Betances v. Fischer et al

Filing 332

ORDER: On June 10, 2021, the Court requested supplemental briefing regarding whether the class should be preserved for trial of general damages on loss of liberty. (Dkt. 321.) After reviewing the parties' submissions (see Dkts. 326, 329, 330), the Court requests that the parties provide answers to the following questions by December 31, 2021. The parties shall meet and confer and file a joint document. To the extent the parties do not agree on the responses, the joint filing shall reflect each party's respective answer, as further set forth in this Order. Copies transmitted this date to all counsel of record. (Signed by Magistrate Judge Robert W. Lehrburger on 12/8/2021) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PAUL BETANCES, et al.,
:
:
Plaintiffs,
:
:
- against :
:
BRIAN FISCHER, in his capacity as
:
Commissioner of the New York State
:
Department of Correctional Services (DOCS), :
and in his individual capacity, et al.,
:
:
Defendants.
:
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12/8/2021
11-CV-3200 (RWL)
ORDER

ROBERT W. LEHRBURGER, United States Magistrate Judge.
On June 10, 2021, the Court requested supplemental briefing regarding whether
the class should be preserved for trial of general damages on loss of liberty. (Dkt. 321.)
After reviewing the parties’ submissions (see Dkts. 326, 329, 330), the Court requests
that the parties provide answers to the following questions by December 31, 2021. The
parties shall meet and confer and file a joint document. To the extent the parties do not
agree on the responses, the joint filing shall reflect each party’s respective answer.
1. Complete the following chart:
Category

Number of Class Members

All current class members
Class
members
referred
for
resentencing, and sentencing judge
imposed exact same terms of PRS
(“Nunc Pro Tunc Members”)
Excluding Nunc Pro Tunc Members,
class members who were subject to

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unlawful PRS
reincarcerated

and

subsequently

Excluding Nunc Pro Tunc Members,
class members who were subject to
unlawful PRS and not reincarcerated

2. For all class members excluding Nunc Pro Tunc Members, what elements of
unlawfully imposed PRS were common to most or all members? What PRS
elements were not common to most or all members? Where common elements of
PRS were imposed, to what extent (both in kind and number of class members)
did those elements vary among class members? Elements of PRS include, for
example, travel restrictions (and extent thereof); home confinement; curfew (and
hours thereof); electronic monitoring; mandatory drug program participation (and
whether inpatient or outpatient); obligation to report to supervisor (and frequency
thereof and whether in person or by telephone); obligation to submit to drug testing
(and frequency thereof); and obligation to submit to mental health care evaluation
or counseling (and frequency thereof).
3. For class members who were reincarcerated for violation of unlawfully imposed
PRS, how many were reincarcerated due to alleged commission of a new crime,
and how many were reincarcerated for violations of unlawfully imposed PRS other
than allegedly committing a new crime?
4. For class members who were reincarcerated for violation of unlawfully imposed
PRS, to what extent were the facilities where they were reincarcerated the same
or different with respect to degree of security (e.g., maximum, medium, minimum),
and to what extent did the level of security affect those class members’ liberty.
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SO ORDERED.

Dated: December 8, 2021
New York, New York

_________________________________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE

Copies transmitted this date to all counsel of record.

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