Peoples v. Fischer et al

Filing 339

OPINION AND ORDER: The Opinion and Order issued March 31, 2016 is hereby withdrawn and replaced with this Amended Opinion and Order, issued April 14, 2016. This Amended Opinion contains edits - which do not alter any of the rulings herein - on pages 28 and 29 only. (As further set forth in this Opinion) (Signed by Judge Shira A. Scheindlin on 4/14/2016) (kl)

claiming that his designation to solitary confinement for a three-year term for
improperly maintaining certain legal documents in his cell and related conduct was
unconstitutional. Two years later, in March, 2013, an action previously filed by
Dewayne Richardson, also appearing pro se, was joined with Peoples’ case.
Similarly to Peoples, Richardson was sentenced to three years’ solitary
confinement for maintaining documents in his cell that were designated as
contraband and related conduct. Also in March, 2013, a pro se complaint
previously filed by Tonja Fenton was joined with Peoples’ case.3 Fenton had sued
DOCCS after being sentenced to two years’ solitary confinement for three
infractions: (1) helping another inmate purchase personal hair care appliances and
sneakers; (2) reporting a sexual assault that was later deemed unsubstantiated; and
(3) sending a food sample to a court in support of a lawsuit she filed alleging that
corrections officers had retaliated against her by tampering with her food.
Five years after Peoples filed his initial complaint, an historic
settlement was reached on behalf of thousands of prisoners, in this class action
lawsuit challenging solitary confinement practices across the New York State

3

Fenton, who was released from custody in March, 2014, attended the
March 28, 2016 Fairness Hearing in this case.
-2-

prison system.4 This settlement, which I approve today, will greatly reduce the
frequency, duration, and severity of solitary confinement in New York State
prisons. While there is undoubtedly more work to be done, both with respect to
solitary confinement and with the conditions of prisons in general, this settlement
should end the use and conditions of solitary confinement in New York as they
have existed for decades. It is also my hope that the contours of this Settlement
Agreement, and the collaborative process by which it was reached, will serve as a
model for other states that are addressing issues of prison reform.
The path to reaching this settlement bears special mention.5 Pro bono
counsel agreed to represent Peoples as of August, 2012. After filing a Second
Amended Complaint on his behalf, counsel consolidated Peoples’ case with those
of Richardson and Fenton, and filed a Third Amended Class Action Complaint
(“TAC”) — now the operative Complaint — on March 6, 2013. The TAC

4

See Proposed Settlement Agreement (“Settlement Agreement”), Ex. 1
to Plaintiffs’ Memorandum of Law in Support of Joint Motion for Preliminary
Approval of Class-Action Settlement, Conditional Certification of the Settlement
Class, Approval and Distribution of the Notice of Settlement, and Appointment of
Plaintiffs’ Counsel as Class Counsel (“Pl. Preliminary Mem.”).
5

I wish to publicly express my deep gratitude to all of the attorneys
who have been involved in this case. These attorneys, and their offices, have
worked with great devotion to craft a settlement that will significantly reduce the
use of solitary confinement in New York State prisons and improve the conditions
of such confinement.
-3-

challenged New York State’s solitary confinement practices under the Eighth and
Fourteenth Amendments.
The parties entered into an Interim Stipulation in February, 2014,
prior to any dispositive rulings by the Court. After two years of further armslength discovery and negotiation — which incorporated, inter alia, expert analysis
and input from class members — a global Settlement Agreement providing for
systemic relief over a five-year period was reached.
This Court preliminarily approved the Settlement Agreement in
December, 2015, conditionally certifying — under Rule 23(b)(2) of the Federal
Rules of Civil Procedure — a class of all inmates in DOCCS custody who are
currently serving, or will in the future serve, a disciplinary confinement sanction in
a special housing unit (“SHU”), New York State’s term for solitary confinement,
or one of the alternative programs referenced in the Settlement Agreement (the
“Class”).
As of February, 2016, approximately 3,700 individuals were
incarcerated in disciplinary SHUs across New York State.6,7 Solitary confinement
6

See 3/28/16 Transcript of Fairness Hearing (“3/28/16 Tr.”) at 13:4-5.
See also 3/21/16 Declaration of Plaintiffs’ Counsel Taylor Pendergrass ¶ 6.
7

Disciplinary solitary confinement is a punitive designation imposed in
response to inmate behavior. By contrast, administrative solitary confinement or
“Administrative Segregation” — which is not addressed in this case — is imposed
-4-

is a drastic and punitive designation, one that should be used only as a last resort
and for the shortest possible time to serve the penal purposes for which it is
designed. It is well known that such confinement causes deterioration of the
mental and physical condition of inmates. This Settlement Agreement is a critical
step in addressing the problems caused by the excessive use of solitary
confinement and the conditions of that confinement. Now that this Settlement
Agreement has been finalized and is about to be implemented, enforced, and
monitored, the conditions of those currently assigned to solitary confinement —
and of those who will be so assigned in the future — will be more humane and
more just.
II.

BACKGROUND ON SOLITARY CONFINEMENT
A.

Use of Solitary Confinement in the United States
Solitary confinement, generally speaking, is the practice of socially

isolating a prisoner from the general inmate population and depriving him or her of
most environmental stimuli. In 2013, the Department of Justice defined the
to protect vulnerable inmates from other prisoners. Although individuals in
Administrative Segregation are not class members in this suit, they will benefit
from at least some of the reforms achieved by the Settlement Agreement. See
3/28/16 Tr. at 21:15-24 (Assistant Attorney General (“AAG”) Richard Brewster).
However, because Administrative Segregation is not a punitive designation, other
reforms in this Settlement Agreement would not apply to Administrative
Segregation inmates. See id.
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practice as “the state of being confined to one’s cell for approximately 22 hours per
day or more, alone or with other prisoners, . . . [with] limit[ed] contact with
others.”8 Prisoners live in concrete cells measuring between sixty and eighty
square feet that contain a bunk, toilet, and sink, and have extremely limited
window visibility. Prisoners spend virtually all of their time in these cells, where
they “sleep, eat, and defecate . . . in spaces that are no more than a few feet apart
from one another.”9 Limited exercise time — in an enclosed pen, as opposed to a
recreation yard — may also be provided.10
While a national census of prisoners in solitary confinement is
difficult due to the fluctuating nature of inmate populations, the American Civil
Liberties Union estimates that on any given day, up to 80,000 prisoners across state
and federal corrections systems are held in isolated confinement conditions.11 The

8

United States Department of Justice, Letter to the Honorable
Tom Corbett, Re: Investigation of the State Correctional Institution at Cresson
and Notice of Expanded Investigation, May 31, 2013, at 5 (emphasis in
original), http://justice.gov/crt/about/spl/documents/cresson_findings_5-31-13.pdf.
9

Reassessing Solitary Confinement: The Human Rights, Fiscal, and
Public Safety Consequences: Hearing Before the Subcomm. on the Constitution,
Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th Cong. 75
(2012).
10

Id. at 77.

11

See American Civil Liberties Union, The Dangerous Overuse of
Solitary Confinement in the United States (2014) at 2.
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practice has also been on the rise: once a relatively rare component of the
American prison experience, forty-four states and the federal system now employ
some form of segregated or isolated housing.12 It is estimated that between 1995
and 2005, the number of inmates consigned to solitary confinement in the United
States increased by approximately forty-two percent.13
B.

Effects of Solitary Confinement
This widespread use of solitary confinement is especially troubling

given that the deletrious effects of isolated housing on inmates — especially to
those assigned to long-term solitary confinement — are well-known and amply
documented. Indeed, the literature “is virtually unanimous in its conclusion:
prolonged supermax solitary confinement can and does lead to significant
psychological harm.”14 This harm takes myriad forms. After even relatively brief
periods of solitary confinement, inmates have exhibited symptoms such as
hypersensitivity to stimuli, perceptual distortions and hallucinations, increased

12

See id.

13

See Alison Shames, et al., Vera Institute of Justice, Solitary
Confinement: Common Misconceptions and Emerging Safe Alternatives (2015) at
6.
14

Thomas L. Hafemeister & Jeff George, The Ninth Circle of Hell: An
Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary
Confinement on Inmates with a Mental Illness, 90 Denv. U. L. Rev. 1, 35 (2012).
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anxiety, lack of impulse control, severe and chronic depression, appetite and
weight loss, heart palpitations, sleep problems, and depressed brain functioning.15
As one expert in the field noted, “[t]he restriction of environmental stimulation and
social isolation associated with confinement in solitary are strikingly toxic to
mental functioning” — even causing “confusional psychosis” in some inmates.16
A 2014 study of the New York State prison population found that
inmates in solitary confinement were approximately seven times more likely to
harm themselves than prisoners in the general population.17 The consequences of
long-term solitary confinement are so well-known that numerous medical
associations, including the American Psychiatric Association, the American Public
Health Association, the National Alliance on Mental Illness, the Society of
Correctional Physicians, and Mental Health America, have all issued formal policy
statements opposing the practice — especially with regard to mentally ill inmates,

15

See The Dangerous Overuse of Solitary Confinement in the United
States at 4 (collecting research).
16

Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash.
U. J.L. & Pol’y 325, 354 (2006).
17

See Homer Venters, et al., Solitary Confinement and Risk of
Self–Harm Among Jail Inmates, 104 Am. J. Pub. Health 442 (Mar. 2014).
-8-

on whom the effects of solitary confinement are particularly pronounced.18
The global community also has recognized the threat that solitary
confinement poses to the health of inmates — and taken decisive measures to
curtail its use. In fact, in September, 2015, the United Nations General Assembly
revised its Standard Minimum Rules for the Treatment of Prisoners to state that
“[s]olitary confinement shall be used only in exceptional cases as a last resort, for
as short a time as possible and subject to independent review.”19 The practice of
solitary confinement has already been largely eliminated in Europe. In Germany,
for example, solitary confinement is rarely imposed and generally does not exceed
a few days — four weeks, in extreme cases.20 There are more prisoners in solitary
confinement in the state of Maine than there are in the entire United Kingdom.21

18

See, e.g., American Psychiatric Association, Position Statement on
Segregation of Prisoners with Mental Illness (2012); American Public Health
Association, Solitary Confinement as a Public Health Issue, Policy No. 201310
(2013); National Alliance on Mental Illness, Public Policy Platform Section
9.8;Society of Correctional Physicians, Position Statement, Restricted Housing of
Mentally Ill Inmates (2013); Mental Health America, Seclusion and Restraints,
Policy Position Statement 24 (2011).
19

Economic and Social Council Res. 2015/20, at 19 (Sept. 29, 2015),
www.un.org/ga/search/view_doc.asp?symbol=A/C.3/70/L.3.
20

See Nicholas Turner & Jeremy Travis, Op. Ed., What We Learned
From German Prisons, N.Y. Times (Aug. 6, 2015).
21

See Atul Gawande, Hellhole, The New Yorker (Mar. 30, 2009).
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The understanding that solitary confinement harms prisoners is not
new. More than 125 years ago, the Supreme Court observed that:
[Prisoners subjected to solitary confinement] fell, after even a
short confinement, into a semi-fatuous condition, from which it
was next to impossible to arouse them, and others became
violently insane; others still, committed suicide; while those who
stood the ordeal better were not generally reformed, and in most
cases did not recover sufficient mental activity to be of any
subsequent service to the community.22
Supreme Court Justice Anthony Kennedy recently revisited this
precise concern in Davis v. Ayala, commenting that “despite scholarly discussion
and some commentary from other sources” on the effects of solitary confinement,
“the condition in which prisoners are kept simply has not been a matter of
sufficient public inquiry or interest.”23 Justice Kennedy noted, however, that
“[t]here are indications of a new and growing awareness in the broader public of
the subject of corrections and of solitary confinement in particular.”24
III.

OVERVIEW OF THE SETTLEMENT AGREEMENT
A.

Notice
When the Court preliminarily approved the Settlement Agreement in

22

In re Medley, 134 U.S. 160, 168 (1890).

23

135 S. Ct. 2187, 2209-10 (2015) (Kennedy, J., concurring).

24

Id.
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December, 2015, it also approved a plan for providing notice to the Class. By
January 15, 2016, the Settlement Agreement Notice (the “Notice”) was posted in
both English and Spanish within all of DOCCS’ general population housing units,
and hand-delivered to all inmates in SHU, the Correctional Alternative
Rehabilitation program, and the Juvenile Program. The Notice was also distributed
to all inmates who were newly admitted to these programs during the Notice period
(January 15, 2016 through March 14, 2016), and was posted online.
The Notice apprised the Class of the key settlement terms, the manner
in which class members could review the full Settlement Agreement (which was
made available in law libraries and through Assigned Rehabilitation Officers), the
date and location of the Fairness Hearing, and the contact information for
plaintiffs’ counsel (from whom additional information about the settlement could
be requested). The Notice also explained the process for submitting class member
objections, which were due to the Court by March 14, 2016.25
25

Two class members submitted letters stating that they had been unable
to review the Notice at the Sing Sing and Upstate Correctional Facilities. See
3/11/16 Letter from Kirkland Smith (Dkt. No. 312); 3/18/16 Letter from John
Smolen (Dkt. No. 294). However, as set forth in an affidavit by an Associate
Counsel for DOCCS, both facilities were in compliance with the Notice Plan. See
3/23/16 Affidavit of Thomas Goetz ¶¶ 4-10. In both facilities, the Notice had been
posted, distribution to inmates had been effectuated, and settlement documents
were placed in facility libraries. See id. Additionally, prison administrators
confirmed that both inmates requested, and received, a copy of the settlement
documents for their review. See id. ¶¶ 9-11.
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B.

Key Provisions
As described in plaintiffs’ March 21, 2016 Memorandum of Law in

Support of Joint Motion for Final Approval:
[A]t the core of the [TAC’s] claims were allegations that
disciplinary segregation was used too frequently, for time periods
that were too long, and with conditions of confinement that were
unnecessarily severe. The Settlement Agreement provides
substantial relief for all class members in each of these areas. The
Department will implement new policies to ensure that SHU
sanctions are imposed in a narrower range of circumstances, for
shorter durations, and more consistently.26
In other words, the Settlement Agreement provides for three broad
categories of reform: (1) reduction in the frequency and duration of SHU
sentences; (2) improvements to the conditions of SHU incarceration; and (3)
mechanisms for implementation and enforcement of the agreed-upon measures.
To achieve these reforms, the Settlement Agreement details a
comprehensive overhaul of SHU sentencing and incarceration — spanning
seventy-eight pages as well as exhibits and other supporting documents. Although
it is impossible to summarize the entire agreement here, this Opinion highlights
certain key provisions.27
26

Plaintiffs’ Memorandum of Law in Support of Joint Motion for Final
Approval of Class Action Settlement (“Pl. Final Mem.”) at 2.
27

I note, however, that some of the measures memorialized in the
Settlement Agreement simply continue policies and procedures that were
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1.

Provisions Reducing the Frequency and Duration of SHU
Sentences

The Settlement Agreement contains a number of reforms to limit the
frequency and duration of solitary confinement altogether. Significantly, the
parties have agreed to a detailed modification of DOCCS’ guidelines for SHU
sentencing which, among other guidance, caps the length of SHU sentences for
enumerated offenses.28 Under this new scheme, for example, possession of certain
documents prohibited by prison regulations — conduct that formed a basis of
Peoples and Richardson’s original three-year SHU sentences — would be
punishable by no more than thirty days of confinement to one’s own cell, not a
SHU.29 For all of the incidents on which Fenton’s two-year SHU sentence was
based, under the new scheme, she would have received no more than ninety days’

implemented by DOCCS pursuant to the Interim Agreement.
28

See Settlement Agreement at 42-43. See also 12/8/15 DOCCS
Revised Guidelines (Bates Nos. S048164-S048180).
29

See 3/28/16 Tr. at 9:4-6; id. at 9:20-25 (“Prior to this litigation,
[DOCCS] had no comprehensive [SHU] sentencing guidelines on an infraction-byinfraction basis; and, as a result of both the Interim Agreement and . . . [the final
Settlement Agreement], a comprehensive set of sentencing guidelines for every
infraction [is now in place].”) (Plaintiffs’ Counsel Taylor Pendergrass); 12/8/15
DOCCS Revised Guidelines at Bates Nos. S048168, S048175. Peoples’ three-year
SHU sentence was also based on a violation of facility correspondence procedures.
Under the new scheme, he would have received no more than ninety days’ SHU
for this conduct. See 12/8/15 DOCCS Revised Guidelines at Bates Nos. S048179.
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SHU and 150 days’ confinement to her own cell.30
Additionally, the Settlement Agreement provides for SHU-Alternative
Programs designed to address the underlying causes of an inmate’s disciplinary
issues, including programs for special needs inmates, juvenile inmates, and inmates
in need of substance abuse treatment.31 Other key provisions include a continued
presumption against SHU for pregnant inmates32 and increased opportunities for
SHU inmates to earn a sentence reduction and lesser SHU sanctions.33
2.

Provisions Improving the Conditions of SHU Incarceration

The Settlement Agreement also mandates a number of improvements
to the conditions of confinement in SHU. Among these reforms is a stipulation
that within three months of the Settlement Agreement’s effective date, DOCCS
will abolish its use of the “Loaf” — an unpalatable form of food — as a
punishment and will instead provide a “nutritious, calorie-sufficient, and palatable
alternative meal composed of regular food items.”34

30

See 12/8/15 DOCCS Revised Guidelines at Bates Nos. S048166,
S048168, S048172, S048178, S048179.
31

See 3/28/16 Tr. at 8:16-21. See also Settlement Agreement at 4-29.

32

See Settlement Agreement at 30.

33

See 3/28/16 Tr. at 10:19-25. See also Settlement Agreement at 44-45.

34

Settlement Agreement at 42.
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Further, SHU inmates will be eligible for the Progressive Inmate
Movement System, which permits increased movement privileges based on good
behavior.35 SHU inmates also will benefit from other reforms such as:
•

Ability to place telephone calls to family and friends on a regular
basis;

•

Provision of shower curtains;

•

Improved library services;

•

Installation of headphone jacks in cells;

•

Modifications to the double-celling assignment policy;

•

Access to correspondence courses and radio programming;

•

Roll-out of the “Tablet Computer Pilot Program”; and

•

Increased access to mental health consultations and treatment.36
3.

Provisions for Ensuring Implementation and Enforcement
of the Settlement Agreement

Further, the Settlement Agreement creates a detailed framework for
implementing and enforcing its terms over the next five years.37 This framework
includes a timetable for implementing the various Settlement Agreement
35

See id. at 32-33.

36

See id. at 39-41.

37

See id. at 49-59.
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provisions, designation of experts for each side, periodic prison tours, regular data
production and analysis, an annual progress meeting between the parties, and
notice and meet and confer obligations if a dispute arises.38 In the event that the
dispute cannot be resolved informally, the Settlement Agreement also provides for
mediation and, if necessary, judicial review.39 The Settlement Agreement also
mandates initial and annual refresher training for DOCCS staff, which will
emphasize methods for de-escalating disciplinary concerns without resorting to
SHU sanctions.40
C.

Attorneys’ Fees and Costs and Incentive Awards to
Representative Plaintiffs
The Settlement Agreement also addresses attorneys’ fees and costs, as

well as incentive awards to representative plaintiffs. Importantly, these monetary
payments cannot reduce the value of the settlement as this Class is certified for
injunctive relief only, and not for monetary damages.
Defendants have agreed to a one-time payment of $1.1 million, in full
satisfaction of the fees and costs incurred by plaintiffs’ counsel during the course

38

See id. at 57.

39

See id.

40

See id. at 45-47; 3/28/16 Tr. at 12:1-8.
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of the litigation.41 Defendants have further agreed to pay plaintiffs’ counsel up to
$100,000 per year over the course of the five-year settlement term for fees and
costs incurred in monitoring compliance with the Settlement Agreement.42

The $1.1 million will also be used to pay the incentive awards to the
three representative plaintiffs in this lawsuit.43 The representative plaintiffs
assisted in the litigation and risked retaliation for serving as the faces of this action.
Accordingly, plaintiffs’ counsel has determined that the representative plaintiffs
should receive the following incentive awards: (1) $80,000 for Dewayne
Richardson; (2) $40,000 for Tonja Fenton; and (3) $9,900 for Leroy Peoples.44
Plaintiffs’ counsel explains that Fenton was released from custody in March, 2014,
and that Peoples and Richardson — who are both still incarcerated — would be
entitled to similar incentive awards for their participation in the litigation, but that
Peoples voluntarily requested a smaller award.45 Defendants played no role in
negotiating or determining the individual or aggregate amounts of these incentive
41

See Settlement Agreement at 59.

42

See id.

43

See Pl. Final Mem. at 18.

44

See Pl. Preliminary Mem. at 17.

45

See id.
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awards.
The Court received only one potential objection to these proposed
awards.46 This objection argued that plaintiffs’ counsel should have sought money
damages or incentive payments for other (non-representative) class members.
However, as noted, the Settlement Agreement does not provide for money
damages.47
IV.

CLASS MEMBER CORRESPONDENCE
The Notice was likely seen by thousands of inmates in DOCCS

custody, including those in the SHU who were hand-delivered a copy of the
Notice.48 As of March 28, 2016, two weeks beyond the close of the Notice Period,
the Court had received a total of 164 letters from class members.49
Although most of the comments were supportive of the Settlement
Agreement, I will discuss both favorable and unfavorable comments, as this

46

See 3/18/16 Letter from John Smolen (Dkt. No. 294).

47

Named plaintiff Leroy Peoples also submitted a letter requesting “renegotiation” of his incentive award, but later withdrew that request after
consultation with plaintiffs’ counsel. See 3/14/16 Declaration of Leroy Peoples.
48

See Pl. Final Mem. at 9.

49

There may be some overlap between letters that are and are not
considered objections, as some letters both expressed support for the Settlement
Agreement yet also identified shortcomings in its terms. Additionally, some class
members submitted multiple letters.
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correspondence offers significant insight into the immediate benefits of this
settlement as well as the areas in which further reforms might be considered.
A.

Letters in Support
As noted, the majority of class member correspondence expressed

support for the Settlement Agreement and a belief that the Settlement Agreement
will substantially improve the conditions of SHU confinement.
According to plaintiffs’ March 21, 2016 submission,
[a]pproximately 52% of the . . . substantive comments submitted
to the Court clearly approved of the Settlement Agreement. Many
of the comments in support . . . were forceful, speaking of the dire
or long overdue need for the provisions of the Settlement
Agreement and the momentous change these provisions would
bring, and commenting in detail on how specific provisions would
benefit the class.50
I include here some of those comments.
•

“I feel that if the Judge does approve the settlement it will be a
success not only because it will help those like myself in extreme
isolation but it will be great for society . . . it will help rehabilitate
those of us who will be returning back to the outside world.”51

•

“I do believe for the most part the new agreement is fair. I only wish
it could [have] been implemented years ago. . . . So to read now that
things God Willing will be changing for the better for us unfortunate

50

Pl. Final Mem. at 9-10 (quotation marks omitted) (citing Dkt. Nos.
149, 150, 153, 156, 163, 164, 175, 184, 186, 187, 189, 192, 195, 205, 214, 217,
225, 241, 244, 256, 267, 269, 272, 291, 295, 296, 303, 305, 313).
51

1/26/16 Letter from Ellier Acevedo at 1 (Dkt. No. 244).
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inmates, truly gladdens my heart. I thank you for all your time and
consideration to make the changes needed to better inmates[’]
unfortunate confinement time while in the SHUs through[ou]t New
York State.”52
•

“I feel these new terms will reduce the mental stress sustained while
in the course of completing SHU time. . . . Allowing inmates to
contact their family/friends via phone will give them something to
look forward to, as a short-term goal. The reading material will
occupy the person leaving less time to do any other conduct to warrant
more SHU time. Allowing people to participate in rehabilitative
programs will keep people in a positive and responsible mind set
preparing them for general population/community.”53

•

“[T]his is the first time I’ve ever written a letter like this but I feel it
inside my heart that if one letter could possibly get the attention of
some much needed help, I ask you to please help grant this
settlement.”54

•

“I believe it[’]s very fair for what the people are fighting for[.] I
believe inmates will be very gr[ate]ful i[f] this falls through for us[.] I
just wanna say thank you for fighting for us[,] it[’]s good to know
someone cares about us[] and you[’re] trying to help.”55

•

“I would like to praise the individuals for taking the initiative.”56

•

“I can honestly say it is my opinion that it is a fair and long awaited
change in the SHU confinement procedures, in all honesty I didn’t
think it would ever happen. . . . From what I see this settlement

52

1/11/16 Letter from Craig Brown at 1-2 (Dkt. No. 149).

53

1/11/16 Letter from Jerry Knight at 1 (Dkt. No. 156).

54

1/13/16 Letter from Chad Penn at 1 (Dkt. No. 165).

55

1/12/16 Letter from Devan Miller at 1 (Dkt. No. 169).

56

1/11/16 Letter from Louis Gomez at 1 (Dkt. No. 185).
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agreement will improve things greatly for prisoners in SHU,
especially for those with long term SHU confinement.”57
•

“I am gr[ate]ful and thankful for the settlements proposal and strongly
feel it[’s] time for us as the people to finally be treated with fairness
and equality.”58
Further, during the March 28, 2016 Fairness Hearing, the Court heard

from a mother who stated that her son has been in the SHU for fifteen years.59 She
voiced her appreciation for some of the reforms secured by the Settlement
Agreement, including those improving her son’s access to telephone calls, reading
material, and other programming.60
B.

Objections
However, the Court also received a number of letters that could be

classified as partial or total objections to the Settlement Agreement. As calculated
by plaintiffs’ counsel in their March 21, 2016 submission, “even taking the most
conservative approach [for counting objections], the[] 57 [objections received to
date] account for only 1.54% of the current number of class members in SHU and .

57

1/17/16 Letter from Mark Carballo at 1 (Dkt. No. 202).

58

1/12/16 Letter from Michael Watkins at 1 (Dkt. No. 212).

59

See 3/28/16 Tr. at 26:15-29:16.

60

See id.
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. . 0.11% . . . of the more than 50,000 individuals in [DOCCS] custody.”61, 62
These comments fall into three categories: (1) those requesting
money damages; (2) those requesting additional information about the settlement
terms and process; and (3) those expressing their disappointment that the
settlement did not cover certain additional subjects. In addition, many comments
— whether or not viewed as objections — expressed apprehension about DOCCS’
ability to implement the settlement and urged the importance of ensuring DOCCS’
compliance with the settlement’s terms. I briefly address each of these concerns.
1.

Requests for Money Damages

As the Class has been conditionally certified under Rule 23(b)(2), the
Settlement Agreement provides injunctive relief only and does not provide any
money damages to individual class members. The Notice explained that this case
did not seek any money damages, and that it would not affect the right of any
individual class member to seek damages. Accordingly, class members’ requests

61

Pl. Final Mem at 11. At the March 28, 2016 Fairness Hearing,
plaintiffs’ counsel explained that a handful of additional class member letters were
filed after their March 21, 2016 submission, but that these letters were of the same
nature as those addressed in their brief. See 3/28/16 Tr. at 14:7-9.
62

Plaintiffs’ counsel also explained that although several attorney-client
privileged letters were sent directly to their office, none of these letters expressed
concerns about the Settlement Agreement other than those raised by the letters sent
directly to the Court. See 3/28/16 Tr. at 14:14-17.
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for money damages are not true objections to the Settlement Agreement. I
reiterate, however, that the Settlement Agreement does not foreclose any claims for
money damages that individuals may have.
2.

Requests for Additional Information

As explained, the Settlement Agreement Notice was posted in English
and Spanish within all general population housing units and delivered to all
inmates in SHU, the Correctional Alternative Rehabilitation program, and the
Juvenile Program.63 Plaintiffs’ counsel also responded directly to class members
who requested further information.64
Accordingly, although a small fraction of inmates have reported
difficulty reviewing or understanding the Settlement Agreement, I find that
substantial and appropriate measures were taken to ensure that class members had
the broadest possible access to the Notice, full Settlement Agreement, and
information about the settlement. However, I urge plaintiffs’ counsel to continue
to respond to inmates’ requests for additional information throughout the
implementation process.
3.

Subjects Not Covered by the Settlement Agreement

63

This Opinion has already described the contents of the Notice, supra
at Section III(A).
64

See 3/28/16 Tr. at 19:17-21.
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Class members also raised a number of subjects that they wish were
either included in, or more comprehensively addressed by, the Settlement
Agreement. The most common requests were for the following reforms:
•

Additional cameras in SHU areas;

•

Enhanced mental health diagnoses and treatment;

•

Placement of date and time stamps to record receipt of incoming
inmate mail;

•

Improved food quality and portions;

•

Improvements to Administrative Segregation conditions;

•

Greater access to religious services and accommodations;

•

Warmer clothing and cells; and

•

Reforms to protect inmates from physical and sexual abuse, including
reforms of the disciplinary techniques that are used against inmates.
Although this list of additional areas for reform does not diminish the

importance of the Settlement Agreement that has been reached, it is my hope that
class members’ efforts to bring these and other issues to light will not go
unnoticed. In fact, the parties have stated that their lines of communication remain
open, such that they will attempt to implement additional requested reforms, where

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feasible.65
4.

Monitoring Compliance

Finally, class members have also voiced concerns about the
enforceability of the Settlement Agreement terms. Like any settlement which calls
for the implementation of a number of measures, compliance with the Settlement
Agreement will require significant and continuing effort by DOCCS and careful
monitoring by plaintiffs’ counsel.
However, the Settlement Agreement sets forth a detailed monitoring
and compliance framework, which I have discussed in Section III(B)(3). Although
enacting the agreed-upon reforms will take time and commitment, the parties have
engaged in substantial negotiations over the years, and I am confident that
plaintiffs’ counsel will continue to vigorously represent the interests of the Class.66
V.

APPROVING THE SETTLEMENT
A.

Legal Standard
Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, a

65

See 3/28/16 Tr. at 16:14-22 (Plaintiffs’ Counsel Pendergrass); id. at
23:1-11 (AAG Brewster).
66

Indeed, as explained during the March 28, 2016 Fairness Hearing,
DOCCS has previously implemented reforms in the context of at least one other
solitary confinement action. See 3/28/16 Tr. at 23:5-11 (AAG Brewster)
(discussing Disability Advocates, Inc. v. New York State Office of Mental Health, et
al., No. 02 Civ. 4002 (S.D.N.Y.) (GEL)).
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court may approve a class action settlement where it finds the settlement to be
“fair, reasonable, and adequate.” The evaluation of a proposed settlement requires
an assessment of both the procedural and substantive fairness of the settlement.67
A court must consider both “the terms of the settlement and the
negotiation process leading up to it.”68 Regarding the negotiation process, a class
action settlement enjoys a presumption of fairness where it is the product of
arm’s-length negotiations between experienced and capable counsel.69 With
respect to the substantive terms of a settlement, courts in the Second Circuit
consider the following factors (known as the “Grinnell factors”) when determining
whether to approve a class action settlement:
(1) the complexity, expense and likely duration of the litigation;
(2) the reaction of the class to the settlement; (3) the stage of the
proceedings and the amount of discovery completed; (4) the risks
of establishing liability; (5) the risks of establishing damages; (6)
the risks of maintaining the class action through the trial; (7) the
ability of the defendants to withstand a greater judgment; (8) the
range of reasonableness of the settlement fund in light of the best
possible recovery; [and] (9) the range of reasonableness of the
settlement fund to a possible recovery in light of all the attendant
67

McReynolds v. Richards-Cantave, 588 F.3d 790, 804 (2d Cir. 2009).

68

In re Telik, Inc. Sec. Litig., 576 F. Supp. 2d 570, 575 (S.D.N.Y.

2008).
69

In re Advanced Battery Techs., Inc. Secs. Litig., 298 F.R.D. 171, 175
(S.D.N.Y. 2014) (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d
Cir. 1974) (further citation omitted).
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risks of litigation.70
Although the decision to grant or deny approval of a settlement lies
within the broad discretion of the trial court, “[t]he law favors settlement,
particularly in class actions and other complex cases where substantial resources
can be conserved by avoiding the time, cost, and rigor of prolonged litigation.”71
“Due to the presumption in favor of settlement, ‘[a]bsent fraud or collusion, courts
should be hesitant to substitute [their] judgment for that of the parties who
negotiated the settlement.’”72 Finally, “a favorable reaction of the overwhelming
majority of class members to the Settlement is perhaps the most significant factor
in our . . . inquiry.”73
B.

The Settlement is Fair, Reasonable, and Adequate
Pursuant to Rule 23(e) and the Grinnell factors, I find that the

proposed settlement is fair, reasonable, and adequate. This action was very
complex, involving the circumstances and conditions of incarceration for prisoners

70

Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 117 (2d Cir.

2005).
71

Advanced Battery, 298 F.R.D. at 174.

72

Id. (alteration in original) (quoting In re EVCI Career Colls. Holding
Corp. Secs. Litig., No. 05 Civ. 10240, 2007 WL 2230177, at *4 (S.D.N.Y. July 27,
2007)).
73

Wal-Mart Stores, Inc., 396 F.3d at 119.
-27-

assigned to solitary confinement throughout the vast number of New York State
prisons. Litigating such a case would have been expensive and taken years to
reach a final judgment. The attorneys engaged in extensive discovery and arm’slength settlement negotiations. A settlement is vastly superior to a litigated
outcome, which would have been a non-consensual process not likely to result in
an improved attitude or atmosphere within the prisons. Additionally, the favorable
reaction of the Class — particularly the large number of letters in support which
were submitted to the Court — indicates that this Settlement Agreement achieves
welcome reforms. The remainder of the Grinnell factors do not apply in this case
as they address monetary damages.74
VI.

CONCLUSION
This Settlement Agreement represents a significant step toward

improving the conditions of solitary confinement throughout New York State.
Nonetheless, it could not and did not address every problem experienced by
prisoners in general or in solitary confinement in particular. Further reforms are
likely to follow, especially when the Governor, Attorney General, and
Commissioner of DOCCS, representing the people of New York, have all
74

See, e.g., Jermyn v. Best Buy, No. 08 Civ. 214, 2012 WL 2505644, at
*7 (S.D.N.Y. June 27, 2012) (“Moreover, the Court need not address the Grinnell
factors pertaining to damages, because the settlement only offers injunctive
relief.”).
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- Appearances For Plaintiffs:
Taylor S. Pendergrass, Esq.
Christopher T. Dunn, Esq.
Aimee K. Stewart, Esq.
Philip L. Desgranges, Esq.
New York Civil Liberties Union
125 Broad Street, 17th Floor
New York, NY 10004
[phone]
David J. Fioccola, Esq.
Jennifer K. Brown, Esq.
Kayvan B. Sadeghi, Esq.
Adam J. Hunt, Esq.
Morrison & Foerster LLP
250 West 55th Street
New York, NY 10019
[phone]
Alexander A. Reinert, Esq.
55 Fifth Avenue, Room 1005
New York, NY 10003
[phone]
For Defendants:
Richard W. Brewster
Jeb Harben
Assistant Attorneys General
Office of the Attorney General, New York State
120 Broadway
New York, NY 10271
[phone]

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