UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
WILLIAM G., AND WALTER W., et aI.,
Plaintiffs,
v.
GEORGE PATAK!, in his official capacity as Governor ofthe State of New York; SHARON CARPINELLO, in her official capacity as Acting Commissioner of the New York State Office ofMental Health; WILLIAM GORMAN, in his official capacity as Commissioner of the New York State Office of Alcohol and Substance Abuse Services; and BRION TRAVIS, in his official capacity as Chainnan and Chief Executive Officer, New York State Division of Parole,

COMPLAINT

INTRODUCTION Plaintiffs, by their attorneys, as and for their complaint, allege on knowledge as to their own acts, and on infonnation and belief as to all other matters, as follows: 1. Plaintiffs and the class they seek to represent (collectively, "Plaintiffs") are needlessly incarcerated in New York City's jails, awaiting an opening in a treatment program for their serious and persistent mental illness and chemical addiction. Their incarceration is harmful, costly, and discriminates against Plaintiffs by virtue of their disabilities, or the severity of their disabilities, in violation of both Title II of the Americans with Disabilities Act ("ADA"), 42 u.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 u.S.C. § 794. 2. Plaintiffs have been charged with violating conditions of their parole or postrelease supervision, for which they are confined by the State of New York in a New York City

(
jail, usually on Rikers Island, pending dispositionoftheir parole violation charges. (Such individuals are sometimes referred to as "parole detainees"). Typically, they have been charged with technical or minor violations. Parole hearing officers appointed by defendant Brion Travis pursuant to NY Executive Law §259-d (McKinney 200 I), with the agreement of parole specialists (who represent the Division of Parole in parole proceedings) and other professionals, have concluded that Plaintiffs should be placed in a residential treatment program rather than imprisoned for their violations. However, because of Defendants' failure to provide an adequate number oftreatment programs, the programs that do exist have virtually no openings. As a result, Plaintiffs have spent many months-sometimes longer-needlessly languishing in jail awaiting a community placement. When programs are unavailable to Plaintiffs for extended periods, Plaintiffs are transferred to State-run facilities to serve additional prison time, or they are released without getting the treatment that State officials have determined is appropriate. Without treatment, Plaintiffs are at greater risk ofre-incarceration.
3. The lengthy waits experienced by Plaintiffs are in sharp contrast to similarly situated parole detainees with histories of alcohol or substance abuse (hereinafter "substance abuse" or "chemical addiction") but no, or minor, mental illnesses, who are offered a treatment disposition in lieu of incarceration. Such individuals remain in jail for only days, or at most weeks, after parole hearing officers conclude that they should be released to treatment programs for their substance abuse. This is because State officials have ensured a sufficient supply of treatment programs for parole detainees who need substance abuse treatment but who have less severe or no mental illnesses.
BACKGROUND
4. Plaintiffs have serious mental illnesses, such as schizophrenia, bi-polar disorder or major depression. They also have a history of substance abuse. New York has a network of
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treatment programs for individuals with mental illness and histories of substance abuse, often referred to as MICA programs, i.e., programs that serve and treat individuals suffering from mental illness and chemical addiction and offer supervised housing programs. Such programs are supervised and funded by the New York State Office of Mental Health, Office of Alcohol and Substance Abuse Services, and Division of Parole. These agencies also supervise and fund similar programs for individuals with a history of substance abuse but who have not been diagnosed with a serious mental illness.
5. In many cases, the conduct which leads to charges of a parole violation is a direct result of an individual's substance abuse history or mental illness. In certain instances, State officials will determine that a parole violator should be placed in treatment in lieu of serving a jail sentence, and there are systems in place for making such treatment dispositions.
6. Although State officials have determined that participation in a treatment program is preferable to ajail sentence, Plaintiffs must often remain injail indefinitely awaiting an opening, because too few programs exist to meet their needs. Moreover, many ofthe programs that the State has created or funded umeasonably refuse to serve or accommodate individuals whose mental illness, like Plaintiffs, is severe and persistent.
7. Instead of funding the community placements that Plaintiffs need, and that the parole hearing officers have found appropriate, New York uses its funds to "lease" beds for Plaintiffs at New York City jails. The State pays the City $34 per day for each parole detainee housed in a City jail, including Plaintiffs, and incurs significant other costs in connection with the incarceration of Plaintiffs. These funds, combined with other cost savings, could be used to fund adequately the community placements that Plaintiffs need.
8. Plaintiffs' experiences are symptomatic ofa larger problem. In the last few decades, the criminal justice system in New York City has been flooded with individuals with
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mental illness. More than 15,000 ofthe 110,000 inmates admitted annually to New York City jails have serious mental illness, which often co-exists with a history of substance abuse. Most have committed minor offenses. Few have received adequate services while in the community. Even when released after receiving treatment in jail, inmates find it difficult to secure appropriate community treatment. As a result, upon release, their psychiatric conditions deteriorate, and they are at great risk for ending up in emergency rooms or psychiatric hospitals, and/or being re-arrested and re-incarcerated. Many are forced into a "revolving door" ofjailor hospitalization, release without adequate services, relapse for want of services, another imprisonment or hospitalization, release without needed services, relapse, and re-confinement. This cycle, which has gone on for decades for some class members, has tragic consequences for people with serious mental illness and their families, harms the entire community and imposes needless expense on the taxpayers of the State of New York.
9. To end the inappropriate institutionalization of Plaintiffs, this suit seeks declaratory and injunctive relief under Title II of the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs ask this Court to direct Defendants to cease their unlawful and discriminatory practices, which result in Plaint~ffs' incarceration in lieu of the treatment that State officials have determined is appropriate. Plaintiffs desperately seek, and would greatly benefit from, meaningful access to community treatment.
JURISDICTION AND VENUE 10. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. 11. Plaintiffs seek declaratory and injunctive relief under 28 U.S.c. § 2201 et seq. 12. Venue in the Southern District of New York is proper under 28 U.S.C. §1391.
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PARTIES PLAINTIFF WILLIAM G. t 13. Plaintiff William G., aged 47, has schizophrenia, a serious and persistent mental illness. Mr. G has experienced serious psychiatric illness for at least 39 years. He also has a history of substance abuse. 14. Following a term ofimprisonment, Mr. G. was paroled in October 2001. In January 2003, he was arrested and held on an alleged parole violation. 15. In or around June 2003, the hearing officer and parole specialist involved in Mr. G.'s case agreed that release to a MICA program is the appropriate disposition for Mr. G. Since that time, Mr. G. has been incarcerated at Rikers under the authority of the State, awaiting an opening in a MICA program. He is housed on a Mental Observation Unit ("MOU") at Rikers, where he is taking psychiatric medication and is segregated from the general population. Parole revocation proceedings have been convened and adjourned each month pending the identification of a suitable MICA program with an opening for Mr. G. 16. Mr. G. does not want to be released to the streets without intensive treatment. He believes he can be successful in the community with the structure and support of a residential program. 17. Mr. G. has had to wait months for an opening in a MICA program because he has a serious mental illness. If Mr. G. had a less severe mental illness, or had no mental illness, a community treatment program would have been available to him long ago. 18. Mr. G. continues to be incarcerated needlessly at Rikers, awaiting an opening in a MICA program.
This complaint is being filed with the last names of the named plaintiffs concealed from the public, inter alia, because of the sensitive and highly personal nature of the matters involved. Plaintiffs will disclose to and the Court their full identities, as soon as such disclosure is practicable.
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PLAINTIFF WALTER W. 19. Plaintiff Walter W., aged 44, has major depression, a serious and persistent mental illness. Mr. W. has experienced psychiatric illness for much of his adult life. He also has a history of substance abuse. 20. Mr. W. was paroled from a term of imprisonment in October 1997. His parole was revoked, and subsequently restored in June 2002. His parole was revoked again in March 2003, after he was arrested on a parole violation warrant for attempted possession of a controlled substance. Mr. W. is incarcerated at Rikers under the authority of the State and is housed in the MOD, where he takes psychiatric medications and is segregated from the general population. 21. In May 2003, the hearing officer and parole specialist involved in Mr. W.'s case agreed that release to a MICA program is the appropriate disposition for Mr. W. Parole revocation proceedings have been convened and adjourned each month pending the identification of a suitable MICA program with an opening for Mr. W. The hearing officer has said that ifno MICA program is available to Mr. W., he will be sentenced to a term of imprisonment in a State prison. 22. Mr. W. does not want to be released to the streets without intensive mental health and substance abuse treatment. He believes he can be successful in the community with the structure and support of a residential program. 23. Mr. W. has had to wait months for an opening in a MICA program because he has a serious mental illness. If Mr. W. had a less severe mental illness, or no mental illness, a community treatment program would have been available to him long ago. 24. Mr. W. continues to be needlessly incarcerated at Rikers, awaiting an opening in a MICA program.
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25. Defendant George Pataki is the Governor of the State of New York, a public entity covered by Title II of the ADA, 42 U.S.C. § 12131(1). He is responsible for ensuring that New York operates its services, programs and activities in conformity with the ADA and the Rehabilitation Act. He is sued in his official capacity.
26. Defendant Sharon Carpinello is the Acting Commissioner of The New York State Office of Mental Health ("OMH"). OMH provides services and supports to individuals with mental illness, including those with histories of substance abuse. Along with other state agencies, OMH supervises and funds programs for individuals with mental illness who have histories of substance abuse. It is a public entity covered by Title II ofthe ADA and receives federal funds, making it subject to Section 504 of the Rehabilitation Act.
27. Defendant Carpinello is responsible for the operation and administration of OMH activities, and she is sued in her official capacity.
28. Defendant William Gorman is the Commissioner of The New York State Office of Alcohol and Substance Abuse Services ("OASAS"). OASAS provides services and supports to individuals with histories of substance abuse. Along with other state agencies, OASAS supervises and funds programs for individuals with mental illness who have histories of substance abuse. It is a public entity covered by Title II of the ADA and receives federal funds, making it subject to Section 504 of the Rehabilitation Act.
29. Defendant Gorman is responsible for the operation and administration ofOASAS activities, and he is sued in his official capacity.
30. Brion Travis is the Chairman and Chief Executive Officer of the New York State Division of Parole (the "Division of Parole"). The Division of Parole supervises, and develops treatment plans for, parolees in the community. It pays New York City $34 per day, and incurs significant other expenses, for each parolee who is incarcerated in New York City jails, including
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those at Rikers Island, for allegedly violating the conditions of parole. It is a public entity covered by Title II of the ADA, and receives federal funds, making it subject to Section 504 of the Rehabilitation Act.
31. Defendant Travis is responsible for the operation and administration of the activities of the Division of Parole, and he is sued in his official capacity.
32. At all relevant times, Defendants were state actors and acted under color of state law.
CLASS ACTION ALLEGATIONS 33. The named plaintiffs bring this action on their own behalf and on behalf of all other similarly situated persons pursuant to Fed.R.Civ.P.23(a) and (b)(2). 34. The plaintiff class consists of individuals with a serious and persistent mental illness and a history of substance abuse (including alcohol abuse) who are (a) incarcerated at State expense in New York City jails as parole detainees and (b) awaiting an opening in a MICA program. 35. The class satisfies the requirements ofFed.R.Civ.P. 23(a) and (b)(2). a. Numerosity. The class, which consists of hundreds of individuals per year, is so numerous that joinder of all members is impracticable. b. Commonality. There are questions oflaw or fact common to all named plaintiffs as well as to all members of the class. The questions include, inter alia:
(1) Whether Defendants violate Title II of the ADA and Section 504 of the Rehabilitation Act by excluding plaintiffs and class members from, and denying them the benefits of, community treatment alternatives to incarceration on the basis of their disabilities, or the severity of their disabilities?
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(2) Whether Defendants violate Title II of the ADA and Section 504 of the Rehabilitation Act by failing to reasonably accommodate plaintiffs and class members in MICA programs?
(3) Whether Defendants violate Title II of the ADA and Section 504 of the Rehabilitation Act by failing to provide services to plaintiffs and class members in the most integrated setting appropriate to their needs?
(4) Whether Defendants violate Title II ofthe ADA and Section 504 ofthe Rehabilitation Act by utilizing methods of administration that exclude plaintiffs and class members from, or deny them the benefits of, community treatment alternatives to incarceration?
(5) Whether Defendants violate Title II by otherwise discriminating against plaintiffs and class members, by reason of their disabilities, or the severity of their disabilities?
c. Typicality. The claims of the named plaintiffs are typical of the claims of the class as a whole.
d. Adequate Representation. The named plaintiffs will adequately represent the interests of the class. The named plaintiffs have no interests adverse or in conflict with class members. Their counsel have extensive experience in class action litigation as well as litigation concerning the rights of people with mental disabilities.
e. Generally Applicable Grounds. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate declaratory and injunctive relief with respect to the class as a whole.
MICA PROGRAMS 36. MICA programs, which are supervised and funded by Defendants, provide intensive services, including intensive professional supervision and support.
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37. In general, New York offers two types of MICA programs: "MICA Community Residences" and "Supported Housing." Both are far more effective than the treatment available in New York City's jails or New York State's prisons.
38. MICA Community Residences typically house 10-24 residents, each with a mental illness and a history of substance abuse. They are generally staffed 24 hours a day, seven days a week. Residents participate in day treatment, community meetings and other therapeutic activities.
39. Supported Housing programs place individuals into single or shared apartments located in buildings that also house people without mental disabilities, fostering community integration. Residents are provided individualized treatment services through interdisciplinary teams and are connected with other appropriate services such as MICA day treatment, group counseling, 12 step meetings, vocational rehabilitation, etc. Residents have access to one or more team members 24 hours a day, seven days a week. Highly trained case managers monitor residents' condition and progress.
40. Residents in MICA programs have opportunities to enjoy and participate in religious, cultural, commercial, and social activities in the community. Such opportunities greatly aid residents' rehabilitation. MICA programs encourage and facilitate residents' participation in these activities; residents are often unable to independently engage in such pursuits.
41. By contrast, institutionalization, in jailor a hospital, dramatically limits participation in community life. While incarcerated, Plaintiffs have extremely limited opportunities to develop social bonds, and to work, learn, and recreate.
42. MICA programs have high rates of success with individuals like Plaintiffs. By contrast, being institutionalized and shut off from normal activities of daily living, and denied
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rehabilitative services has a serious negative impact on the condition of persons with mental illness, worsening their prognosis, reducing their level of functioning, and making it more challenging for them to benefit from treatment and rehabilitative services in the future.
SYSTEMIC DEFICIENCIES 43. Plaintiffs have serious mental illnesses, such as schizophrenia, major depression or bipolar disorder. Due to mental illness, Plaintiffs are substantially limited in one or more major life activities. Plaintiffs also have histories of substance abuse. For many, their substance abuse is a direct consequence of inadequately treated mental illness. 44. Plaintiffs are confined in New York City jails, most at Rikers Island, for allegedly having violated conditions of parole. Many have been confined for minor or technical parole violations, such as failing to report to a parole officer. Frequently, their parole officers initiate their arrest and their incarceration in an effort to help; the parole officers believe that, if Plaintiffs are arrested, this will facilitate their admission to a MICA program. 45. Plaintiffs are confined at the behest of the State of New York, pending a detennination by hearing officers as to whether the parole violation allegations are founded and, if so, whether parole should be revoked or the conditions of parole changed. The hearing officers may change the conditions of parole by directing that the parolees enter a MICA program. 46. While in jail pending the outcome of parole proceedings, Plaintiffs receive treatment for their mental illness, and they sometimes receive treatment for past substance abuse. New York City jails dispense medication to inmates with mental illness; the jails also provide therapy andlor 24-hour medical supervision to a modest number of inmates. Several segregated
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units within the City jail system provide substance abuse treatment services, including at least one unit that provides services to MICA patients.
47. While parole detainees are in jail, treatment professionals review their circumstances and may recommend that they receive appropriate treatment in residential programs in the community, rather than be re-imprisoned for parole violations or released without such services. Based on these professional recommendations, the hearing officers may determine that, in lieu of incarceration, parole detainees (a) may enter a program in the community, if and when openings become available, but (b) will remain in j ail pending the identification of openings.
48. Treatment in lieu of incarceration has been recommended for Plaintiffs and approved by their respective hearing officers. Plaintiffs nonetheless remain imprisoned because too few MICA programs exist to meet Plaintiffs' needs. Consequently, Plaintiffs typically must wait six to nine months for placements, if they become available at all. Plaintiffs often make great sacrifices by waiting for programs, because they often do not receive credit for the time that they spend waiting. For some class members, this means that they wait months for a program only to be sentenced to prison (either because they have finally given up waiting for a program, or because hearing officers refuse to continue adjourning cases)-and ultimately serve more time than if they had never requested treatment. Also, many ofthe MICA programs that Defendants have created or funded unreasonably refuse to serve or accommodate individuals whose mental illnesses, like Plaintiffs', are severe and persistent.
49. These lengthy waits are in sharp contrast to similarly situated parole detainees with histories of alcohol or substance abuse but no, or minor, mental illnesses. Such individuals are incarcerated for only days, or at most weeks, after a hearing officer concludes that they should be released to treatment programs for their substance abuse. Similar shortages of
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community treatment programs do not exist for those individuals suffering only from chemical addiction but who do not have a serious mental illness. Thus, Plaintiffs are being discriminated against, and needlessly incarcerated, solely by reason of their disabilities or the severity oftheir disabilities.
50. The implications of Defendants' discriminatory conduct are far reaching. Many parole detainees with serious mental illness who are candidates for treatment dispositions, aware of the long wait for admission to a MICA program, forgo asking for one, or decline to wait for a bed to become available. For these individuals, the typical prison "sentence" is less than plaintiffs' typical wait for openings in MICA programs. These individuals, perhaps understandably, choose a shorter period of incarceration over a MICA program they know they need. Other parole detainees decline treatment dispositions because they know that some people wait months for placements and, in spite of their patience, space never become available and they end up back on the streets. However, these choices often have grave consequences. Without the benefits of MICA programs, people with serious mental illness and a co-occurring substance abuse disorder are at high risk of relapsing following their release from incarceration. They often end up in emergency rooms, hospitals, jail and/or prison, harming themselves, and causing great expense to the taxpayers of the State of New York.
51. Still other parole detainees with serious mental illness and chemical addiction have been discharged from parole while waiting for openings in MICA programs. Without the benefit of MICA programs, they too are at high risk of relapsing. Upon release, they frequently end up in emergency rooms, hospitals, jail and/or prison, harming themselves and causing great expense to the taxpayers of the State of New York.
52. Plaintiffs strongly desire to enter a MICA program.
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53. By using the monies spent to jail Plaintiffs, combined with other cost savings that would accrue from a greater investment in MICA programs, Defendants could adequately fund the community alternatives that State officials have deemed appropriate and that Plaintiffs reqUIre.
FIRST CLAIM FOR RELIEF (VIOLATION OF THE ADA) 54. Plaintiffs repeat and reallege the above paragraphs. 55. This claim for relief is brought against all Defendants, in their official capacities. 56. Plaintiffs are individuals with disabilities within the meaning of 42 U.S.C. § 12131(2). 57. Plaintiffs are qualified to participate in MICA programs as an alternative to incarceration. 58. Title II ofthe ADA prohibits Defendants from excluding, denying and otherwise discriminating on of the basis of disability in public services, programs and activities. 42 U.S.c. §§ 12131, 12132; 28 C.F.R. § 35.130. 59. Unjustified segregation of individuals with disabilities is a form of discrimination prohibited by the ADA. Olmstead v. L.C., 527 U.S. 581, 597 (1999); 28 C.F.R. § 35.130(d). The ADA requires public entities to administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. !d. 60. Defendants are violating the ADA, inter alia. by: a. excluding Plaintiffs from, and denying them the benefit of, community-based programs because of their disabilities, or the severity of their disabilities. b. requiring Plaintiffs to live and receive services as institutionalized inmates in jails, although j ail is not the most integrated setting appropriate to their needs;
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c. failing to reasonably accommodate Plaintiffs' need for MICA programs; d. discriminating against Plaintiffs, on the basis of their disabilities, or the severity of their disabilities, with respect to access to MICA and other community based programs that treat substance abuse; and e. using methods of administration that result in the needless incarceration of Plaintiffs, and discrimination against Plaintiffs, based on their disabilities, or the severity of their disabilities. 61. Plaintiffs have no adequate remedy at law.
SECOND CLAIM FOR RELIEF (VIOLATION OF THE REHABILITATION ACT) 62. Plaintiffs repeat and reallege the above paragraphs. 63. This claim for relief is brought against all Defendants, in their official capacities. Defendants are recipients of Federal financial assistance or are responsible for the operation of programs that receive federal financial assistance. 64. Plaintiffs are individuals with disabilities within the meaning of29 U.S.C. § 705(20). Plaintiffs are qualified to participate in a MICA program as an alternative to incarceration. 65. Section 504 of the Rehabilitation Act prohibits Defendants from excluding, denying and otherwise discriminating on ofthe basis of disability in public services, programs and activities receiving federal financial assistance. 29 U.S.c. § 794. 66. Unjustified segregation of individuals with disabilities is a form of discrimination prohibited by the Rehabilitation Act. Olmstead, 527 U.S. at 597; 42 U.S.C. § 12201. The Rehabilitation Act requires public entities to administer programs, services and activities in the most integrated setting appropriate to the needs of individuals with disabilities.
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67. Defendants are violating the Rehabilitation Act, inter alia, by: a. excluding Plaintiffs from, and denying them the benefits of, community-based programs because of their disabilities; b. requiring Plaintiffs to live and receive services as institutionalized inmates in jails, although jail is not the most integrated setting appropriate to their needs; c. failing to reasonably accommodate Plaintiffs' need for MICA programs; d. discriminating against Plaintiffs, on the basis of their disabilities, or the severity oftheir disabilities, with respect to access to MICA and other community based programs that treat substance abuse; and e. using methods of administration that result in the needless incarceration of Plaintiffs, and discrimination against Plaintiffs, based on the severity of their disabilities. 68. Plaintiffs have no adequate remedy at law.
WHEREFORE, Plaintiffs request that this Court: a. Assume jurisdiction over this case; b. Certify this case to proceed as a class action pursuant to Fed.R.Civ.P. 23(b)(2); c. Issue declaratory relief that Defendants have violated Plaintiffs rights under the ADA and the Rehabilitation Act; d. Enjoin Defendants from continuing to violate Plaintiffs' rights under the ADA and the Rehabilitation Act; e. Award Plaintiffs reasonable costs, litigation expenses, and attorneys' fees pursuant to 29 U.S.c. § 794a(b), and 42 U.S.C. §§ 1988 and 12205; and
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f.

Award Plaintiffs such additional relief as may be just, proper and equitable.

Dated: October 20, 2003

·nberg (SS-3393) Davi ' . Lubitz SWIDLER BERLIN SHEREFF FRIEDMAN, LLP The Chrysler Building 405 Lexington Avenue New York, NY 10174 (212) 973-0111
and
3000 K Street, N.W., Suite 300 Washington, DC 20007 (202) 424-7500 CO-COUNSEL: Ira Burnim Ellen Harris Tammy Seltzer JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, N.W., Suite 1212 Washington, DC 20005-5002 (202) 467-5730
Susan Hendricks Michelle Maxian Kenneth Stephens THE LEGAL AID SOCIETY 1 Battery Park Plaza, 28th Floor New York, NY 10004 (212) 577-3300
Heather Barr URBAN JUSTICE CENTER 466 Broadway, 10th Floor New York, NY 10012 (646) 602-5600
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442712v2

 
 Case 1:03-cv-08331-CM Document 90 Filed 03/11/08 Page 1 of 1

UNITED STATES DISTRICT COURT
S_O__U_T_H_E_R_N__D_I_S_T_R_IC_T__O_F_N__E_W__Y_O_R_K______x

106IEO., Plaintiff,
-againstELIOT SPITZER, in his official capacity as Governor of the State of New York, et aI.,
Defendants. __________________________________ x

03 Civ. 8331 (CM)

ORDER DISMISSING COMPLAINT
McMahon, J.:
On December 5, 2007, this court dismissed the individual claim of putative class plaintiff 10bie O. because Mr. O's claim was moot by the time he flled his motion for class certification in July 2007. I granted plaintiffs counsel until March 5, 2008 to locate and substitute an appropriate named plaintiff and to move for class certification anew. March 5 has come and gone, and no new plaintiff has been substituted for Mr. O. Indeed, the court has heard nothing from putative class counsel sincc the December 5, 2007 opinion issued. Accordingly, as promised in the December 5 opinion, this action is dismissed.
Dated: March 11, 2008

BY FAX TO ALL COUNSEL

U.S.D.1.

USDSSDNY
DObJMENr

ELBCTRONICALLY.FILED

DOC . DATE

.FI-LED--:-3~}.,..l..,do-8-:--.-

I

 
 Case 1:03-cv-08331-CM Document 39 Filed 03/15/07 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------X

JOBE O., et al.,

:

Plaintiffs,

: MEMORANDUM AND ORDER

-against-

:

03 Civ. 8331 (RCC)(KNF)

GEORGE PATAKI, in his official capacity as :

Governor of the state of New York; SHARON

CARPINELLO, in her official capacity as Acting :

Commissioner of the New York State Office of

Mental Health; WILLIAM GORMAN, in his

:

official capacity as Commissioner of the New

York State Office of Alcohol and Substance

:

Abuse Services; and BRION TRAVIS, in his

official capacity as Chairman and Chief Executive :

Officer, New York State Division of Parole,

:

Defendants.

---------------------------------------------------------------X

KEVIN NATHANIEL FOX

UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

Plaintiffs Jobe O., Sabrina J. and James S. bring this action against defendants George

Pataki (“the Governor”), Sharon Carpinello, William Gorman and Brion Travis, in their official

capacities, alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12132 and

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Before the Court are the

Governor’s motion for a protective order, made pursuant to Fed. R. Civ. P. 26(c), that would

relieve him of the obligation of responding to the plaintiffs’ discovery demands, and the

plaintiffs’ cross-motion, made pursuant to Fed. R. Civ. P. 37(d), seeking sanctions for the

Governor’s failure, repeatedly, to respond to their discovery demands. The Governor opposes

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Case 1:03-cv-08331-CM Document 39 Filed 03/15/07 Page 2 of 10
the plaintiffs’ cross-motion. The Governor contends he should not be required to respond to the plaintiffs’ discovery demands because, inter alia: (a) no allegations have been made that he had any personal involvement in the matters that are the focus of this litigation; (b) he was named as a defendant by the plaintiffs so that they might obtain injunctive relief; and (c) the responses provided by the other defendants represent the response of the executive branch and, therefore, any response by him would be duplicative of the responses made by the other defendants. The plaintiffs oppose the Governor’s motion and, through their cross-motion, ask that the Court sanction the Governor by: (i) precluding him from introducing any evidence in his defense at the trial of the action; and (ii) requiring him to pay the expenses and reasonable attorney’s fees they incurred in making this motion.
II. BACKGROUND AND FACTS The plaintiffs, parole violators, commenced this action alleging that each has been incarcerated in New York City’s jails, needlessly, while awaiting an opening in an appropriate treatment program that can address their respective serious and persistent mental health conditions, as well as their respective addictions to controlled substances. On January 23, 2004, the plaintiffs served their first set of interrogatories and document requests on the Governor. Identical interrogatories and document requests were served on the remaining defendants, who tendered their answers and responses in March 2004. On June 4, 2004, counsel to the defendants advised the plaintiffs that “since defendant Pataki acts through his Commissioners, who as you know are also defendants in this case, no separate response to your interrogatories will be prepared on behalf of defendant Pataki.”
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Case 1:03-cv-08331-CM Document 39 Filed 03/15/07 Page 3 of 10
On February 17, 2006, at the request of the defendants’ counsel, the plaintiffs sent him a copy of the discovery demands they had served on the Governor previously. At that time, the plaintiffs advised the defendants’ counsel that, if “Pataki persists in his refusal to comply with his discovery obligations” sanctions would be sought pursuant to Fed. R. Civ. P. 37(d). On March 9, 2006, the Governor lodged objections to the plaintiffs’ interrogatories by reaffirming his position that answers to the interrogatories prepared by him were unnecessary because the other defendants had answered identical interrogatories. In addition, the Governor informed the plaintiffs that he did not have any relevant documents to disclose to them. Twice more, on March 24 and May 19, 2006, in letters to the Governor’s counsel, the plaintiffs expressed their concerns with his client’s failure to respond to their discovery demands, advising him that if the Governor persisted in his position, they would seek sanctions from the court.
On May 23, 2006, the instant motion for a protective order was made by the Governor, seeking relief from his obligation to serve his own responses to the plaintiffs’ discovery demands. Through the motion, the Governor explained that “[n]o new information could be provided by [him]” and “the responses [to the plaintiffs’ discovery demands] provided by the other defendants represent the response of the executive branch in this action.” The plaintiffs responded to the Governor’s motion by making the cross-motion for sanctions that is before the Court.
As noted above, the Governor opposes the plaintiffs’ cross-motion for sanctions. He contends that imposing sanctions on him is not warranted because the plaintiffs’ discovery demands “were fully answered” by the other defendants and he “should not be required to duplicate the discovery provided by [those] defendants.” Moreover, according to the Governor,
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the plaintiffs’ cross-motion for sanctions should be denied because the plaintiffs: (a) never obtained an order compelling him to respond to their discovery demands and, therefore, he never violated such an order; and (b) did not show bad faith or willfulness on his part in failing to respond to their discovery demands.
III. DISCUSSION Protective Order
“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claims or defenses of any party” and “[the] information [sought] need not be admissible at the trial if discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b). “Any party may serve upon any other party written interrogatories.” Fed. R. Civ. P. 33(a). Thereafter, as Fed. R. Civ. P. 33(b)(3)(4) explain,
[t]he party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties subject to Rule 29. All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown. Correspondingly, a party upon whom a request for production of documents has been served is required to respond or object to it within 30 days after service of the request has been effected. See Fed. R. Civ. P. 34(b). A party responding to discovery demands is not limited to serving an objection(s) if the party believes the discovery demands are improper. In such a circumstance, a party to an action may seek a protective order from the court, in accordance with Fed. R. Civ. P. 26(c). In its most pertinent part, that Rule provides the following:
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Upon motion by a party . . . from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court . . . may make any order which justice requires to protect a party . . . from annoyance, embarrassment, oppression, or undue burden or expense. However, as the Advisory Committee Notes to the 1970 amendment to Fed. R. Civ. P. 33(a) explain, a protective order must be sought timely: “Unless [the responding party] applies for a protective order, he is required to serve answers or objections in response to the interrogatories, subject to the sanctions provided in Rule 37(d).” Moreover, Fed. R. Civ. P. 26(c) informs that: If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of the expenses incurred in relation to the motion. Here, the Governor failed to respond or object to the plaintiffs’ discovery demands within 30 days, as required by Fed. R. Civ. P. 33 and 34. Furthermore, he did not make a motion for a protective order timely, and failed to seek an enlargement of time, from the court, to respond or object to the plaintiff’s discovery demands. In addition, no written agreement was executed by the parties extending the Governor’s time to respond or object to the plaintiffs’ discovery demands. Moreover, the Governor has failed to explain why neither his objections to the plaintiffs’ discovery demands nor his motion for a protective order was made timely. The absence of such explanations is curious. The Governor’s contention, that the responses made to the plaintiffs’ discovery demands by the other defendants should be considered his responses as well, is unavailing. While it is true that, in a circumstance such as exists here, where identical interrogatories have been served on multiple parties, they may designate one of their number to answer on behalf of all of them, such
5

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a designation must be accompanied by an on-the-record-agreement that all will be bound by the answers. See Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2172 (2d ed. 1994). That was never done in this case. In addition, the Governor’s assertions, that a violation of a discovery order is a prerequisite for imposing sanctions under Fed. R. Civ. P. 37(d) and that sanctions are only appropriate upon a finding that a party acted willfully or exhibited bad faith in failing to meet its discovery obligations, are wrong. See Brancaccio v. Mitsubishi Motors Co., Inc., No. 90 Civ. 7852, 1992 WL 189937, at *1 (S.D.N.Y. Aug. 31, 1992); On Stage Cosmetics, Inc. v. Make-Up Center of 55th St., Ltd., No. 89 Civ. 7160, 1990 WL 138980, at *2 (S.D.N.Y. Sept. 21, 1990); Fed. R. Civ. P. 37(d) & 37(b)(2).
The Court finds, based on the record as a whole, that the Governor has failed, unjustifiably, to meet his discovery obligations and that granting his untimely application for a protective order is inappropriate. Sanctions
The plaintiffs urge the Court to sanction the Governor for failing to meet his discovery obligations. Fed. R. Civ. P. 37 grants to a court broad discretionary authority to impose a sanction(s) upon a party to a litigation that has failed to meet its discovery obligations. See Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 113 (2d Cir. 2002). Fed. R. Civ. P. 37(d) provides, in pertinent part, that:
If a party . . . fails . . . (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b) (2) of this rule.
6

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One action a court may take, when a party fails to meet its discovery obligations, is to issue “[a]n order refusing to allow [that] party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.” Fed. R. Civ. P. 37(b)(2)(B). Additionally, Fed. R. Civ. P. 37(d) provides that:
[i]n lieu of any order, or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37 sanctions have three purposes: (1) to prevent a party from benefitting from its own failure to meet its discovery obligations; (2) to seek compliance with any previously issued discovery order; and (3) to deter a particular litigant and litigants in general from failing to meet discovery obligations. See Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 71 (2d Cir. 1988). The harshest sanctions available are preclusion of evidence and dismissal of the action. Those sanctions “should be imposed only in rare situations.” Id. Severe sanctions are justified when a party’s failure to meet its discovery obligations is due to willfulness, bad faith or any fault of the party. See Societe Internationale, etc. v. Rogers, 357 U.S. 197, 212, 78 S. Ct. 1087, 1096 (1958); Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991). However, while willfulness and bad faith may justify the imposition of a sanction(s), the express language of the Rule makes clear that they are not prerequisites to imposing a sanction(s) under Fed. R. Civ. P. 37(d). Rather, they are factors to be considered by a court in determining what sanction(s), if any, to impose on a party that has not met its discovery obligations. See Advisory Committee Notes to Rule 37(d), 1970 Amendment (‘Wilfulness’ continues to play a role, along with various other factors, in the choice of sanctions. Thus, the scheme conforms to Rule 37(b)
7

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as construed by the Supreme Court in [Rogers, 357 U.S. at 208, 78 S. Ct. at 1093]). Nothing in the record suggests the Governor acted in bad faith or willfully when he failed
to respond to the plaintiffs’ discovery demands. The Governor seems to have acted based on the erroneous belief that the responses to the plaintiffs’ discovery demands provided by the other defendants should simply be deemed his responses as well. Standing alone, this erroneous belief does not amount to bad faith conduct or willfulness that would justify a drastic sanction such as precluding a party from offering evidence at a trial or rendering a judgment by default. In any event, precluding the Governor from offering evidence at the trial of this action would appear to be an empty sanction if, as he maintains, his evidence is the evidence that has and will come from the other defendants.
However, the Court finds that, given the amount of time the Governor has been out of compliance with his discovery obligations, and the fact that the plaintiffs have a right, under the Federal Rules of Civil Procedure, to obtain from any defendant a response to properly served discovery demands, imposing a sanction on the Governor that will act as a specific and general deterrent to any party to a litigation that fails to meet its discovery obligations is warranted. Therefore, the plaintiffs’ cross-motion is granted. The Governor is directed to respond, on or before April 6, 2007, to the plaintiffs’ outstanding discovery demands, without lodging any objections, all of which have been waived by his failure to respond to the plaintiff’s discovery demands timely. See Fears v. Wilhelmina, No. 02 Civ. 4911, 2003 WL 21737808, at *1 (S.D.N.Y. July 25, 2003); Polokoff v. International Pantyhose, Inc., No. 96 Civ. 6100, 1997 WL 178621, at *1 (S.D.N.Y. April 11, 1997).
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Case 1:03-cv-08331-CM Document 39 Filed 03/15/07 Page 10 of 10

 
 Case 1:03-cv-08331-CM Document 14 Filed 08/19/05 Page 1 of 13

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

<

WILLIAM G. and WALTER W., et al.,

:

:

Plaintiffs,

:

:

- against -

:

:

GEORGE PATAKI, in his official capacity as Governor :

of the State of New York; SHARON CARPINELLO, :

in her official capacity as Acting Commissioner of the :

New York State Office of Mental Health; WILLIAM :

GORMAN, in his official capacity as Commissioner :

of the New York State Office of Alcohol and Substance :

Abuse Services; and BRION TRAVIS, in his official :

capacity as Chairman and Chief Executive Officer, :

New York State Division of Parole,

:

:

Defendants.

:

:

<

03 Civ. 8331 (RCC) MEMORANDUM & ORDER

RICHARD CONWAY CASEY, United States District Judge:

This case raises the issue of whether the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e(a), requires New York State inmates claiming violations of the Americans With Disabilities

Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation

Act”), 29 U.S.C. § 794, to exhaust remedies provided by the U.S. Department of Justice (“DOJ”).

George Pataki, Sharon Carpinello, William Gorman, and Brion Travis (“Defendants”) move to

dismiss this putative class action under the PLRA for failure to state a claim. The Court concludes

that the PLRA does require exhaustion of the DOJ remedies but that Defendants are not entitled to

dismissal of the case at this stage of the litigation. Accordingly, Defendants’ motion is DENIED.

I. BACKGROUND

In New York State (“State”), individuals who have been released from custody on parole or

Case 1:03-cv-08331-CM Document 14 Filed 08/19/05 Page 2 of 13
post-release supervision (also known as “supervised release”) are subject to arrest, on a warrant issued by the parole board, by parole officers who have reasonable cause to believe that the individuals have violated the conditions of that release. N.Y. Exec. Law § 259-i(3)(a)(i). These “parole detainees” are incarcerated pending a preliminary hearing before a hearing officer to determine whether there is probable cause to believe that conditions of parole or supervised release have been violated. See id. § 259-i(3)(c). Parole detainees are also provided the right to a final revocation hearing if probable cause is found. See id. § 259-i(3)(f).
Some parole detainees are housed in New York City jails, often Rikers Island, pending revocation hearings. (Compl. ¶ 2.) Plaintiffs are a proposed class of such detainees with mental illnesses and substance-abuse problems. (Id. ¶ 1.) Parole-hearing officers have determined that Plaintiffs should be placed in residential treatment programs for mental illness and chemical addiction (“MICA programs”) rather than face imprisonment for their alleged parole violations. (Id. ¶¶ 2, 4.) The proposed class is made up of “individuals with . . . serious and persistent mental illness[es] and . . . history of substance abuse (including alcohol abuse) who are (a) incarcerated at State expense in New York City jails as parole detainees and (b) awaiting an opening in a MICA program.” (Id. ¶ 33.) Plaintiffs allege that the members of the proposed class often remain in jail for long periods of time waiting for openings in the few MICA programs that exist; in addition, the complaint alleges that the State-funded programs refuse to serve individuals with severe and persistent mental illnesses such as Plaintiffs. (Id. ¶ 6.)
Named plaintiffs William G. and Walter W.1 suffer from mental illnesses and substance
1 The complaint does not provide the named plaintiffs’ surnames because of the sensitive and personal nature of the allegations. (Compl. at 5 n.1.)
2

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abuse and were under the supervision of the New York State Division of Parole after they were released from prison. (Id. ¶¶ 13-14, 19-20.) After William G. was arrested for an alleged parole violation, the hearing officer and parole specialist assigned to his case agreed that a MICA program rather than incarceration was the best disposition for him. (Id. ¶¶ 14-15.) Parole-revocation proceedings have been consistently adjourned pending the opening of space for William G. in a MICA program. (Id. ¶ 15.) It is not explicitly stated in the complaint whether there has been a finding of probable cause that William G. violated his parole or whether his parole has been revoked following a final revocation hearing. Walter W.’s parole was revoked after he was arrested for attempted possession of a controlled substance; the parole officials supervising his case agreed that he should be placed in a MICA program and not a prison. (Id. ¶¶ 20-21.) Walter W. has been informed that he will be sentenced to imprisonment for violating the terms of his parole if no MICA program becomes available, although it is not clear from the complaint when such sentencing will occur. (Id. ¶ 21.)
Plaintiffs seek declaratory and injunctive relief under the ADA and the Rehabilitation Act. They allege that Defendants have violated those statues by, among other things, excluding Plaintiffs from MICA programs based on the severity of their disabilities and requiring Plaintiffs to remain incarcerated instead of placing them in MICA programs. Defendants have moved to dismiss the complaint on the single ground that Plaintiffs have failed to exhaust administrative remedies as required by the PLRA. Specifically, Defendants contend that Plaintiffs failed to exhaust the procedures provided by the DOJ to investigate, and possibly resolve, complaints of unlawful discrimination based on disability.
The DOJ procedures at issue provide a voluntary process for the filing of a complaint by
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“[a]n individual who believes that he or she or a specific class of individuals has been subjected to discrimination on the basis of disability by a public entity.” 28 C.F.R. § 35.170(a). The complaint is to be filed with or forwarded to the appropriate federal agency, id. § 35.170(c), in this case, the DOJ itself, see id. § 35.190(b)(6) (providing that the DOJ is the agency responsible for investigating discrimination claims against correctional institutions). The DOJ investigates the complaint, attempts to resolve it informally, and, if no resolution can be achieved, issues a report including findings of fact and conclusions of law. Id. § 35.172(a). If the public entity about which the complaint is filed has, in the DOJ’s judgment, failed to comply with federal antidiscrimination law, the agency can refer the matter to the Attorney General for appropriate action. Id. §§ 35.172(b), 35.174. II. DISCUSSION
The PLRA provides in pertinent part, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held that the “PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The fact that the available remedies would not provide the relief sought is immaterial to the exhaustion requirement. Booth v. Churner, 532 U.S. 731, 740-41 (2001). Plaintiffs argue that the exhaustion requirement is inapplicable here for two reasons: first, the suit is not one “with respect to prison conditions” because it only challenges discrimination in community-based mental-health treatment; second, the DOJ’s procedures are not “administrative remedies” under the PLRA because they are external to the prison
4

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system in which Plaintiffs are confined. A. This Action Relates to Prison Conditions The gravamen of the claims here is that Plaintiffs are confined in prisons instead of in
rehabilitation centers in violation of federal law; thus, this is a suit “with respect to prison conditions.” The phrase “with respect to prison conditions” is not defined in § 1997e(a). It is, however, defined in another section of the PLRA. That section states, “Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 42 U.S.C. § 3626(a)(1). The statute further provides:
[T]he term “civil action with respect to prison conditions” means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison . . . . Id. § 3236(g)(2). As the Seventh Circuit has explained, reference to this definition when interpreting § 1997e(a) is appropriate because both statutory sections are “‘part of the same legislation with the same overreaching objectives—to enable prison officials to resolve complaints internally and to limit judicial intervention in the management of state and federal prisons.’” Witzke v. Femal, 376 F.3d 744, 751 (7th Cir. 2004) (quoting Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001)). In Witzke, the Seventh Circuit held that the “plain wording of the term ‘prison conditions’ is that only complaints relating to conditions within a prison or correctional facility are subject to the exhaustion requirements” of § 1997e(a). Id. at 752. This conclusion is consistent with § 3236(g)(2)’s definition that includes “the conditions of confinement.” See id. Here, Plaintiffs seek to be placed in MICA programs in lieu of incarceration in prison for violations of parole and
5

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supervised release. They argue that it is unlawful under federal law for the State to confine them in the more restrictive environment of a prison, where they cannot get the mental-health and substanceabuse treatment they need, instead of a MICA program where that treatment is available. They therefore challenge the conditions in which they are confined.
Witzke supports this conclusion. There, the plaintiff claimed that he was deprived of his Eighth Amendment rights while he was residing at a halfway house in lieu of imprisonment for violation of probation. See id. at 747. The plaintiff argued that the PLRA did not apply to his claims because they did not relate to prison conditions. Id. at 750. The court rejected the argument. The court addressed two questions: (1) whether an individual residing in a halfway house in lieu of imprisonment for a probation violation is “confined,” and (2) whether such an individual is confined in a “jail, prison, or other correctional facility” as those terms are meant in the PLRA. Id. at 752. The court answered both in the affirmative. First, the plaintiff was confined because he entered the program only after admitting to violations of probation, which could have led to revocation of probation, and the program imposed more restrictions than typically accompany probation such as residence at the facilities. Id. Second, the halfway house fit within the definition of “any . . . other correctional facility,” which the Seventh Circuit defined as a “‘generic term describing prisons, jails, reformatories, and other places of correction and detention.’” Id. at 753 (quoting Alexander S. v. Boyd, 113 F.3d 1373, 1383 (4th Cir. 1997)) (internal quotation marks omitted).
Witzke’s relevance here is not to the question of whether Plaintiffs are currently confined, but to the issue of whether a suit about the location of one’s detention for a parole or supervisedrelease violation relates to prison conditions. As the Seventh Circuit held, rehabilitation facilities in which one is placed in lieu of incarceration are correctional facilities under the PLRA. Thus, what
6

Case 1:03-cv-08331-CM Document 14 Filed 08/19/05 Page 7 of 13
Plaintiffs desire is a transfer from one correctional facility to another.2 Plaintiffs allege that
Defendants have violated the ADA and Rehabilitation Act by “requiring Plaintiffs to live and receive
services as institutionalized inmates in jails, although jail is not the most integrated setting
appropriate to their needs.” (Compl. ¶¶ 60(b), 67(b).) Plaintiffs maintain that it is unlawful for them
to be held in one correctional facility under conditions that do not include the mental-health and
substance-abuse treatment that the State agrees they need, and they request placement in a different
correctional facility that has such treatment.3 Plaintiffs would be placed in MICA programs by State
officials as the result of alleged violations of parole or supervised release; without the alleged parole
violations, Plaintiffs would not be detained in New York City prisons or MICA programs. The
MICA programs are an alternative type of confinement, similar to the halfway house in Witzke.
2 Because Plaintiffs seek to be transferred to another correctional facility with conditions more favorable to the treatment of mental illness and substance abuse, Plaintiffs’ reliance on Bolden v. Stroger, No. 03 C. 5617, 2005 WL 283419 (N.D. Ill. Feb. 1, 2005), is misplaced. The court in Bolden held that pretrial detainees with mental disabilities were not challenging prison conditions in a claim alleging that they were unlawfully denied access to medication and treatment after their release from custody. See id. at *1 (“[T]he treatment (or lack thereof) of detainees after their release from the Jail is not a prison condition.”). The court also held that the plaintiff detainees were challenging prison conditions in a claim that they were “excluded from participation in various release and substance abuse treatment programs” while they were detained. Id. at *2. Bolden actually supports Defendants’ position because the second claim, and not the first, is similar to those asserted in this case.
3 This civil action is therefore unlike a habeas corpus petition that seeks to free the petitioner from any further incarceration at all. Thus, Plaintiffs cannot rely on § 3236(g)(2)’s exception to the definition of a “civil action with respect to prison conditions” for “habeas corpus proceedings challenging the fact or duration of confinement in prison.” See 42 U.S.C. § 3236(g)(2). First, this is not a habeas action, which is exempted from the PLRA’s exhaustion requirement but which would require the judicially imposed exhaustion of administrative remedies. See Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); United States v. Basciano, 369 F. Supp. 2d 344, 348 (E.D.N.Y. 2005). Second, the desired end of the type of habeas petition exempted is release from the custody of state or federal officials. The desired end of this suit is merely confinement in a different type of institution under different conditions of confinement.
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Case 1:03-cv-08331-CM Document 14 Filed 08/19/05 Page 8 of 13
Plaintiffs’ claims relate to the conditions under which they are confined, and hence to prison conditions. Because the Plaintiffs’ claims are “with respect to prison conditions,” the PLRA applies and they must exhaust all available administrative remedies. The next point of contention is whether the DOJ procedures are among such remedies.
B. The PLRA Requires Exhaustion of DOJ Remedies The PLRA mandates that prisoners may not bring suit with regard to prison conditions without exhausting “such administrative remedies as are available.” 42 U.S.C. § 1997e(a). Plaintiffs contend that the phrase includes only internal prison administrative remedies and not external remedies such as those provided by the DOJ. But the language of the PLRA contains no indication that the requirement is so limited, and the reasoning behind the statute strongly supports the conclusion that available external remedies must also be exhausted. The text of the PLRA does not limit available administrative remedies to those that are internal to the prison system in which a plaintiff is confined. See Burgess v. Garvin, No. 01 Civ. 10994 (GEL), 2003 WL 21983006, at *3 (S.D.N.Y. Aug. 19, 2003), reconsideration granted on other grounds, 2004 WL 527053 (S.D.N.Y. Mar. 16, 2004). The court in Burgess explained, “The plain language of [the PLRA] requires the prisoner to exhaust ‘such administrative remedies as are available.’ It is not limited to administrative redress within the prison system in which the prisoner is being held, or to administrative remedies provided by any particular sovereign.” Id. The DOJ remedies, to the extent that they are available to Plaintiffs, must be exhausted pursuant to the plain language of the PLRA. Exhaustion of the DOJ procedures would also serve the same goals that the PLRA was enacted to achieve. The PLRA was meant to “reduce the quantity and improve the quality of
8

Case 1:03-cv-08331-CM Document 14 Filed 08/19/05 Page 9 of 13
prisoner suits,” and to “afford[] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter, 534 U.S. at 525; see also Witzke, 376 F.3d at 751 (noting that the objectives of the PLRA are “to enable prison officials to resolve complaints internally and to limit judicial intervention in the management of state and federal prisons”). Intervention by the DOJ is likely to reduce the number of prisoner suits because state lawenforcement officials have incentives to respond to findings by their federal counterparts that they are violating federal law, potentially leading to the resolution of meritorious claims. One such incentive is found in the regulations themselves—the threat of enforcement by the Attorney General. See 28 C.F.R. § 35.174. In addition, prisoners (and their attorneys, if they are represented as in this case) may be less likely to bring federal lawsuits when the DOJ has explained that their claims are without merit. Thus, the federal courts would more likely be left to resolve those cases in which judicial intervention is truly necessary.
The DOJ procedures also give corrections officials the opportunity to address claims that they are not complying with the ADA and Rehabilitation Act before being forced to litigate the matter in federal court. The first step in the process after an investigation is for the DOJ to attempt informal resolution of the claim. See 28 C.F.R. § 35.172(a). Prison officials will have, with the benefit of the DOJ’s guidance on federal disability-discrimination law, the chance to analyze and address prisoner complaints internally before they become subject to the mandatory process of federal litigation. For this reason, the Court must disagree with the conclusion in Veloz v. New York, 339 F. Supp. 2d 505 (S.D.N.Y. 2004), that complaints with the DOJ do not allow prison officials time to remedy the issues themselves. See id. at 519. As already explained, the DOJ investigates the claims, seeks informal resolution between the inmate and the institution, and refers matters to the
9

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Attorney General only if a noncompliant institution does not agree to a proposed resolution. Thus, the DOJ procedures provide the opportunity to internally resolve disputes and give incentive to prison officials to do so that the prisoner-grievance process does not.
The Court disagrees with Plaintiffs that the Ninth Circuit’s decision in Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999), overruled on other grounds by Booth, 532 U.S. 731, requires a different result. The court in Rumbles held that prisoners do not have to exhaust state tort remedies under the PLRA before filing suit under 42 U.S.C. § 1983. California law provides for an administrative process for filing tort claims against state agencies such as the department of corrections. See id. at 1069. The court reasoned that the PLRA only requires the exhaustion of administrative remedies internal to the prison system, relying on 42 U.S.C. § 1997e(b), which provides that “the failure of a State to adopt or adhere to an administrative grievance procedure shall not constitute the basis for an action.” Rumbles, 182 F.3d at 1069-70. From the word “grievance” in § 1997e(b), the court deduced that Congress meant internal prison grievances when it said administrative remedies in § 1997e(a). See id. at 1069-70. This Court does not find as much guidance in the word “grievance” as the Ninth Circuit did.4 Indeed, Congress’s inclusion of the word in § 1997e(b) may be better evidence that its omission from § 1997e(a) was purposeful than that its inclusion in § 1997e(a) was implied. See Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739, 2754 n.9 (2004) (“[W]hen the legislature uses certain language in one part of the statute and different language in another, the
4 The Court finds even less guidance in a statement by one congressional advocate of the PLRA that the statute would remove from the federal courts many claims that could be resolved within the prison grievance system, but which is silent on whether external remedies must also be exhausted. Cf. Rumbles, 182 F.3d at 1070 (relying on a statement by Senator Kyl that “[m]any prisoner cases seek relief for matters that are relatively minor and for which the prison grievance system would provide an adequate remedy”).
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Case 1:03-cv-08331-CM Document 14 Filed 08/19/05 Page 11 of 13
court assumes different meanings were intended.” (internal quotation marks omitted)); Rusello v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks and alteration omitted)).
Nor can the Court agree with the Ninth Circuit’s reasoning that Congress did not intend in the PLRA to “overrule[] the well-established principle that exhaustion of state tort remedies is not required before bringing a section 1983 action.” Id. § 1069. The very purpose of the PLRA was to reverse the default rule of nonexhaustion under § 1983 and other federal statutes. See Porter, 534 U.S. at 523-24 (noting that the PLRA is an “invigorated . . . exhaustion prescription” for prisoners when “[o]rdinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust administrative remedies before filing suit in court”). Although the question is not before this Court, nothing in the PLRA suggests that state tort remedies are any different, provided they are administrative and available to prisoners. It follows, then, that the DOJ administrative remedies, to the extent that they are available to Plaintiffs, must be exhausted prior to bringing suit.
Because the DOJ procedures fall within the plain language and the purpose of the PLRA, they must be exhausted as a matter of law before a prisoner may bring suit. This conclusion, notwithstanding, Plaintiffs are not foreclosed from establishing that the exhaustion requirement does not bar their suit.
C. Plaintiffs May Be Able to Establish That An Exception to Exhaustion Applies Despite the Court’s ruling that as a matter of law the PLRA requires exhaustion of the DOJ remedies for disability-discrimination claims, the standard on a motion to dismiss for failure to state
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a claim is whether Plaintiffs can establish no set of facts entitling them to relief. See Courtenay Communications Corp. v. Hall, 334 F.3d 210, 213 (2d Cir. 2003). The exhaustion of administrative remedies is not a jurisdictional requirement, but an affirmative defense. Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004). And the question of whether administrative remedies are actually available requires a factual inquiry. See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (holding that district courts must determine whether administrative remedies were “in fact” available to a prisoner). Even if the remedies were in fact available, the exhaustion requirement is subject to estoppel, waiver, and special circumstances that excuse the failure to exhaust. Giano, 380 F.3d at 675. One reason for which a plaintiff may be excused from the exhaustion requirement, or a defendant estopped from asserting it, is the defendant’s behavior. See Hemphill, 380 F.3d at 686 (holding that defendants’ actions may estop them from asserting the failure to exhaust administrative remedies under the PLRA).
On a motion for reconsideration in Burgess, a decision issued after the parties briefed this motion, the plaintiffs maintained that New York prison officials keep prisoners ignorant of the DOJ procedures. See 2004 WL 527053, at *5. The court in Burgess granted the motion for reconsideration and permitted additional discovery on the ground that, if the contention were true, it might render the DOJ administrative procedures unavailable to the plaintiffs. Id. Plaintiffs, therefore, may be able to establish the unavailability of the DOJ remedies, special circumstances, or estoppel. The Court cannot hold that Plaintiffs are unable to establish any facts to counter Defendants’ exhaustion defense.
It is not apparent that Plaintiffs are unable to establish any set of facts to satisfy the exhaustion requirement that the PLRA imposes as a matter of law. The determination as to whether
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 Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 1 of 30

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------,
JOBIE 0.,
Plaintifl,
-against-
ELIOT SPITZER, in his official capacity as Governor of the State of Nev-,' York, et ai.,
Defendants.
x

USDSSDNY DOCUMENT ELECTRONICALLY FILED DOC4/:
DATE FILED: ijM'i
03 Civ. 8331 (CM)

DECISION AND ORDER DISMISSING THE AMENDED COMPLAINT roR LACK OF SUBJECT MATTER JURISDICTION, AI\D, 11\ TilE I'JTEREST OF JUDICIAL ECONOMY,
GRANTI'JG LEA VETO SLBSTITIJTE AI\ APPROPRIATE NAMED PLAINTIFF AND MOVE FOR CLASS CERTIFICATION WITIII'J NI'JETY DA YS
McMahon, J.:
Plaintiff has moved for class certification under Rule 23 of the federal RuJcs of Civil
Procedure, alleging that New York State officials have failed to provide sufficient cornmunitybased treatment alternatives to incarceration ror mentally ill, chemically addicted ("':v1ICi\")
parole detainees, in violation of Title II of the Americans with Disabilities Act ("'ADA"). 42 U.S.c. ~ 12132, and Section 504 of the Rehabilitation AC1 of 1973 ("Rehabilitation Ace), 29
u.s.c. § 794. Plaintiff requests declaratory and injunctive relief. and seeks certitication ofa
class o/" "individuals with a serious and persistent mental illness and a history of substance abuse (including alcohol abuse) who arc (a) incarcerated at State expense in "\lew York City jails as parole detainees and (b) awaiting an opening in a :VlICA program." (Am. Comp\. ~ 29.) Defendants oppose this motion on the grounds that plaintiff lacks standing, and that he fails to

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Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 2 of 30
satlsfy the requ~remcnls for dass treatment under Rule 23. For the reasons. stated below. plaintiffs daim is cismissec for lack of standing. As il
result this cour~ has no oCCU,,;Oll to oddre:-;;K the parties' arguments regarJing class certification under Rule!': 23(a) ami 23(b)(2). In the ~ntercst ofjudicia! economy_ however, this court grants kave to substitute 31: upprop:iatc l)am;:d plaintiff who has standing to seck injunctive relic!: lffid tu move again for class cc:rtitication, \-vithin ninety days. If no such plaintiff is found, or no :mdl motion is made, v.i:hin the pn::sl.:ribca period. the C0urt will dismi;;:s the case.
Procedural History Thi$ case was filed in October ::003 by \Villiam G~ and Walter Vv'" both of whom had a
history of substan~e abu:,~ and mC'ntal illness and were ut'signateo fur a treatmcr.! disposition of their alleged palOit' violations. (Dkt. #1.) In certain instanl'es. State oftkials will determine tha: participution :n a treatment p:,ogmm is prcferabk to a prison $el:tcnce for a PJ.foie \'i01310[' (Am. CompL '15.) This d;:;,,::rmination is ~omeiimes known fly"diversion," Acco:ding to ftC' complaint. \ttL G. and M:. \V. spent months incarcerated at RikcfS IsLmd w:li:c av.-aiting placement in a "tvllCA prog~,un,'· i.e a program that '\CITes and treats individuals ~lIftcring from mental illness and ..:hemkal addiction and ofl'iJrs supervised housillg. (Am. CompL '~i 2, 4,) }\ew York offers two genc:'ai typc~ of MICA programs: ~ornmuaity residences, and supported housing. "t\HCA community residences ~(Juse and provide day treatment tl) indiviciuals Wh(l have both mc-n~aJ illn:.'s,,: and u history of substancc abuse; st:pported ;,ousing programs place indivic:)uis in in:egnlicd community housing (l.e., housif,g ihat includes people vvithout mentRI disablEtics). :md provides individuaiizcd trc.J.tmcnt services such as MICA day trcatr:lcnt. (Am.
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CompL'~ 31-34,)
judge Richard C Cas,,~y der.ied defendants' motion to dismiss en August 11,2005. F:'ve months later, on January 18, 20061 defendants tinally filed an ans\\~r to the con:plaint. (Dkt. #13. 18,) By that lime. ::Vir. 0. aGO Mr. \V. were no longer vJablc dass plaintiffs. Plaintiffs' LOlInSei did not know the \\ here(lhouts of l\'k W. (there was un outstanding warrant lor his arrest), ami \off, G. ildd LOhosen to ....vithuraw from the action. (August 8, 2007 Declaration of Joanne Skolnick C'Skolnick Ded."} (- 3; Apeij 18,2006 Letter to Court from Defendants)' ]n April 2006. dct"\:ndanb n(ltified the Court that plaint:n"s cOllnsd bad nol "moved:o substitute additional plaintiffs although UK)' havt kcown sinc(~ Novt'mher 2005 of Iheir need to do S{}, ,.
By stipulation executed by both parties on JU:1e 12- 2006, aed Iiled with the Court Of'. June 16, thr..::c new plaintiffs - Jobie 0 .. Sabrina L a:id James S... in1crycned in this action in
place of William G. and Walter \'V. {Ok!. ft3 (.) Hut the new plaintiffs did no:: move for class ccrtifh:ation. bs:..:ad, lrorn roughly Jl:ne 2006 until July 2007, plaintins sought sanctions against tonner Governor Putaki i(lT a!1cgcCly failing to respond to di<;covery requests. That application \Vi.lS ultima:cly denied by this Court on July 10,2007 {Dkt #64). shortly aftcr 1 took over the case
Ii'om thc late JlIdg~ Casey.
Two of the three inh::rvenors James S. :md S<lorina j, turned O:1t not to be viahle plaintiffs ~n this .:dse and t~eir d<!lrns were voJunlarily withdrav,.'c 0)' No;!e.;;s of Oismissal dated July 11 am! J:.dy J7, 2007. I (Dk!. #65, 66.) Therefore, on July 3, 2007 ... more than a year ufkr
I Sabrin:l L a par0-lc violator. had a tinal parole re-vocation hearing on June 8, 2006, in which she wns ;cvokeu and r(:5to~cu 10 a residl.:ntial medical iU!t": substance almsc treatment program called "Pr(.~e;;t Samaritar:." (Skolnick D;;:c\. ~ 6.) james S.• also a parole violator. WU$ released 10 a temporary rcsidt:n",·.t" in .bly 2006 aCtt:r his parole \ iolution 'Aarrant \-\a5 lifted ,md the- declaration of his delinquency was cancelled. On or abouti\cg;JS130, 2006, Me S, abs-conded whik being esconed
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the new plaintiffs had intervened by stipulation ... an amended complaint was filed, containing allegatlons spco.;ific only 10 Jobic O. (Dkt. #62), ahhoug:,lhe thrust o:'thc complaint did not change.
Three weeks later. on JuI) 25, J007, tht: lone remaining plaintiff, Jobic 0., tiled a motion f{g class ccrtitic3l.ion, Two da)slater, ddcnuan!s ans\\·c:ed the ameldcd complaint.
Jobic O. IS Allegations Jobi~ O. hJS a history of psyclilatric illness and suhstance abuse. Following a term of
impr;sonment for attempted l1urglary. Mr. O. was paroled on or about ~'lay 6, 2005, PlaintiJf
tr.c "benefited from the s"Jppor:ive CnVlf(w.mc:\{ and services" provicicd by Community-Oriented
Re-Entry Program p,jor :0 his release (Am, CompL ~ 15), but arwr his sisrcr died, he sta!1ed
using drugs again, and he was arrc~tctl in Dcccmb~r 2005 on a rarule violatiun ",arrant. Act:ording 10 the Amended Complaint Mr O. ',vas identified by defendant New Y!J!'k State Division 'Jf Paole as a ""iab:c candid31c for community In:atment;}::; an alterna:ivc to incarceration fo:- his parole violation. Fou:- n:onths later. in early April 2006 - while s1ill at Rikers bland ~ Mr. 0, was referred \0 the Federated EmploynlCnt and Guidance Services ("Fl~GS") N'{C Link Program. which assists m~:ntall)' ill inmates 'Alth iinding place!11C'nts in ~csidcntial t:-ca:mc-r:t facilities 2.nd other programs.
rhe Amended Complaint shlh:s that plair:tilTs case \yorker attempted to lind a rcs1ocnti<:ll MICA placement lor Mr. 0 .. but 'Was unablc to do so. On June 8, 2006, an Hdminlstratl\c law JwJge l!:isueJ a ue\:is:on restoring f/lnintitTt(i the rEGS ?\YC Link Program under the supervision
to a residentid.: tre<!tmenl prog!'ar.1 :f:1d could not be klc4teo. (Sklllnick Oed. ··4 1 ! ~ 13.)
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ofplaintiff"'s case worker. PlaintiIT\\as released on June 21. 2006, with instructions that he be referred to an appropriate housing and services programs. (Steinberg Ded Ex. 5; 10i15/2007 Skolnick Letter.i I-Ie was placed in a "Ne\\ Beginnings" residence and in a MICA day treatment program called the "Bowery Residents' Committee:" he did not receive a MICA residential placement
Plaintiff claims that he continued to seek his case worker's assistance ill finding a morc suitable :vtlCA treatment program (i.c., a residential program), but to no avail. Mr. O. decompensated again, and in December 2006. he was arrested and sent to Rikers for violating his parole. (Am. CampI. 'I~- 18-19.) Plaintiffplcadcd guilty to the charge offailing to report to his parole orticer. Aeeordll1g to the Amended Complaint, he did this rather than wait as a parole detainee for an appropriate placement, in hope that he \vould get a residential MICA placement upon his release from prison. (ld, ~ 19.) Jobie O. then began serving a twelve month sentence at Great MeadO\\ Correctional Facility in Comstock, New York, ""here he remained at the time he moved for class certification and (us far as the Court knows) remains toduy (though he should be released imminently).
PlaintifT alleges discrimination on account of his mental disability. He claims that appropriate treatment programs arc widely available for parole detainees with only substance abuse problems \-\ho are deemed suitable for diversion, whereas suitable MICA programs arc scarce and unavailable for similarly situated parole detainees with co-occurring mental illnesses. (Am CompL .... 1. J. 6,) It is on this basis that plaintifT seeks class-wide injunctive and
c. Plaintiffs release follo\\'"ed hard on the heels orhis substitution as a named p1aintift~ which this Court dates from the day plaintiffs counsel filed the signed stipulation with the court (June 16, 2006), rather than the day that stipulation was "so ordered" by Judge Casey (June 26, 2006),
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declaratory rdief ur.dcr the ADA and 1he Rehabi~itation Act
Discussion
Standing and Moolness Doctrine:"
Art£ctc m to ti:c C.s, Cunstitution lir:lic'i the j;Jrisuiction of the I~deral court:; 10 "a.:tual
'cases' and ·cl.lntro\.'crsies, '" AHQJJ v. Vo/ right, 468 U.S. 737, 750 (1984). The Supreme Cour~ has dc\·cloped scvera! doctrines rdatcd to this "cas~~ 0: controversy" requirement, foremost among them bcit:g :he coctrine of st.:mding. \vhic:l requires: (1) that thl! pbintiff suners \1n injury-in-fad or thl' threat of injury; (2) a causal connection bet·secn pja:ntiff s injury and d~'fcndanfs uctions; and (3) likelihooo thdt plaintin~s :njtlry 'will be redressed by the requested relicf. Set, cog"~ Lujan j:, Dcfcn~.t;.ls of \V ild!ifc. 504 t; .S, 555, 561 (1992), Jurisdiction is a thresJ101d issue that "cannot bc- waived by :he partics nur ign0rcd by ~h~ courts," ralilQrn;J~~Lj1B.t:c, 409 L::S. 109, I; 3 n.] (1972). lfthe::-e is r:o jus.ticiable cas.e or contrm-ersy" the court idCks subject matter jurisdiction
and ha:) no au:hority iO 0,1..:1. See, I:'.j{, !Jnitcc Stutl;"',,5. Parole CQrnm 'n-LJ3cradlt);", 445 U5, 388.
395 (1980). For u fedcral court to have jt~risdktion ovcr <l drum. a named pluin:i1T must have standing
\\jth rcspee: [0 tha: claim. ,ViH~l'.e oLAxli.D.l'.tonJ·fcig.t1ts y.J.. lcJJQllil.ljJ~L!.ous. Dev:_.~'(lrl2", 429 U,S. 252. 263~64 (1977). To sali"fy the "1..:<lSC or c()ntrovcrsy"' requirement of Articie Ill, the muned plaintiff aHlst sur~cr fron: an ;,tctuaJ or threahmcd injury '.vhich is "dislmct and palpable," 5ee JU!!hoO' v. ~t:\\ York Stal.~ Dcp't or.G9JJc.. 131 F.3d 326, 329·30 (2J eil'. 1(97), and I:) order
to represent a ..::Jass. tht' named pbinLiJT must personally have standing w litigate his own claim"
,\'ee Simon v. rasJem K~::...lYdrarc .Rights l)rl!". 426 L.S 26,40 n,20 (1976); Warth \" Ss;Jdil)"
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422 U.S. 490, 502 (1975): Salsi!, v. Peitz, 210 F,RD, 95, 99 (S.D.N.Y. 2002), Thus, if lobie O. lacks standing, this Court lacks subject matter jurisdiction to entertain the class relief requested
in this action. See Whitmore v. Arkansas, 495 U.S. 149, 145-55 (1990); Shain v. Ellison. 356
F.3d 21 L 215 (2d Cif. 2004). Even if Article Ill's "constitutionul minima are satisfied, a court may nevertheless deny
standing for prudential reasons.-' Lamont v. V·loads, 948 F.2d 825. 829 (2d eir. 1992); see Warth, 422 U.S. at 500-01. The prudential "mootness" doctrine assesses whether a litigant's stake in the outcome ortbe case or controversy continues throughout the life of the la\vsuit. S'ee Geraghty, 445 U.S. at 396-97; Cook v. Colgate Un]v" 992 F.2d 17, 19 (2d eir. 1993). The general rule is that "a case is moot when the ... parties lack a legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 L.s. 625, 631 (1979) (quoting Powell v. McCormack. 395 U.S. 486, 496 (1969) (internal quotation marks omitted»; Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir. 1994). As this Court has stated: "'The required legally cognizable interest has ... been described as a requirement that plaintiff have a 'personal stake' in the litigation. . Without such a personal stake, a court lacks subject matter jurisdiction and the case must be dismissed," Wilner Y. OSI Collection Servs., Inc .. 198 FR.D. 393, 395 (S.D.N.Y. 2001) (quotation and citation omitted).
Special concerns exist with regard to class action mootness, and the Supreme Court focused on these problems - including the timing of class certification - in a series of decisions in the mid-1970's. Comer, 37 F.3d at 79S (citing. infer alia, Sosna v. Iowa. 419 U.S. 393 (1975), Gerstein Y. Pugh, 420 U.S. 103 (1975), and f10ard ofSch. Comm'rs ofIndianapolis v. Jacobs, 420 U.S. 128 (1975) (per curiam». As a general rule, if the named plaintiiT's claims become
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moot prior to class ccrtHkation, the en;:ire action bc;;omcs moot and the case is dismissed. See
Jacobs, 420 U.S, at ; 29-30: ;iwan y. S:9n£TI£l11, 635 F.2d 97. 102 11,6 (2d eir. 1(80); \Vilner, 198
--~
VItD. (it :195. But ;rlhe c!J$$ is ce~lifieJ before the named plaintiffs claims bcCOr.1C moo I, he rna: cor.tinuc to rrpreser,t the class. e\!co though his mvn claims later be;;omes moot. See, e.g.,
There are three familia: cxc..:ptio!1s 10:he general rule: class action claims may survive a mootnCS$ ch~)l1cngc if they become moot because (a) :hc defendant voluntaril) ccases the injur}:cau:>ing conduct in an ut\cmp! to evade ,iudiciul $cruliny: (b) loc claims arc inherently tran!)jtor~(: or the daim~ arc capable of ft.-petition, ;'ct evadingjudkial r~vic....", Set: Du\i~, 440 U.S. ::;:
Voluntary C~sstltion. Both the Supreme Court and the Second Cm:uit hast;; considered the ([(dendan!':; role in IlW(lling. a rlainlill"s claims prif1f to certit1catio!l, nOling the potef;[lul f0r ubusc:r defendants can str:.llegically moot a putative class represen1ative's standing. See, e.g-. ,
852. !;iS7 (2d Cir. 1977). T:tc v(lluntary cessation exception to the mootness doctrine stcms from the priw;:ple that a parry should not be able to alitT its behavior or practices temporarily in order 10 evade judjdaJ review or m;mipulatc the jurisdiction of the cot:.r.s, .I.,'ee, e g , City..Nevis & ;'J{weily, l.DC. v. Cill:.of Wauk\i5ha. 531 C,S. 278, 2840.:.. n.l (2001) {cit:ng, inter alia. Ciwyltncv
Suprc:mc Cnt..:rt noted in Roper, the \.'ol'-mtar}' cessation exception is 5ignit1cant in toe class action context because it v,-ou!d be "eontr2f)' !(I sound jt:dicial admbistration" lfjuc'iciai review of d',allcngcd conduc: ;;ould be preycnted '·simply because the defendant has sought to 'buy ofT the

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 9 of 30
individual private claims of the named plaintiffs," 445 L.S. at 339. The Court explained: "Requiring multiple plabt~ffs to ht'i:lg separate at:1ions. which dlectiydy could hI! "rticked off' by a dt;;<:':1dan:'s tender ofjucgmcnt befim:;~ an affirmative :uLng on class certification cot.ld be obtained. obviously would f:ustnue the obj:.:ctivcs of class actions ... ," Ie,
inherently Tram-itor), Claims. '"Snm;; claims afC ;;:0 inherently transitory that the trlill court will not have even eno~lgh tif!1e to fate on a motion for cla:.s certificUlion before the proposed repr<:'sentativc's ir.divldual intercs: expires:' Geraghty, 445 C.S. ~r. 399; }itfC Gerstem v. Pugh, 420 L.S. lOJ {i 975), In (jersteio, prisoners brought a class action challenging pretrial detention procedures and se~king dedaratory and injunctive relief. The Supreme COllrt noted lhe usual rule lhat termmation of the named plaintitrs claim "vi!! not nccess-arily moot the action, <is ;ong as tht: mmed plairlt:lfr.ad nEve dai:n when th:;: dis.tric! C0!.:r: certified the class. See Gl'!'s:dn, 420 L.S. at 110 n.l L In Gcrsldr., h~iWCVCT. the recorc did not indicate whether any or Ine named plaintif1s had a ]:Y\.' claim when tht: class was certified. It;L Despite this. the Cuuri found the action not moot. cmphaslLing the tranSltu!'y character of the claims: "Pretrial uetention 15 by na:ure temporary ... , It is by no means certab thai ar:y giyCTI i:1divid:la:, named as plainti:]", \vlndd {)(~ in pretrial c.ls!ociy long er:ough rOY a distric judge to ccrtl(\' the class," IJ, (intermll citations omitted). Indeed. some Injuries are so temporary that the plaintiff might not
even have an opportunity to mo\c ror clas~ ccrtitication. (f Mundeo v. Stone. un F.R.D, 50,
56.60 tLD.N.Y. 19(9) (EmEng 1~'.1t moot p;a:ntiffs' dalt:ls challeaging statutory ~chemt: tor i!l\iuLinlarily o.:ommitmcnt of cnrni:lal JeJendant.:l, noting 11'.3t ::hc c-:-..·-il commitment
detenninatlon 1TIi.IS: occur \.\1thin ~ St'vent:Hwo hour pcrioc), In Sosna v,lowa. the plaintifT. whose divorce petition had been lhsmj~scd under a statc
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statute that required one yeJ.f of state residency p:ior to filing a divorco.: petition, brought a dass ae:ion seeking to have the- durational resrdency requirement dcddrcd UTlcoTlslitutiona:. See 419 135. :;'1. 393. The- Sl.:prcr.1c COlin held :hat. ,vhile the claim had be\:orr.e lYlOot as to the named p!ainli1T (because l~ore than a year had passed and the Stnte \-'>'ould not :1gam c!1forcc the
durational residency requirement against h.:r), the case '-'.. _does not inexorably become moot" uue to the re$o!ution of the named plaintiffs claims. To hold othcnvisc would "permit Ii <;ignificant dass of federal daims 10 remain unredressed [or \vanl of a spoke-;man who could
retain t\ personal adn:rsary posiiion throughout the courSe of the ht1gation." hl at 40 J-0:2 & n.9. Tht' Coun noted. however. that its moo:ness determbatitln \\dS afH:..:ted '"signifkantly'·
hy the fact that the district Wl:r. had already certili~d the class, cooferring u:;;on thc uOI':amed phlintiffs a "Icgo.! s:a:us s-eparate ii-om the interest asserted by itbc nao~ed plair.tiff]." Id. at 399, '1 he moot!1CSS cxccptJOr. in SOSnft \-\,[lS an au<,mpt to rt:concik the general rule tbat therc must be
a named pluintiffv.ho has a live case or conlroversy -- not only at the time the complaint is tiled, hut also at the time the class action is certified by the district court, see intra ~ with the pradical
difli..:ultivs [hat can arise ir. ~he c!dS:: aclion context. See hI, at 402.
Capable of Repetition, Yet E.:vadillg Review _ The yolcntary cessation and inherently :ransitwy daims cxccptiol:s can be :llO~lghl or as subSel$ of a broader cxecpt:on to Inoomes;, for cases lila: a:-e "capable or n.-11etitio:., yet cyading revie\y." See: Ge=agh~v. 445 U.S. at 398 n.6. Tbe "t:ap>lble of repetition. yet cyading rC\icw" doc:rinc traJhil'na!ly applies \-vbere a plaintiffs personal stake becomes moot. but \\h\;;re the daim 1m!"y arise again wi1h respect to lhat pl&intill Id. at 398 (ciling, inter alia, Southem Pac. Tcmlina! C~O, v. Interstate Commerce Comm:n, 219 U S 498, 515 (I () 11 )}, I'hough developed outside Qf :h<:: class adlOIi Cl'l1texl, this doctrine has
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bccn ap?lied in the class action conte-xt as well. See id.; see also Roe v, \Vadc. ';'10 l:'s, : 13, 123-25 (1973) (slating thai '·pregnancy often comes. more than once to the sa!TIC woman," and thi.lt pregnanc), "provides a classic justification for u condusiol1 of nonmootncss" because it is
truly '''capabie of repetition. yet c\ading review'''). Application of all :hrt'e muolces:-:; eXl.'e;;1ions reqllir,,~s an intense;y factual and situational
inquiry, As the Court -;Ia.led 1:1 So~ni1, in cases '.vhere th.:: Il2.m.::d p!;.lin1jf:~s daims become moot
bdorc the distnct court can reasonably mle on a certif;,,:ation motion, \"hctncr certification Dr the
class shodld H:btt: back tv a lime "vhen the named plainlifi' had a ll\c dUlIn ''tltpend[s] upon the circumstance" 0/ the parliUllar case and espet:bll) the reaJil: oflhc ebim that otherw:se the :ssue \vot.ld evade rc\'ic\-\;," SOS:1U, 419 lJ.S. at 402 :1.11 (emphasis added,!.
TIl\! QUCStl,):1 raiscc by dcfer.dar:.ts· oppusition 10 plaintirrs n:olion for class certitication is \\'ht:ther Jobie 0,' 5 claim fails v,'ithin the exceptions ro the general rule for mootn(,S5, On the t1tcts il!1d circumstan~es of this particular case, I conclude that appikatlon of a moolness exception is not \VdrrUllb;;(L Job:e O. did not 11.3.\'c a Ih'c case- ,)r cor~trovers'y when he moved for
I.·lass certitkation In Ju:y 2007 At :htlt !jm~. he was not -awaiting diversJon into u MICA
program, nor \\U5 Ill;: im:utccratcd in a Nc\v York Cil y )a11. In ta..'t, he had b\.'Cll out of Rikcrs
Island tor more- than a year when he 1ikd his motion lor dass ct'rt1fiemitHl. having been released for u lrealment disposition in JU:1C 2006, shortly after he intervened" Following his release:. Joble: O. wa:,> act'dally p:act'd in a MlCA ria; lrca:mcl:t program, but he claimed th;Jt prograrr, \\f\S inmkquate, and J communi!) rc-sid":I'..tiaJ program would be mo~e appropriate lor him. Yet Mr. O. did nut move for class ecrtitication during the months thJt his injury argua}-.!y cor'l1inued while he vvas receiving alleged I) jnadeq~Jate treatment. RatheL Mr. 0. l1lcd his motIon for class
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t..:ertil1catiol1 several month~ intu his one~year sentence in state prison (ibr violating hb parole after recidivating in lute 2006)-long after his claim hud become moot.
Vo/unfilry CeS!>fltion
r:le' panIcs do not .::ontend that the voiuntaf)' ,,;:,,'ssutio!1 ex(,:eplion app;ies, and there is 1:0 mdlcation that Jelcndar:ts strategicaHy released Mr. O. from inca::ccratioa 1n June 2006 with the intern of mooting his elaims before he could reasonably moyc- ror class cerUllcatlon. Thus, the pre;;em ~)ction docs not J:'tH under (his exception 10 mootncss, uhi"'h uJJn:S:ies ckiirns that arc "capabk of rcpetitjol~, yet evading review" J:.Je to alTirmutive steps :akcg by a dcfendant. Set:, t' g. S.Qhllh~Jn Fa\.\ Termi:!a: Co., 219 LS, at SIS; Corr:cr, 37 F,:'d at 800,
Inherently Trtnu'itory Claims To prcvent the manifest injustice of dismissing ciS moot claims that might never have a
chanc(' to be litigated fully. the COUIlS hJ.ve developed a dot:trinc \\ hereby the c(:rtifiration of a
class (:hc point at whic:1 the [:wOlness of the earned plaintiffs claim ordinarHy ceases to mat;er for subjc(;t malt.;;r Jl:nsJiction purposes. see Gerstdn, .wpm). "relates bad" to the filing ofthe complaint. lobi.;; () seeks to apply that doctrine to this ca~e,
l'Lllntilris correct that, in the context of a putative class action involving transitory c;aim~, even if the named plai::llifCs claim has occon:c moot, a decision on class eertificat:on can relate back to the tiUpg oft:'..: c()mplai:1t and hCI:1ay conticue to repr;;;:sent the duss. (See PL Reply Mem. at 5,) HUwe\ei, this "rciatian iJack'· d(1c:rinc ordi:1arily applies ..,:here rh(': ::l::Ul1CG pluinlilr ~ daim~ become moot afiur th~ named plaintiff moves fi)f class e<.:rtific;Hion but before
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the class is certified- not \\'I11:[c a motion tor !:lass ccrtilkatlon had yet to be liIcd due to th<:
plaintiff's deJay, Sec Weiss v. Regal Collections. 385 F3d 337, 347 (3d Cif. 2004) (noting that "most of the cases applying the relation back doctrine hu\'c done so after a motion to certifY the class has been filed").
This Cuurt has been c,ted to scvcnJ ca~cs and h;)s located man) others --- in \\'l1ich the relation hack doctrine h<)s been ~lpplicd to pn:vcnt mootacss in the class action contex:. 11: all of
those caso:s - (,XC-Cpt for ~he fan: ca:-.c \-vllcre the injury is so transitory that the p!a:ntiff might not e\ en b':e an opportuni:y to n:ovc tor class cc:tiikatiuo, sec Y1on::t~g, :wpra - ll::e named
or plain:itTs' claims became moot qlier the filing the :notion for class certirlcation, but before the
class was ecrtitlcd, eithe; because the' cOurt L:ould not reasonahly be expected to rule on the motion befure the claims became moot. or because lhe t.:ourt erroneously t11lcd to eertiry the class \\hi!C the claims were still live_
-rhis "relation back'" principle' is illustrated In Un.ned States Pamle Commission v
Gcraehtv, albeit in the context of an erroneous demal of class certification. In QSJ;Jgh,iy, the Supreme Court created 3:1 exception to tht;; :ule that ar: action is moot iflhe :1lJmcd plaintiffs ;.;:aims become moot before a ciass is c..:-r:iIi::.-d. 445 L~.S. at 404·05. Geraghty was a pr:son<::: who had been den:d ;mrole al":(: ti: ..:(: a class action challe:1ging the fede:ai pa:ole gu:clelincs. The district court denied tbe motion for cla::;s cl'rtific.ltio:1. \\ihilt' (,eraghty"s appeal of the dis1;-ict court's denial of class certil1cation was pending, he was rt~leased trom prison. The CD un found tha~ a named plailltitT \\ hos(? injury t'xisted at the time the district cou:-! dcnkd class certification may appeal the denial of class ecrti1ication, even if, in the interim, his claims
ir. becomc moot. Oeraghtv, 445 U.S. at 404-050.11. ThL' Supreme Court held that on appeal,
I J

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 14 of 30

the

denial

of class

ccrlilicMion

is

revcr~cJ. •

then

the

"corrected

ruling<

'relates

back'

to

lhe

date

of

the original der.iaL , . , [Bl~t i If the named piaimUThJ.s no personal stake in the outcome at 6.:

time class c~rti !ka6:m :s denied, relation back of appellate ren:!rs:Il of that de:lial still would not

prev'::1t !TIootn<::ss of the actio!":."' Id...

This subtle but important distinction is disclissed in Lusardi v. Xerox Com" 975 f.2d 964

(3d eiL 19(2), 'Ahh:h speaks to man)' of the Same standing and !TIootncss issues that are present

in this cusc'. Th<:: Third CircIJit began by expJnining how the "relalion back" rationale described

in C;~I;~ght'i co:npO:1S \xi:h Ankle Ill's case or cpntrpvers} requi:emen:, Hud Geraghty "Iacked

<111 :ndlvidual grie\ anct \\ it:!in tl:e pr:S(lfi 5)< 5tcn~ w:Jcn he moved for class ccr:ificalion," the

Th;f(l Circuit nOh.'d, aEuwi:1g such d. motion to proceed would ha\'(~ "climir,ateldj the I()ng~

standing r.de. reaffirmed in (Jeraghtv. that the pattio,)s. must ha\c a 'legally cognizable interest in

the outcome' ~\t ull stagt:::, orthe litigation." Lusardi, 975 F.2d at 976 (quoting Geraghty:, 445

U.S. a1396 Ontcrna! quota1ions omith:d»). 1n other words:

[T]he Gerlig,hty Court made de8: that :he tl~:ned pla:ntilY s attempt to represem

the

C;ilS:;

W~tS " justitiab" le on!v

because,

at

{he

lime

he

mow:u

fbr
"

,,1a\'s

f..'-ertificmiofl.
'

he possessed:In interest in Ihe ou:come of the case. ' .. Th("rc:orc, u:1de:,

Gt'nl:.::hl\"S 'rehll:Oll baci<.' Joctrilie. the namd plair:'liffhas Ih~ requisite tx:rsonal

Slake in cldSS ;;ertification only if, .. hc has a livc ind:vidu.:tl daim ...... l1co the

Jist::1";: court de...·ides the da,,~ t:crtiJication issue, Of, at the '\'\:"ry ica",!, he had;;'l live

claim when he J]h'dJor class certification, .. ,

hi. at 976~77 (emphasis added).

This commentuf) by our si:-h:r circuit proves instructive, An~r discussing Geraghtv'::.

holding it.at a rever::,,,:!1 of a denial of dass cenilication !'e!atc~ back 'to the original denial (and, thus, preY!.~nt::; rr,ootnc-ss jflhe named plamtJifs claim was "live"' at the t:n'.c of';hc or:ginaJ

dental). the '1 ~ird Circuit ohserwd: ··stiIL no opinion of V.::1ICh we arc i::tv.:arc allows a distnt:t

14

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 15 of 30
;;ourt :0 l'xcrcisc ju~'isdiction 0\ Cf a dil:iS cert:fieatio!1 mot:on filed by a ramed plaintiff lack:ng Ii
live clalffi at tnJ.: lime fiu: molion is flied," Lu::anJi, 975 F.2d at 977 (cmphu:}is add!o:d}; Yet aho id. at 983 ("\Ve arc not aware of a singh; case holding that a distrir.:1l:(lurt has ,;;ubjcet matter jurisdiction to hear a motion to certify tiled hy !1[1mcd plaintiffs whose personal claims have c-xpircd.")_
"lC]ourts of app~al~ have repeatedly refused to apply (}s.!:{o!£,.b.t{s relation back doctrine when the named pbintilfs individual claims became moot befiJf(' application/or class certificatioN." Lusardi. 975 r,2d at 977 (!o:mphu:})s in original). I'or example, in Tucker v. 1'hy1(;L 819 F.2d lLl30 (11th CiT. \1)87), plaintiff: while incarcerated, tiled an action claiming that he and o!hcr juveniles wcn: (onJieed in inadequate \.'ondiliom;. He did not move for da;;s certifit:atio:) u:1til tw0 yea::-s b~i;;::-, alttr he had already heen releas.ed from jail. The Eleyenth Cireui! aflirmcd the distrkt L"ourt's dC'r!iJ~ ~~f plaintiffs motion "or class cC'rtitkotioJl. r,01ing that '\mlike Itt' nan'.ed pJ.:Llitir':"s b IO~;agl;.tv and Sosnal, ~·u('~er did ';)ot movt: the Cl~l.Jrl to t:ertify hi:; ca:;e as a class action until a:tcr his ... claim hud bt:cume r:woL" I<L at :035.
A decision from the Scclmd Circuit. Corner '\ ..~.~.hm~.!:Ll~, 37 F.3d 775 (2d Cir, 19(4) .
cilCd by plaintiff l~)r the pwpo::i1:ion that tf!.; relation-back doctrine is particularly applicable in ciyil rights class action cas(':;' (PL Reply Mern, ~15) b actually not helpful for plaintiff on the issue M the tlmmg uf tht' motion for da:::s c.:nificarinn, Comer involved claims brought under th::: Fair Housing Ad by lo\,v-mcomt: minority r.:sld.:nts on b<:half of a class of fhrmer, "::um:nt, and future minority residents and applic:mts of public housing projects. alleging racial discrimination In the admtnistration nr public hnusmg and ,H",shmi;t,' programs. 37 F.3d at 779. fbe district court dismissed th...: plain:i!Ts' c;a;ms on standing and r.lootncss grounds (til:;!':> not
15

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 16 of 30
addressing \VhClher the putative representatives met the requirements for class certification), hut the: Second Ci:cuit vacated and remar.ded th.: case, EnJing th,Jt the plaintiffs had standIng to
b~ing discrlminmion dnims and their claims \\"crc :Jot :n001. lc. at 776. 779, The Second Cil'cuiI110:.:J lhat the numcd plaintiffs had stanciing, ~o bring the suit [:ot only
at the time they !lrsl filed a ;.:umplaint. btlt also at the time they filed three amended complnints. as we'll as at the tjme the case reached the Sl.~cond Circuii on appeal. [d. at 796 rhe thrust ofth.., ceur!':; mooines$ holding!1i COri\Cr \\us that the distr:ct COurt "took $0 long to nde on the qu~stioc of c:ass certi:!ca:ion onl: 10 ho;d ... thaI :he cla:n:s !had I bcco:nc moot." The plaintifls in Comer moved for class certitication less th"l0 1\\/0 months after filing their complaint; however, as the Second Circuit noted: "The district court never ruled on this motion, but ordered the plaintiffs to separate ~heir ;l{.:lion iYlto ;hn:c amended complaints, ... Then. two years later. the c.istr:ct court cisn:isscd :he complaints 011 ~tanc.ing and mootr.C5S grounds," Id, at 797.
j]1 a putative da,<,~ action. the IS~UC of class certitication must be dcten:,lnltd at an early prac!icublc time. ,\'e(> Fed. R, Civ. p, 23(:)(1 ) rhe Comer decision, hoth implicitly and explicitly, speaks 10 the fact tha1 diligent plaintllTs should r:.ot be penalized (in terms of standing
and moo1nessl by a district court's fa!:ure tl) de!:ide i:l motion :-or class ..::crtification that '.\as
[imdy mad\.'. Si:'e 37 F.3J dt 799 (discussing what havpens if, due to their transitory nature, claims hecome moot "while a motion for class ..:ertific:.uion is pending'"): t4., at 800 (noting that
certain mootncss arguments \-\ould not have bccn a\'ailablc to the district court had it "promptly and properly" made a detemlir;a!;ol1 on class ccrtitkat:on). In parlicL<lar, lhe Second Circuit in Comer :oak issue wit:' the ;,11511':ct court's '":ililJn: ~o pass uro:) the plaintiffs' !nt)tion for dass
.;(·rtiflcation I'm over two years" and its decision. after this "extended de1sy;' to dismiss the
16

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 17 of 30
claims on standing and mootness grounds. It \vas for these reasons that the Second Circuit found that the class certitication decision "related back:' rd. at 799.3
IIO\vcvcr, the extended delay' in the present case was caused by plaintiffs failure to file a motion for class certification until July 2007. not by this Court's failure to render a decision. \\/here a motion \vas not tiled until allcr the named plaintiffs claims became moot, the admonition oreamer is simply inapposite.
Long before Lusardi \\'as decided, the Second Circuit espoused the same principles in White v. l'vlathc\vs, 559 F.2d 852 (2d eif. 1977). In White, the named plaintiff brought a class action challenging the deluy in the Sociul Security Administration's adjudication of disability claims. 559 F.2d at 854. \Vhilc waiting for the adjudication hearing he requested five months earlier, the named plaintifT filed a class uction in January 1975 and he moved lor class certification in :'larch 1975. hL at 855. The district court certified the class action on July 18,
1975 . .kL [n the interim - in April 1975 - \Vhite received the administrative hearing he had
requested, thus mooting his individual controversy. ld. at 856. Citing Sosna, supra, the Second Circuit characterized the mootness question as whether
to allo'vv the district court's certilieation of the class in July 1975 to relate back to March 1975,
"when \\ihite moved Iv certijj' the class and still had not received a hearing .... ".kL at 857
J This conclusion is consistent 'vvith the cases holding that a named plaintifTmay continue to litigate the issue of class certification even if before the court is able to reach a decision, his claims become moot. .)'1:'1:' \Alhite v. .\1athcv...s, 559 F.2d 852, 857 (2d Cir. 1977); see also Sosna, 419 G.S. at 402 n, II. [(claims are so transitory that they cannot be fully litigated belore being rendered moot, then sllch claims would evade judicial review if a plainti!T could not continue 10 litigate the claims even after his personal stake becomes moot. These cuses do not, however, stand for the proposition that a plaintiff may continue to litigate claims that became moot as to him before he tiled a motion for class eertitication.
17

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 18 of 30

(--:mphasis added). The Circuit not::,d the inj'Jstice that wO'clld resu:t jfthc defendanl could aVDid

judicial review (,fits procedures simply by mooting the c!ai!11s of plaintiffs "'v;ho ;;eek, but have

r.o: yet ortaineLi, \:I<:)S5 (:cnilicar.ion,'" Id, Finding that, '·Ur.def ail the CifCUr:1stan;;:c5," :he

pla:ntifr;; ddims were not ::11001, the Second Circuit stated tha! there \\'as "n(l question that \V:tile

had alleged a subshmtia1 controversy '.vhe-a he filet! suit in January 1975, and nothing had

changed his position whcn hc mow:'djof ciass certijication in March of that yCfiC 1he e'\i.;tence

of a controversy af fhal {Joinl \\as Sufl1cli;;n: .. , to enable L'1is suit to proceed as a class ac!iut:."

fd" at 857 (emphasis added)" LnEkc :ht: c:r":U::11!>tunt:C~ di;;scnbt:J in \V!1ilc, Jubie 0:5 positJor./wd changed b<:twcen

the tirne he intervcned j:l June 2006 r.nd the time :1';; moved for cla.."s certific:Jtior. ~h~rtccn fl10ntb;.

!aier, This change renden:d hi:':. claim moot and deprives him of standing to serve as u named

plaintiff in this action.

Plaintiff implicitly argut:s that the Second Circuit effectively overruled While, and parted

wa-ys

"\'ith lhe

r'::Jsol~ing ~

of Lusardi,

in

-RobidDux Cc!al:.i. ................ Y. ~---------------~.

987

F.2rl931

(2d.

Cir.

1993),

a

case

that car.:l~ dl)\\l1Jus: six mont!13 (,-ftcr LlIsa:-di. PlaintdTrdics on RobiJoux lor the propositJOJ1

that the '"mat;;:riul :i::ne" fur rdalion back purposes is the date the plaintiff' commence's tht: ul:tion

(or, in Jobit, O. '$ CdSC, the date he interver:cd) rathcrthan the dute plaintiff muv!;'s luI' cla5$

ct!nijlcution, tS;:c PL Repl) M'.."m. at ),) IImvcvcr, plaintiff overlooks the critical distmction

b!;'l\veen thi;; H!4f>oning in R~)bh:lOt;" and in the Wbi~/Lllsardi line of cases, winch IS also the

nilicu.l disl:fH:tioll between RobidQl,tx and this case: thc J:amcd plaintiffs in K.s_lhi9"5":~"~;:; still had

live pcr::.onal claims when they rn;,ned Itlr cl2.5~ certiEcation (whi:..:h w~';::. tlu;, sanl\.' date they filed

~he complaint).

18

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 19 of 30
In Robidoux, applicants for Vermont public assistance benefits brought an action challenging delays in processing their applications. Robidoux filed her complaint on April 23, 1991. She filed her motion fiJI' class certificution on the same day. (See 91 Ci\,. 114 (D. VL), Dkt. #1, 3.) Other named plaintiffs later filed motions to intervene. At the time Robidoux tiled her motion for class certification - and at the time the other plaintiffs intervened - they had not yet received their benelits. See Robidoux, 987 F.2d at 934. I he district court denied the motion for class certification on June 11, 1991.
]\Iearly a year later - in its June 2. 1992 decision on defendant's motion for summar) judgment - the court ruled that plaintiffs' claims were moot because plaintiffs had, by that time, received their claimed benefits.~ The district court further held that plaintiffs had not established that they would face similar delays in the processing of their benefits applications in the future, so thc;.' were incligible to scck injunctive relierOB behalfofthe proposed class. Id. at 938.
The Second Circuit vacated the district court's judgment dismissing the suit, finding that the lovwr court erred in denying the motion for class certification, and that the Circuirs ruling on class certification should "relate back" (under Geraghty) because, '·i1'the district court had
certified the class, there could have been no linding of mootness:' .hi. at 938-39 (citing
·1 The record in Robidoux does not explicitly indicate when plaintiffs received their benefits. However, language in the decision suggests that plaintiffs receivcd their bcnefits sometime between
c- thc district court·s denial orthe motion for class certification in June 1991 and its ruling on summary
judgmcnt in .Iune 1992. Robidoux. 987 F.2d at 938 rhe district court also ruled against Appellants on two jurisdictional questions. First. in its June 11, 1991 Order denying class certification, it held that the named Appellants lacked standing. Second. by thl' timC' o/the court's June 2, 1992 tv/inK on the l)epartment"s motion for summary judgment, Appellants had received their henefits ....") (emphasis added). But even had plaintiffs received their benefits before the June 1991 decision on class certification, thc reasoning would not change under \Vhile, because their motion for class certi1ication had been filed bC'(iJl"e the "mooting" event occurred.
19

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 20 of 30
McI,(lUghlin, supra, 500 U,S. at 51. and Sosna, :wpm, 419 U.s. at 402 n.l1). The eourt of appeals sWled: "For (I plaintiff to have standing to requ\~st injunctive or declaratory relief, the injury alleged must be capable or being :-eure:iseJ through injunctive relief 'at that mumenL'" [d.
at 938 (quoting Mz:LaughEn. SOO U.S. at 51). The Ci:cnlt noted, !n:portar.tly, that at the time
Rohidoux filcJ ber ~orr.j)!air:t {\., h:..:h was th:: same dny sbe tiled l:e1' motion I()r cla!>s ecrtitieationl. she was suffering from the iniury lor which she was seekmg relief. Id. The Second Circuit staled that becanse. "at the material time," the mjuI) was "capable ofbcing redressed by dC('laratmy or mjunchn: rdief:' the named plaintiffs had standmg to ,,:ontinuc to
n:prest:p.t the dus:; of pe:sons vdl:)Se public ;js~:s:a;)ec ocnCnb had s:rdlarly heen cnlawfuHy
At the time Robidoux was decided. 'Vh!t!;': \ ...:~~JgJhc\... s. the controlling Second Cin.:uil dl,!cJsion, suggested that "the material time" was the date on v,:hich the motion f(Jr c!as~ certification was iiled. Because Robidoux's motion for class certification was filed on -the same day ;L'i the <.:omplaint, nDlhing in t{Dbidoux overruled While and set a new date (the' date the co:np:';l:nt was li:ed) as the releyallt date for n:la!ion b\1ck P~llVl1l:!eS, ever: :ho:tgh the Second Circuit used language that might had the facts been different led one to draw such a
COfl\;lu"klO. '{ herefore. wht:n the complaint and tht: motion tor class certification arc not filed
simultanCthlsly, V<hit£..Y.:. Mathc\vs still controL" ant! the liming of the motion for class
, In any evc:1L a d..:cis:on by a pa;1d oCtht: Second Ci!ct:1l, not en hone, may not be vie"\'ed as (~\,~.'ITU;ilig another panel's dccisk::-f: in a prior C-U::it' . •'ic!;" Sh4H1.!~JL~::JJg_~ru., 523 F.2d 509-, 514 n.s.
(2d eir. 1(75): see "tH' ,Ion O. i\:c\-vman, in Banr.; Practice In the 5,'ccond Circulf_ 198./-/988.55
BROOK. L REV. 355, 371 & n.68 (191\9) (citing Shattuck and noting the ·'requirement that a prior prect';cknt cannot be overruled except by an in bane court'").
20

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 21 of 30
F.3d 337. 346 (3d eir. 2(04) (noting thallhere is "considerable authority" that the relation back doctrine of Sosna comes into play "once a motion for class certification has been filed"),
Pre-Robidoux decislons Iforn my colleagues Ihithin this district espouse principles
consistent with the decisions dh,cu:;sed ab)yc, 1:1 Jane R v. New York City Der)t ofSo(;. Sen's.,
117 F,R,f), 64 (SJ)')l,Y, 1987). the plnintiffs bro-vght a clvil ;ights class action chalienglng
l.'ondilions a: two :short-term residen:ial care ,{'clers for adolescent glf:S with behavioral problems. The distrkl cou:t ccrtifi...:d the class, nol:ng that the action was not rendered moot eyen though oce orlhe named plabt:ff" no longer resided 3t one of the facH:tlcs. in analyzir.g

helo!'e the action became moar (is 10 lilt:: nanwd plain/ifC' J_£l.G.!;_J1., I: 7 F.R.D. 31 69 {emphasis

added) (citing Sosna. 4]9 C: S, at 402 n.l1. Gerstein, 420 l; .S. a1 J i O~ 11 n. J I. and (1:;.mRG.!):, 4':5

L.S. !l~ 3l)~-99).

The distnd \:o'.Irt n.'je~ted ddecdants' mootness argument prec:scly because a procedural

scenano ..· one \vhicn existed in Robi(l.9JlCi but does not exist with regClrd to lobie O. - was

present in Jane B, The plainti1Ts in JanJ: 13. ':flll!d,l()r eerO/lcalion at a time when both individual

plaintiffs presented live eases and controversies," so the district court round inapposite HQ.h..Y:.,

.~JgDJ~. 54 J F.2d 460 (4th eir, 1(76), because in that case "the named plaintifT did not even

move for class certiJicalion until months after his individ\lil] claim had been rendered moot,"

Jane LL 117 f.R.D.:;n 69. The: district court did remark, ho\vever. that "ftlhc .ugJJ eourt, ..

correctly found that case not covered by the n~I::Hion back doctrine, for precisely the reason that

this

case

is

covered:

(he

motion .for

CCfl-ifimliofl

nIIIS!

hi!

made

heron; '

the

naml.'d plaimifj's

case

21

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 22 of 30
is moor." Id. (emphasis added).
Similarly, in finding one ufthe named plaintiffs' claims moot in Cutler v. Perales, 128 F.R.D. 39 (S.D.l\. Y. 1989), the district court explained that "Several Supreme Court and Second
Circuit opinions have held that named plaintiffs wiJl not be eliminated on mootness grounds if their claims became moot a/ierfilingfor class certification, even if the district court has yet to certify the class." 128 f.R.D. at 43 (emphasis added) (citations omitted). The second named plaintiff in Cutler - whose claim became moot be/ore he filed a motion for class certification-
\vas dismissed from the suit for lack of sub.ject matter .jurisdiction over his claim. ld. at 43-44. Echoing the passage li'om Jane IL the court in Cutler eited I-Iolt approvingly for the proposition that a named plaintiff must make a motion for class certification before his claim becomes moot. S'ee id. at 43 n.3 (quoting Jane 0.,117 F.R.D. at 69 (citing Holt 541 F.2d at 460)).
The rationale of the cases discussed above is that a court should have an opportunity to rule on claims that would otherwise escape judicial review. But that reasoning docs not pertain when a dilatory motion Jor c1uss certification is filed long after the named plaintiff's claim became moot- particularly. as is true in this easc, where plaintiff is represented by experienced counsel. \Vhile .Iobie O. had standing \vhen he intervened in this action in June 2006. his claim became mooliong before any motion for class certification was made in this Court.
PlaintIff argues that application of a mootness exception "is appropriate here in light of the 'inherently transitory' nature or the parole violation process for parole detainees awaiting placement in community-based MIC A programs, which generally lasts from three to six months ..... (PI. Reply :rvlem. at 5.) PlaintifTmisapprehends the purpose behind the transitory claims exceplion. J'he Supreme Court recognized in Sosna that, depending on the circumstances
22

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 23 of 30
on the panicular I.:(lse, relation~back might apply if the named plaintiffs claims become moot before the district court '"can reasonably be expected to rule on a certilli,:ation motion," 5;ce 419 (; .S. ,,:t 402 n. ~ 1. Thi,: Supreme Court then t~rtber cxp;a;ned, in Geraghty, that this exception is in:ended fm c1aiu,:s that ';are so i!1hecr:t!y trznsitory l1:a1 the trial court \vill not nav(.' even enuug~ time to rull! on a motIOn/or ciass cerUjk:atfon bdtJrc the pro;!osed repr\.~scntatl\'c's individual
n interest espircs," 445 US <11 :;99 (cmpha~j$ added) (citing, Gerstein, 420 U.3, at ll1J·11 n,l
To be sure, "allowing a district court to decide a pending class ecrtifk:niof) motion . filed when the named plair;tiff nad J ~;\\' claim - after Ihe named phrintilrs individual daims hayc been resolved:s consistent \vith lhe SUP;CE1C Court's holdi:1g in Geraghty." Lusardi, 975 F.2d at 982 n.32. ll'.Jt the ease 1<1\\ that S'clPPOr:S this vicwpoin; "still requin::[sl tbe naraed plabtitTto have a personal stake when the class ccnification motion at issue \vusjih:d," It;L at 982 (emphasis in original).
J(lbie 0.' s claims arc not 50 transitc'l)' that a motion JC)l' ce11iiit:ali(ln could not h;:t\>c been filed bdorc i\1r. O's personal SiHh in the litigation bccan:c moot. \k O. WJS ;ncurcerated as a lJarole detainee if: DC:Ccl1;":ycr 20GS, was referred to FHGS in Ap:iI2006, a:1d \vaS:101 released '..lnti! June 21. 2006, In addition. he continued to seek what he deemed was an appropriatc (i.e., residential) :'lICi\ placement lor some months after his rdease. \Vhilc a period of three to si '\ months m1ght be iuo iransitor; tor a plaiahff10 litigate his clilim funy dnd ObtdlH relicf or even to ohtai:l a ruling cr~ dass certification ~ :1 :s plenty of time to{1te a motion for dass certilkatiun. which:5 all that lS n:qu;f(x: iI: ordc~ to saye a putal:-..''': dass plai:ll:rCs dHim from b(coming moot. The fact that plair.:tiffs COU.:1sel chose to do :lothinf! relatd ~o class cel1:ficmiu::1 while .Iobic 0, had (or a:guabl; had) a live claim - pursuing imlt'au 1he frolic and detour of seeking a
23

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 24 of 30
default judbl1nent -against the furmer govcr:lOL and p'.IUieg all else on hold _. is fatal to ,vl:. 0.'5
cillim. Pla:ntiff cit!.~s several eas-::s for t:;c propos:l:on tha: exct'pliuns ~-o mootncss arc
particularly applkablc in class actIOn ea"cs in the: crimmal justice and clvil rights nr..:na. rhe court agrees \-vlth this as a general proposition. Hut a~ Ihe Second Circuit has repeatcdly indk;ttetL the applicability of mootness exceplions is an intensely factual inquiry. See, t'.,1(., Comer. 37 F3d at 799; Rubidoux. 987 F.2d at 939. The facts and procedural histories in the <,:m:;es finding an exception to mootnes,> arc sig::1ificantly different than thpse presented in this
aClion. r or exumplc, if: \r1onaco v. StO:1e ~ cit.:;d t>y pkmi:T -tr.t' alleged i;ljU::Y lasted only
sevcnty~t\\O hours. See J87 F.lUl at 60, ?\tIL o:s cla:rr:ed injm; lasted 5c\'eral months. The nl1\!ged existence of a class of individuals who an: cUlT\!ntly incarcerated and
(maiting placement in a :vtICJ\ program indir.:aks tliul other potential named plaintiffs o::xist who huvc standing to bring the same claims as Jobic 0 .. and whose claims would not be moot Cf' 'I'tlcker, gIlJ F.2J a~ 1035. G:\\':l1 the spec-ific t:'1cts and clrCUI!lstances of the present action, this (;xcef)tion to the !D\wtness dm:l~il!e dot'::; not t:pply.
Standing 10 Seek injul1ctive Relief: CI(1ims "Lapahle of Repetition. }"et EI!ading Review" with Respect 10 the :Vamt'd PlaiJ1lijf
The moolness exception lor claims that arc "capablc of rcpeiilion, yet evading review"
applies ;n ;"'Wit'S \vht'rt' the piamhlr demon.stralCS that the injury to him wiil pcrsist, c\cn thoujl.h {he :-',)U,'CI: oethe ~njury has suhsided tt)f lhe moment. As discussed belm\'. where injuClctive rehef 1'; sought, this d('ctrinc appLes "on!y in excl'r~j(1nai situa:iofi5. and gene:aUy only whcrc the
24

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 25 of 30
named plaintifl can make a reasonable shmving that he \vill again be subjected to the alleged injury." Cit\' of Los Angeles v. LYons, 461 U.S. 95, 109 (1983)~ srI! also Weinstein v.l3radford, 423 U.S. 147. 149 (1975).
Plaintiff argues that his claims arc not moot and that he continues to have standing - even no\\ - to seek injunctive reliefbecallse he currently suffers from a threat of injury. In other words, }.ttr. O. suggests thaL given his condition, there is a realistic, non-conjectural likelihood that he \vill again. in the future. suffer from the same injury for which he now seeks class relief. (PI. Reply Mem. at 4.) Because \1r. O. was no longer sufTering the injury for '.>.ihich he sCl.!ks injunctive relicf at the time he moved for class certi /icalion, in order to have standing, he would need to sho\\' that the threat of him suffering from the same injury is "'real and immediate,' not 'conjectural' or 'hypothetical.'" Shain. 356 F.3d at 215 (quoting (YShea v. Littleton, 414U.S. 488.494(1974».
Past injury from challenged conduct docs not, withoutl11ore, provide a plaintiff with standing to seek to enjoin that conduct. hl (citing O'Shea, 4\4 C.S. at 495-96). In City of Los Angeles v. Lvons. the Supreme Court found that past injury supplied a predicate for compensatory damages where plaintiiTwas placed in a chokehold by police during a minor traffic stop, but the Court said this past injury did not forl11 a basi:; for prospective equitable relief, since plaintiff did not establish a real and immediate threat of suffering this same injury in the future. 461 U.S. 95,101-02,105-06 (1983). Similarly, in Shain v. Ellison. the Second Circuit found that it was ""entirely conjectural" that the plaintiff\vould, in the future, be subject to the same challenged detention practices for which he sought injunctive relief. 356 F.3d at 215.
PlaintilTcites this Court to '-ynch \'. Baxlev, 744 F.2d 1452, 1456-57 (lIth Cir. 1984), in
25

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 26 of 30
which u mentally ill individual \\ho had been detained on successive commirment petitions and :'ad spent lime il'. jml 3waitmg commitment hearings sought to enjoin the polley of detention pending involuntary commltm~nl proceeding:s. (PL Reply Men:, ul 3.) Even though the
lndividual was no longer incarcerated at the time. the court held that he had standing to act as
n;xu::u plaintitf dnd seek injt:nt.:tive relief, C'..le to the pussib:]ily that he wodJ be detained again given hiii condition. Lynch, 744 F.2d at 1456-57,1' The court found that there ',.vas "'every
indication tbat ihc! \voulJ t:ontinuc tn be the subject of involuntary commitment petitions" and,
thus, wocld contint:c 10 ~llr:er from the challer.geJ detention policy; that i~ \\'(1::\ "highly lii<.dy"
that the policy would continue: that the:-c \vas '"every likelihood" that involuntary commitment
pctitionii would be filed. agair:sf the l!lcntully-ill plaintiffrcsuliing in his incarccnltion in the same jail as be:ore; and that r.c dcmonstruti:d that he was "rt:•.dis;.icull) threatened" by D rt:petition of
his cxperiem:es. ld. at 1457,
The siuation surrounding Jobic 0., however. is much more analogous to the
drcumstanccs descrihed by Ihe Supreme Court in O'Shea and Lyllns than it is to Lvnch. C::J.1ike
Mr. n ,>vho was detained t()r violating hi::: parole, and who would hdvc been properly
l' The court irl .t.ynch detcffilined that an exception to moolness was \\'arnmtcd due to the temporary nature of the dClcntion being dmilenged, and because it was "cxtremely unlikely that any individual wulJ have his constitutional claim decided before hL' is committed or released." 744 F.2d at 1457. This conclusion is \'ons;stcnt \!,lith the notions olltlbed in Sosn(). and its progeny, whil.:h ;)~Iggest &n e.x..::cptio::1 tD rYlOOfnCSS where claim::; become moot before the district coart has a ft:asonablc opport:ll1lty to decide a motion fOf dass certit'ictltio!). "There may be cases in whk'h the contro·vcrs), :f:\'olving th:: named plaintilTs is such :ha1 it becomes moot as to them before !he district court can reasonably be expected to rule on a certification motion In such instam;es. \\hether the
cenlJication can be said to 'rclm.:: back' to the filing or the complaint may depend upon the
drcum$:an..:es of the partk~llar ",'asc ~md especially the reality of the claim that otherwise :he iS$Ui;: would evad~ revie\...." 41 q 11,S. at 402 0..11 ; see also Gerstein, 420 U.S. at }10 n.l L Como.:-f. '37 I· .3d at 799, Howevcr, this rationale docs not sa\'~ Jobic O.-s case. (or the reasons set fo:1h above,
26

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 27 of 30
incarcerated but for def¢ndants' discf('tionar) determination that he might bGne~lt from an
alternatiyc to incarceration (tht:re being no legal rcquin:ment to divert a parole violator) the
plaintiff in Lynch was dt;>taint'd as a n:sult of sw,:cc5sivc involuntary commitment petitions and
\vas held injuil pursuant to a slate POhlY Indeed, the Lynch court attempted to distinguish O'Shea. in \vhich the Supreme; Coun found that plaintiffs' allegations of future injury \Vcrc too
conjectural where the)' claimed lhal bifthe) violated the law and if they were charged lwith a cr:meJ they WOL:.ld be subject to discriminato:,) prac6;('$," 744 F,2d at 1457 n,? (citing O'Shea, 41'::: U.S. (1497)'
It is s:mpJ) too conjectural to say :hat Johic O. has a high likdH',ood or suffering in the rutl:fC :rom the same challc!1gcd conducl lhi::!{ forms the basis of the allegations in this case (i.e.,
thm he would again become :n.:an::cratt'd i:1 J f<...cw York City jail Sf> a parole detainee for an
excessive amount of time. av.;aiting an op>::nlr\g in <.1. suttnblc MICA plOgram), Th~ Court 'would have 10 assume that Mr. (l will again be parol..:d ut{.;r serving hi:; cUJTt'nl \\\eh'i:>month prison sentence. that hc will then be arrested on a pawle viohJlion in New York City and taken to a Nc,\,' York City jail, and that. despite hIS lrack record wlth treatment altcmatrves to incarceration, he will again be decmed ,,-ppropriate I()f plat'eme;l1 in a MJCA pr(\gram in lieu of incarceration (which is ~ discretlOnary determination). "Such an ac;;;;umubtion ofinicrem:cs 1S simp!} too spect:]ativc and conjectural to ;;;upply a prcdic:Jle Jo:, prospective injunctive reJ:ef" Shain, 356 jc.OJC· at.:". I.,"l·C·H·lI:g (...)...·~'I1ea, 41'4.1,·.S•. at 4')"!),
Thi::. court relcr~ 10 t~c circumstances described Dr the Secor:d CifCui! in S).ain, comiiarison to which is apt: "l:nder ;'VO;)s. to establish a su;'Jk'<:nt likelihood of ft f't:tllfC unconstitutional strip search, Shain \\Duld have to show that if'he is arr.:sted in ~ussau County
27

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 28 of 30
and !Ithe arrest is for a misdeme2.nor 3!1d ifhe is not released on bail anti ifhe is remanded to ~ccc i.l~lJ ilt~crc is no pa:-ticu:arit.ed reasC'!1ablc suspicion that he ~s cO!1ceaiing contraband, he
will again bl;i strip tie~n:lwd." :;56 F.3d 81216 (emp~asis in original). Jobic 0, did not demonstrate a 5ufflClcnt likchhootl that he wil1 again be: s~lbject to the
injury alleged in his t:omplainL A~ ~uch. he bcked standing to <::cck injunctive relief on behalf of the putatin: class at the time he liled his l.llncnd;;;d I.:omplaint and Ins motum for dass certification in ,luI} 1007. ,)'ee Setb\' v. Principal MaL Life Ins Co., 197 F.R.D. 48, 64 {S D.N.Y. 20(0) (ii:lding that plau:.tiffs did not hJV<: stanGmg to seck the ir:jur:cli'vc rclief fcqu.:stcd. and therefore they \;ou:d roo; seek this ~clk~f on bchal r of ¢lass rnembt:rs).
Conclusion In nu v,uy does this decision coostltut(' a commentary on the merits of plaintifr s case, nor
docs it makL: an assessment aboul the appropriateness of class tn~alment. As other district courts have noted, it seems "'beyond peradvc.'nture that the Second Cm:uil's general preference is for granting rather than denying class certilication. '" Corl1l!iano v. Oceam'lcw Manor llomc for Adultsc 227 1, .R1J 194. 203 (E.8.~.Y. 2005) (quNing LcidcU::..,.Rul1e, 2003 \VL 22339305, at '" II (S.D.t<. Y. Oc:. J(I, 2003) ;;:itatinr.s omincc.)t ; a:Tl simpl: hold:ng tim: u na!1H.:d p:a:ntif: must conform to the requ:remenls and prir:cipks 01 Article III and its attendan: pr~ld/;.'ntial doclrine~. Given the timing of plaintitrs motion fbr class certification filed more than a year alter he was rC'ieased from incarceration as a parole dctainc,,~ _. allowiIig Jobi(' O. to :serve u;;; named plamti IT would contravene thc$c requircmenB ;Jod principles. "\Vlthou; a Hilt' thut plain!lITh<t\c a Jive claim:lt kasi ",hen the motion to certily 1$ HIed. thc 'casc or controversy'

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 29 of 30
requirement would be almost completely eviscerated in the dass action context ... ," Lusardi. 975 F.2d at 983.
or Therefore. .Iobic 0." s complaint is dismissed for lack subject matter jurisdiction.
In cases like this one, a court may allow the substitution of a new named plaintiff with standing to seck injunctive relief on behalf urthe putative class. C(, Selby, 197 F.R.D. at 64-65 (citing Kcnavan Y. Empire Blue Cross Rlue Shield, 1996 \\/L 14446, at *4 (S.D.N.Y. Jan. 16, 1996) (dismissing allegations \vithout prejudice and granting leave to fe-certify the class if a new named plaintiff was presented within thirty day~ )). PlaintifT asks that I do so; defendants noting that this case was filed more than lour years ago and that repeated efrorts to find a viable class plaintiff have failed - asks that the complaint be dismissed.
It is tempting to grant defendants' request. The various named plaintiffs have been represented by experienced counsel. who should knm\-" hm\-" to litigate a matter like this one. Their tactical errors have compromised the yiability of a lmvsuit that raises seriolls issues, and \ve are close to the moment \\"here a court must say, "Enough is enoug.h."
But we are not quite there. Given the long delay that occurred while the motion to dismiss was suhjudice, and the additional delay occasioned by defendants' dilatory response to the complaint - as well as to preserve the benefit from the extensive merits discovery that has taken place I am giving class counsel nindy days (and not one day more) to bring in a new named plaintiff or plaintiffs. and to mo\-e for clas~ certifkation. The action will be dismissed on March 5, 2008. unless class counsel manages to comply with this Order. At that point they will have had four and a half years to make this lawsuit work, and enough will indeed be enough.
29

Case 1:03-cv-08331-CM Document 89 Filed 12/05/07 Page 30 of 30

Dated: December J-, "-'-'O{)"71 BY h\X TO ALL COUNSEL

(j~~ l;,S,DJ,

 
 Case: 1:03-cv-08331-CM As of: 03/06/2011 01:16 PM EST 1 of 13
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:03−cv−08331−CM

CLOSED

Jobe O. et al v. Spitzer, et al. Assigned to: Judge Colleen McMahon Demand: $0 Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff
G. William TERMINATED: 06/27/2006

Date Filed: 10/20/2003 Date Terminated: 03/11/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Daniel Adam Lebersfeld Dechert, LLP (NYC) 1095 Avenue of the Americas New York, NY 10036−6797 (212)−698−3629 Fax: (212)−698−3599 Email: daniel.lebersfeld@dechert.com LEAD ATTORNEY

Shari Lynn Steinberg Swidler Berlin Shereff Friedman, LLP (DC) 3000 K Street, NW Suite 300 Washington,, DC 20007 (212) 891−9460 Fax: (212) 891−9598 Email: slsteinberg@dechert.com LEAD ATTORNEY

Plaintiff
W. Walter TERMINATED: 06/27/2006

represented by Daniel Adam Lebersfeld (See above for address) LEAD ATTORNEY

Shari Lynn Steinberg (See above for address) LEAD ATTORNEY

Plaintiff Jobe O.

represented by Daniel Adam Lebersfeld (See above for address) LEAD ATTORNEY

Shari Lynn Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sabrina J. TERMINATED: 07/25/2007

represented by Daniel Adam Lebersfeld (See above for address) LEAD ATTORNEY

Shari Lynn Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
James S. TERMINATED: 07/18/2007

represented by Daniel Adam Lebersfeld (See above for address)

Case: 1:03-cv-08331-CM As of: 03/06/2011 01:16 PM EST 2 of 13
LEAD ATTORNEY
Shari Lynn Steinberg (See above for address) ATTORNEY TO BE NOTICED

V. Defendant George Pataki in his official capacity as Governor of the State of New York TERMINATED: 07/03/2007
Defendant Sharon Carpinello in her official capacity as Acting Commissioner of the New York State Office of Mental Health TERMINATED: 07/03/2007
Defendant William Gorman in his official capacity as Commissioner of the New York State Office Alchol and Substance Abuse Services TERMINATED: 07/03/2007
Defendant Brion Travis in his official capacity as Chairman and Chief Executive Officer, New York State Division of Parole TERMINATED: 07/03/2007
Defendant

represented by Joanne Skolnick New York State Office of the Attorney General (24th Floor) 120 Broadway, 24th Floor New York, NY 10271 (212)416−8556 Fax: (212)416−6009 Email: Joanne.Skolnick@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Benjamin Jaffe Attorney General of the State of New York 120 Broadway New York, NY 10271 212−416−8610 Fax: 212−416−6075 Email: william.jaffe@oag.state.ny.us TERMINATED: 03/13/2007 LEAD ATTORNEY
represented by Joanne Skolnick (See above for address) LEAD ATTORNEY
William Benjamin Jaffe (See above for address) TERMINATED: 03/13/2007 LEAD ATTORNEY
represented by Joanne Skolnick (See above for address) LEAD ATTORNEY
William Benjamin Jaffe (See above for address) TERMINATED: 03/13/2007 LEAD ATTORNEY
represented by Joanne Skolnick (See above for address) LEAD ATTORNEY
William Benjamin Jaffe (See above for address) TERMINATED: 03/13/2007 LEAD ATTORNEY

Case: 1:03-cv-08331-CM As of: 03/06/2011 01:16 PM EST 3 of 13

Eliot Spitzer in his official capacity as Governor of the State of New York

represented by Joanne Skolnick (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael F. Hogan in his official capacity as Commissioner of the New York State Office of Mental Health

represented by Joanne Skolnick (See above for address) ATTORNEY TO BE NOTICED

Defendant
Karen M. Carpenter−Palumbo in her official capacity as Commissioner of the New York State Office of Alcohol and Substance Abuse Services

represented by Joanne Skolnick (See above for address) ATTORNEY TO BE NOTICED

Defendant
George B. Alexander in his official capacity as Chairman and Chief Executive Officer, New York State Division of Parole

represented by Joanne Skolnick (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/20/2003 10/22/2003 10/31/2003 10/31/2003
10/31/2003 10/31/2003 11/03/2003
12/01/2003
12/05/2003
12/05/2003

# Docket Text
1 COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). FILING FEE $ 150.00 RECEIPT # 489392. (gmo) (Entered: 10/23/2003)
Magistrate Judge Kevin N. Fox is so designated. (gmo) (Entered: 10/23/2003)
2 AFFIDAVIT OF SERVICE of summons and complaint as to William Gorman by Carol Elmendorf, Secretary on 10/24/03 . Answer due on 11/13/03 for William Gorman . (yv) (Entered: 11/04/2003)
3 AFFIDAVIT OF SERVICE of summons and complaint as to Sharon Carpinello by Alan H. Sunukjian, Assistant Counsel at the New York State Office of Mental Health on 10/24/03 . Answer due on 11/13/03 for Sharon Carpinello . (yv) (Entered: 11/04/2003)
4 AFFIDAVIT OF SERVICE of summons and complaint as to Brion Travis by Robin Filmer, Secretary on 10/23/03 . Answer due on 11/12/03 for Brion Travis . (yv) (Entered: 11/04/2003)
5 AFFIDAVIT OF SERVICE of summons and complaint as to George Pataki by Gregory J. Allen, Assistant Counsel to the Governor on 10/23/03 . Answer due on 11/12/03 for George Pataki . (yv) (Entered: 11/04/2003)
6 Memo−Endorsement on letter addressed to Judge Casey from William B. Jaffe, dated 10/31/03: Request for extension of time is Granted. Reset answer due for 11/28/03 for Brion Travis, for William Gorman, for Sharon Carpinello, for George Pataki . ( signed by Judge Richard C. Casey ). (tp) (Entered: 11/04/2003)
7 ENDORSED LETTER addressed to Judge Richard Conway Casey from William B. Jaffe, Assistant Attorney General, dated 11/18/03 re: Parties shall appear for a pre−motion conference on 12/5/03 at 9:30 A.M., in Courtroom 14C. (Signed by Judge Richard C. Casey on 12/1/03) (sac, ) (Entered: 12/05/2003)
Minute Entry for proceedings held before Judge Richard C. Casey : Initial Pretrial Conference held on 12/5/2003. Discovery stayed except for interrogatories and doc. production. Defendant to file motion to dismiss. Motions due by 12/23/2003. Replies due by 2/20/2004. Responses due by 1/30/2004. RCC said no case mgmt plan until after motion to dismiss decided. (ja, ) (Entered: 12/19/2003)
Minute Entry for proceedings held before Judge Richard C. Casey : Initial Pretrial Conference held on 12/5/2003.Discovery stayed except for interrogatories and doc. production. Deft. to file motion to dismiss. Motion due by 12/23/2003. Oppossition

Case: 1:03-cv-08331-CM As of: 03/06/2011 01:16 PM EST 4 of 13

12/19/2003 02/03/2004 02/27/2004 02/27/2004 09/09/2004 08/12/2005 08/19/2005 09/09/2005 09/12/2005 09/16/2005 10/07/2005 10/13/2005 10/13/2005 01/18/2006 02/06/2006

due 1/30/04; Reply due by 2/20/2004. Judge Casey said no case management plan until after motion to dismiss decided. (jeh, ) (Entered: 01/16/2004)
9 MOTION (FILED ON SERVICE DATE) to Dismiss complaint purs to Rule 12(b)(6) of the FRCP. Document filed by Sharon Carpinello, William Gorman, George Pataki, Brion Travis. Attached are affirmations in support of Tracy and Jaffe (djc, ) (Entered: 03/02/2004)
8 STIPULATION AND ORDER, Set Deadlines/Hearing as to defts motion to dismiss: Responses due by 2/6/2004, and Replies due by 2/27/2004. (Signed by Judge Richard C. Casey on 2/2/2004) (jp, ) (Entered: 02/09/2004)
10 MEMORANDUM OF LAW in Support re: 9 MOTION (FILED ON SERVICE DATE) to Dismiss. Document filed by Sharon Carpinello, William Gorman, George Pataki, Brion Travis. (djc, ) (Entered: 03/02/2004)
11 REPLY MEMORANDUM OF LAW in Support re: 9 MOTION (FILED ON SERVICE DATE) to Dismiss. Document filed by Sharon Carpinello, William Gorman, George Pataki, Brion Travis. (djc, ) (Entered: 03/02/2004)
12 MEMORANDUM OF LAW in Opposition re: 9 MOTION (FILED ON SERVICE DATE) to Dismiss.. Document filed by W. Walter, G. William. (pa, ) (Entered: 09/13/2004)
13 MEMORANDUM AND ORDER; For the reasons set forth herein, Defendants' motion to dismiss the complaint is Denied. The parties shall appear at a conference in this matter on September 16, 2005, at 9:30 a.m. in courtroom 14C. (Signed by Judge Richard C. Casey on 8/11/05) (djc, ) (Entered: 08/16/2005)
14 MEMORANDUM AND ORDER; Defendants' motion to dismiss the complaint is Denied. The parties shall appear at a conference in this matter on 9/16/05 at 9:30 a.m. in Courtroom 14C. (Signed by Judge Richard C. Casey on 8/11/05) (sac, ) (Entered: 08/22/2005)
16 NOTICE of Appearance by Shari Lynn Steinberg on behalf of G. William, W. Walter. Received in night deposit box on 9/9/05 at 7:15 p.m. (db, ) (Entered: 09/13/2005)
15 FILING ERROR − ELECTRONIC FILING FOR NON−ECF CASE − ANSWER to Complaint. Document filed by George Pataki, Sharon Carpinello, William Gorman, Brion Travis.(Jaffe, William) Modified on 10/13/2005 (gf, ). (Entered: 09/12/2005)
MEMORANDUM TO THE DOCKET CLERK: Dft does not appear. Court instructs plaintiff to notify dft of next conference by certified letter. Next status conference set for 9/23/05. (dle, ) (Entered: 09/26/2005)
Minute Entry for proceedings held before Judge Richard C. Casey : Initial Pretrial Conference held on 10/7/2005. Case management plan submitted by the parties. All Discovery due by 4/7/2006. Status Conference set for 4/7/2006 at 9:30 AM before Judge Richard C. Casey. (sac, ) (Entered: 10/19/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF CASE ERROR. Note to Attorney William Jaffe to MANUALLY RE−FILE Document Answer to Complaint, Document No. 15. This case is not ECF. (gf, ) (Entered: 10/13/2005)
17 CASE MANAGEMENT PLAN: Amended Pleadings due by 1/15/2006. Joinder of Parties due by 12/16/2005. Discovery due by 4/7/2005. (Signed by Judge Richard C. Casey on 10/7/2005) (jmi, ) (Entered: 10/14/2005)
18 ANSWER to Complaint. Document filed by George Pataki, Sharon Carpinello, William Gorman, Brion Travis.(cd, ) (Entered: 01/20/2006)
19 ENDORSED LETTER addressed to Judge Richard C. Casey from Shari L. Steinberg dated 1/27/06. ENDORSEMENT: This, and other discovery disputes, have been transferred to Magistrate Judge Fox by seperate order. So Ordered (Signed by Judge Richard C. Casey on 2/6/06) (js, ) (Entered: 02/06/2006)

Case: 1:03-cv-08331-CM As of: 03/06/2011 01:16 PM EST 5 of 13

02/09/2006 02/10/2006 02/21/2006 03/24/2006 03/31/2006 04/11/2006
04/25/2006
05/15/2006 06/06/2006 06/06/2006 06/15/2006
06/23/2006 06/23/2006 06/27/2006
06/29/2006

Minute Entry for proceedings held before Judge Kevin Nathaniel Fox : Discovery Hearing held on 2/9/2006. (pl, ) (Entered: 03/07/2006)
20 ORDER: It is hereby ordered that on or before 3/2/2006, the parties shall submit a joint writing to the Court regarding the status of this action. (Signed by Magistrate Judge Kevin Nathaniel Fox on 2/9/2006) Copies Faxed By Chambers.(lb, ) (Entered: 02/14/2006)
21 STIPULATED PROTECTIVE ORDER: regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Kevin Nathaniel Fox on 2/15/06) (db, ) (Entered: 02/21/2006)
22 NOTICE OF APPEARANCE by Daniel Adam Lebersfeld on behalf of G. William, W. Walter (jmi, ) (Entered: 03/27/2006)
23 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Kevin Nathaniel Fox on 3/30/06) (js, ) (Entered: 04/03/2006)
24 ENDORSED LETTER addressed to Judge Kevin Nathaniel Fox from Shari L. Steinberg dated 4/6/06. ENDORSEMENT: The parties shall confer, on or before April 18, 2006 shall submit to the Court for it's review a proposed case management plan for all pretrial activities. So ordered. (Signed by Judge Kevin Nathaniel Fox on 4/7/06) (js, ) (Entered: 04/11/2006)
25 ENDORSED LETTER addressed to Judge Kevin Nathaniel Fox from William G. Jaffe dated 4/18/06 re: granting requests; All Discovery due by 5/31/2006. Telephonic Status Conference set for 5/15/2006 05:15 PM before Magistrate Judge Kevin Nathaniel Fox. (Signed by Judge Kevin Nathaniel Fox on 4/24/06) (pl, ) (Entered: 04/27/2006)
Minute Entry for proceedings held before Judge Kevin Nathaniel Fox : Status Conference held on 5/15/2006. (jco, ) (Entered: 06/13/2006)
26 MOTION for Sanctions on deft Pataki and awarding plntfs' their reasonable expenses. Document filed by G. William, W. Walter. (cd, ) (Entered: 06/07/2006)
27 MEMORANDUM OF LAW in Support re: 26 MOTION for Sanctions.. Document filed by G. William, W. Walter. (cd, ) (Entered: 06/07/2006)
28 ENDORSED LETTER addressed to Magistrate Judge Kevin N. Fox from William B. Jaffe dated 6/13/2006 re: requesting the following briefing schedule for 2 existing motions: defendants' reply papers on their motion for a protective order, and their opposition papers to plaintiffs' motion for sanctions will be served no later than 6/23/2006. Plaintiffs' reply papers on their motion for sanctions will be served no later than 7/3/2006. ENDORSEMENT: Application Granted. So Ordered. (Signed by Magistrate Judge Kevin Nathaniel Fox on 6/14/2006) (lb, ) (Entered: 06/16/2006)
29 MEMORANDUM OF LAW in Opposition re: 26 MOTION for Sanctions. and in support of Defendants Motion for a protective Order. Document filed by George Pataki, Sharon Carpinello, William Gorman, Brion Travis. (jmi, ) (Entered: 06/26/2006)
30 DECLARATION of Williams B. Jaffe. Document filed by George Pataki, Sharon Carpinello, William Gorman, Brion Travis. (jmi, ) (Entered: 06/26/2006)
31 STIPULATION; William G. and Walter W. hereby withdraw their claims in this action without prejudice. Pursuant to FRCP Rule 24(b) Jobe O., Sabrina J. and James S. are granted leave to intervene as plaintiffs in this action. The caption is to be amended. The terms and conditions of the protective order shall apply to the additional plaintiffs. (Signed by Judge Richard C. Casey on 03−8331) (kco, ) (Entered: 06/27/2006)
32 ENDORSED LETTER addressed to Magistrate Judge Kevin N. Fox from Shari Steinberg dated 6/28/06 re: counsel requests an extension of time until 7/10/06 to submit their reply papers in connectionwith plaintiffs' motion for Rule 37 sanctions. The time for the plaintiff to submit their reply brief is enlarged to 7/10/06. Should the parties be unable to resolve the discovery disputess noted

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06/29/2006 07/12/2006 07/12/2006 07/14/2006 12/14/2006 01/02/2007 02/22/2007 03/13/2007 03/15/2007
03/19/2007 03/19/2007 03/19/2007 04/02/2007 04/10/2007 04/13/2007

above, as they continue to discuss them, then each party must submit a writing to the court of no more than three pages, setting forth that party's position on the disputed matter(s). Thereafter, the court will fix a date and time for a conference. So Ordered. (Signed by Judge Kevin Nathaniel Fox on 6/29/06) (dle, ) (Entered: 06/30/2006)
Set/Reset Deadlines as to 26 MOTION for Sanctions.. Replies due by 7/10/2006. (dle, ) (Entered: 06/30/2006)
33 REPLY DECLARATION of Shari L. Steinberg in Support re: 26 MOTION for Sanctions. Exhibits attached.(jco, ) (Entered: 07/13/2006)
34 REPLY MEMORANDUM OF LAW in further Support re: 26 MOTION for Sanctions. Document filed by Jobe O., Sabrina J., James S. (jco, ) (Entered: 07/13/2006)
35 REPLY MEMORANDUM OF LAW in Support re: 26 MOTION for Sanctions. Document filed by Jobe O., Sabrina J., James S. (jco, ) (Entered: 07/18/2006)
36 NOTICE OF APPEARANCE by Joanne Skolnick on behalf of George Pataki, Sharon Carpinello, William Gorman, Brion Travis (Skolnick, Joanne) (Entered: 12/14/2006)
37 FILING ERROR − ELECTRONIC FILING FOR NON−ECF CASE− NOTICE OF APPEARANCE by Joanne Skolnick on behalf of George Pataki, Sharon Carpinello, William Gorman, Brion Travis (Skolnick, Joanne) Modified on 2/22/2007 (lb). (Entered: 01/02/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF CASE ERROR. Note to Attorney Joanne Skolnick to MANUALLY RE−FILE Document NOTICE OF APPEARANCE, Document No. 37. This case is not ECF. (lb) (Entered: 02/22/2007)
38 NOTICE OF APPEARANCE by Joanne Skolnick on behalf of George Pataki, Sharon Carpinello, William Gorman, Brion Travis (djc) (Entered: 03/15/2007)
39 MEMORANDUM AND ORDER; the Court finds that, given the amount of time the Governor has been out of compliance with his discovery obligations, and the fact that the plaintiffs have a right, under the Federal Rules of Civil Procedure, to obtain from any defendant a response to properly served discovery demands, imposing a sanction on the Governor that will act as a specific and general deterrent to any party to a litigation that fails to meet its discovery obligations is warranted. Therefore, the plaintiffs cross−motion is granted. The Governor is directed to respond, on or before April 6, 2007, to the plaintiffs outstanding discovery demands, without lodging any objections, all of which have been waived by his failure to respond to the plaintiffs discovery demands timely. (Signed by Judge Kevin Nathaniel Fox on 3/15/07) (pl) Modified on 3/16/2007 (Lancaster, Patricia). (Entered: 03/16/2007)
40 ORDER: A Telephonic Status Conference will be held in the above−captioned action on 4/10/2007 at 2:30p.m. The conference shall be initiated by counsel to the plts to (212) 805−3705. SO ORDERED. (Signed by Judge Kevin Nathaniel Fox on 3/19/2007) (jar) (Entered: 03/20/2007)
Set/Reset Hearings: Telephone Conference set for 4/10/2007 02:30 PM before Magistrate Judge Kevin Nathaniel Fox. (jar) (Entered: 03/20/2007)
41 NOTICE OF APPEARANCE by Joanne Skolnick on behalf of George Pataki, Sharon Carpinello, William Gorman, Brion Travis (cd) (Entered: 03/22/2007)
42 Partial Objection re: 39 Memorandum and Order. Document filed by G. William, W. Walter, Jobe O., Sabrina J., James S.. (tro) (Entered: 04/04/2007)
Minute Entry for proceedings held before Judge Kevin Nathaniel Fox : Telephone Status Conference held on 4/10/2007. (mbe) (Entered: 05/18/2007)
43 ENDORSED LETTER addressed to Judge Richard C. Casey from Joanne Skolnick dated 3/27/07 re: granting dfts requests for an extension of time for dfts to file objections to Mag. Fox's Memorandum and order dated 3/15/07 to 4/20/07. So

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04/13/2007 04/20/2007 04/20/2007 05/02/2007 05/03/2007 05/07/2007 05/07/2007 05/17/2007
05/18/2007

Ordered. (Signed by Judge Kimba M. Wood, Part I on 7/13/07) (pl) (Entered: 04/16/2007)
44 ORDER The defendants must comply with the order of the Court dated 3/15/07, unless directed to refrain from doing so by a district judge of this court. All Discovery due by 8/10/2007. Telephone Status Conference set for 6/25/2007 01:15 PM before Magistrate Judge Kevin Nathaniel Fox. So Ordered. (Signed by Judge Kevin Nathaniel Fox on 4/12/07) (jco) (Entered: 04/16/2007)
45 Objection to Magistrate Judge Fox's Memorandum and Order. Document filed by George Pataki. (jpo) (Entered: 04/23/2007)
46 DECLARATION of Joanne Skolnick in Support of 45 Objection to Magistrate Judge Fox's Memorandum and Order. document filed by Joanne Skolnick (jpo) (Entered: 04/23/2007)
47 FILING ERROR − ELECTRONIC FILING IN NON−ECF CASE − NOTICE OF CHANGE OF ADDRESS by Jennifer Jean Parish on behalf of all plaintiffs. New Address: Urban Justice Center, 123 William Street, 16th floor, New York, NY, USA 10038, (646) 602−5644. (Parish, Jennifer) Modified on 5/3/2007 (lb). (Entered: 05/02/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF CASE ERROR. Note to Attorney Jennifer Jean Parish to MANUALLY RE−FILE Document NOTICE OF CHANGE OF ADDRESS, Document No. 47. This case is not ECF. (lb) (Entered: 05/03/2007)
48 RESPONSE re: 45 Objection to Magistrate Judge Fox's Memorandum and Order. Document filed by George Pataki. Document filed by Jobe O., Sabrina J., James S. [Received in the Night Deposit Box on 5/7/2007 at 11:33pm.] (jar) Modified on 5/10/2007 (Rivera, Jazmin). (Entered: 05/10/2007)
49 DECLARATION of Shari L. Steinberg in Opposition re: 45 Objection to Magistrate Judge Fox's Memorandum and Order. Document filed by George Pataki. Document filed by Jobe O., Sabrina J., James S. [Received in Night Deposit Box on 5/7/2007 11:33pm. (jar) (Entered: 05/10/2007)
51 ORDER This case was assigned to Judge Richard Conway Casey, who passed away on 3/22/07. The case will be reassigned to a new judge in the near future. You will be notified of the reassignment on ECF (for ECF cases) or in a form to be mailed to you (for non−ECF cases). The parties in this case are ordered to review the attorney/party information on the docket sheet and determine whether the information presently listed is incorrect. If an error exists, the affected party must submit updated contact information no later than 5/30/07. Parties should take care to remove the contact information for attorneys no longer involved in the case and to enter appearances for any current attorneys who are not listed. The parties are also ordered to submit a joint summary of the case no later 5/30/07. The Summary should be sent to Judge Caseys Chambers Attn: Law Clerks and will be provided to the new judge upon reassignment of the case. The Summary should be a bare statement of the case with any relevant procedural history. This includes, but is not limited to, the subject matter of the litigation, whether discovery is complete, whether the case is or has been before a magistrate judge, whether there are any motions or applications pending, and the subject matter of the pending motions or applications, if any. Be sure to indicate whether the parties have entered into a case management plan and list the relevant dates. The Summary is not a vehicle for arguing the merits of disputed issues and should be brief. If the defendant in this case has not yet appeared, the plaintiff should indicate this fact and need not make a joint submission. Parties in cases involving an incarcerated pro se litigant need not make a joint submission. Should matters arise prior to the reassignment, parties are directed to review the previously issued Notice to Parties with Pending Civil Cases Before Judge Casey, available at www.nysd.uscourts.gov and follow the directions therein. (Signed by Judge Kimba M. Wood on 05/16/2007) (mj) (Entered: 05/24/2007)
50 NOTICE OF CASE REASSIGNMENT to Judge Colleen McMahon. Judge Richard C. Casey is no longer assigned to the case. (laq) (Entered: 05/23/2007)

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05/23/2007 05/24/2007 05/24/2007
05/31/2007

Mailed notice to the attorney(s) of record. (laq) (Entered: 05/23/2007)
52 DEFENDANT GOVERNER'S REPLY MEMORANDUM OF LAW in Further Support re: 45 Objection to the Magistrate's Memorandum and Order. Document filed by George Pataki. [Received in the night deposit box on 5/24/2007 at 9:54am.](jar) Modified on 5/29/2007 (Rivera, Jazmin). (Entered: 05/29/2007)
53 DECLARATION of Joanne Skolnick re: 52 DEFENDANT GOVERNER'S REPLY MEMORANDUM OF LAW in Further Support re: 45 Objection to the Magistrate's Memorandum and Order. [Received in the night deposit box on 5/24/2007 at 9:54am.] Document filed by George Pataki. (jar) (Entered: 05/29/2007)
54 ORDER The following procedures will apply to all cases transferred from Judge Caseys docket to Judge McMahon:I. PROCEDURES FOR CASES IN WHICH THERE ARE NO PRO SE PARTIES:1. Individual Rules: First and most important, please download a copy of Judge McMahons Individual Rules, which can be found on the courts web site (www.nysd.uscourts.gov), under Judges Rules (click on Judge McMahons name). Read them carefully. Judge McMahons Rules differ somewhat from the rules of other judges. She expects counsel to be familiar with her rules and to follow them. 2. Compilation of Chambers Files: Judge McMahon will receive from Judge Caseys chambers a copy of the letter submitted by counsel pursuant to the Order of Chief Judge Wood dated May 16, 2007. She will also receive courtesy copies of motion papers. In order to assemble an up−to−date chambers file, she needs to receive the following from counsel: (A) If Judge Casey entered a scheduling order or a case management order, please mail or fax to chambers a courtesy copy of the most recent such order. (B) If your case has been referred to a magistrate judge for any purpose, please send a copy of the order of reference to chambers.(C) If a Joint Pre−Trial Order has been filed, please send a courtesy copy to chambers. 3. Discovery Deadlines Where Prior Scheduling Order in Place: If you have a scheduling order in place containing a discovery deadline that has not yet passed, please adhere to that deadline. Judge McMahon does NOT routinely grant adjournments or extend the time to complete discovery. She expects cases to be ready for trial within six months of the filing of the complaint (or, in the case of transferred cases, within six months from the date of transfer). If your discovery deadline has passed, she is not going to give you additional time to complete discovery even if you have not conducted any discovery to date. If you have a discovery schedule, the date by which you must submit your Joint Pre−Trial Order and other pre−trial papers required by Jude McMahons Individual Rules is forty−five days after the discovery deadline. This rule supercedes any prior order of Judge Casey on this subject. If your discovery deadline passed more than 45 days ago, you have 45 days from the date of this order to submit a Final Pre−trial Order and you are subject to be called for trial on 48 hours notice, beginning July 15, 2007. Judge McMahon does not delegate to the magistrate judges authority to alter the discovery schedule that she sets. She will not honor any prior delegation of such authority made by Judge Casey. If you want the magistrate to have the authority to extend the discovery deadline from whatever it is today (whether that deadline was set by the Magistrate Judge or by Judge Casey), Judge McMahon will be happy to sign an order referring your case to the Magistrate Judge for all purposes, including trial. Unless you go to the Magistrate Judge for all purposes, Judge McMahon will retain control over your discovery deadline. 4. Case Management Orders In Cases Where None Has Been Entered: If you do NOT have a case management or scheduling order in place, you can put one in place in one of two ways: by consent of counsel or after a Rule 16 conference with Judge McMahon. Download Judge McMahons form of scheduling order, which can be found on−line at www.nysd.uscourt.gov. If counsel can agree on a set of dates that gets the case ready for trial in six months from the date the case was transferred, fill out the order, sign it and submit it the chambers via fax (212−805−6326) for the judges signature. Consent scheduling orders in transferred cases must be received in Chambers by June 6, 2007. If the time frame comports with the judges rules, she will sign the order and send you an order of reference to the magistrate judge for discovery supervision and non−dispositive motions. If counsel cannot agree on a scheduling order by June 6, 2007, you will be notified of the time and date for a Rule 16 conference, at which an order conforming to Judge McMahons rules will be entered. Judge McMahon does NOT adjourn Rule 16

Case: 1:03-cv-08331-CM As of: 03/06/2011 01:16 PM EST 9 of 13
conferences except in extraordinary circumstances.5. Joint Pre−Trial Orders Not Yet Filed: If the discovery deadline imposed by Judge Caseys or the Magistrate Judges most recent case management order has passed but you have not filed a Joint Pre−Trial Order, you have forty−five days from the date of this order to file a Joint Pre−Trial Order, along with all other pre−trial papers required by Judge McMahons Individual Rules. Papers to be filed along with the Joint Pre−Trial Order include proposed jury instructions (jury trials) or findings of fact and conclusions of law (bench trials), as well as trial briefs, if necessary. Do not file motions in limine. Motions in limine will be denied without prejudice if they are filed along with the Joint Pre−Trial Order. They should be filed when the case is noticed for a Final Pre−Trial Conference. YOU MUST FILE THE JOINT PRE−TRIAL ORDER AND RELATED DOCUMENTS, EVEN IF YOU HAVE A MOTION FOR SUMMARY JUDGMENT PENDING OR YOU PLAN TO FILE SUCH A MOTION. Judge McMahon does not waive the filing of trial−ready papers just because dispositive motions have been made or are contemplated. Judge McMahon will NOT grant any extension of the forty−five day deadline for filing trial−ready papers in cases in which discovery is, or should have been, completed. This order supercedes any other order previously entered by Judge Casey concerning the filing of a Joint Pre−Trial Order or other pre−trial papers. 6. Electronic Discovery: Judge McMahons rules governing electronic discovery (which can be found at www.nysd.uscourts.gov) apply automatically to any case assigned to her docket unless and until the parties agree on a different electronic discovery order. If Judge Casey or a Magistrate Judge previously entered an electronic discovery order, that order will control in your case; otherwise, you are subject to Judge McMahons rules unless you present something different for her signature. 7. Special Rules for Section 1983 Cases: Counsel representing individual defendants in Section 1983 cases who are asserting the defense of qualified immunity should read Judge McMahons Individual Rule concerning qualified immunity motions, and should take or complete the plaintiffs deposition and make the motion required by Judge McMahons rules within sixty days of the date of this order, regardless of the state of discovery. Judge McMahon will not extend this deadline for any reason. Please read the rule carefully: Judge McMahon will not consider anything on a qualified immunity motion except the testimony of the plaintiff, which testimony must be taken prior to filing papers in support of the motion. Any defendant who does not make a motion as required by Judge McMahons rules waives his right to have the issue of qualified immunity decided on motion prior to trial. 8. Special Rules for Patent Cases: Judge McMahon has procedures for handling patent cases that differ from her procedure in other cases. If your case is a patent case, you will be called in for a status conference. If you are presently engaged in discovery pursuant to a Scheduling Order entered by Judge Casey, please continue with discovery until your conference can be held. 9. Special Rules for IDEA and ERISA Denial of Benefits Cases: Instead of entering to a scheduling order that provides for discovery, either counsel should agree on a schedule for making cross−motions for summary judgment on the administrative record and submit that schedule to the Court, or the court will impose such a briefing schedule at a status conference. 10. Special Rules for Cases Subject to the Private Securities Litigation Reform Act: Judge McMahon will conference your case and set a schedule in keeping with the statute. II. FOR CASES IN WHICH THERE IS A PRO SE PARTY:In general, Judge McMahons normal rules apply. Pro se parties, like all other parties, are required to become familiar with Judge McMahons Individual Rules and to follow them. This section sets out any variations from her usual rules for cases in which any party is pro se.1. Scheduling Order. If there is a scheduling order in place, please adhere to that scheduling order. The Magistrate Judge has authority in cases in which any party is pro se to extend the scheduling order for good cause shown. If there is no scheduling order in place, Judge McMahon will conference your case, set a scheduling order and issue an order of reference to the Magistrate Judge for discovery supervision. 2. Final Pre−Trial Orders: In cases involving pro se parties, the pro se party and parties represented by counsel file separate Pre−Trial Orders and related papers. All such papers are due forty−five days after the expiration of the discovery deadline. 3. Prisoner Cases: In cases involving incarcerated pro se parties, counsel for any represented party or parties shall arrange for a copy of all scheduling orders, orders of reference, pending motion papers and other papers needed to assemble an up−to−date chambers file to be forwarded to chambers. (Signed by

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06/18/2007 06/19/2007 06/21/2007 06/21/2007
07/03/2007 07/03/2007 07/05/2007 07/05/2007 07/06/2007
07/06/2007 07/06/2007 07/12/2007

Judge Colleen McMahon on 05/25/2007) (mj) (Entered: 05/31/2007)
55 ORDER: IT IS HEREBY ORDERED that the telephonic Status conference, previously scheduled for June 25, 2007 will be held on June 19, 2007, at 10:30 a.m. The Telephonic Conference shall be initiated by counsel to the plaintiffs to (212) 805−6705. (Signed by Judge Kevin Nathaniel Fox on 6/15/07) Copies Faxed By Chambers.(tro) (Entered: 06/19/2007)
Minute Entry for proceedings held before Judge Kevin Nathaniel Fox : Telephone Status Conference held on 6/19/2007. (tro) (Entered: 07/16/2007)
56 ORDER Amended Pleadings (Complaint) due by 7/3/2007,Interrogatories due by 6/28/2007,Responses due by 7/27/2007,Replies due by 8/27/2007. SO ORDERED. (Signed by Judge Kevin Nathaniel Fox on 6/19/2007) (jmi) (Entered: 06/22/2007)
57 ORDER; plaintiffs have ten days from today's date to file a pleading that sets forth the basis for their belief that Governor Pataki was personally involved in the matters in suit. After reviewing that submission, this Court will decide whether Governor Pataki has to respond to any interrogatories, or whether the depositions of the relevant commissioners and the thousand of pages of documents hereto turned over by the State will suffice. At the end of those ten days, this Court will also set a schedule for the filing of a joint pretrial order so that this matter can be tried as soon as possible. The case is four years old. It will not see its fifth birthday in this court. (Signed by Judge Colleen McMahon on 6/20/07) Copies Mailed By Chambers.(kco) (Entered: 06/25/2007)
62 AMENDED COMPLAINT against Eliot Spitzer, Michael F. Hogan, Karen M. Carpenter−Palumbo, George B. Alexander.Document filed by Jobe O., Sabrina J., James S..(jp) (Entered: 07/11/2007)
SUMMONS ISSUED as to Eliot Spitzer, Michael F. Hogan, Karen M. Carpenter−Palumbo, George B. Alexander. (jp) (Entered: 07/12/2007)
59 ORDER: Pursuant to Fed. R. Civ. P. 30(2), The defendants may depose plaintiff Jobe Overton, DIN 03−A−3308, at Sing Sing Correctional, Facility, Ossining, New York, on July 18, 2007, at 10:00 a.m. So Ordered. (Signed by Judge Kevin Nathaniel Fox on 7/2/07) Copies Faxed By Chambers.(js) (Entered: 07/09/2007)
Minute Entry for proceedings held before Judge Kevin Nathaniel Fox : Telephone Conference held on 7/5/2007. Re: discovery. (db) (Entered: 08/15/2007)
58 ENDORSED LETTER addressed to Kevin Nathaniel Fox from Shan L. Steinberg dated 7/3/07 re: an extension of time to file an amended complaint with respect to Sabrina J. It is also respectfully requested that the Court approve the dismissal of Mr. S's. claim without prejudice pursuant to FRCP 41(a)(2). ENDORSEMENT: In light of the June 20, 2007 determination by Judge McMahon, which inter alia, fixed a date for the parties to file their joint pretrial order, and considering Judge McMahons standing rules regarding all cases previously assigned to Judge Casey, which reserves to the assigned district judge all authority to fix milestone dates for the completion of all pretrial activities, the request to enlarge the time to amend the pleadings should be made to Judge McMahon. Furthermore, since the withdrawal of the complaint by Mr. S. is a dispositive action, that too must be handled by Judge McMahon. SO ORDERED. (Signed by Judge Kevin Nathaniel Fox on 7/3/07) (tro) (Entered: 07/09/2007)
60 DECLARATION of Shari L. Steinberg. (jco) (Entered: 07/11/2007)
61 SUPPLEMENTAL MEMORANDUM OF LAW pursuant to the Court's Order dated June 20, 2007. Document filed by Jobe O., Sabrina J., James S. (jco) (Entered: 07/11/2007)
64 ORDER re: 61 Memorandum of Law filed by James S., Jobe O., Sabrina J.:After reviewing the Plaintiffs' Supplemental Memorandum of Law, filed pursuant to the Court's order dated June 20, 2007, I conclude that there is absolutely no basis for plaintiffs to assert that they require additional discovery from George Pataki personally,...See document for more details. (Signed by Judge Colleen McMahon on 07/10/07) Clerk's Office Mailed Copies..(dcr) (Entered: 07/18/2007)

Case: 1:03-cv-08331-CM As of: 03/06/2011 01:16 PM EST 11 of 13

07/16/2007
07/18/2007 07/18/2007 07/20/2007 07/25/2007 07/25/2007
07/27/2007 07/27/2007 07/27/2007 07/27/2007 07/27/2007 07/27/2007

63 ORDER: The Order of the Court dated July 2, 2007, concerning the date, time and location for the deposition of plaintiff Jobe O. remains in full force and effect; The deposition of Sabrina J. will be held on July 23, 2007; The deposition of Terry Saunders will be held on July 25, 2007; The deposition of John Casey will be held on July 27, 2007; The deposition of Barbara Cohn will be held on July 30, 2007; The deposition of Sharon Carpinello will be held on August 1, 2007; The deposition of Dr. Francis McCorry will be held on August 3, 2007; and the deposition of any person(s) conducted pursuant to Fed. R. Civ. P.30(b)(6) will be held on August 6, 2007, August 7, 2007, and, if necessary, August 8, 2007. It appears from correspondence the Court received from the parties that an application(s) or an order pursuant to fed. R. Civ. P. 26(c) may be sought. Any party who determines to make such an order must do so expeditiously. In addition, the defendants have made the Court aware, via correspondence, that the plaintiffs failed to respond appropriately to the defendants outstanding discovery demands. So Ordered. (Signed by Judge Kevin Nathaniel Fox on 7/13/07) (js) (Entered: 07/17/2007)
65 MEMO ENDORSEMENT on NOTICE OF DISMISSAL OF PLAINTIFF JAMES S. Pursuant to Fed. R. Civ. P. 41 (a)(i), plaintiff James S. hereby dismisses all claims in this action without prejudice. So Ordered. (Signed by Judge Colleen McMahon on 7/18/07) (tro) (Entered: 07/19/2007)
Minute Entry for proceedings held before Judge Kevin Nathaniel Fox : Telephone Conference held on 7/18/2007. (db) (Entered: 08/15/2007)
Minute Entry for proceedings held before Judge Colleen McMahon : Telephone Conference held on 7/20/2007. Motions due by 7/25/2007. Pretrial Order due by 11/16/2007. Responses due by 7/24/2007. Answer to Amended Complaint Due 7/27/07. (js) (Entered: 07/31/2007)
66 NOTICE of Voluntary Dismissal pursuant to Rule 41(a)(1) of the F.R.C.P. of plaintiff Sabrina J. w/out prejudice. (Signed by Judge Colleen McMahon on 7/20/07) (ae) (Entered: 07/26/2007)
67 MEMO ENDORSEMENT on NOTICE OF MOTION for an Order,purs. to FRCP 37 compelling defendants to respond to all discovery. This motion to compel is DENIED. Defendants have turned over numerous documents and provided the names of numerous potential witnesses. If during depositions, the witnesses identify unprivileged documents that have not been turned over, rest assured that this court will immediately (1) compel their production and (2) order sanctions in the form of costs should further depositions be required due to the belated production. All documents on the privilege log should be turned on to the Court forthwith for in camera inspection. (Signed by Judge Colleen McMahon on 7/25/07) (tro) (Entered: 07/27/2007)
68 ANSWER to Amended Complaint. Document filed by Eliot Spitzer, Michael F. Hogan, Karen M. Carpenter−Palumbo, George B. Alexander. Related document: 62 Amended Complaint filed by James S., Jobe O., Sabrina J. (cd) (Entered: 07/30/2007)
69 DECLARATION of Shari L. Steinberg in Support of plaintiff's motion for class certification pursuant to Rule 23 of the F.R.C.P. Document filed by Jobe O. (pl) (Entered: 08/01/2007)
70 MOTION for an order pursuant to Rule 23 of the F.R.C.P. to CLASS CERTICATION. Document filed by Jobe O.(pl) Modified on 8/1/2007 (Lancaster, Patricia). (Entered: 08/01/2007)
71 MEMORANDUM OF LAW in Support re: 70 MOTION to Certify Class. Document filed by Jobe O. (pl) (Entered: 08/01/2007)
72 DECLARATION of Karen Bower in Support re: 70 MOTION to Certify Class.. Document filed by Jobe O.. (pl) (Entered: 08/01/2007)
73 DECLARATION of Kenneth Stephens in Support re: 70 MOTION to Certify Class. Document filed by Jobe O.. (pl) (Entered: 08/01/2007)

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07/27/2007 08/02/2007 08/02/2007 08/03/2007
08/21/2007 08/21/2007 08/24/2007 08/24/2007 08/24/2007 09/14/2007
09/18/2007
09/24/2007 10/31/2007 11/07/2007

74 DECLARATION of Jennifer J. Parish in Support re: 70 MOTION to Certify Class. Document filed by Jobe O. (pl) (Entered: 08/01/2007)
75 ORDER,I will give defendants until noon on August 1 (Wednesday) to fax me some explanatory material. I will consider it as part of their in camera submission, so it does not need to be faxed to plaintiff' counsel as well. (Signed by Judge Colleen McMahon on 7/30/2007) (jmi) (Entered: 08/03/2007)
76 DISCOVERY DISPUTE RESOLUTION ORDER: The defendants' motion for a protective order against the Rule 30(b)(6) deposition designations is denied. (Signed by Judge Colleen McMahon on 7/27/2007) (jmi) (Entered: 08/03/2007)
77 ORDER: defendants have advised the Court that they intend to turn over document #8. Plaintiffs are relieved of the obligation to apprise the Court of cases that would tend to negate the existence of a deliberate privilege in the litigation context. (Signed by Judge Colleen McMahon on 8/2/07) Copies Faxed By Chambers.(kco) (Entered: 08/06/2007)
78 REPLY MEMORANDUM OF LAW in Support re: 70 MOTION to Certify Class. Document filed by Jobe O. (pl) (Entered: 08/27/2007)
79 REPLY DECLARATION of Shari L. Steinberg in Support re: 70 MOTION to Certify Class. Document filed by Jobe O.. (pl) (Entered: 08/27/2007)
80 DECLARATION of Ana L. Russell re: personal knowledge of facts herein. Document filed by Eliot Spitzer, Michael F. Hogan, George B. Alexander. (pl) (Entered: 08/28/2007)
81 MEMORANDUM OF LAW in Opposition re: 70 MOTION to Certify Class. Document filed by Eliot Spitzer, George B. Alexander. (pl) (Entered: 08/28/2007)
82 DECLARATION of Joanne Skolnick in Opposition re: 70 MOTION to Certify Class. Document filed by Eliot Spitzer, Michael F. Hogan, Karen M. Carpenter−Palumbo, George B. Alexander. (pl) (Entered: 08/28/2007)
83 ENDORSED LETTER addressed to Judge Colleen McMahon from Shari L. Steinberg dated 9/7/07 re: a request that the Court compel the Attorney General's office to produce additional documents that they have received from the Division of Parole. ENDORSEMENT: produce the documents by 12 noon on 9/11/2007 or I will entertain a motion to preclude. (Signed by Judge Colleen McMahon on 9/10/07) Copies Mailed by Chambers on 9/10/2007(kco) (Entered: 09/17/2007)
84 ORDER RESOLVING DISCOVERY DISPUTES: Plaintiff Jobie O's deposition will be continued for no more than four additional hours. The deposition will take place at the Great Meadow Correctional Facility, where plaintiff is currently incarcerated. Defendant will complete production of all requested documents by 9/21/07, at noon. Thereafter, neither party may make any further request for the production of documents, whether in writing or orally (at deposition). Should the court learn that documents that were previously requested have not been produced by the specified date, sanctions will be ordered, provided plaintiff provides documentary proof (in the form of a Rule 34 notice or transcript references) that the documents were requested. Request for Production of Documents due by 9/21/2007. (Signed by Judge Colleen McMahon on 9/18/07) Copies Faxed By Chambers.(tro) (Entered: 09/19/2007)
85 ENDORSED LETTER addressed to Judge Colleen McMahon from Joanne Skolnick dated 9/21/07 re: Request that the time for production be enlarged. ENDORSEMENT: OK. (Signed by Judge Colleen McMahon on 9/21/07) Copies Mailed by Chambers.(db) (Entered: 10/10/2007)
86 CALENDAR NOTICE: Pretrial Conference set for 11/7/2007 at 9:30 AM in Courtroom 21B, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon. (Signed by Judge Colleen McMahon on 10/31/07) Copies faxed by chambers on 10/31/07(kco) (Entered: 11/01/2007)
Minute Entry for proceedings held before Judge Colleen McMahon: Status Conference held on 11/7/2007. Decision: Status Conference held. Motions for summary judgment due 12/14/2007; responses due 1/18/2008; replies due

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1/25/2008. Pre−trial order due 12/21/2007. (Submitted by Zack Shankman). (mde) (Entered: 12/05/2007)
Minute Entry for proceedings held before Judge Colleen McMahon: Status Conference held on 11/7/2007. Motions for summary judgment due 12/14/07; responses due 1/18/08; replies due 1/25/08. Pretrial order due 12/21/07. (ae) (Entered: 12/05/2007)
Set Deadlines/Hearings: Motions due by 12/14/2007. Pretrial Order due by 12/21/2007. Responses due by 1/18/2008 Replies due by 1/25/2008. (ae) (Entered: 12/05/2007)
Minute Entry for proceedings held before Judge Colleen McMahon : Telephone Conference held on 11/16/2007. Decision: Telephone Conference held to clarify the issues. (Submitted by Zack Shankman). (mde) (Entered: 11/16/2007)
87 ENDORSED LETTER addressed to Judge Colleen McMahon from Joanne Skolnick dated 11/21/2007 re: request that the summary judgment date by readjusted to again allow defendants at least a 30 day period to submit summary judgment papers following the Courts decision on the class certification, with one week thereafter for the pretrial order. ENDORSEMENT: Ok − you are getting a decision this week. (Signed by Judge Colleen McMahon on 11/26/2007) (jar) Modified on 12/11/2007 (jar). (Entered: 11/26/2007)
88 ENDORSED LETTER addressed to Judge Colleen McMahon from Shari L. Steinberg dated 11/26/07 re: Counsel for plaintiff requests leave to take the deposition of Dr. Sederer in advance of the deadline for filing summary judgment motions. ENDORSEMENT: No additional discovery at this time. So Ordered. (Signed by Judge Colleen McMahon on 11/27/07) (js) (Entered: 11/27/2007)
89 DECISION AND ORDER DISMISSING THE AMENDED COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION, AND, IN THE INTEREST OF JUDICIAL ECONOMY, GRANTING LEAVE TO SUBSTITUTE AN APPROPRIATE NAMED PLAINTIFF AND MOVE FOR CLASS CERTIFICATION WITHIN NINETY DAYS...For the reasons stated below, plaintiffs claim is dismissed for lack of standing. As a result, this court has no occasion to address the parties arguments regarding class certification under Rules 23(a) and 23(b)(2). In the interest of judicial economy, however, this court grants leave to substitute an appropriate named plaintiff who has standing to seek injunctive relief, and to move again for class certification, within ninety days. If no such plaintiff is found, or no such motion is made, within the prescribed period, the Court will dismiss the case... I am giving class counsel ninety days (and not one day more) to bring in a new named plaintiff or plaintiffs, and to move for class certification. The action will be dismissed on March 5, 2008, unless class counsel manages to comply with this Order. At that point they will have had four and a half years to make this lawsuit work, and enough will indeed be enough. (Signed by Judge Colleen McMahon on 12/5/2007) "Copies Sent By Chambers".(mde) . (Entered: 12/05/2007)
90 ORDER DISMISSING COMPLAINT, accordingly, as promised in the 12/5/08 opinion, this action is dismissed. (Signed by Judge Colleen McMahon on 3/11/08) (cd) (Entered: 03/11/2008)