Consent Orders, as well as ample number of translations
subject to any reasonable applications for the expenses related
thereto.
8.

Any Class Member who wishes to object to the fairness,

reasonableness,

or

adequacy

of

the

proposed

Modified

Consent