Betances v. Fischer et al

Filing 77

OPINION AND ORDER re: 58 MOTION to Certify Class filed by Gabriel Velez, Lloyd A. Barnes, Paul Betances. For the foregoing reasons, the plaintiffs' motion for class certification is GRANTED. The Clerk of the Court is directed t o close this motion (Docket No. 58). A conference is scheduled for February 10, 2015 at 4:30 p.m. SO ORDERED. ( Status Conference set for 2/10/2015 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 1/28/2015) (ama)

USOCSDNY

I DOC'UMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

..

'

/! EI_~_~I't1CA!LY FILED
I fn. ;, · #:

-------------------------------------------------------------------ct f'\~C"' .~~:h7=£{~~~

PAUL BETANCES, LLOYD A. BARNES, GABRIEL
VELEZ a/k/a GABRIEL BELIZE, individually and on
behalf of all others similarly situated,
OPINION AND
ORDER

Plaintiffs,

11 Civ. 3200 (SAS)

- against BRIAN FISCHER, in his capacity as Commissioner of
the New York State Department of Correctional
Services (DOCS), and in his individual capacity;
ANTHONY J. ANNUCCI, in his capacity as Deputy
Commissioner and Counsel for DOCS, and in his
individual capacity; LUCIEN J. LECLAIRE, JR.,
former Acting Commissioner of DOCS, in his individual
capacity; GLENNS. GOORD, former Commissioner of
DOCS, in his individual capacity; JOHN/JANE DOES
1-25 (DOCS Supervisory, Training, and Policy
Personnel); ANDREA W. EVANS, in her capacity as
Chair and Chief Executive Officer of the New York
State Division of Parole (DOP), and in her individual
capacity; MARK MANTEi, in his capacity as Executive
Director of DOP, and in his individual capacity;
ROBERT J. DENNISON, former Chair ofDOP, in his
individual capacity; ANTHONY G. ELLIS II, former
Executive Director of DOP, in his individual capacity;
GEORGE B. ALEXANDER, former Chair and Chief
Executive Officer of DOP, in his individual capacity;
and JOHN/JANE DOES 26-50 (DOP Supervisory,
Training, and Policy Personnel),
Defendants.

---------------------------------------------------------------------)(
1

I
"

SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Beginning in 1998, New York mandated that certain violent felonies

be punished by a determinate prison sentence followed by a mandatory term of
parole, known as post-release supervision (“PRS”).1 The governing statute did not
require that the term of PRS be announced by the judge at sentencing. In
thousands of cases where the judge did not impose a term of PRS at sentencing, the
New York State Department of Correctional Services (“DOCS”) imposed PRS on
convicted felons either before or as they were released from prison and the
Department of Parole (“DOP”) then enforced those terms.
On June 9, 2006, in Earley v. Murray,2 the United States Court of
Appeals for the Second Circuit held that the administrative imposition of PRS by
DOCS violates the federal constitutional right to Due Process. The court explained
that “[o]nly the judgment of a court, as expressed through the sentence imposed by
a judge, has the power to constrain a person’s liberty,” and that “[t]he additional
provision for post-release supervision added by DOCS is a nullity.”3

1

See N.Y. Penal Law § 70.45(1).

2

451 F.3d 71 (2d Cir. 2006).

3

Id. at 75–76.
2

Plaintiffs in two related actions brought claims pursuant to section
1983 of Title 42 of the United States Code against current and former high-ranking
officials at DOCS and DOP. Plaintiffs claim that in the years following Earley,
state officials subjected them to various unlawful conditions and custody by
continuing to impose the terms of PRS that had been declared unlawful.
Defendants moved to dismiss the complaint on the grounds that
because plaintiffs’ constitutional rights were not “clearly established” at the time
that those rights were allegedly violated, state officials were entitled to qualified
immunity for their actions. On February 10, 2012, I held that though some New
York state courts were in disagreement over the reach of the Earley decision, there
was never any disagreement or confusion about the core constitutional holding
announced by Earley: terms of PRS imposed by the executive branch were
nullified and if the State wished to re-impose them, it could seek resentencing
before a judge. Therefore the defendants were not entitled to qualified immunity.
Defendants appealed this ruling, and the Second Circuit affirmed.4
Plaintiffs now move to certify a class pursuant to Federal Rule of
Civil Procedure 23(b)(3) on behalf of individuals who were convicted of various
crimes in New York State courts on or after September 1, 1998; were sentenced to
4

See Bentley v. Dennison, 852 F. Supp. 2d 379 (S.D.N.Y. 2012), aff’d
sub nom. Betances v. Fischer, 519 Fed. App’x 39 (2d Cir. 2013).
3

terms of incarceration but not to terms of PRS; but were nonetheless subjected to
enforcement by defendants of PRS terms after the maximum expiration dates of
their determinate sentences after June 9, 2006.
II.

BACKGROUND
At the class certification stage, district courts must engage in a

rigorous analysis of the underlying facts in order to determine whether the
plaintiffs have satisfied the requirements of Rule 23. The following factual
findings, based on a preponderance of the evidence, are made only for the purpose
of adjudicating this motion and will not be binding on the jury at trial.5
A.

Lead Plaintiffs
1.

Paul Betances

On July 20, 2004, Paul Betances pleaded guilty to robbery in the first
degree and a violation of probation, and was sentenced to a determinate term of
five years for the robbery, and a concurrent term of one to three years for the

5

See In re Am. Intern. Grp., Inc. Sec. Litig., 689 F.3d 229, 238 (2d Cir.
2012) (quoting In re Initial Pub. Offerings Sec. Litig. (“In re IPO”), 471 F.3d 24,
41 (2d Cir. 2006)).
4

violation of probation.6 He was not sentenced to any term of PRS.7 He was
released from prison on April 24, 2008 after serving six-sevenths of his sentence,
and a five-year term of PRS was administratively imposed.8 The maximum
expiration date of his sentence was January 14, 2009.9 On November 8, 2008, he
was arrested on a drug charge.10 On December 15, 2008, while awaiting trial on
this charge, he was charged with violating the terms of his PRS based on his
alleged drug possession and violation of curfew.11 He pleaded guilty to a
misdemeanor and was sentenced to a term that expired on July 9, 2009.12
Additionally, on February 23, 2009, DOP imposed a sentence of twelve months
incarceration based on the violation of the terms of his PRS.13 On June 26, 2009,
he filed a Petition for a Writ of Habeas Corpus seeking to vacate the
6

See 12/9/14 Declaration of Anna M. Hehenberger, Counsel for
Defendants, in Support of Opposition to Class Certification (“Hehenberger Decl.”)
¶ 2.
7

See id.

8

See id. ¶ 3.

9

See 10/31/14 Declaration of Matthew D. Brinckerhoff, Counsel for
Plaintiffs, in Support of Motion for Class Certification (“Brinckerhoff Decl.”) ¶ 5.
10

See Hehenberger Decl. ¶ 4.

11

See id. ¶ 5.

12

See Brinckerhoff Decl. ¶ 8.

13

See Hehenberger Decl. ¶ 6.
5

administratively-imposed five-year term of PRS, as well as the twelve-month
sentence of incarceration based on the violation of his PRS.14 While this Petition
was pending, on July 6, 2009, counsel for DOP sent a notice to the sentencing
court, seeking resentencing.15 However, on July 24, 2009, the habeas court granted
relief and ordered him to be immediately released.16 He was released on July 29,
2009.17 Thus, Betances was incarcerated for twenty days solely for the violation of
administratively-imposed PRS.
2.

Lloyd Barnes

On August 15, 2000, Lloyd Barnes pleaded guilty to attempted
burglary and attempted assault and was sentenced to concurrent sentences of five
years and six years incarceration.18 He was not sentenced to any term of PRS.19
He was released on October 19, 2005, at the maximum expiration date of his
sentence, and a five-year term of PRS was administratively imposed.20 On

14

See Brinckerhoff Decl. ¶ 10.

15

See Hehenberger Decl. ¶ 7.

16

See id.

17

See id.

18

See id. ¶ 8.

19

See id.

20

See id. ¶ 9.
6

December 12, 2007, he was arrested on a drug charge and remanded to custody.21
He pleaded guilty on January 7, 2008 and was sentenced to thirty days in local
custody, which would have resulted in his release on January 12, 2008.22
However, because he was also charged with violating his parole, he was not
released until approximately February 19, 2008.23 He was then restored to PRS.24
On October 20, 2008, counsel for DOP sent a notice to the sentencing court
requesting resentencing. The sentencing court resentenced Barnes on November
14, 2008 to the same determinate sentences imposed in 2000, and declined to
impose any term of PRS.25 He was released from parole supervision shortly after
November 20, 2008.26 Thus, Barnes was incarcerated for approximately thirtyeight days based solely on a violation of administratively-imposed PRS.
3.

Gabriel Velez27

21

See id. ¶ 10.

22

See id.; Brinkerhoff Decl. ¶ 21.

23

See Brinckerhoff Decl. ¶ 21.

24

See id.

25

See Hehenberger Decl. ¶ 13.

26

See id. ¶ 14.

27

Velez was incorrectly referred to as “Belize” throughout the criminal

proceedings.
7

Gabriel Velez pleaded guilty on February 20, 2001 to attempted
robbery and was sentenced to a five-year determinate term of incarceration.28 He
was not sentenced to any term of PRS.29 He was released from prison on July 2,
2004, after serving six-sevenths of his sentence, and subjected to an
administratively-imposed PRS term of five years.30 On July 1, 2008 he was
arrested and charged with drug possession (his fourth arrest since his release)31 and
remanded to custody.32 On September 29, 2008, while he was still in custody
based solely on his violation of PRS, he filed a Petition for a Writ of Habeas
Corpus. On October 10, 2008, the court granted relief and directed that Velez be
released. Although the DOP requested the court to transfer the matter to the
sentencing court, the habeas court declined to do so.33
B.

Defendants’ Policies of Imposition and Enforcement of PRS

28

See id. ¶ 15.

29

See id.

30

See id.

31

Velez was arrested twice for drug possession and once for resisting
arrest, obstructing governmental administration, and disorderly conduct. However,
Velez was not charged with violating the terms of his release based on these three
arrests.
32

See id. ¶ 19.

33

See id. ¶ 21.
8

In 1998, the New York Legislature enacted Penal Law § 70.45, which
mandated PRS terms for individuals convicted of violent felonies.34 However,
many judges did not include PRS as part of the sentence imposed. Between 1998
and 2008, if the commitment orders of an individual were “silent” regarding PRS,
DOCS imposed the maximum period of PRS allowed by § 70.45.35
On June 9, 2006, the Second Circuit held in Earley that the Due
Process Clause prohibited administratively-imposed terms of PRS, because only a
judge may impose a sentence. The court stated that any administratively-imposed
PRS was a “nullity” and never a part of the sentence.36 The court directed the
district court on remand to “excis[e] the term of post-release supervision . . . and
reliev[e] [the plaintiff] of any subsequent penalty or other consequence of its
imposition.”37 The court added that the ruling did not preclude the state from
moving to modify the plaintiff’s sentence to include the mandatory PRS term.38
34

See 12/9/14 Declaration of Michael J. Keane, counsel for defendants,
in Support of Opposition to Class Certification (“Keane Decl.”) ¶¶ 3–4.
35

See 6/04/08 Affirmation of Anthony J. Annucci, Executive Deputy
Commissioner of DOCS (“Annucci Aff.”), Ex. A to Keane Decl., ¶ 8; 9/15/14
Deposition of Diane Holford, Coordinator in the Office of Sentencing Review for
DOCS, Ex. 22 to Brinckerhoff Decl., at 125–126.
36

Earley, 451 F.3d at 76.

37

Id. at 77.

38

See id.
9

Subsequent to this ruling, DOCS defendants analyzed records for
approximately 40,000 inmates who had been sentenced to determinate terms of
incarceration to identify those who had been subjected to a term of
administratively-imposed PRS.39 This analysis revealed approximately 8,100
individuals whose sentence and commitment orders did not support the imposition
of PRS, 1,800 of whom had been released from custody.40 Of the entire group of
inmates with administratively-imposed PRS, 546 were identified as incarcerated
solely on the basis of PRS violations.41
In July 2008, the New York State Legislature enacted Correction Law
§ 601-d, which provides in relevant part, “[w]henever it shall appear to the
satisfaction of the department that an inmate in its custody or that a releasee under
its supervision, is a [person without a judicially-imposed PRS sentence], the
department shall make notification of that fact to the court that sentenced such
person, and to the inmate or releasee.” DOCS and DOP also launched a

39

See Annucci Aff. ¶ 40.

40

See id. ¶ 43. These include individuals whose records do not include
sentencing minutes, though the minutes are required to be included by law. In
some cases where sentencing minutes are present in the record, the minutes reflect
that the court did pronounce a term of PRS as part of the sentence, even though the
commitment sheet is silent. See id. ¶ 12.
41

See id. ¶ 47.
10

“resentencing initiative” pursuant to a Memorandum of Understanding dated July
11, 2008 (the “MOU”).42 The MOU established a priority and schedule for
referring individuals to be resentenced.43
III.

APPLICABLE LAW
A.

Federal Rule of Civil Procedure 23(a)
Rule 23(a) permits individuals to sue as representatives of an

aggrieved class. To be certified, a putative class must first meet all four
prerequisites set forth in Rule 23(a), generally referred to as numerosity,
commonality, typicality, and adequacy.44 District courts have broad discretion in
deciding whether to certify a proposed class under Rule 23.45
42

See 7/11/08 Memorandum of Understanding Between the NYS Office
of Court Administration, the Department of Correctional Services, and the Division
of Parole (“MOU”), Ex. F to Keane Decl.
43

See id.

44

See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier
Inc., 546 F.3d 196, 201–02 (2d Cir. 2008). In full, Rule 23(a) reads:
Prerequisites. One or more members of a class may sue or be sued
as representative parties on behalf of all members only if: (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 the interests of the class.
45

See Parker v. Time Warner Entm’t Co. L.P., 331 F.3d 13, 28 (2d Cir.

2003).
11

“Rule 23 does not set forth a mere pleading standard. A party seeking
class certification must affirmatively demonstrate [its] compliance with the Rule —
that is, [it] must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.”46 Plaintiffs seeking class
certification bear the burden of demonstrating by a preponderance of the evidence
that the proposed class meets each of the requirements set forth in Rule 23(a).47
When assessing whether plaintiffs have met this burden, courts must take into
account “all of the relevant evidence admitted at the class certification stage.”48 A
court may certify a class only after determining that “whatever underlying facts are
relevant to a particular Rule 23 requirement have been established.”49 This
rigorous analysis requires examining the facts of the dispute, not merely the
pleadings, and it will frequently “entail some overlap with the merits of the
plaintiff’s underlying claim.”50
46

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
(emphasis in original).
47

See Teamsters, 546 F.3d at 202.

48

In re IPO, 471 F.3d at 42.

49

Id. at 41.

50

Wal-Mart, 131 S. Ct. at 2551. “Nor is there anything unusual about
that consequence: The necessity of touching aspects of the merits in order to
resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of
litigation.” Id. at 2552.
12

At the class certification stage, “a district judge should not assess any
aspect of the merits unrelated to a Rule 23 requirement.”51 The court’s
“determination as to a Rule 23 requirement is made only for purposes of class
certification and is not binding on the trier of facts, even if that trier is the class
certification judge.”52
1.

Numerosity

Rule 23(a)(1) requires that a class be “so numerous that joinder of all
members is impracticable.” In the Second Circuit, sufficient numerosity can be
presumed at a level of forty members or more.53 “The 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.”54 Courts do not require “evidence of exact class size

51

Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 251 (2d
Cir. 2011) (quotation marks and citation omitted). Courts must ensure “that a class
certification motion does not become a pretext for a partial trial of the merits.”
IPO, 471 F.3d at 41.
52

In re IPO, 471 F.3d at 41.

53

See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483
(2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”).
54

Central States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 244–45 (2d Cir. 2007).
13

or identity of class members to satisfy the numerosity requirement.”55
2.

Commonality

Rule 23(a)(2) requires that there be “questions of law or fact common
to the class.” Commonality thus requires plaintiffs “to demonstrate that the class
members ‘have suffered the same injury.’”56 Commonality further requires that the
claims asserted “must depend upon a common contention . . . of such a nature that
it is capable of classwide resolution — which means that determination of its truth
or falsity will resolve an issue that is central to the validity of each one of the
claims in one stroke.”57
3.

Typicality

“Typicality ‘requires that the claims of the class representatives be
typical of those of the class, and is satisfied when each class member’s claim arises
from the same course of events[] and each class member makes similar legal
arguments to prove the defendant’s liability.’”58 The typicality requirement may be

55

Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).

56

Wal-Mart, 131 S. Ct. at 2551 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)).
57

Id.

58

Central States, 504 F.3d at 245 (quoting Robinson v. Metro-N.
Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)).
14

satisfied where “injuries derive from a unitary course of conduct by a single
system.”59
The purpose of typicality is to ensure that class representatives “have
the incentive to prove all the elements of the cause of action which would be
presented by the individual members of the class were they initiating
individualized actions.”60 A lack of typicality may be found in cases where the
named plaintiff “was not harmed by the [conduct] he alleges to have injured the
class”61 or the named plaintiff’s claim is subject to “specific factual defenses”
atypical of the class.62
4.

Adequacy

“Adequacy is twofold: the proposed class representative must have an
interest in vigorously pursuing the claims of the class, and must have no interests
antagonistic to the interests of other class members.”63 Thus, the question of
adequacy “entails inquiry as to whether: 1) plaintiffs’ interests are antagonistic to

59

Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).

60

In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510
(S.D.N.Y. 1996).
61

Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 64 (S.D.N.Y.

2006).
62

Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006).

63

Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006).
15

the interest of other members of the class and 2) plaintiffs’ attorneys are qualified,
experienced and able to conduct the litigation.”64 In order to defeat a motion for
certification, any conflicts between the class representative and members of the
putative class must be “fundamental.”65
5.

Implied Requirement of Ascertainability

Finally, some courts have added an “implied requirement of
ascertainability” to the express requirements of Rule 23(a).66 “[T]he requirement
that there be a class will not be deemed satisfied unless the class description is
sufficiently definite so that it is administratively feasible for the court to determine
whether a particular individual is a member.”67 “‘An identifiable class exists if its
members can be ascertained by reference to objective criteria.’”68
64

Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d

Cir. 2000).
65

In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir.

2009).
66

In re IPO, 471 F.3d at 30.

67

7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice and Procedure § 1764 (3d ed. 2008). Accord In re Fosamax
Prods. Liab. Litig., 248 F.R.D. 389, 395 (S.D.N.Y. 2008) (quoting Rios v.
Marshall, 100 F.R.D. 395, 403 (S.D.N.Y. 1983)).
68

In re Fosamax, 248 F.R.D. at 395 (quoting In re Methyl Tertiary Butyl
Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323, 337 (S.D.N.Y. 2002)).
Accord id. at 396 (“The Court also must be able to determine the class’
membership “‘without having to answer numerous fact-intensive inquiries.’”
16

B.

Federal Rule of Civil Procedure 23(b)(3)
If the requirements of Rule 23(a) are met, the court “must next

determine whether the class can be maintained under any one of the three
subdivisions of Rule 23(b).”69 Under Rule 23(b)(3), certification is appropriate
where “questions of law or fact common to the members of the class predominate
over any questions affecting only individual members,” and class litigation “is
superior to other available methods for the fair and efficient adjudication of the
controversy.”
The matters pertinent to these findings include the class
members’ interests in individually controlling the
prosecution or defense of separate actions; the extent and
nature of any litigation concerning the controversy already
begun by or against class members; the desirability or
undesirability of concentrating the litigation of the claims
in the particular forum; and the likely difficulties in
managing a class action.70
The predominance inquiry focuses on whether “a proposed class is
‘sufficiently cohesive to warrant adjudication by representation.’”71 “It is a more

(quoting Daniels v. City of New York, 198 F.R.D. 409, 414 (S.D.N.Y. 2001))).
69

McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir.

2008).
70

Fed. R. Civ. P. 23(b)(3)(A)-(D).

71

Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184,
1196 (2013) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)).
17

demanding criterion than the commonality inquiry under Rule 23(a).”72
Class-wide issues predominate “‘if resolution of some of the legal or factual
questions that qualify each class member’s case as a genuine controversy can be
achieved through generalized proof, and if these particular issues are more
substantial than the issues subject only to individualized proof.”73 The Second
Circuit has emphasized that “Rule 23(b)(3) requires that common questions
predominate, not that the action include only common questions.”74
“[F]ailure to certify an action under Rule 23(b)(3) on the sole ground
that it would be unmanageable is disfavored and ‘should be the exception rather
than the rule.’”75 Additionally, “[i]t is appropriate for the court to consider the
‘inability of the poor or uninformed to enforce their rights and the improbability
that large numbers of class members would possess the initiative to litigate

72

In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir.
2006) (citing Amchem, 521 U.S. at 623-24).
73

In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 118 (2d Cir.
2013) (quoting UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 131 (2d Cir.
2010).
74

Brown v. Kelly, 609 F.3d 467, 484 (2d Cir. 2010).

75

In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 140 (2d
Cir. 2001) (quoting In re S. Cent. States Bakery Prods. Antitrust Litig., 86 F.R.D.
407, 423 (M.D. La. 1980)).
18

individually.’”76
IV.

DISCUSSION
A.

Plaintiffs Satisfy Rule 23(a)
Plaintiffs seek to certify a class of “all persons who were sentenced to

prison in New York State for a fixed term that did not include a term of PRS, but
who were nevertheless subjected to PRS after the maximum expiration dates of
their determinate sentences and after June 9, 2006.”77 As discussed below, I
conclude that plaintiffs have satisfied the requirements of Rule 23(a).
1.

Commonality78

Rule 23(a)(2) requires that there be “questions of law or fact common
to the class.” This requires plaintiffs “to demonstrate that the class members ‘have
suffered the same injury.’”79 Here, plaintiffs’ injuries stem from a single practice:
the enforcement of administratively-imposed PRS after the Second Circuit clearly

76

D’Alauro v. GC Servs. L.P., 169 F.R.D. 451, 458 (E.D.N.Y. 1996)
(quoting Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 (7th Cir.
1974)).
77

Plaintiffs’ Memorandum of Law in Support of Motion for Class
Certification (“Pl. Mem.”), at 7.
78

Defendants do not dispute that the putative class, which numbers in
the thousands, meets the requirement that the proposed class is so large that joinder
of all class members is impracticable. See Fed. R. Civ. P. 23(a)(1).
79

Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 157).
19

established that the practice was unconstitutional.80 Based on the very definition of
the class, all putative class members have suffered injuries from the same “general
policy”81 of enforcement of administratively-imposed PRS.82
Defendants’ opposition rests on a reframing of plaintiffs’ theory of
liability. Defendants allege that “the real issue in this litigation is defendants’
alleged failure to seek, or delay in seeking, resentencing.”83 Defendants then use
this alternate theory of liability to argue that this question is not capable of a
common answer, because the timing of resentencing individual inmates or parolees
depended on that person’s individual circumstances. However, this Court has
already considered and rejected defendants’ alternate theory.84 Earley clearly
established both that the practice of administrative imposition of PRS was

80

See Scott v. Fischer, 616 F.3d 100, 102 (2d Cir. 2010).

81

Wal-Mart, 131 S. Ct. at 2553.

82

It is true that different class members suffered different injuries as a
result of this policy, ranging from collection of fees and restrictions such as
curfews and travel limitations to imprisonment. Nevertheless, these differences do
not defeat commonality.
83

Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for
Class Certification (“Opp. Mem.”), at 9.
84

See Bentley, 852 F. Supp. 2d at 390 (“This argument is a straw

man.”).
20

unconstitutional,85 as well as the remedy for that unconstitutional practice — the
term of PRS should be vacated and the state given the opportunity to seek
appropriate resentencing.86 Defendants’ arguments that they lacked authority to
seek resentencing of all parolees subjected to administratively-imposed PRS, and
that there was a necessary disparity in the timing of resentencing due to
individualized circumstances goes to the merits: whether defendants should be held
liable for the class members’ due process violations. These arguments, however,
merely highlight the fact that a single common question unites all purported class
members: whether defendants’ practice of enforcing administratively-imposed PRS
terms against all class members was constitutional.87 Whether these purported
individual liability issues may predominate over the clear common question is an
issue reserved for analysis under the predominance inquiry in Rule 23(b)(3),
discussed below.
3.

Typicality

Defendants make similar arguments against the typicality of the lead

85

See Vincent v. Yelich, 718 F.3d 157, 168 (2d Cir. 2013).

86

See Bentley, 852 F. Supp. 2d at 386–87 (quoting Earley, 451 F.3d at

77).
87

Even though this question has been resolved, it “continue[s] to
implicate the ‘common nucleus of operative facts and issues’” for the purposes of
class certification. In re Nassau Cnty. Strip Search Cases, 461 F.3d at 228.
21

plaintiffs. They contend that “[p]laintiffs and the putative class were subject to
PRS at various times and under various circumstances . . . .”88 Therefore,
defendants argue that lead plaintiffs fail as class representatives because there is no
typical plaintiff — the circumstances of each putative class member must be
analyzed on an individual basis. These arguments fail for the same reason as stated
above. Although the specific circumstances of the class members differ with
regard to when PRS was imposed and the various terms of supervision, as
discussed earlier, all terms were imposed after Earley, pursuant to defendants’
policy. The claims of the lead plaintiffs are therefore “typical” of those of all class
members. Plaintiffs Betances, Barnes, and Velez all suffered injuries based on
defendants’ policy of imposing and enforcing PRS on persons whose sentences did
not include a term of PRS. Therefore, as the lead plaintiffs allege claims based on
a “unitary course of conduct” by the defendants, typicality is satisfied.89
4.

Adequacy

Class representatives fairly and adequately protect the interests of the
class for the same reasons they satisfy the typicality requirement — they have
suffered injuries from the same course of conduct as all other class members.

88

Opp. Mem. at 12.

89

Marisol A., 126 F.3d at 377.
22

Defendants argue that the three named plaintiffs “cannot demonstrate that they
have any claim, and therefore do not and cannot adequately represent this
purported class.”90 Regarding Betances, defendants contend that he was arrested
for drug charges, not a violation of PRS, and “because he was held in local custody
on that misdemeanor, neither DOCS nor Parole had authority to seek his
resentencing” until his return to state custody. Defendants further argue that
Barnes’s sentence, which included administratively-imposed PRS terms, was
“corrected nunc pro tunc by his resentencing.”91 Finally, defendants note that the
court that granted Velez’s habeas petition refused to transfer the matter to the
sentencing court for resentencing. Based on these facts, defendants argue that the
three named plaintiffs have no claim and therefore cannot adequately represent the
class.
These arguments miss the point. While it is true that Betances was
arrested for drug charges, he was also held in custody solely for a violation of
administratively-imposed PRS, after his sentence for drug possession was fully
served.92 It is this injury, and only this injury, that includes him in the class and

90

Opp. Mem. at 13.

91

Id. at 14.

92

See Brinckerhoff Decl. ¶ 11.
23

makes him an adequate representative. Further, the court that “corrected” Barnes’s
sentence did not impose any term of PRS. Thus it is impossible to conclude that
this “correction,” which did nothing to remedy the administrative imposition and
enforcement of PRS, somehow leaves Barnes without a claim. Similarly, the fact
that the habeas court declined to transfer Velez to a sentencing court so that he
could be resentenced does not erase his claim against defendants for the injuries he
suffered as a result of the administratively-imposed PRS. Again, defendants may
wish to present these facts to argue that they should not be held liable for plaintiffs’
injuries. But these arguments do not in any way show that the lead plaintiffs
would not be adequate representatives for the class.
Lead plaintiffs have suffered injuries from the enforcement of
administratively-imposed PRS, and have no conflict with other members of the
class. Additionally, Emery Celli Brinckerhoff & Abady is a preeminent civil rights
law firm that the defendants do not challenge. Therefore, the class representatives
will fairly and adequately protect the interests of the class.
5.

Ascertainability

Defendants maintain within their computer systems information
regarding all individuals who were subjected to administratively-imposed PRS, as

24

well as the specific conditions that were imposed as part of that individual’s PRS.93
Based on this information, the class is sufficiently ascertainable. Defendants argue
that the class is not ascertainable, because, for many individuals, the records lack
sentencing minutes, which in some cases would show that PRS was, in fact,
judicially imposed, even where the commitment orders did not indicate that fact.
However, this may be remedied by requesting sentencing minutes for any class
member whose records are incomplete. If, in fact, the term of PRS was judicially
imposed, that individual would no longer be part of the class. Thus, the class is
sufficiently ascertainable and definite.
B.

Federal Rule 23(b)(3)
1.

The Common Question of Defendants’ Liability
Predominates

The crux of the parties’ disagreement centers on the predominance
inquiry. Plaintiffs contend that common issues of law and fact predominate,
because common proof can be used to establish defendants’ liability for the alleged
violations of plaintiffs’ constitutional rights. They acknowledge that there may be

93

Defendants dispute that there is a single database, as plaintiffs allege,
that contains this information. However, based on the defendants’ own
descriptions of the various databases and computer systems maintained by DOCS
and Parole, it appears that the class is sufficiently ascertainable, even if this
evidence is contained in multiple databases, as opposed to a single centralized
database. See Opp. Mem. at 23 & n.13.
25

a “possibility of individualized damages determinations,” but assert that these do
not preclude a finding of predominance.94 Defendants, on the other hand, argue
vociferously that there is no theory of liability susceptible to generalized proof
because the determinations depend on the individualized circumstances of each
putative class member.95
I conclude that the common question of defendants’ liability for the
enforcement of administratively-imposed PRS predominates over individual
issues. Two central questions in this case have been previously asked and
answered. First, the Second Circuit held in Earley that the practice of imposing
PRS administratively where it was not part of a judicially-imposed sentence is
unconstitutional.96 Second, I previously held, and the Second Circuit affirmed, that
Earley clearly established plaintiffs’ constitutional rights, such that the defendants
are not entitled to qualified immunity.97 The common question that remains,
however, is whether the individual defendants should be held liable for these
violations.
Defendants argue, based on their reframing of plaintiffs’ allegations,
94

Pl. Mem. at 16.

95

See Opp. Mem. at 16.

96

See Earley, 451 F.3d at 76.

97

See Bentley, 852 F. Supp. 2d at 386.
26

that the question of liability turns on each plaintiff’s individualized facts and
circumstances. And based on defendants’ question — whether their alleged failure
to seek, or delay in seeking, resentencing was constitutionally defective —
defendants argue that liability will necessarily depend on individualized proof.
However, this is not the appropriate question. Defendants attempt to revive
previously rejected arguments that it was unclear whether Earley was controlling
law and, if so, what was the appropriate remedy prior to 2008 when the New York
State legislature enacted Correction Law § 601-d. These arguments were
unavailing three years ago when defendants argued for qualified immunity, and
they remain so today. Earley clearly established that administratively-imposed
PRS terms were “a nullity,”98 and defendants knew of this in 2006. Correction
Law § 601-d simply made clear the course of action that defendants already had
the ability to take immediately after Earley was decided: when defendants learned
that an individual in their custody was subject to an administratively-imposed term
of PRS, defendants were required to notify the sentencing court.99 None of this
changes the overriding question of liability common to all purported members of

98

Earley, 451 F.3d at 76.

99

See Annucci Aff. ¶¶ 48–58 (explaining the process of mailing letters
to district attorneys, notifying them of cases potentially appropriate for
resentencing, prior to the enactment of § 601-d).
27

the class, because defendants’ obligations were the same in 2006 as in 2008.
Defendants further allege that the process laid out in the MOU for
determining priority for resentencing establishes that individual determinations are
necessary “to determine whether and when that designated person was required to
be resentenced.”100 This is yet another fundamental misunderstanding. Defendants
cannot simply assert that the process they chose to follow was adequate, and
therefore individual determinations are required to adjudicate when a person
should have been resentenced under that process. The question that predominates
here is exactly what defendants are assuming to be true — was the process they
followed adequate? This question does not turn on any individual determinations.
Defendants argue that this case in analogous to Dunnigan, where I
held that class certification was improper because individualized issues
predominated. There, I concluded that because plaintiffs’ claims turned on the
unreasonableness of the defendant’s delay in paying insurance claims, the Court
would be required to hold “mini-trials” to determine membership in the class.101
Importantly, I concluded in that case that plaintiffs had not presented any evidence
that would have rendered the defendant’s entire system unreasonable. By contrast,
100

Opp. Mem. at 18.

101

See Dunnigan v. Metropolitan Life Ins. Co., 214 F.R.D. 125, 140
(S.D.N.Y. 2003).
28

there is a single, uniform policy here that plaintiffs allege is unconstitutional.102
2.

Damages May Be Calculated on a Class-Wide Basis

Plaintiffs seek damages for the various injuries suffered as a result of
the enforcement of administratively-imposed PRS terms, including the collection
of fees and liberty restrictions such as curfews, travel restrictions, and
imprisonment. The databases maintained by defendants contain the conditions
imposed on each class member, as well as any consequences each class member
suffered as a result of a violation of any of these conditions. Thus, plaintiffs assert
that the value for each imposed condition of PRS and for each consequence of a
violation of PRS can be established on a class-wide basis, and damages for each
individual plaintiff can be calculated using a “simple mathematical formula.”
Plaintiffs further argue that even though some class members will be entitled to
102

Defendants also argue that liability for false imprisonment will require
individual determinations. I do not address this argument, as plaintiffs have
alleged a due process violation under the Fourteenth Amendment, and not false
imprisonment claims. Nevertheless, I note that the defendants’ arguments that the
confinement was privileged have been foreclosed by my previous Opinion and
Order in this case. See Bentley, 852 F. Supp. 2d at 398. Defendants further argue
that individuals who were informed during their plea colloquies that PRS would be
imposed as part of their sentence have therefore consented to PRS and cannot
sustain a false imprisonment claim. These arguments are without merit. Without
judicial imposition of PRS, defendants had no authority to impose it or enforce it
by arresting and imprisoning individuals for PRS violations. Simply because some
individuals may have been informed that PRS would be imposed does not translate
into consent for arrest and imprisonment based on a violation of PRS that was
never a part of their sentence.
29

individualized damages as well as general damages, this fact alone does not defeat
class certification.
Defendants argue, relying on Comcast Corp. v. Behrend,103 that class
certification is improper because there is no class-wide theory of damages. They
note that plaintiffs have failed to provide the mathematical formula they intend to
use to calculate damages on a class-wide basis, and therefore this formula cannot
be subject to the “rigorous analysis post-Comcast class certification requires.”104
Defendants further contend that because each class member was subject to
different conditions of PRS, and each class member has different individual
circumstances, all damage calculations would “necessarily be highly individual.”105
In Comcast, class certification was inappropriate because “the
[plaintiff’s] model failed to measure damages resulting from the particular . . .
injury on which petitioners’ liability . . . [was] premised.”106 Instead, the proposed
methodology assumed the validity of four theories of injury originally advanced by
the plaintiff, even though only one theory was accepted by the trial court. Because

103

133 S. Ct. 1426 (2013).

104

Opp. Mem. at 24–25.

105

Id. at 25.

106

Comcast, 133 S. Ct. at 1433.
30

the methodology identified “damages that [were] not the result of the wrong,”107
the Court held that it could not be used to calculate class-wide damages.
Here, Comcast does not bar class certification. The damages that
plaintiffs seek are tied to a single, uniform policy of the defendants. Thus, any
damages awarded for the different injuries identified by plaintiffs are linked to the
enforcement of administratively-imposed PRS by the defendants. Though the
specific injuries suffered differ among the members of the class, all injuries were
caused by the same policy. Therefore, whatever methodology plaintiffs use, the
damages will be “the result of the wrong.”
Common questions may still predominate even though some damages
will be individualized.108 This case involves both general damages, which may be
calculated on a class-wide basis, as well as special damages, which require
individual determinations. The Second Circuit has discussed in detail the types of
damages that may be awarded for the loss of liberty in the context of false
imprisonment.109 The court noted that “[t]he damages recoverable for the loss of

107

Id. at 1434.

108

See Enea v. Bloomberg, L.P., No. 12 Civ. 4656, 2014 WL 1044027, at
*7 (S.D.N.Y. Mar. 17, 2014) (“Indeed, the Second Circuit has routinely found that
individualized calculations of damages do not defeat the predominance
requirement) (citing cases).
109

See Kerman v. City of N.Y., 374 F.3d 93, 125 (2d Cir. 2004).
31

liberty for the period spent in a wrongful confinement are separable from damages
recoverable for such injuries as physical harm, embarrassment, or emotional
suffering . . . .”110 General damages for the loss of liberty “‘need not be
specifically proved—it may be inferred from the circumstances of the arrest or
imprisonment’ and ‘would include at least the value of the time lost by the plaintiff
during the period of detention.’”111 Thus, these damages do not turn on any
individual characteristics of any class members.
This logic was extended to the harm suffered by a class of plaintiffs
subjected to strip searches.112 There, the court concluded that “it [could] not be
disputed that the violation at issue—the strip search—resulted in some injury to the
class members.”113 The court therefore held that “[a]t the very least, class members
are entitled to general damages.”114 Because the “class members were aggrieved
by a single, admittedly unlawful policy and there is a strong commonality between
the strip search violation and the harm[,] [t]here is no reason that a jury . . . could
110

Id.

111

Id. (quoting McCormick, Handbook on the Law of Damages, § 107, at

376).
112

See In re Nassau Cnty. Strip Search Cases, No. 99-cv-3126, 2008 WL
850268, at *3–7 (E.D.N.Y. Mar. 27, 2008).
113

Id. at *5.

114

Id. at *6.
32

not determine an amount of general damages awardable to each member of the
class.”115
Here, the injuries resulting from the defendants’ enforcement of
administratively-imposed PRS are not uniform — there are several distinct
categories, all of which involve a loss of liberty. For those plaintiffs who were
incarcerated based solely on a violation of administratively-imposed PRS, a jury
may find that general damages for the loss of liberty inherent in false imprisonment
are warranted,116 and may be calculated on a class-wide basis.117 Presumed
damages may also be calculated for less severe liberty restrictions such as curfews
and travel restrictions, also on a class-wide basis.118 Defendants are in possession
of databases that identify each restriction that was placed on each class member.
The jury can determine the damages appropriate for each deprivation, based on the
type of deprivation. For example, the jury could determine a particular amount of

115

Id.

116

See Kerman, 374 F.3d at 125–26.

117

See In re Nassau Cnty. Strip Search Cases, 2008 WL 850268, at *6–7.

118

See Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 310–11
(1986) (“When a plaintiff seeks compensation for an injury that is likely to have
occurred but difficult to establish, some form of presumed damages may possibly
be appropriate. In those circumstances, presumed damages may roughly
approximate the harm that the plaintiff suffered and thereby compensate for harms
that may be impossible to measure.”) (internal citations omitted).
33

damages for each day of incarceration. This amount could then be multiplied by
the number of days each class member was incarcerated.119
This is not to say that there are no individualized damages issues.
However, the issue of general damages predominates over any individualized
damages. At a future date, if necessary, “‘[t]here are a number of management
tools available to a district court to address any individualized damages issues,’
such as bifurcation, the use of a magistrate or special master, alteration of the class
definition, the creation of subclasses, or even decertification after a finding of
liability.”120
3.

The Class Action Is Superior to Other Available Methods

In light of the foregoing discussion, a class action is superior to other
methods of adjudication. The class includes thousands of plaintiffs, and class
certification will allow for the resolution of all of these claims in a single forum.
Moreover, as the class consists of individuals who have been imprisoned for
felonies, it is unlikely that many if not most of these individuals would ever
commence litigation on their own behalf to vindicate their rights. “It is appropriate

119

See, e.g., Barnes v. District of Columbia, 278 F.R.D. 14, 21 (D.D.C.
2011) (assigning damages using a matrix based on the length of overdetention).
120

In re Nassau Cnty. Strip Search Cases, 461 F.3d at 231 (quoting In re
Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 141).
34

for the court to consider the 'inability of the poor or uninformed to enforce their
rights and the improbability that large numbers of class members would possess
the initiative to litigate individually. ,,m Defendants note that approximately fifty
section 1983 actions involving this PRS issue have been litigated and decided in
the federal courts.122 Nevertheless, considering the number of individuals who
have claims, and the length of time that has elapsed sinceEarley, I do not find this
number compelling -

it only highlights the number of class members that have

not sought to enforce their rights. In light of this, as well as the reasons discussed
above, I conclude that a class action is a superior method of adjudication.

V.

CONCLUSION
For the foregoing reasons, the plaintiffs' motion for class certification

is GRANTED. The Clerk of the Court is directed to close this motion (Docket No.
58). A conference is scheduled for February 10, 2015 at 4:30 p.m.

121

D'Alauro, 168 F.R.D. at 458 (quotingHaynes, 503 F.2d at 1165).

122

See Keane Deel.

~

16.
35

Dated:

New York, New York
January 28, 2015

36

-AppearancesCounsel for Plaintiffs:
Matthew D. Brinckerhoff, Esq.
Hayley Horowitz, Esq.
Emery Celli Brinckerhoff & Abady, LLP
600 Fifth Avenue, 10th Floor
New York, NY 10020
[phone]
Counsel for Defendants:
Michael J. Keane
Anna Hehenberger
Christina Chinwe Okereke
James Brennan Cooney
Assistant Attorneys General
State of New York
120 Broadway
New York, NY 10271
[phone]

37