Nunez v. N.Y.C. Department of Correction et al

Filing 65

MEMORANDUM AND ORDER: For the reasons set forth above, the agreed-upon class notice shall be posted in English and Spanish in areas of all law libraries, housing areas, and receiving rooms of each DOC jail where it is reasonably calculated to be seen by inmates in the area. In addition, DOC shall provide a copy of the notice to each inmate involved in a "Class A" Use of Force incident during the pendency of the action. (Signed by Magistrate Judge James C. Francis on 2/28/2013) Copies Mailed By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
MARK NUNEZ, et al.,
:
:
Plaintiffs,
:
:
- against :
:
CITY OF NEW YORK, et al.,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

(ECF)

11 Civ. 5845 (LTS) (JCF)
MEMORANDUM
AND ORDER

This is a class action in which the plaintiffs, present and
future inmates confined in jails operated by the New York City
Department

of

Correction

(“DOC”)1,

allege

that

DOC

staff

use

unnecessary and excessive force against inmates in violation of the
Constitution and federal and state law. The parties have agreed on
the form of a notice to be provided to class members (Letter of
Vasudha Talla dated Feb. 22, 2013 (“Talla Letter”) at 1), but they
disagree with respect to the method of distribution (Letter of
Katherine Rosenfeld dated February 13, 2013 (“Rosenfeld Letter”) at
2-4; Letter of Arthur G. Larkin dated Feb. 19, 2013 (“Larkin
Letter”) at 2-5; Talla Letter at 1-4).

It is agreed that the

notice would be posted in English and Spanish in areas of the law

1

The class includes inmates in all New York City jails except
the Eric M. Taylor Center and the Elmhurst and Bellevue Prison
Wards.
1

libraries, housing areas, and receiving rooms of each jail where it
is reasonably calculated to be seen by inmates in the area. (Talla
Letter at 1, 3).

The plaintiffs request that DOC be ordered to

provide a copy of the notice to all inmates upon admission to a
City jail or if that request is denied, require DOC to (1) post the
notice on the DOC website and (2) distribute a copy to all inmates
involved in “Class A” Use of Force incidents during the pendency of
the action.

(Rosenfeld Letter at 3-4; Talla Letter at 3-4).

The

plaintiffs also request that DOC be required to provide training at
roll call to instruct staff not to remove or tamper with the posted
notices. (Rosenfeld Letter at 3-4). The defendants oppose each of
the proposed additional methods of distribution as well as the roll
call training.

(Larkin Letter at 3-5).

Discussion
Where, as here, a class is certified pursuant to Rule 23(b)(1)
or 23(b)(2) of the Federal Rules of Civil Procedure, notice is not
required, but it is within the discretion of the court to “direct
appropriate

notice

to

the

participation by class members.

class”

in

order

to

facilitate

Fed. R. Civ. P. 23(c)(2)(A).

When the court does direct certification notice in a
(b)(1) or (b)(2) class action, the discretion and
flexibility established by subdivision (c)(2)(A) extend
to the method of giving notice. Notice facilitates the
opportunity to participate. Notice calculated to reach
a significant number of class members often will protect
the interests of all.
Informal methods may prove
2

effective. A simple posting in a place visited by many
class members, directing attention to a source of more
detailed information, may suffice.
The court should
consider the costs of notice in relation to the probable
reach of inexpensive methods.
Fed.

R.

Civ.

P.

23(c)(2)

advisory

committee’s

note

to

2003

amendments.
In this case, providing individual notice to each new inmate
would be onerous and unnecessary.
be

distributed

along

with

While, in theory, notices could

inmate

handbooks,

implementing

and

monitoring distribution throughout the DOC system would create an
administrative burden.

Moreover, the vast majority of inmates

entering the City jails never experience a use of force by staff
and therefore have a diminished interest in the litigation.

Where

individual notice has been ordered, it has generally involved a
more targeted population, often one that can be defined by the
rights or benefits at issue.

In Handberry v. Thompson, 96 Civ.

6161 (S.D.N.Y.), for example, notice was provided to a discrete set
of inmates under the age of 21 who might qualify for special
education services.

(Stipulation dated Nov. 13, 1996).

By

contrast, where the target population is more diffuse, individual
notice is generally not required.

See, e.g., Inmates of New York

State with Human Immune Deficiency Virus v. Cuomo, No. 09-CV-252,
1991 WL 16032, at *1, 3 (N.D.N.Y. Feb. 7, 1991) (requiring only
posting of class notice in each of 60 prisons in case challenging
3

provision of medical, mental health, education, and preventive
services to inmates with HIV).

I will therefore not require class

notice to be disseminated to each new inmate upon arrival in a City
jail.
Providing individual notice to inmates who actually experience
a use of force is a different matter.

These are the class members

with the greatest interest in the litigation and who are most
likely to participate actively.

Furthermore, there is a procedure

already in place that can be utilized to distribute the notice with
little additional burden to DOC.

Following any serious incident,

the inmate involved is interviewed by a DOC captain or investigator
concerning the event (Larkin Letter at 4), and at that time the
inmate can be provided with the class notice.
Little value would be added by posting class notice on the DOC
website.

While this site is apparently available to the public,

including the family members of inmates (Rosenfeld Letter at 3),
the inmates themselves do not have access to the internet and
therefore would not be able to view it.
Finally, the plaintiffs have proffered no evidence that DOC
staff have defaced or removed class notices, and there is therefore
no basis for requiring roll call training.
Conclusion
For the reasons set forth above, the agreed-upon class notice
4

shall

be

libraries,

posted

in

English

housing areas,

and

Spanish

in

areas

of

all

law

and receiving rooms of each DOC jail

where it is reasonably calculated to be seen by inmates in the
area.

In addition, DOC shall provide a copy of the notice to each

inmate involved in a "Class A" Use of Force incident during the
pendency of the action.
SO ORDERED.

~

e... -:f...cAM.v!J K

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated: New York, New York
February 28, 2013
Copies mailed this date:

Jonathan S. Abady, Esq.
Katherine R. Rosenfeld, Esq.
Vasudha Talla, Esq.
Emery Celli Brinckerhoff & Abady, LLP
75 Rockefeller Plaza
20th Floor
New York, NY 10019
Jonathan S. Chasen, Esq.
Legal Aid Society
199 Water Street, 3rd Floor
New York, NY 10038
Mary Lynne Werlwas, Esq.
The Legal Aid Society
111 Livingston Street
Brooklyn, NY 11201

5

William I. Sussman, Esq.

Joseph G. Cleemann, Esq.

Christopher Paul Conniff, Esq.

Amanda N. Raad, Esq.

Ropes & Gray LLP

1211 Avenue of the Americas

New York, NY 10036-8704

Arthur G. Larkin, Esq.

Diep Nguyen, Esq.

Corporation Counsel for the City of New York

100 Church Street

New York, NY 10007

6