Powell v. Ward

• Decision Date: 27 February 1980
• Docket Number: No. 74 Civ. 4628 (CES).,74 Civ. 4628 (CES).
• Citation: 487 F. Supp. 917
• Parties: Elizabeth POWELL et al., Plaintiffs, v. Benjamin WARD et al., Defendants.
• Court: U.S. District Court — Southern District of New York

487 F. Supp. 917

Elizabeth POWELL et al., Plaintiffs, v. Benjamin WARD et al., Defendants.

No. 74 Civ. 4628 (CES).

United States District Court, S. D. New York.

February 27, 1980.

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Elizabeth L. Koob, Bronx Legal Services, New York City, for plaintiffs.

Robert Abrams, Atty. Gen. of the State of New York, New York City, for defendant Phyllis Curry; Judith A. Gordon, New York City, of counsel.

MEMORANDUM DECISION

STEWART, District Judge:

Plaintiffs, inmates at the Bedford Hills Correctional Facility ("Bedford Hills") have moved for an order holding defendant Phyllis Curry, superintendent of Bedford Hills, in contempt for failing to comply with our Order issued on June 23, 1975.

Plaintiffs brought this action to enjoin the officials at Bedford Hills from enforcing prison disciplinary procedures unless and until they comply with the guidelines set forth by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).¹ We granted class certification on March 27, 1975, defining the class to include "all persons who are now and who may be incarcerated in Bedford Hills Correctional Facility" and "who are or may be subject to Adjustment Committee Proceedings or Superintendent's Proceedings at the institution."

Hearings were conducted, and we held that "any disciplinary proceedings which may result in placement in solitary confinement", which included Adjustment Committee Proceedings and Superintendent's Proceedings, must conform to the procedural requirements established by the Supreme Court in Wolff v. McDonnell, supra. We then found that defendants failed to provide inmates facing Adjustment Committee Proceedings with adequate notice, opportunity to call witnesses, explanation of the disposition, and statement of the evidence relied upon in reaching the disposition. There was also evidence showing that inmates were placed in segregation for as long as four weeks pending investigation of charges against them and that the official involved in an incident leading to a disciplinary proceeding or a subsequent investigation of that incident presided in some instances over the disciplinary proceedings.

Although some of the safeguards set forth in Wolff v. McDonnell, supra, were generally followed in the Superintendent's Proceedings, some of the procedures were never followed, such as providing inmates with the right to call witnesses, and others were provided sporadically. See Powell v. Ward, 392 F.Supp. 628 (S.D.N.Y.1975). We concluded that injunctive relief was warranted, and entered a preliminary injunction on June 23, 1975, which was modified on appeal. Powell v. Ward, 542 F.2d 101 (2d Cir. 1976).²

In December of 1976 three members of the plaintiff class moved to hold the superintendent of Bedford Hills in contempt for failing to comply with the Court's Order. We ordered that the correctional and parole files of the three inmates be expunged of all reference to the incident giving rise to the contempt motion, awarded plaintiffs attorneys' fees, and noted that "this Court is concerned by indications that our prior order has not been fully complied with and we will consider future violations of the order as matters of utmost seriousness." Powell v. Ward, 74 Civ. 4628, June 24, 1977 (order).

In March of 1979 Carol Crooks, a member of the plaintiff class brought this motion to hold defendant Phyllis Curry in contempt and for other related relief. After a one day hearing, Crooks adjourned her motion and a contempt motion on behalf of the class was filed. Hearings were held in June of 1979, and the parties subsequently submitted proposed findings of fact and conclusions of law.

Class Certification

Before determining whether the defendant has failed to comply with our order and if so whether her non-compliance constitutes contempt, we must address defendant's contention that the class action order is jurisdictionally defective insofar as it includes future inmates and future Adjustment Committee and/or Superintendent's Proceedings. Defendant's failure to challenge class certification in a timely manner constitutes sufficient grounds for rejecting defendants' claim, especially in light of the unfairness to the class which would result from decertifying the class at this time. We originally granted class certification on March 27, 1975. Defendants did not oppose certification at that time or during the trial and did not raise any such objection on appeal. Nor did defendants challenge the validity of the class at the first contempt hearing in 1977. We are reluctant to consider at this late date the threshold question of the validity of the class.

However, in light of the importance of the Article III requirements of existence of case or controversy, we have considered defendants' claim and find it to be without merit. Courts have approved certification of classes which include future members, Robertson v. National Basketball Association, 389 F.Supp. 867, 897 (S.D.N.Y.1975), especially in civil rights cases, where the members of the class are usually "incapable of specific enumeration." Advisory Note to Rule 23. See, e. g., Marcera v. Chinlund, 595 F.2d 1231, 1940 (2d Cir. 1977); Forts v. Malcolm, 426 F.Supp. 464, 465 (S.D.N.Y. 1977); Baird v. Lynch, 390 F.Supp. 740 (W.D.Wis.1974); Wallace v. McDonald, 369 F.Supp. 180, 188 (S.D.N.Y.1973); Inmates of Lycoming County Parish v. Strode, 79 F.R.D. 228 (M.D.Pa.1978); Tunin v. Ward, 78 F.R.D. 59 (S.D.N.Y.1978). Any class consisting of the inmates confined at an institution is likely to include individuals who were not identifiable at the time the class was certified. In the prison context, where any action taken will affect future inmates and "the constant existence of a class of persons suffering the deprivation is certain", class certification including future members is appropriate. Gerstein v. Pugh, 420 U.S. 103, 110-11, n.11, 95 S.Ct. 854, 861 n.11, 43 L.Ed.2d 54 (1974); Inmates of Lycoming County Prison v. Strode, 79 F.R.D. at 231.³

Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), the case upon which the defendants base their argument, is not inconsistent with our decision upholding class certification. There, the Court was concerned with the appropriateness of class certification in a case brought under the Social Security Act, which requires final agency action by the Secretary of HEW denying enrollment in a particular Medicare program before a federal court can exercise jurisdiction. See 42 U.S.C. § 405(g). The Supreme Court relied on the absence of such final agency action as a basis for holding that a class defined to include those who "will be denied enrollment" was too broad. 426 U.S. at 71, n.3, 96 S.Ct. at 1887, n.3. Those concerns are inapposite in the instant case, which is brought under 42 U.S.C. § 1983. Therefore, we decline to modify or vacate our class certification order.

Res Judicata as to Inmates Santana and Harris

Defendants argue that inmates Santana and Harris may not be heard on this motion because their "claims" were previously litigated in Article 78 proceedings. Prior to the institution of this contempt motion by the class, Janie Harris brought an Article 78 proceeding under N.Y.C.P.L.R. § 7801 challenging the validity of the determination of a Superintendent's Proceeding dated June 15, 1979 based on defendants' failure to permit her to call witnesses, to inform petitioner of the factual circumstances supporting the charge, to accurately inform her of the testimony of inmate witnesses, and to provide her with an impartial hearing officer, in violation of our order in Powell v. Ward. Her petition was denied. Inmate Luz Santana filed an Article 78 petition for relief from an adverse determination of a Superintendent's Proceeding entered March 13, 1978. Her petition was granted based, inter alia, on defendants' failure to interview an employee and to inform the inmate of the factual circumstances supporting the charge, and the absence in the record of anything relating to the incident which allegedly occurred.

The precise nature of defendants' res judicata defense is not clear. Neither Harris nor Santana have filed individual claims in the instant case, and both are proceeding as members of the class. The class was not a party to the prior litigation, and it is well established that an adverse judgment cannot be asserted against a party unless there has been reasonable notice of the claim against him and an opportunity to be heard in opposition to that claim, as required by the due process clauses of the Constitution. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d Cir. 1972). Therefore, the class is not precluded from relitigating the issue of the adequacy of the procedural safeguards provided in Harris' Superintendent's Proceeding for purposes of determining whether defendants are in contempt of our order.

We are particularly puzzled by the assertion of Santana's prior litigation as a defense to the instant motion, in light of the determination in the Article 78 proceeding that defendants failed to provide necessary procedural safeguards and Santana was therefore entitled to relief. If this judgment is to have any binding effect on the determination of defendant's compliance with our order, it would be to estop the defendant from challenging the findings of the prior proceeding that defendants failed to notify Santana of the specific charges against her, to interview employees, to inform her of the factual circumstances supporting the charge or to give her a written disposition stating the basis for the decision. Santana v. Superintendent, Bedford Hills Correctional Facility, January 27, 1978 (Article 78 proceeding).⁴ However, in the absence of any pleadings or motions by plaintiff invoking collateral estoppel as to Santana's proceedings, it is unnecessary to...