Silber v. Pallito et al

Filing 31

REPORT AND RECOMMENDATION: recommending that plaintiff's 3 and 8 MOTIONS for Preliminary Injunction be denied. To the extent that the defendants have moved in 30 to have this case dismissed, the motion should be denied. ORDERED: 28 MOTION to Withdraw as Attorney by Matthew F. Valerio is GRANTED. Objections to R&R due by 12/18/2009. Signed by Judge John M. Conroy on 12/1/09. (hbc)

UNITED STATES DISTRICT COURT F O R THE D IS T R IC T OF VERMONT D av id Silber, P l a in tif f , v. A n d re w Pallito, Robert Hofmann, Robert Kupec, Raymond Flum, David Bovat, Ellen McWard, A n ita Carbonell, Dominic Damato, J a m e s Kamel, Mark Potanis, D e f e n d a n ts . R E P O R T AND RECOMMENDATION (D o c s. 3, 8 and 28) P r o se plaintiff David Silber is a federal pre-trial detainee currently being held in a s ta te correctional facility. Silber claims that upon his arrival in state custody, and at v a rio u s points thereafter, he has been housed in more restrictive conditions than his stated e ta in e e counterparts solely because he is facing federal charges. He claims that such c o n f in e m e n t constitutes punishment and violates his due process rights. P e n d in g before the Court are Silber's two motions for preliminary injunctive relief. (Docs. 3 and 8.) On July 16, 2009, the Court appointed the Office of the Defender G e n e ra l, Prisoners' Rights Office to represent the plaintiff. Subsequently, the defendants s u b m itte d evidence indicating that their incarceration policy with respect to federal pretria l detainees has changed, and that such detainees are now treated no differently than s ta te detainees. Citing this change in policy, appointed counsel has moved to withdraw o n the grounds that the plaintiff's claims for injunctive relief are moot, and that Prisoners' C iv il Action No. 1:09-CV-73

R ig h ts cannot pursue monetary damages. (Doc. 28.) In light of the change in policy, and fo r reasons set forth more fully below, I recommend that the motions for a preliminary in ju n c tio n be DENIED and GRANT the motion to withdraw. F a c tu a l Background S ilb e r begins his complaint by stating that "[t]he Southern State Correctional F a c ility (herein SSCF) in Springfield, Vermont holds federal pre-trial detainees in `closec u sto d y.' Close custody is restrictive housing, a 22 hour lock-down administrative s e g re g a tio n -typ e environment." (Doc. 6 at 7) (parentheses in original). "All federal d e ta in e e s are treated in this way regardless of violence, behavior or alleged crime." Id. at 8 . Silber claims that detainees are initially told that such confinement will only last for 30 d a ys , but that in fact it can continue for much longer. Id. at 8. Although he does not state h o w long he himself spent in close custody, the complaint suggests that it was several m o n th s . Id. at 8-9. S ilb e r argues that placing a federal pre-trial detainee in close custody confinement re g a rd le ss of the underlying charge or behavioral history is a form of punishment, and th u s violates the detainee's due process rights. He also complains that this sort of tre a tm e n t is specific to SSCF, and that federal pre-trial detainees in other Vermont in stitu tio n s are "comingled [sic] with state inmates after a short close-custody period, if a n y at all." Concurrent with his complaint, Silber filed a "memorandum of law" setting f o rth the legal arguments in support of his due process claim. (Doc 3.) Finding that

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" S ilb e r appears to be seeking relief in the near term," the Court construed the m em o ran d u m as a motion for a preliminary injunction. (Doc. 20.) In a separate claim, apparently unrelated to his due process allegations, Silber a lle g e s that he was placed in a "dry cell" after Department of Corrections ("DOC") p e rso n n e l suspected him of having contraband concealed inside his body. Dressed only in b o x e r shorts, he was allegedly held in the "freezing cold cell" for five days with no " sh o w e r nor soap, shampoo, towel, toilet paper, toothbrush, toothpaste or other basic h u m a n needs." Id. at 11. This treatment, he claims, constituted retaliation and deliberate in d if f e re n c e . Id. S e v e ra l weeks after filing his complaint, Silber filed a second motion for in ju n c tiv e relief, this time because he had been placed in close custody after serving five d a ys in disciplinary segregation. (Doc. 8.) State prisoners, he claims, would have been re tu rn e d to general population after serving time in segregation. His motion contends that p lac in g him in close custody violated not only his due process rights, but also his right to b e free from double jeopardy since it effectively punished him twice for the same d is c ip lin a ry violation. O n July 1, 2009, the defendants responded to Silber's pending motions for in ju n c tiv e relief with an opposition memorandum and supporting affidavits from prison p e rso n n e l. Those affidavits explained that the DOC was using a points system to d e te rm in e a detainee's classification level. Factors affecting the points calculation

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u s u a lly included "an individual's offense history, institutional behavior and any pending c h a rg e s . . . ." (Doc. 21-2 at 2.) When federal detainees were delivered to the DOC, h o w e v e r, the DOC often knew "nothing about the detentioner's criminal history or p e n d in g charges." (Doc. 21-3 at 1.) Furthermore, stated Robert Kupec, Facilities E x e c u tiv e for the DOC, "[t]he Department's history and experience with federal d e t e n tio n e r s has resulted in managing these individuals with a heightened attention to risk c o n tro l." (Doc. 21-2 at 2.) Federal detainees were therefore "awarded fifteen points for th e ir pending federal charges. This number of points causes federal pretrial detainees to b e classified as close custody." Id. The classification was allegedly reviewed at "regular interva ls" by the Close Custody Management Team, which could grant an override "[a]t a n y time." Id. at 2-3. O n July 16, 2009, the Court granted Silber's motion for appointment of counsel a n d appointed Prisoners' Right to represent him. On October 15, 2009, Prisoners' Rights m o v e d to withdraw, asserting that the "Department of Corrections (DOC) has changed its c u sto d y point sheet so that federal detainees are no longer assessed extra points on the b a sis of their status as federal detainees. The only remaining issue in this case regards m o n e ta ry damages, and [this] office does not provide representation in this area." (Doc. 2 8 .) Upon receiving the motion to withdraw, the Court asked the defendants for a s u p p le m e n ta l filing with regard to current DOC policy. (Doc. 29.) T h e defendants submitted supplemental documentation on November 3, 2009.

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In c lu d e d in the documentation is another affidavit from Robert Kupec, in which he states th a t "the Department has discontinued its practice of assigning fifteen points to federal d e ta in e e s . . . because of their pending federal charges." (Doc. 30-1 at 2.) Instead, a c las sif ica tio n decision is now "administered to federal detainees in the same manner as it is administered to state detainees and sentenced inmates." Id. If a federal detainee is p la c ed in close custody, "that classification would not be based in whole or part upon c o n sid e ra tio n of the detainee's status as a federal pre-trial detainee . . . . In short, federal p re -tria l detainee status is no longer a factor considered by the Department when making c u sto d y classification determinations." Id. at 3. A s of June 10, 2009, Silber was being housed in general population. (Doc. 21-2 at 3 .) D is c u s s io n I. P r e lim in a r y Injunction Motions P e n d in g before the Court are Silber's two preliminary injunction motions, both of w h i c h relate to the classification question. A motion for a preliminary injunction must s h o w "irreparable harm and either (a) a likelihood of success on the merits or (b) s u f f ic ie n tly serious questions going to the merits and a balance of hardships tipping d e c id e d ly in its favor." Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002). However, "`[a] suit for injunctive relief is moot when the offending conduct ceases and th e court finds that there is no reasonable expectation that it will resume.'" Kuklachev v.

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G e lfm a n , 629 F. Supp. 2d 236, 252 (E.D.N.Y. 2008) (quoting American Exp. Travel R e la te d Services Co., Inc. v. MasterCard Intern. Inc., 776 F. Supp. 787, 790 (S.D.N.Y. 1 9 9 1 )) . Silber makes two related claims of unlawful classification, both of which appear to a ris e out of the DOC's points-based system. He first alleges that upon arrival in DOC c u sto d y, he was wrongfully placed in close custody. This claim has been confirmed by D O C officials, whose affidavits explain that federal detainees were automatically a ss ig n e d enough points to qualify them for close custody status. Silber has subsequently a lle g e d that he was placed in close custody after serving time in disciplinary segregation, a n d that a state detainee in the same circumstances would have been released to general p o p u la tio n . The DOC's recent submissions indicate that under its new policy, Silber would not h a v e been placed in close custody on either occasion. As Robert Kupec's recent affidavit a tte sts , "federal pre-trial detainee status is no longer a factor" in custody classification d e ter m in a tio n s. Consequently, there is no ongoing due process issue for the Court to a d d re ss . Furthermore, given the DOC's representations to the Court, the Court has "no re a s o n a b le expectation" that the prior classification process will be reinstated. Id. The C o u rt should therefore find that Silber's due process claim is moot, and DENY his m o tio n s for preliminary injunctive relief.

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II.

Motion To Withdraw T h e motion to withdraw filed by Attorney Lipschutz of the Prisoners' Rights

O f f ic e is GRANTED. Silber's complaint seeks "injunctive relief against use of close c u sto d y for plaintiff" as well as compensatory and punitive damages. Because the g ro u n d s for injunctive relief ­ classification based upon federal detainee status ­ have n o w been remedied, there does not appear to be any valid basis for granting an injunction. Prisoners' Rights is not authorized to pursue claims for money damages, and thus may not p ro c e e d as counsel for the plaintiff. If Silber still believes that he requires the assistance of counsel, he may renew his m o tio n for appointment of counsel and set forth the reasons why such counsel should be a p p o in te d . III. D e fe n d a n t s' Request For Dismissal In their supplemental filing on November 3, 2009, the defendants state that in light o f the changed DOC policy "this matter" should "be dismissed because it is moot." (Doc. 3 0 at 1.) It is not clear from the word "matter" whether the defendants are referring solely to the issues raised in the motions for preliminary injunctive relief, or to the entire case. If the defendants are referring to anything beyond the prayers for injunctive relief, they a re not taking into account Silber's request for damages and his "dry cell" claim. Accordingly, to the extent that the defendants have submitted a motion to dismiss the e n tire case, the motion should be DENIED.

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C o n c lu s io n F o r the reasons set forth above, I recommend that Silber's motions for a p re lim in a ry injunction (Docs. 3 and 8) be DENIED. Plaintiff's counsel's motion to w ith d ra w (Doc. 28) is GRANTED. Finally, to the extent that the defendants have moved in Doc. 30 to have this case dismissed, the motion should be DENIED. D a te d at Burlington, in the District of Vermont, this 1 st day of December, 2009.

/s / John M. Conroy John M. Conroy U n ite d States Magistrate Judge A n y party may object to this Report and Recommendation within 14 days after service by f ilin g with the clerk of the court and serving on the magistrate judge and all parties, w r itte n objections which shall specifically identify the portions of the proposed findings, re c o m m e n d a tio n s or report to which objection is made and the basis for such objections. Failure to file objections within the specified time waives the right to appeal the District C o u rt's order. See Local Rules 72.1, 72.3, 73.1; 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 7 2 (b), 6(a) and 6(d).

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