McCreary et al v. The Federal Bureau of Prisons et al

Filing 135

MEMORANDUM (Order to follow as separate docket entry) re 113 Report and Recommendation. Signed by Honorable Jennifer P. Wilson on 2/24/2021. (ve)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUSAMUEL RODRIGUEZ
MCCREARY, et al.,
Plaintiffs,
v.
THE FEDERAL BUREAU OF
PRISONS, et al.,
Defendants.

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Civil No. 1:17-CV-01011

Judge Jennifer P. Wilson

Magistrate Judge Susan E. Schwab

MEMORANDUM
Before the court is the report and recommendation of United States
Magistrate Judge Susan E. Schwab recommending that Plaintiffs’ motion for class
certification be denied, as well as the parties’ objections. (Docs. 113, 122, 124.)
For the reasons that follow, the court will adopt Magistrate Judge Schwab’s report
and recommendation in large part but will decline to adopt one section. This case
will be recommitted to Magistrate Judge Schwab for further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Neither party objected to the facts or procedural history that were
exhaustively detailed in the report and recommendation. Because the court gives
“reasoned consideration” to these uncontested portions of the report and
recommendation, E.E.O.C. v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017)
(quoting Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)), the court will
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only restate the factual background and procedural history necessary to provide
context for this opinion.
Plaintiffs – Jusamuel Rodriguez McCreary, Richard C. Anamanya, and
Joseph R. Coppola – filed their complaint on June 9, 2017, naming as defendants
the Federal Bureau of Prisons, its then-Director, Thomas R. Kane, and the Warden
of United States Penitentiary Lewisburg (“USP Lewisburg”), David J. Ebbert.
(See Doc. 1.) Plaintiffs complain about the treatment of prisoners housed within
the Special Management Unit (“SMU”) at USP Lewisburg who are suffering from
mental illness and serious mental illness. (Id.) Plaintiffs have asserted that
Defendants have violated the United States Constitution’s Eighth Amendment by
acting, or by failing to act, with deliberate indifference to the health and safety of
these prisoners. (Id. at p. 54. 1)
On June 20, 2018, United States Magistrate Judge Susan E. Schwab
recommended that two motions filed by Defendants – a motion to dismiss (or, in
the alternative, for summary judgment), and a motion for a protective order staying
discovery – be denied. (See Doc. 58.) Following this recommendation (which was
adopted, in large part, by United States District Judge Yvette Kane 2), Magistrate

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For ease of reference, the court utilizes the page numbers from the CM/ECF header.

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By verbal order of November 20, 2019, this case was reassigned from Judge Kane to the
undersigned.
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Judge Schwab denied Plaintiffs’ pending motion for class certification without
prejudice, set deadlines for Plaintiffs to file another motion for class certification
and for briefing of that motion, and established other case management deadlines.
(See Docs. 84, 85, 107.)
On August 30, 2019, Plaintiffs filed the current motion for class
certification. (Doc. 98.) That motion was then fully briefed. (See Docs. 99-101,
109, 111.) On January 29, 2020, Magistrate Judge Schwab issued a report and
recommendation concerning the current motion for class certification. (Doc. 113.)
In the report and recommendation, Magistrate Judge Schwab opined that though
Plaintiffs’ individual claims appeared to be moot (because “the named plaintiffs
[were] no longer incarcerated in the SMU at USP Lewisburg,” Id. at 30), an
exception to the mootness doctrine allowed Magistrate Judge Schwab to decide the
current motion for class certification. (See id. at 30–34.) Further, Magistrate
Judge Schwab recommended that the current motion be denied because Plaintiffs
had failed to satisfy the numerosity prerequisite for class certification under
Federal Rule of Civil Procedure 23(a). (Id. at 40–56). Noting that Plaintiffs were
“inconsistent about how they define[d] the class” (Id. at 38), Magistrate Judge
Schwab defined the class as all current and future inmates in the SMU at USP
Lewisburg with a mental illness or serious mental illness. (Id. at 39.) Finally,
Magistrate Judge Schwab ruled that, “[g]iven our conclusion that [Plaintiffs] have
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failed to meet their burden regarding numerosity, we need not address” other Rule
23(a) prerequisites for class certification. (Id. at 56 n.15.)
On April 8, 2020, both parties objected to sections of Magistrate Judge
Schwab’s report and recommendation. (Docs. 122, 124.) Both sets of objections
have been fully briefed and are ripe for the court’s review. (See Docs. 123–26,
129–30.)
STANDARD OF REVIEW
When a party objects to a magistrate judge’s report and recommendation, the
district court is required to conduct a de novo review of the contested portions of
the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);
Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court may
accept, reject, or modify the magistrate judge’s report and recommendation in
whole or in part. 28 U.S.C. § 636(b)(1). The district court may also receive
further evidence or recommit the matter to the magistrate judge with further
instructions. Id. “Although the standard is de novo, the extent of review is
committed to the sound discretion of the district judge, and the court may rely on
the recommendations of the magistrate judge to the extent it deems proper.”
Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.
Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)).

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De novo review is not required for portions of a report and recommendation
to which no objections have been raised. Univac Dental Co. v. Dentsply Int’l, Inc.,
702 F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citing Thomas v. Arn, 474 U.S. 140,
149 (1985)). Instead, the court is only required to “satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Id.
(quoting Fed. R. Civ. P. 72 advisory committee’s note to 1983 addition).
DISCUSSION
A. The Uncontested Portions of the Report and Recommendation Will
Be Adopted.
The parties do not object to Magistrate Judge Schwab’s recommendation to
define the class as all current and future inmates in the SMU at USP Lewisburg
who have a mental illness or serious mental illness. Further, the parties do not
object to Magistrate Judge Schwab’s recommendation that the case is not moot for
purposes of ruling on the motion for class certification even though the named
Plaintiffs are no longer incarcerated at USP Lewisburg.
After giving “reasoned consideration” to the uncontested portions of the
report and recommendation, the court finds that Magistrate Judge Schwab’s
analysis is well-reasoned and fully supported by the record and applicable law.
See City of Long Branch, 866 F.3d at 99 (quoting Henderson, 812 F.2d at 878).
The court will adopt these portions of the report and recommendation in full.

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B. The Court Will Decline to Adopt the Recommendation that
Plaintiffs’ Motion for Class Certification Be Denied Due to a Lack of
Numerosity, and Will Recommit This Case to Magistrate Judge
Schwab for Additional Findings.
The parties’ dispute regarding the class certification prerequisite of
numerosity presents a conceptual problem for the court. In the parties’ briefs,
which were filed in April, 2020, the parties entangle the arguments about
numerosity and mootness by debating whether this case should be mooted, as a
general matter, due to the announced closure of the SMU at USP Lewisburg. But
the process of closing the SMU at USP Lewisburg was not yet complete in early
2020, and this provided considerable room for debate about the issue of mootness
in this case as it relates to class certification.
With respect to the prerequisite of numerosity, Plaintiffs argue that “BOP’s
reported closure of the SMU at Lewisburg” is not an adequate basis for the court to
disregard potential future class members in ascertaining numerosity. (Doc. 124, p.
22.) And Defendants argue the opposite: that the planned closure of the SMU at
USP Lewisburg makes it impossible for Plaintiffs to demonstrate numerosity. (See
Doc. 125, p. 12.)
The court has reviewed the arguments presented and the evidence that was
available at the time that Magistrate Judge Schwab issued her report and
recommendation in January of 2020. Although the court appreciates Magistrate
Judge Schwab’s thorough, reasoned recommendation on the numerosity issue, the
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court ultimately finds Plaintiffs’ objection to be compelling. In particular, the
court is persuaded by Plaintiffs’ argument concerning the circumstantial showing
of evidence that a plaintiff must make to demonstrate numerosity (Doc. 124, pp.7–
8), and Plaintiffs’ analysis of Third Circuit case law dealing with the specific
numerical threshold—or lack thereof—that a plaintiff must meet to demonstrate
numerosity (Doc. 124, pp. 13–15). Accordingly, the court will decline to adopt
Magistrate Judge Schwab’s recommendation that Plaintiffs’ motion for class
certification be denied due to a lack of numerosity based on the record evidence
available in January of 2020.
However, the issue of mootness remains in play with respect to whether the
court should certify the proposed class in this case. As Magistrate Judge Schwab
observed, “[i]t is a basic principle of Article III that a justiciable case or
controversy must remain ‘extant at all stages of review, not merely at the time the
complaint is filed.’” United States v. Juvenile Male, 564 U.S. 932, 936 (2011)
(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). Put
another way, a court can review mootness sua sponte at any point during the
pendency of a litigation. See, e.g., Gordon v. E. Goshen Twp., 592 F. Supp. 2d
828, 837 (E.D. Pa. 2009). The court finds it necessary to assess the issue of
mootness based on the current status of the SMU at USP Lewisburg. However,
the most recent information submitted by the parties was in April 2020, and the
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court surmises that the facts underlying this issue may have shifted in the ten
intervening months. For example: Has the SMU at USP closed? How has the
COVID-19 global pandemic impacted inmate transfers within the Bureau of
Prisons? The information submitted by counsel on these and on other factual
issues relevant to the mootness analysis in April of 2020 is now stale.
As the court stated above, in reviewing a report and recommendation, a
district court is permitted to recommit the matter to the magistrate judge with
further instructions. Given what the court has explained above concerning the
length of time between the parties’ briefing and the court’s current review, the
court finds that refreshed consideration of the mootness issue is appropriate.
Therefore, the court will recommit this matter to Magistrate Judge Schwab with an
instruction to, first, permit supplemental submissions from the parties on the
current inmate population and closure status of the SMU at USP Lewisburg, and
second, to further consider the issue of mootness as it relates to the requirements
for class certification under Federal Rules of Civil Procedure 23(a) and 23(b).
C. The Court Will Deny Defendants’ Objection to Magistrate Judge
Schwab Not Examining the Other Rule 23(a) Prerequisites.
The text of Federal Rule of Civil Procedure 23(a) provides that a class may
be certified “only if” all four prerequisites are met. As such, “[i]f the action fails to
meet one or more of the subdivision (a) prerequisites, it may be dismissed under

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Rule 23(c)(1).” § 1759 Prerequisites for Bringing a Class Action—In General, 7A
FED. PRAC. & PROC. CIV. § 1759 (3d ed.).
Defendants have provided no legal authority for their argument that if a
court finds that one of the four Rule 23(a) prerequisites is not satisfied, that court
must go on to then consider the other three prerequisites and make rulings on
whether or not they are satisfied. 3 Defendants simply argue, in a conclusory
fashion, that “it was error to not reach those issues.” (Doc. 123 p. 7.) The court
disagrees. The court notes that to impose a requirement that a court consider all
four 23(a) prerequisites in ruling on a motion for class certification—even after
concluding that one prerequisite is not satisfied—runs counter to Federal Rule of
Civil Procedure 1, which states that the Federal Rules “should be construed,
administered, and employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding.” As a result, the
court will deny Defendants’ objection to Magistrate Judge Schwab not examining
the other Rule 23(a) prerequisites.

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Plaintiffs “agree that the Court should consider all of the Rule 23 class certification
requirements de novo, including numerosity”—but, as with Defendants, Plaintiffs provide no
legal authority to justify such a request. (Doc. 126 p. 4.)
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CONCLUSION
For the foregoing reasons, Magistrate Judge Schwab’s report and
recommendation will be adopted in part and denied in part, and this case will be
recommitted to Magistrate Judge Schwab. An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: February 24, 2021

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