Johnson v. N.Y. State Dep't of Corr.

• Decision Date: 19 May 2020
• Docket Number: Case No. 18-cv-6568-CCR
• Parties: MELVIN JOHNSON, JAMAL SCOTT, and ARMANDO TORRES, individually and on behalf of all similarly situated individuals, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, GOVERNOR ANDREW CUOMO, in his official capacity, ACTING COMISSIONER ANTHONY ANNUCCI, in his official capacity, and THE STATE OF NEW YORK, Defendants.
• Court: U.S. District Court — Western District of New York

MELVIN JOHNSON, JAMAL SCOTT, and ARMANDO TORRES,individually and on behalf of all similarly situated individuals, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION,GOVERNOR ANDREW CUOMO, in his official capacity, ACTING COMISSIONER ANTHONY ANNUCCI,in his official capacity, and THE STATE OF NEW YORK, Defendants.

Case No. 18-cv-6568-CCR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

May 19, 2020

OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL

(Doc. 21)

Plaintiffs Melvin Johnson, Jamal Scott, and Armando Torres (the "Named Plaintiffs") bring this putative class action suit against the New York State Department of Corrections and Community Supervision ("DOCCS"), the Governor of New York, the Acting Commissioner of DOCCS, and the State of New York (together, "Defendants") on behalf of themselves and other inmates with disabilities in DOCCS custody who are housed in Regional Medical Units ("RMUs").

The Named Plaintiffs allege that inmates housed in RMUs are deprived of the right to participate equally in prison programs, services, and activities because of their disabilities. They further allege that Defendants refuse to make "reasonable modifications, or even conduct individualized assessments" in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 ("§ 504"), 29 U.S.C. § 794. (Doc. 21-1 at 5.) In their Complaint, the Named Plaintiffs seek a declaratory judgment, an injunction ordering DOCCS to provide "equal access or equivalent services for RMU inmates[,]" (Doc. 1. at 24), and an award of attorneys' fees and costs.

Before the court is the Named Plaintiffs' June 28, 2019 motion for class certification pursuant Federal Rules of Civil Procedure 23(a) and 23(b)(2) and appointment of class counsel under Rule 23(g). (Doc. 21). DOCCS opposed the motion on August 28, 2019. By agreement of the parties, the case was stayed from September 6, 2019 to November 1, 2019. On November 1, 2019, Plaintiffs replied in support of their motion. The court heard oral argument on March 5, 2020, at which time it took the motion under advisement.

The Named Plaintiffs are represented by Simeon L. Goldman, Esq. and Jessica Louise Barlow, Esq. Defendants are represented by Assistant Attorney General Gary M. Levine and Assistant Attorney General Matthew D. Brown.

I. Factual Background.

"[I]t is proper for a district court to accept the complaint allegations as true in a class certification motion[,]" Waggoner v. Barclays PLC, 875 F.3d 79, 85 n.5 (2d Cir. 2017), and it may also "consider material outside the pleadings in determining whether to certify the proposed class, including affidavits." Cortigiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, 203 (E.D.N.Y. 2005) (footnote omitted).

DOCCS operates five RMUs located at Wende Correctional Facility ("Wende"), Fishkill Correctional Facility, Bedford Hills Correctional Facility, Coxsackie Correctional Facility, and Mohawk Correctional Facility (collectively, the "Facilities"). RMUs are housing units that provide twenty-four-hour medical care for inmates who do not require hospitalization, but need "more complex and specialized care than can be provided" in general population housing. (Doc. 21-1 at 5.) The Named Plaintiffs allege that inmates are housed in RMUs when, "because of their medical condition(s), [they] require assistance with activities of daily living and skilled nursing and medical intervention on a regular basis." Id. at 11 n.1. Based on this criterion, the Named Plaintiffs contend that all RMU inmates qualify as disabled under the ADA, whichdefines "disability" as "a physical or mental impairment that substantially limits one or more major life activities of [an] individual[.]" 42 U.S.C. § 12102(1)(A). Each Named Plaintiff uses a wheelchair due to his respective disabilities, and each alleges that he would use and has sought access to programming outside the RMU but those requests have been denied. As of April 2019, the number of inmates housed in RMUs at the Facilities totaled 330, with a potential maximum of 382 inmates if all RMUs were filled to capacity. (See Doc. 21-2 at 46.)

DOCCS offers programming and services to inmates "including educational and vocational training, substance abuse treatment, parenting skills, anger management, domestic violence counseling, health education, religious services, and others." (Doc. 21-1 at 6.) The Named Plaintiffs allege that these programs and services are not equally available to inmates in the RMU, and that "access is often vastly inferior to that enjoyed by general population inmates." Id. at 12. For example, at the Facilities, DOCCS offers thirty-three programs to general population inmates, but only fourteen of those programs are open to RMU inmates. Among the programs and services to which RMU inmates have limited access are the law library, special events, participation on the inmate liaison committee, and religious services. While RMU inmates are nominally permitted to apply to attend general population programming, such requests are allegedly only granted in exceptionally rare circumstances. In addition, DOCCS allegedly fails to evaluate RMU inmates who request access to general population services on an individualized basis to determine whether their safe participation in proposed activities is feasible.

Plaintiff Johnson has been in DOCCS custody since 1995, serving a sentence of twenty-five years to life. He suffers from colon cancer and degenerative disc disease. Because of his disabling conditions, Plaintiff Johnson has been housed in the Wende RMU since 2015.

Plaintiff Scott has been in DOCCS custody since 1997, serving a sentence of twenty to forty years. Because he has paraplegia, Plaintiff Scott has been housed in an RMU since 2010.

Plaintiff Torres has been in DOCCS custody since 1994, serving a sentence of twenty-six years to life. Plaintiff Torres has end-stage renal disease. Although the Complaint does not allege that Plaintiff Torres is a current or former RMU resident, Defendants concede that Plaintiff Torres filed two grievances concerning access to programs and services for inmates in the RMU. (See Doc. 28-1 at 1) ("Armando Torres filed two grievances relating to the lawsuit before the [c]ourt: 'No Jewish [s]ervices in RMU' and 'RMU to [l]aw [l]ibrary.'").

DOCCS notes that only Plaintiff Scott currently resides in the Wende RMU. In contrast, Plaintiffs Johnson and Torres previously resided in the Wende RMU, but were both housed at Five Points Correctional Facility as of August 28, 2019. Although DOCCS additionally asserts that only Plaintiff Torres pursued administrative relief by filing a grievance after being denied access to services because of his RMU-resident status while at Wende, the Named Plaintiffs have submitted the grievances filed by Plaintiffs Johnson and Scott. (See Doc. 32-1 at 3-8) (documenting grievance by Plaintiff Johnson regarding physical access to the law library at Wende); id. at 10-14 (reflecting Plaintiff Scott's grievances regarding access to honor block, exercise equipment, physical access to the law library, and restroom facilities).

In support of its opposition to class certification, DOCCS cites "Facility Operation Manuals" (the "Policies") that instruct Facility personnel regarding procedures governing medical provider assessments of inmates who seek to participate in programs or services outside of the RMUs, including Policies for all five Facilities dated June 2019, as well as earlier versions of the Policies for Wende dated August 2015 and June 2017. (See Doc. 28 at 12, 20, 28, 36, 45, 52, 59).

In their Complaint, the Named Plaintiffs describe the proposed class as "all individuals who are housed in an RMU who seek access to programs and services available to individuals housed in general population." (Doc. 1 at 6.) However, in their motion for class certification, the Named Plaintiffs suggest an expanded class definition that would also include inmates "who have disabilities that place them at risk of entering or returning to [RMUs] during their incarceration." (Doc. 21-1 at 5.) At the court's classcertification hearing, the Named Plaintiffs agreed that the proposed class may be further modified as follows: "all individuals housed in an RMU from six months prior to the filing of the Complaint through the date the Complaint was filed."

Plaintiffs are represented by Disability Rights New York ("DRNY"), "the federally authorized Protection and Advocacy System for people with disabilities in New York[.]" (Doc. 21-1 at 17.) Although Plaintiffs' counsel, Jessica L. Barlow, Esq., has not previously served as lead counsel in a class action lawsuit, she will be assisted by counsel who have done so. Both Attorney Barlow and her co-counsel are experienced in disability litigation and have independent knowledge and special expertise which render them amply able to provide adequate representation to the putative class.

II. Conclusions of Law and Analysis.

A. Standard of Review.

Federal Rule of Civil Procedure 23(a) requires that a plaintiff seeking to bring suit on behalf of a class demonstrate that the following requirements are satisfied:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). These prerequisites are referred to as the requirements of "numerosity, commonality, typicality, and adequacy." Davis v. City of New York, 296 F.R.D. 158, 163 (S.D.N.Y. 2013). Where the conditions set forth in Rule 23(a) are satisfied, "[a] class action may be maintained" if one of the three circumstances...