ALLMAN v. COUGHLIN, 577 F. Supp. 1440 (S.D.N.Y. 01/10/1984)

[1] UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

[2] 82 Civ. 1149 (GLG)

[3] 577 F. Supp. 1440, 1984

[4] January 10, 1984

[5] CHARLES ALLMAN, et al., Plaintiffs,
v.
THOMAS A. COUGHLIN III, et al., Defendants and Third-Party Plaintiffs, v. ALFRED DELBELLO, et al., Third-Party Defendants

[6] New York Civil Liberties Union, New York, New York, By: Richard Emery, Esq., Jon Pines, Esq., for Plaintiffs. , Robert Abrams, Attorney General of the State of New York, New York, New York, By: Richard Howard, Esq., Tarquin Bromley, Esq., Ellen Weisburd, Esq., Assistant Attorneys General, for Defendants and Third-Party Plaintiffs. , Stephens & Buderwitz, White Plains, New York, By: Joseph M. Buderwitz, Esq., for Third-Party Defendants.

[7] Gerard L. Goettel, District Judge.

[8] The opinion of the court was delivered by: GOETTEL

[9] AMENDED MEMORANDUM DECISION *fn1"

[10] The claims of Fourth and Fourteenth Amendment violations, brought in this action pursuant to 42 U.S.C. §§ 1983 and 1985 (1976), arise out of events that occurred at the Westchester County Jail (the "Jail") on July 12 and 13, 1981 (the "relevant period"), when New York State's Correctional Emergency Response Team (the "CERT") regained control of the Jail following a three-day takeover by its inmates. The named plaintiffs, who were confined in the Jail during the events in question, now move pursuant to Fed. R. Civ. P. 23 for certification of the class of all male inmates incarcerated in the Jail during the relevant period. The defendants, who are state officials charged by the plaintiffs with responsibility for the deployment of the CERT, *fn2" not only oppose class certification but also make two cross-motions: one seeking dismissal of a number of the plaintiffs' claims pursuant to Fed. R. Civ. P. 12(b)(6), and the other requesting that the Court abstain from considering any of their claims on the ground that they should be heard in state, rather than federal, court. *fn3" For reasons discussed below, the Court grants the plaintiffs' motion for class certification and denies both of the defendants' cross-motions.

[11] I. Background

[12] The alleged facts upon which the plaintiffs' complaint is based can be summarized briefly. On Friday, July 10, 1981, an inmate disturbance at the Jail resulted in the evacuation of its correction officers. Shortly thereafter, negotiations began between inmates and Westchester County officials. By Sunday, July 12, the county officials, frustrated with the pace of the negotiations, requested defendant Thomas Coughlin, Commissioner of the New York State Department of Correctional Services, to send the CERT to the Jail to search and secure the facility.

[13] Before the CERT arrived, however, county and inmate negotiators were able to reach an agreement on how control of the facility could be returned to the county officials. Inmates were to return to their cells voluntarily, put all contraband in the corridors for confiscation by correction officers, and submit to reasonable procedures incident to a search for contraband. In return, the county officials promised, among other things, that inmates would not be subjected to physical reprisals during or after the retaking of the facility.

[14] Despite this agreement, the county officials apparently continued to feel a need for assistance and, therefore, asked that the CERT be deployed to resecure the Jail. The wisdom of that decision is challenged by the plaintiffs. They claim that, though the inmates offered little or no resistance to the CERT, its line officers systematically engaged in activities designed to injure the inmates physically and psychologically and to seize their property in a manner that virtually precluded its later return. More specifically, it has been alleged, and the plaintiffs have offered evidence to suggest, that at least some of the CERT line officers engaged in such activities as: (1) forcibly stripping inmates; (2) handcuffing their hands so tightly that circulation was cut off and excessive pain caused; (3) running the inmates barefooted over glass-strewn floors; (4) kicking, pushing, tripping, beating and spitting on inmates; (5) running some of them into stone walls; (6) forcing them to stand naked in the courtyard of the Jail for as long as five hours; (7) taunting and abusing them verbally while they stood naked and handcuffed in the courtyard; and (8) emptying the contents of their cells into large piles, which were later stuffed into garbage bags, so that particular items could not subsequently be identified as belonging to particular prisoners.

[15] II. Discussion

[16] These activities, claim the plaintiffs, constituted violations of their Fourth Amendment right to be spared unreasonable searches and seizures and their Fourteenth Amendment right not to be deprived of liberty or property without due process of law, as well as violations of 42 U.S.C. §§ 1983 and 1985. The plaintiffs further contend that because virtually all of the inmates were subjected to what is alleged to have been a systematic and indiscriminate violation of their rights, they should all be included in a class, with the named plaintiffs to serve as their class representatives. In addition, the plaintiffs ask the Court to divide the class members into two subclasses, one to include the sixty or so male inmates who were confined in that section of the Jail known as the Women's Annex and the other to include the approximately 200 male inmates who were confined in the main section of the Jail. *fn4" Both parties apparently agree that the two groups of inmates were treated sufficiently differently that, if the class is to be certified, the creation of two subclasses is merited.

[17] A. Certification of the Class

[18] Before the requested class can be certified, this Court must assure itself that the requirements of Rule 23(a) and (b) have been met. In the first place, a class action can be permitted:

[19]

only if (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.



[20] Fed. R. Civ. P. 23(a). In the second place, it is further required in a class action of the type requested here that:

[21]

the court find[] that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.



[22] Fed. R. Civ. P. 23(b)(3). The plaintiffs contend that all of these requirements are met in the instant case.

[23] The defendants respond, however, that several of the Rule 23 requirements are not satisfied. *fn5" The first one said to be lacking is the predominance of common issues of fact or law. With regard to the facts, the defendants contend that each inmate was treated individually and that any actions taken against him involved only him and the particular CERT officers who took those actions. With regard to the legal issues, the defendants claim that there is no evidence of a plan, pattern, or practice of constitutional violations by the defendants, but rather, at most, only evidence of a few isolated breakdowns in discipline and sporadic violations of inmates' rights, attributable solely to the few line officers who individually exceeded their authority.

[24] Contrary to the defendants' assertions, however, the Court finds that common issues of both fact and law do predominate. As to the facts, the CERT's actions occurred in a limited period of five or six hours. The plaintiffs' submissions quite clearly suggest the possibility of systematic and indiscriminate violations of the inmates' rights, as well as the possibility of a gross failure on the part of the defendants to properly select, train, and supervise the CERT line officers. The apparently unchallenged fact that the prisoners agreed to hand over the facility peacefully and in large part did so provides additional evidence that the CERT may not have been properly prepared to undertake the resecuring of a facility while meeting with minimal resistance. Undoubtedly then, the predominant issues of fact will be whether the selection, training, and supervision were adequate and whether there was, in fact, a "system" to the abuses that have been alleged, even though there will obviously be some issues of fact pertaining only to individuals and to individual incidents. *fn6" The fact that the plaintiffs seek damages that are to be divided equally among all class members supports their claim that it is the systematic and indiscriminate nature of the violations that they ultimately seek to prove, not the particular details of each incident.

[25] Similarly, the issue of law which predominates here is one that is common to all of the inmates, namely: did whatever failures in selection, training, and supervision that may have occurred constitute, in and of themselves, violations of the inmates' constitutional rights because those failures led directly to the injuries and deprivations that are alleged? Clearly this is the critical and primary question that the plaintiffs seek to have this Court answer, and it is one that is common to each inmate present during the relevant period.

[26] The second prerequisite that the defendants find lacking is an absence of other litigation arising out of the events in question. Although several separate, federal actions arising from the events in question have already been commenced in this Court, the focus of the defendants' concerns appears to be approximately 100 notices of intention to file state claims, which notices were filed more than a year ago in New York's Court of Claims. The defendants' concern, however, is simply not merited. As the plaintiffs have pointed out, by filing such notices of intention, pursuant to sections nine and ten of New York's Court of Claims Act, *fn7" the inmates have not commenced state actions, see, e.g., Jackson v. State, 85 A.D.2d 818, 818-19, 445 N.Y.S.2d 620, 621 (1981) (court ruled that where only a notice of intention had been filed, no action had been instituted), appeal denied, 56 N.Y.2d 568, 435 N.E.2d 402, 450 N.Y.S.2d 185 (1982), but rather preserved their right to do so by effectively extending the limitations period within which they must bring suit. In fact, it appears that only one of these 100 inmates has actually commenced an action. If anything is demonstrated by this almost total lack of resort to the state courts, it is that these mostly indigent inmates appear to be relying primarily, if not solely, on this Court to provide them with whatever judicial remedies they are entitled to.

[27] Furthermore, steps can be taken by this Court to ensure that the dictates of Rule 23 are complied with and that any potential for parallel or conflicting litigation is reduced to an absolute minimum. The class can be restricted to those inmates who indicate that they are not maintaining and will not maintain separate federal or state actions based upon the events that form the basis of this class action. Those who have already instituted such actions can be presumptively excluded from the class unless and until they inform the Court that they wish to be included and simultaneously take steps to withdraw their separate actions. Also, any notice to the inmates can emphasize that any inmate who believes he has suffered extraordinary loss or injury may choose to sue individually (or continue his existing litigation) in order to seek damages that he would be precluded from recovering if he participated in this action. This special notice, at least to some extent, should serve to cull from the potential class members those individuals who were involved in incidents so unique that they raise highly individualized issues of law or fact.

[28] We conclude, therefore, that the defendants' second objection to certification of the class is simply not persuasive. The present paucity of parallel litigation (involving, as it does, less than five percent of the total potential class), the relatively low probability that additional, separate actions will be commenced in the future, and the availability of the safeguards just described, convince the Court that maintenance of this class action should expedite, not complicate or delay, resolution of the claims that have arisen from the events that transpired on July 12 and 13, 1983.

[29] The third and final prerequisite that the defendants believe to be lacking here is the appropriateness of the federal forum, though they have raised this problem as much in their cross-motion for abstention as in their opposition to class certification. Regardless of its setting, their argument that this Court should abstain from exercising its jurisdiction over this matter and defer to state proceedings is simply without merit. As was just noted, of the hundreds of potential state claims that might have been filed only one actually has been. Moreover, the claims in this action are for violations of federal constitutional and statutory rights, not state laws or regulations. *fn8" Finally and most importantly, as the plaintiffs have pointed out in some detail, this case does not present any of what the Supreme Court, in Colorado River Water Conservation District v. United States, 424 U.S. 800, 814-18, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976), has held to be legitimate grounds for a federal district court's abstention from the exercise of its jurisdiction. *fn9" Given, therefore, that "abstention from the exercise of federal jurisdiction is the exception, not the rule," id. at 813, we are left with no choice but to exercise that jurisdiction which all parties concede is vested in this Court.

[30] In summary, the Court concludes that none of the defendants' reasons for opposing certification of the class is persuasive. Although perhaps a somewhat unusual case, this is certainly one in which great judicial economy will be achieved by the creation of a class and the division of that class into two subclasses.

[31] Accordingly, the Court certifies the class of all male inmates who were incarcerated at the Westchester County Jail on July 12 and 13, 1981. Any inmate who has already filed a separate action, or who subsequently files such an action, shall be excluded from the class unless he indicates a desire to join the class both by filing a written notice with the Court no later than September 13, 1983, and by simultaneously commencing the withdrawal of his separately filed action. All other inmates shall automatically be included in the class unless they notify the Court by September 13, 1983, that they wish to be excluded.