Bryant et al v. City of New York et al

Filing 84

OPINION & ORDER re: 71 MOTION to Dismiss for Lack of Jurisdiction filed by Dora B. Schriro, William P. Clemons, Joseph Ponte, Evelyn A. Mirabal, Mark J. Cranston, Michael Hourihane, City of New York. Old time is no longer used as a basis to assign detainees to punitive segregation. Defendants have ceased the very practice plaintiffs have challenged. There is no reasonable expectation that the discarded policy will recur, and defendants have eliminated the effects of the old policy. This action is therefore moot and is hereby dismissed for lack of subject matter jurisdiction. SO ORDERED. (Signed by Judge Sidney H. Stein on 7/08/2016) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AHLIJAH BRYANT, individually and on
behalf of all others similarly situated, ET

14-Cv-8672 (SHS)

AL.,

Plaintiffs,

OPINION & ORDER

-againstCITY OF NEW YORK, ET AL.,
Defendants.
SIDNEY H. STEIN, U.S. District Judge.
The question for resolution by this Court is whether a recent amendment
to the New York City Board of Correction's rules concerning the use of
punitive segregation for pretrial detainees renders this litigation moot,
therefore requiring that it be dismissed for lack of federal subject matter
jurisdiction. The Court concludes that defendants have met the "heavy
burden" of showing that "subsequent events [have] made it absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to
recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
189 (2000) (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S.
199, 203 (1968)) (internal quotation marks omitted). For that reason, the Court
finds that the amendment does moot the action and therefore grants
defendants' motion to dismiss the complaint.
I.

BACKGROUND

New York City places its pretrial detainees in solitary confinement-also
known as punitive segregation or PSEG-as punishment for a variety of
infractions committed during the time the detainee is in jail. (Compl. <[<[ 5-7.)
Until recently, the city allowed pretrial detainees to be placed in solitary
confinement solely on the ground that they "owed" old PSEG time. (Compl.
<[ 35.) That old-time debt existed whenever a pretrial detainee was released
from pretrial detention-for instance, if she was released on bail-without
having served the full amount of her time in punitive segregation. If she

returned to jail even years later for an entirely different crime, the city placed
her in punitive segregation solely on the ground that her prior PSEG
sentence-denominated her "old time" -remained outstanding. (See Compl.
<JI<JI 54-55.)
Plaintiffs commenced this civil rights putative class action in October of
2014 to challenge defendants' old time policy. (Compl. <JI 2.) The individual
plaintiffs were detainees in city jails who had been confined in punitive
segregation to serve old time. (Compl. <JI 14.) Plaintiffs sought monetary
damages as well as declaratory and injunctive relief. Defendants were the city
as well as current and former New York City Department of Correction
("DOC") Commissioners and Chiefs of Department. (Compl. <JI<JI 15-20.) The
complaint charged that defendants' old time policy violated the substantive
and procedural due process guarantees of the Fourteenth Amendment.
(Compl. <JI<JI 6-7.)
Approximately two months after this action commenced, Mayor Bill de
Blasio and Commissioner of Correction Joseph Ponte jointly announced that
the system of old time was going to end, and that no inmate was "going to owe
time anymore." (Ex. B. to Deel. of Martin Bowe dated April 19, 2016 at 8, Dkt.
No. 72.) All "historic time," they announced, will be "wipe[d] ... off the
books." (Id.) Two days after that announcement, the New York City Board of
Correction proposed new rules concerning solitary confinement that, inter alia,
prohibited detainees from being placed into PSEG based on old time alone.
(Bowe Deel. <JI 4.) The board approved these rules in mid-January 2015. (Bowe
Deel. <JI 4.)
As approved, the new rule clearly and specifically prohibits the use of
punitive segregation on the basis of old time. It states: "[P]unitive segregation
is intended to address a particular offense committed in the course of an
inmate's incarceration and should not be imposed in connection with an
offense committed by the same inmate during a separate and previous
incarceration." New York City, N.Y., Rules, Tit. 40 § 1-17(a). The rule goes on
to provide as follows: "As of the effective date of this section[, February 20,
2015], no inmate shall be assigned to or held in punitive segregation for any
time from a separate and previous incarceration for which such inmate was
sentenced to but did not serve in punitive segregation." New York City, N.Y.,
Rules, Tit. 40 § 1-17(g) (see Historical Note for effective date).

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DOC's Chief of Facilities Operations Hazel Jennings and Corrections
Officer Sheila Owens filed declarations in support of defendants' motion.
Jennings states that the new rule was "aggressively" implemented within one
month of its effective date. (Deel. of Hazel Jennings dated May 16, 2016 <_[ 8; see
Deel. of Sheila Owens dated April 19, 2016 <_[<_[ 4-5.) Owens, who is charged
with overseeing detainee admissions into PSEG and maintaining PSEG
records, is responsible for expunging any old time that was on the books for
any current detainee or any new detainee. (Owens Deel.<_[ 6.) 1
Owens and Jennings report that since the department implemented the
new rule by March of 2015, only one detainee has been placed-mistakenlyin PSEG solely on the basis of old time. (Owens Deel.<_[ 7; Jennings Deel.<_[ 4.)
Jennings states that this single error resulted from the department's failure to
implement the new rule for that inmate's facility- a women's jail-because
few inmates are sentenced to PSEG from that institution. Gennings Deel.<_[ 4.)
According to Jennings, that error has since been corrected. Gennings Deel. <_[ 4. )2
Both Jennings and Owens-the people primarily charged with
implementing the new rule-state that the department is "committed to the
[n]ew [r]ule and its diligent implementation," (Owens Deel. <_[ 11; Jennings
Deel. <_[ 9.)
Shortly after the new rule's approval, this Court stayed the litigation at the
request of the parties pending global settlement discussions. (Order dated Jan.
21, 2015, Dkt. No. 31.) By the end of 2015, the parties had resolved each
individual plaintiff's claim for monetary damages, (Stipulations and Orders of
Partial Settlement and Discontinuance, Dkt. Nos. 52, 54-55, 57-63), but not
plaintiffs' claim for injunctive relief. The Court appointed a mediator,
Professor Brett Dignam of Columbia Law School, to assist in resolving the
injunctive portion of this litigation, (Order dated Oct. 23, 2015, Dkt. No. 51),

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DOC is apparently not given to rushing headlong into automation: Owens performs the
expungement manually, under the supervision of Jennings and Chief Turhan
Gumusdere. (Jennings Deel. 'j['j[ 3-6; Owens Deel. 'j[ 9.)
In addition, four inmates mistakenly served time in punitive segregation during the first
month the new policy went into effect while it was being implemented. (Owens Suppl.
Deel. 'j[ 5; Jennings Deel. 'j[ 8.) None of those errors suggest that the old time policy
continues today.

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but mediation failed.3 Defendants then filed this motion pursuant to Fed. R.
Civ. P. 12(b)(l) seeking dismissal of the action on the ground that this Court
lacks subject matter jurisdiction because the action is moot.
II. DISCUSSION

Article III of the United States Constitution prohibits courts from
adjudicating cases or controversies that have become moot. Already, LLC v.
Nike, Inc., 133 S. Ct. 721, 726 (2013). A case is often deemed moot when the
conduct a plaintiff challenges ceases to exist. See, e.g., Lamar Advert. of Penn,
LLC v. Town of Orchard Park, 356 F.3d 365, 377 (2d Cir. 2004);Armstrong v. Ward,
529 F.2d 1132, 1135-36 (2d Cir. 1976); Marin v. Town of Southeast, 136 F. Supp.
3d 548, 561-63 (S.D.N.Y. 2015). The decision of whether a case should be
dismissed as moot is entrusted to "the sound discretion of the district court."
Harris & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d Cir.
1992); Davis v. City of N.Y., 812 F. Supp. 2d 333, 339 (S.D.N.Y. 2011); Rivers v.
Doar, 638 F. Supp. 2d 333, 337 (E.D.N.Y. 2009). 4
Nonetheless, a defendant cannot unilaterally strip a federal court of its
jurisdiction merely by ceasing a challenged practice. Friends of the Earth, 528
U.S. at 189. If a defendant could do that, "the courts would be compelled to
leave the defendant free to return to his old ways." Id. (internal quotation
marks and alterations omitted). Consequently, a defendant's voluntary
cessation of challenged conduct moots an action only '"if subsequent events
made it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur."' Id. (quoting Concentrated Phosphate Exp.
Ass'n, 393 U.S. at 203). If defendants can meet the "heavy burden" of showing
that is so, the action may be dismissed as moot. Id.; see also County of L.A. v.
Davis, 440 U.S. 625, 631 (1979).

The Court extends its appreciation to Professor Dignam for the efforts she undertook,
pro bono, at the Court's request to resolve this litigation.

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The parties agree that this Court may look beyond the pleadings in evaluating
defendants' motion. See, e.g., State Emps. Bargaining Agent v. Rowland, 494 F.3d 78, 77 n.4
(2d Cir. 2007); Horwitz v. Loop Capital Mkts. LLC, 15-cv-1253, 2016 WL 727211, at *1 (S.D.N.Y.
Feb. 19, 2016). The Court has therefore considered the documentary evidence that each
side has submitted in connection with this motion.

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The tripartite test for determining when voluntary cessation of conduct
moots the controversy was most recently set forth in American Freedom Defense
Initiative v. Metropolitan Transportation Authority, 815 F.3d 105 (2d Cir. 2016).
First, defendants' conduct must have "in fact, ceased." Id. at 109. Second, there
must be "no reasonable expectation that the alleged violation will recur." Id.
(internal quotation marks omitted). Finally, defendants must show that
"interim relief or events have completely and irrevocably eradicated the effects
of the alleged violation." Id. (internal quotation marks omitted). Defendants'
burden is "heavy," id. at 110, especially because "exceptions to mootness" such
as the voluntary cessation doctrine "are particularly applicable in class action
cases in the ... civil rights arena." Jobie 0. v. Spitzer, No. 03-cv-8831, 2007 WL
4302921, at *13 (S.D.N.Y. Dec. 5, 2007). Despite that "general proposition," the
mootness inquiry is "intensely factual." Id.
As noted above, the Court finds that defendants have met their burden.

A. The old time policy has "in fact, ceased."
First, defendants have demonstrated to the Court's satisfaction that the old
time policy has, "in fact, ceased." See Am. Freedom Def Initiative, 815 F.3d at 109.
The new rule disbanding the old policy was instituted after the city gave
formal notice of the proposed change, provided the public an opportunity to
comment, and held a public hearing, (Bowe Deel. <JI 4). In addition, the Mayor
and Commissioner of Correction publicized the policy change instituted by the
new rule, (Ex. B to Bowe Deel. at 8.) See Rivers, 638 F. Supp. 2d at 338. Further,
the DOC employees charged with the rule's execution-Owens andJenningshave filed affidavits which set forth in detail the process by which old time is
expunged on a daily basis "for any inmate being placed into PSEG and for any
incoming inmates," (Owens Deel. <_![ 10.) In fact, they report that the
"expungement process is a prerequisite to placement into PSEG for all inmates
in DOC custody, as well as for every single inmate coming into DOC custody
after arrest." Gennings Deel.<_![ 5; see Owens Deel.<_![ 8.)
The evidence supports Owens and Jennings' conclusion that the new rule
has been fully implemented and that old time can no longer be the sole basis
for placing a detainee in punitive segregation. Indeed, defendants' witnesses
have satisfactorily explained that the single detainee who was placed in PSEG
on the basis of old time alone after March of 2015 was mistakenly placed there
because her institution had, in error, not been integrated into the new

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procedures. (Jennings Deel. <JI 4.) The evidence is uncontested that that error
was immediately remedied. (Jennings Deel. <JI 4.) The four additional detainees
who improperly served PSEG did so during the first month of the new policy,
when it was just being implemented.
Plaintiffs urge this Court to reject Owens' and Jennings' specific and
factually supported representations because Owens and Jennings allegedly
lack personal knowledge that the challenged policy has ceased. Contrary to
plaintiffs' contentions, Owens and Jennings are arguably best able to comment
on the new rule's implementation: they are charged with that very duty. They
have personal knowledge over whether the challenged old time rule has
actually ceased.
The evidence in the record that plaintiffs cite for the proposition that the
old time practice still operates is unpersuasive. The abovementioned error in
connection with requiring a single defendant to serve old time after March of
2015 does not a policy revive. See Inside Connect, Inc. v. Fischer, 13-cv-1138, 2014
WL 2933221, at *9 (S.D.N.Y. June 30, 2014). Moreover, defendants' seemingly
inefficient means of implementing the rule-manually expunging each
inmate's old PSEG time rather than instituting an automatic computerized
procedure-does not demonstrate that the old policy is still in effect. The Court
concludes comfortably that New York City's pretrial detainees are no longer
being placed into PSEG based on old time alone. That policy has "in fact,
ceased."

B. There is no reasonable expectation that the old time policy will
recur.
Defendants have shown that there is no "reasonable expectation" that the
old time policy will recur. Lamar, 356 F.3d at 375; Manbeck v. Colvin, No. 15-cv2132, 2016 WL 29631, at *4 (S.D.N.Y. Jan. 4, 2016). Indeed, the new rule was
adopted after a public hearing and comment period. (Bowe Deel. <JI 4); New
York City, N.Y., Rules, Tit. 40 § 1-17. Such rules-while not as undoable as
legislation, see Byrd v. Goard, No. OO-cv-2135, 2007 WL 2789505, at *1 (S.D.N.Y.
Sept. 26, 2007)- have often been considered sufficiently concrete as to satisfy
this element of the voluntary cessation doctrine. See, e.g., Pilgrim v. N. Y. State
Dep't of Corr. Servs., No. 07-cv-1001, 2011 WL 6031929, at *3 (N.D.N.Y. Sept. 1,
2011); see also Granite State Outdoor Advert., Inc. v. Town of Orange, 303 F.3d 450,
451-52 (2d Cir. 2002) (per curiam).

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In Tawwab v. Metz, 554 F.2d 22 (2d Cir. 1997) (per curiam), for instance, a
panel of the U.S. Court of Appeals for the Second Circuit concluded that "an
official prison document which was handed up to the Court during oral
argument" embodied a change in policy and made '"absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.'" Id. at
24 (quoting Concentrated Phosphate Exp. Ass'n, 393 U.S. at 203). The rules here
adopted pursuant to formal notice-and-comment procedures, New York City,
N.Y., Rules, Tit. 40 § 1-17, are at least as reliable. Further, the city's substantial
efforts taken to implement the rule as well as its officials' pronouncement of
commitment to the new rule-made both publicly and in the context of this
litigation, (see, e.g., Ex. B. to Bowe Deel. at 8; Owens Deel. cir 11; Jennings Deel.
cir 9)-also suggest that the city is committed to the new rule. See Rivers, 638 F.
Supp. 2d at 338; Inside Connect, 2014 WL 2933221, at *8. In addition, some
deference is due to a government official's statement that a challenged process
has stopped and there are no plans to bring it back, especially in the absence of
any evidence whatsoever that the city was disingenuous in promulgating the
new rule or intends to reinstate the old one. Lamar, 356 F.3d at 377. Plaintiffs'
arguments to the contrary are based on rank speculation.
Without any "affirmative evidence" in the record "that the challenged
provision [will] be reenacted," plaintiffs cannot defeat defendants' mootness
argument. Rivers, 638 F. Supp. 2d at 338; accord Lamar, 356 F.3d at 377.
C. Defendants have "completely eliminated" the effects of the policy.

Finally, the Court is convinced that the effects of the abandoned old time
policy "have been completely eliminated" and "irrevocably eradicated." Am.
Freedom Def Initiative, 815 F.3d at 109-10. DOC officials have stated under
penalty of perjury that they are aware of only a single inmate who was placed
in PSEG on the basis of old time after March of 2015. (Owens Deel. cir 7; Jennings
Deel. cir 4.) Indeed, Owens provided to the Court voluminous detailed
documents setting forth the old time all detainees have served from December
1, 2012, to the present day as well as the years in which that old time was
served. (Exs. A & B to Suppl. Deel. of Sheila Owens dated May 16, 2016; Owens
Suppl. Deel. circir 3, 5.) According to those documents, all inmates serving PSEG
sentences based on old time were released shortly after the new rule's effective
date, except for the few errors that occurred described above when the change
was being implemented. The Court is thus confident that the effects of the old

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time policy have been "irrevocably eradicated." Davis, 440 U.S. at 631. In other
words: no PSEG inmates currently suffer solitary confinement based on any
prior, interrupted PSEG sentences. 5

III.

CONCLUSION

Old time is no longer used as a basis to assign detainees to punitive
segregation. Defendants have ceased the very practice plaintiffs have
challenged. There is no reasonable expectation that the discarded policy will
recur, and defendants have eliminated the effects of the old policy. This action
is therefore moot and is hereby dismissed for lack of subject matter jurisdiction.
Dated: New York, New York
July 8, 2016
SO ORDERED:

. Stein, U.S.D.J.

The Court also denies plaintiffs' request for additional discovery. Plaintiffs have
failed to explain what facts they seek are "peculiarly within the knowledge of the opposing
party," see Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986), that plaintiffs
have not had access to. The parties have already engaged in substantial discovery for
settlement purposes under Court supervision. (See e.g., Letter to the Court from Martin
Bowe dated Jan. 5, 2016, Dkt. No. 65; Letter to the Court from Martin Bowe dated Aug. 24,
2015, Dkt. No. 47; Letter to the Court from Christopher Terranova dated Aug. 19, 2015,
Dkt. No. 45.) That discovery consisted both of extensive document reviews and access to
DOC officials for questioning. (See, e.g., Bowe Letter dated Jan. 5, 2016at1-2; Bowe Letter
dated Aug. 24, 2015 at 2; Owens Deel. 'lI 10; Owens Suppl. Deel. 'lI'lI 2-3.) Given this Court's
first-hand knowledge of the substantial discovery undertaken in this action and plaintiffs'
failure to articulate what more is needed, the Court exercises its discretion to deny
plaintiffs' request. Frontera Res. Azerbaijan Corp. v. State Oil Co. of the Azerbaijan Republic,
582 F.3d 393, 401 (2d Cir. 2009); see also Haber v. United States, _ F.3d ~ 2016 WL
2942370, at *6-7 (2d Cir. May 20, 2016);
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