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UNITED STATES DISTRICT COURT "'OR THE DISTRICT OF NEW JERSEY ''''~~;::. C~:"i

CAMDEN VICINAGE

(), "7 '\ 'I) JL'/ 2 ,-
. :J A :0: J 2

)

WALTER BENNETT, and DANIEL AMOS )

GRRGORY ROYAL, and JOHN LACRY,

)

individually and jointly on behalf

)

,}f all others similarly situated

)

)

)

PlaintifIs,

)

)

VS.

)

)

CORRECTIONAL MEDICAL /

)

SERVICES INC., LOUIS TRIPOLI,"

)

Vice President Of Medical Affairs (br Correctional )

Medical Services, WILLIAM ANDRADE, '

)

East Coast Supervisor for

)

Correctional Medical Services,

)

JAMES .1. NEAL, M.D., Regional State

)

Medical Director for Correctional

)

Medical Services, .lAMES RUMAN, R.N.

)

Regional Vice Presidenl for

)

COlTeclional Medical Services,

)

ROCK WELCH, Regional Vice President

)

for Correctional Medical Services,

)

ABU AHSAN, M.D., New Jcrsey Medical

)

Director for Correctional Medical, v

)

Services, DWIGHT HUTCHISON, personally )

and in his official capacity as New Jersey Medical )

Director for the New Jersey Department of

)

Corrections. and JOlIN DOE AND'

)

JANE ROE 1-10,

)

De i'endants.

)

)

CIVIL ACTION

" '.' I

", I

No. I :02cv04993 (SMO) CIVIL RIGHTS

FJ lED

JUt 2 ~I 2003

I\T 830,".__""

. M

WIl.LMM r. WALSH

CLERK

AMENDED CLASS ACTION COMPLAINT

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I. NATURE OF THE ACTION 1. This is a class action I{w monetary and injunctive reliefpursmtnt to Fed. R. Civ. P. 23(b)(1) and (b)(3). Plaintiffs Walter Bennett, Daniel Amos, Gregory Royal, and John Lacey bring this action individually and jointly on behalf of all persons who are or were illcarcerated in New Jersey State prisons from January 1990 to the prcsent. The defendants knowingly exposed plaintiffs and the putative class to hepatitis C virus ("HCY"), a serious communicable disease. Additionally, many of the putative class members cntered prison with Hey, or contracted Hey while in prison, but the defendants were deliberately indifferent to their serious Ilwdical condition. 2. Defendants' deliberate indifference to the substantial risk of serious harm to prisoners' health and safety posed by exposure to HCV, and deliberate indifference to prisoners' HCV, violated and continues to violate the prisoners' rights, guaranteed under the Eighth Amendment to the U.S. Constitution and made applicable to the state through the Fourteenth Amendment, to he frcc from cruel and unusual pllnishm<:nts. Accordingly, defendants arc liable to the class under 42 U.S.C. §§1983 and 1988. Additionally, defendants' conduct constituted negligence, mcdicalmalpra~tice, intentional int1ictilm ofemotional distr<:~s, and negligent infliction of emotional distress under the common law of New Jersey, and violated the Americans with Disabilities Act, 421J.S.C.A. §§ 12131, el. seq.
n .
.JURISDICTION ANI) VENUE
3. This Court hasjurisdictinn over plaintiff's' rederallaw claims pursuant to 28 U.S.C.
*1331 and I343(a)(3), and jurisdiction over plaintiffs' slate law claims pursuant to principles of

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pendant and anci lIary jurisdiction.

4, Venue is proper in this district pursuant to 28 U,S.C. *1391 because events giving

rise to the claim occurred in the southern region of New Jersey.

III.

THE PARTIES

Plaintiffs

5. PlaintiiTWaltcr Helmen ("Bennett") is a citizen of the state of New Jersey, residing

therein at 64 Regency Drive, Mount Holly, New Jersey OS060.

6.

PlaintifT Daniel Amos is a citi~.en of the state ol'New Jersey, residing therein at the

Riverfront State Prison located in Camden, New Jersey. 7. PlaintiffGregory Royal is a citizen (lethe state ofNew Jersey, residing therein at the

New Jersey Stale Prison, P.O. Box R61, Trenton, New Jersey 08625,

8. Plaintiff John Lacey is a citizen 01' the state of New Jersey, residing therein at the

Riverfront State Prison located in Camden, New Jersey.

Defendants

9.

I: Upon inlormation and belie defendant Correctional Medical Services, Inc. ("CMS")

is a corporation organized and existing under the laws ofthc State of Missouri, and which maintains

a principle place of business at 12647 Olive Boulevard, St. T,ouis, Missouri 63141.

10. Upon information and belief; del'endant Louis Tripoli is the Vice President ofMedical

Affairs for Correctional Medical Services, Inc,

11. Upon information and helief, defendant William Andrade is the East Coast Supervisor

I(}T Correctional Melltcal Services, Inc.

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12, Upon information and belief, defendant James.J. Neal, M,D, is the Regional State J\'1edkal Director thr Correctional Medical Services, Inc,
13, Upon information and helief, defendant James Ruman, R.N. is a Regional Vice President for Correctional Medical Services, Inc,
14. Upon information and belief; ddendant Rock Welch is a Regional Vice President for Correctional Medical Services, Inc.
15. Uponinformatiol1 and belief, defendant Abu Ahsan, M.D. is the N(lW Jersey Medical Director ('1r Correctional Medical Services, Inc.
16. Defendants Correctional Medical Services, Inc., Louis Tripoli, William Andrade, .lames J. Neal, M.. l)" James Ruman, R,N" Rock Welch, and Abu Ahsan, M.D. are collectively rderred to herein as the "CMS Defendants".
17. Upon intarnlation and belief, defendant Dwight Hutchison is the New Jersey Medical
Director tar The State of New Jersey Department of Corrections ("NJDOC").
18. Defendants Joe Docs 1 through 10 and Jane Roes arc fictitious names Illr individual pcrsons, partnerships. joint venturers, associations, corporations, professional corporations, SllGCessors or prcdecessors in interest, or other forms of business or governmental entity, the identities of whom are unknown at the present, but all or some of whom reside or are doing business in New Jersey, and who participated in the conduct complained of in this Complaint.
IV. FACTS The Defendants And Their Interrelationship 19, The NJDOC and its Medical Director, defendant IIu(chiS(ln, are legally charged with

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the responsibility to ensure that all persons committed to New Jer~ey State correctional institutions arc contlned with the level OfcuSIOdy necessary to protect the public and that they are provided with the care, discipline, training and treatment needed to prepare them for reintegration into the

community.

20. A( all relevant limes defendant CMS was and is delegated to provide health care services to Plaintiff.~ pursuant to a contract with the Stale of New Jersey, specifically the NJDOC.

21. At all relevanltimes each oethe individual CMS defendants was an agent ofCMS

acting on behalf of eMS and within the scope of his agency and had or was delegated duties owed

to the plaintitTs by CMS,

Hepatitis C Virus Generally 22. Hepatitis C virus, or HCV, is a virus that causes liver disease. The virus enters the Ii vcr cells, uses (he cell's iIll1er genetic machinery to make copies of itself; which then infect more

cells. In the vast majority of cases (approximately 85%) the infection becomes chronic and slowly

damagcs the liwr over many years. Over time, this liver damage can lead to cirrhosis of (he liver,

end-stage liver disease, a11d liver cancer. In the United States alone, hepatitis C, which is caused by

HCY, allects about four million people, making it much more common than HTV. Hepatitis Cis

the most common blood borne infection in the United States. 23. Hey causes approxilnateiytcn thousand dcaths annually in the United States and the

annual incidcnce of death from HCY is on the rise. 24. Hepatitis C can be spread through 1V drug usc, sexual contact, needlestiek injuries,
tattooing, body piercing, sharing toothbrushes, razors, straws or utensils, or allY other means of transferring blood.
25. HCY is a serious medical condition. -5

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26. Exposure to HeV exposes a person to a substantial risk of severe damage to that

person's future heal!h.

Hev in the New Jersey State Prisons

27. Persons incarcerated in correctional systems comprise approximately 0.7% of the

United States population, and have a disproportionately greater incidence of intcctious diseases, including !ICV, and other infections ofpuhlic health importance.
28. Since at least 1990, a significant percentage of the New Jersey State prison inmate population suffers f!'Om HeV, and the non-infected members ofthe inmate population have been and contin~le to be exposed to HeV while incarcerated in Ncw Jersey State prisons.

WaIter Bennett
29. Plaintiff Walter Bennett was incarcerated in New Jersey approximately April 15, 1992

to June 5, 2002. 30. Mr. Bennett had a prior history of intravenous drug use. In addition, Mr. B~nnett had
blood tmmfusion(s) prior (" 1992 ~o that he ~hollid have been oftcred screening for Hev according to Federal standards and the standard of care in the medical community.
31. While incarcerated, Mr. Dennett underwent blood tests. The results of Mr. Bennett's blood tests showed that he had elevated h~patocelllliar

enzymes so that according to the Federal standards the defendants should have had a heightened suspicion that Mr. Uennett was sufTering fl'Ol11 HCV and that the virus was doing damage to his liver. He should have heel; counseled regarding the same and undergone I'ollow-up hlood work to

determine the need for treatment. Despite that t:1Ct, no further testing was ordered to conlinll Hev fClr over two years

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nor was Mr, Bennet! told of' the significance of his history and elevated hepatocellular enzymes. 34. As a part nfCMS's routine pre-dischmge procedures. M1'. Bennett's blood was tested
prior to his originally scheduled parole date. 35. It was not until this blood work was peri(lrmedjust prior to his expected release from
prison that a hepatitis C panel was perfonned, which delini(ively continued the diagnoses ofHCV. 36. Despite this fact, Mr. Bennett was not appropriately counseled regarding the fact that
he had HCY or the consequcnces of this disease, nor was he advised of the l1ccd tar further testing and evaluation for treatment.
37. Defendants' practice ofwithholding information and testing II'om Mr. Bennctt insured that he would not bc eligible for treatment while incarcerated in the New Jersey Prisons, because treatment must be given for several months in order to be elTective.
38. Upan discharge from prison on June 5, 2002, Mr. Bennett was finally told by a eMS nurse that he had a diagnosis of Hey. The nurse infimncd him that he had HCY but gave him no further inl(lIlnati(ln regarding the nature ofthc disease, its potential consequences, and the need to take precautions to avoid spreading the virus to others in the community.
39. Although Mr. Bennett was also informed by the nursc that he should sec a doctor, he was not given any copies of his medical records to take to another physician.
40. On June 5, 2002, Mr, Bennett was released from prison, 41. On June 6, 2002, Mr. Bennett married his current wile Rita Bennet! and engaged in 1lI1pnlteCled sexLL,,1 reialinns. 42. In July, 2002. after being dis(.;harged Mr, Bennet! went to sec his family physician. who ordered blood work for Mr. Bennett which was preli)Tllled on July 8, 2002.

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43. Shortly after being discharged, Mr. Bennet sought a medical opinion from his family physician and was referred to a specialist for further evaluation of his Hey and the need for treatment.
Daniel Amos 44. Plaintiff Daniel Amos is currently incarcerated in the State of New ./ersey at the Riverfront State Prison in Camden, New Jersey.
45. Mr. Amos had been incarcerated in both Wisconsin and Illinois prior to his transler
to New Jersey, and was given blood tests on numerous occasions. 46. Mr. Amos was transferred together with his medical records to the New Jersey prison
system from Wisconsin in 1995. 47. AIter several years of suffering from numerous upper respiratory infections,
pneumonia and different viral health problems, Ivir. Amos leal'l1ed in January 2002 for the f]rsllime that he sutTered from chronic Hepatitis C and had been exposed to Hepatitis A and B. He was provided this information by a eMS nurse practitioner.
48. Mr. Amos requested treatment from medical personnel at Riverfront Prison but was
told that trcatmcnt was not available at this institution. Amos was told that his liver condition arose from his drinking and he was cautioned to stop drinking. lIe was told he would be placed on the chronic care list.
or 49. On January 29, 2002, Mr, Amos submitted an inmate request form to the Office
the Ombudsman because he had nol been placed on lhe chronic care list. 50. From .January 2002 through May 2002, Mr. Amos 8ubmilled numerous written
complaints to, among others, the Ombudsman; the Warden ol'Riverlhml Slale Prison; NJDOC and

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the Prison Medical Department, expressing his coneenl ahout his Hey medical condition and the

lack of treatment. 51. Mr. Amos' requests .lor medicaltreatmcnt were largely ignored. On May 2H, 2002

he did have an opportunity to meet and speak with CMS nurse Uage~ who told him that he would

be lIne. 52. Over the next several weeks, Mr. Amos became seriously ill and was losing
significant body weight. As a consequence of rcqucsts to see a doctor, he was seen on Junc 26, 2002

by Ms. Miller, a eMS nurse, who gave him some antihiotics for his elevated temperature. Again, he

was dcnied appropriate evaluation and treatment for HCV. 53. In .hlly of 2002 the Philadelphia Inquirer reported about problems experienced by

New Jersey State Prison inmates with HCV in receiving treatment. Mr. Amos was a subject of the mticles mld as a consequence was seen on August 5, 2002 hy Nurse Miller of eMS and told he

would receive treatment, but that it might lake months. 54. On August 8, 2002, Mr. Amo~ wa~ seen by Defendant Abu Ashan and told he needed

numerous tests to determine whether he was an appropriate candidate 1l)1' treatment. He was told the

tests would take ahout six months. 55. On September 6, 2002, eMS Nurse Milkr told Mr. /\m05 his recent blood tests
indicated a need for treatment I!)!' his HCV (in contmslto what he had been told in the past) and that

he should undergo a liver biopsy, which took place on Oetobcr 10, 2002. 56. On November 21,2002, Mr. Amos was told by an Tnl'<:ctious Disease specialist,
Kathleen Casey, M.D. at Meridian Health System, that he had Hepatitis C as lar hack as 1970 or 1980 and treatment was finally offered to him. His much-delayed treatment tinally commenced on

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January 6, 2003,

Greeory Roynl 57, PlaintiJI Gregory Royal is currently incarcerated in the State of New Jersey at the New Jersey State Prison, 5llo Mr. Royal was institutionalized at Camden Cmmty COlTectional Facility from approximately October 1996 through approximately May of 1997, In approximately May of 1997 he was transferred to (,arden State Reception & Correctional Facility until approximately June of 1997. 59. In approximately June of 1997 Mr, Royal Was trans/erred to CRAF Reception & Assignment Pacility until approximately July of 1997. He spent approximately one month at Bayside State Prison and was transferred to Southern State Correctional Facility from approximately July of 1997 through approximately June of 1998. 60, Mr. Royal next was incarcerated in June of 1998 through approximately January 1999

at Camden County Jail. In approximatdy January 1999 through May of 1999 he was incarcerated at eMF Reception & Assignment.
61. From approximately May 1999 through the present Mr. Royal has been incarcerated at New Jersey State Prison.
62, In approximately September of 200 I Mr. Royal was told hy eMS nurse Amato at
c: N<:w J<:r~<:y Stat<: Prison that he had chronic Hepatitis and liver damage. lIe was told "not to
worry ahout it" and given some type of injection and told that he'd be seen in six months. He does

not know what the injection was, and was not seen in follow up. 63. Mr. Royal was nol given any counseling for his HeV and/or methods for prevention,

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transmission, monitoring or trcatment options.

64. Mr. Royal docs not know how long he has had HCY because CMS personllel has not

informed him ol'the results ol'prior hlood tests, despite hlood tests heing clone on all prior prison

transfers. 65.

Mr. Royal has requested information and/or treatment regarding his HCV trom eMS

medical personnel on numerouS occasions hut he has never received any answers. He has written

letters to Govel'llor McGreevey, Rock Welch, David Clark 01' eMS, and the Office Administrator

at New Jersey State Prison requesting inf!)rmatioll and/or treatment. He has never received a

respOllse to any of these letters. 66. MI'. Royal has tiled numerous New Jersey State Prison Administrative Remedy FOnl1S

and numerous New ./crsey Department of Corrections Health Services Request Forms for

information and/or treatment, but has not had any response.

67. Mr. Royal is on blood pressure medication but does not know if this medication has

any e/'/'ect on his Hey. He has asked CMS personnel bUl has not received any answers to his

que~tions.

61l. Sometime near the beginning of April 2003 after complaining again in the infirmary,

Plaintiffwl1s informed that he would be scheduled for a colonoscopy and liver biopsy. He was told

that he tirst needed to be tested for HlV, and that if he refused a liver biopsy would not be

performed. 69. As a cOllsequcncc, Mr. Royal signed a consentl'or HIY test, hut to date he has still

not been given any ini()rmation about a eolonoscopy and/or liver biopsy.

70. Mr. Royal used IV drugs in the 1970's.

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John Lacey 71. Since 1983 plaintiff John Lacey has been incarcerated in New Jersey ~late prisons. 72. Mr. Lacey is not infected with HCY.
Defendants' Deliberate Indifference to Inmates' Hey And the Risk to Non-Inrected Inmates
73. Screening for HCY infection by n",a~LLremenls of anti-HCY by EIA should be ~onsidered I()r any inmate with elevated hepatocellular enzymes of unknown etiology or signs or

symptoms of hepatitis or any of the following: history of illicit IY drug use; recipient of drug transfusions or organ transplant before 1992; recipient of clotting factor tran~ru~ion prior to 1987; or a history of hemodialysis,
74, Confirmation oi' the Hey infc,ction should be undertaken once an inmate with risk factors for HCY infection has elevations in hepatocellular enzymes. There should be an initial diagnosis of Hey infection and then tests oriered to the inmate to confirm HCY infection. Indeed, even for inmates with no risk factors, if a blood test shows a positive EIJ\ there should always be

follow up, 75. A physical examination should be conducted on all inmates diagnosed with an Hey
infection which should include, at least: a targeted history and physical examination; serum ALT/AST; serum albumin, bilirubin, a prothrombin time jf amino transCerascs arc elevated; and renal l'u11etio11 assessment. In addition, there should he periodic, i.e., every ji:)lIr months, clinical evaluation and laboratory study depending on the severity of the HCY infection,
76, Upon information a11d helief, all defendants have known since at least 1990 that a signi ficant percentagc of the New Jersey State prison inmate population sufTers rrom Hey, and that nOlJ-infh:ted memhers of the inmate population are exposed to HCV while incarcerated in a New
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Jersey State prison.

77. Despite defendants' knowledge of the substantial health and sarety threat posed by exposure to IIeV, and the serious medicalneed~ or those actually intected with Hey, Defendants

have not made or implemented adequate plans li)T the screening, counseling, evaluation, and treatment ofHey injected inmates, which has resulted in severe harm to Hev injected inmates, and

needlessly exposed the non-infected inmates, prison personnel, and the general population outside oi'prison with whom paroled inmates come into contact, to the substantial risk of contracting HeV.

78. Defendants have displayed del iberate indi ITercl1ec to the substantial health and salety

threat posed by (;!xposing inmates to Hey by, among other things: lailing to appropriately screen

inmates for HeV (including the iailure to keep appropriate records related thereto); Eliling to

conl.lr111 the presence ofHCY through further testing when indicated; failing to perform appropriate physical exmninations and further testing for HeV where indicated; Iltiling to evaluate patients for treatment of HCY where indicated; failing to ol'lh patients the option oftreatlnenl or relerrals for HeV treatment where indicated; and failing to counsel and educate inmates regarding the diagnoses

of HeV and its consequences and how to avoid the risks of spreading HeV to others within the

prison population and others in the general population upon release fwm prison; and how to avoid contracting HCY.
79. De limdants have displayed deliberate indi ftc renee to the medical needs 0 rthe inmates

hy, among other things: refusing t(1 appropriately screen for Ilev; reillsing to test for HeV; refusing to pr(lvid(;! treatment to those stricken with the illness even if denying treatment results in a

worsening of the condition and/or death; refusing to inform and delaying informing inmates that they have the illness, s0111~times until the eve oftheir releaseli-oll1 the New Jersey Prisons and, even

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then, failing to fully advise them that the illness can be casily spread to unsuspecting members of society and family members through blood and sexual contact.
go. This epidemic that Defendants have had and now have an opportunity and obligation

to control will worsen in the coming years us the prison populution grows and remains unscreened, untested, uneducated and untreated, and as intected inmates are released into soc.iety ignorant ofthe virus they can·y.
Rl. Del<lndant eMS is one of the country's largest inmate health services provider, and the eMS defendants have been and are familiar with the minimally acceptable standard of care itl[ the screening, confirmation, diagnosis, treatment and counseling necessary for an HeV inl'eeted inmate.
82. Upon inli.mllation and helief, at all relevant times the CMS defendants intentionally withheld appropriate HeV testing until just before a prison~r is di~charged for economic reasons, i.e., so that eMS would not have to pay for any additional tests or examinations past the initial blood work, including the expensive HCV therapy, which would he required if indicated.
83. Oeli:mdants actcd andlor failed to act with r~cJdess or callous disregard of, or indifference to, the rights or safety of inmates incarcerated in New Jersey State prisons
CLASS ACTION ALLEGATIONS R4. Plaintiffs incorporate herein by reference all other paragraphs of this Complaint. 85. Plainti ITs bring this action in their own behalf and as representatives of a class consisting of: (I) all individuals who are or were incarcerated in New Jt'rst'y State prisons from January 1990 to the present and who arc not infected with HCY and (2) all individuals who are or were incarcerated in New Jersey State prisons from January 1990 to the present and who are injected

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with HCV. 86. Upon information and belief. there are currently more th1m 24,000 prisoners
incarcerated in correctional facilities operatcd by the State of New Jersey. Sincc 1990. the average prison population in New Jersey State prisons ha~ been over 20,000 individuals.
87, {Ipon in Illl-mation and heliel~ more than 6,000 prisoners incarcerated in correctional fhcilities operated by the State of New Jersey are infected with hepatitis C
RR, The conditions, practices, and omissions that form the basis of this complaint are common to all members of the class. and the relier sought will apply to all ofthem,
89, The claims of the individual Plaintiffs Bennett, Amos, Royal and Lacey are typical of the claims of the entire class. Each plaintitT was an individual who was or is incan;eratcd in a New Jersey State priS(lll, and was incarcerated in a New Jersey State prison aftcr 1990. As such, they \verc wrongfully exposed to HCV and/or they were int~<:led with Hey but the defendants ignored the risks nsso~iated with Hey and/or ignorcd thcir serious medical conditions.
90, iJcfcndants have acted or refused to act on grOllnds generally applicablc to the class, making appropriate il~junctivc and declaratory relief with respect to the class as a wholc.
91, There arc questions of law and fact common to the memhers oi'thc class, including whether Defendants wrongfhUy exposed the prison population to HCV, which in turn exposed the prison population to a serious and substantial threat to their health and safety, and whether the Defendants ignored prisoners' Hey.
92. The named Plaintiffs will thoroughly and adequately protcctthc interests ofthe class_ Plaintiffs have adequate llnancial resources to prosecute this litigation. and have retained counsel experienced in class action, complex litigation, mass tort actions, hcalthcare litigation, CedcTaI

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litigation, fraud, and other complex civil matters. Further, Plaintiffs' counsel will advance all reasonable costs to protect the class and prosecute the claims sct fCH1h herein.
93. Common questions of law and fact predominate over individual questions, and the class procedure b superior to other available methods H.lT the [hir and etlieient adjudication of' the

this litigation.
COUNTONR
Plaintiffs v. All Defendants Violations Of 42 U.S.C § 1983 94. Plaintiffs incorporate htlTein by reference all other paragraphs of this Complaint.

95. At all relevant times the defendants acted under color of law.

96. The defendants were deliberately indifti::rent to the substantial risk of st'rious harm to the health and safety of non-HeV infected prisoners incarcerated in New Jersey State prisons

posed by exposure to Hey. 97. The deJi::ndanls were deliberately indifferent to HeV infected pri~oners' serious

medical conditions and needs, 98, Ry thoir deliberate indi11i::rence to the substantial risk 0['serious harm to non-in reeted

prisoners' health and safety posed by exposure to IICV, and deliberate indiili:rence to the lICV-

infected prisoners' serious medical conditions and needs, the deli::ndants deprived plaintiffs and class

members of their right, guaranteed under the Eighth Amendment to the U.S. Constitution and made applicable to the states through the J10urteenth Amendment, to be free l'rom cruel and unusual

punishments, in violation of 42 U.S.C. §1983.
99. The defendants' violation ofthc prisoners' Eighth Amendment rights has also caused

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plaintiffs and the class l11el11b~rs to sufTer emotional distress and physical suffering, and in some instal1CCS death.

100, The ads and omissions of the defendants were intentional, willful, malicious and/or

reckless,

COUNT TWO Plaintiffs v. eMS Defendants
Ne21i2ence 101, Plaintiffs incorporate herein by reference all other paragraphs of this Complaint.

102, The CMS Defendants owed lhe following duties t(l the Plaintif'!'s:

a. to adopt, formulate, maintain, and enforce customs, policies and procedures to insure that Plaintiffs were not subjected to deliberate inditIerence to

seriolls medical needs;

b. to engage or employ competent' and suitable employees IJ1 corrections

positions; and c. propcrly supervise, direct and control the corrections ofiicials and/or agents

under their I;ontrol.
103. The eMS Defendants breached these duties by b~ing delib~rately indifferent to
Plaintiffs' and the infected class member~' immediate medical needs, despite knowing that denying k~li1]g, educali(lll, and treatment to Plaintiff~ exposed them to harm to their health,
104. The CMS Defendants' acts and ()missi()n~ were the proximate cause of the injuries,

damages, and losses suffered by the Plaintiffs.
105, The CMS Defendants' acts and omissions increased the risk of harm, il~iuries and

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losses sulTer~d hy (he Plaintiffs,

106, The CIVIS Defendants' acts and omissions caused Plaintitfs to suffer serious illness

and agonizing physical and emotional pain, which will continuo for an indefinite time,

107, As a further result of the aforementioned injuries, Plaintiffs have been and will

continue to be hindered and prevented from attending to their usual and daily duties,

108, As a further result of the afi)rementioned injuries, Plaintiffs have suftcrcd and will

continue to suffer in the future, loss of life's pleasures, iI' no( their aO(Ltal Ii vcs,

COUNT THREE

Plaintiffs v. CMS Defendants

Medical Malpractice

109, Plaintij'f:~ incorporate herein by reference all other paragrapbs or (his Complaint,

110, The negligence, cardessness, and malpractice of the eMS Defendants consisted of

the following:

a, failing to recognize the rights, safety and health or the Plaintiffs;

b, lailing (0 exercise the standard of skill and care col]JllJonly exercised by

health care providers in like case~;

c, failing to properly treat the Plaintin\ during their periods of incarceration;

d. failing (0 appropriately serccn;

e, lailing to properly perform tests on the Plaintif(s during their periods of

incarceration;

f

litiling (0 inform Plaintiffs of their health status during their periods or

incarceration;

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g. railing to utilize and consult compel;:nl and experienced physicians and other health care providers in examining, treating and providing medical cure (0 the Plaintiffs during their periods of incarceration;

h, being otherwise negligent and careless and having committed malpractice upon the Plaintiffs; and
i. violating the laws, ordinances and statutes (lfthe State of New Jersey. 111. The CMS Defendants' acts and omissions were the proximate cause of the injuries, damages, and losses sulTered by the Plaintiffs.

112, The CMS Defendants' acts and omissions increased the fisk of harm, injuries and losses suffered by (he Plaintiffs,
113. The eMS Defendants' acts and omissions caused Plaintiffs to suffer seriolls illness and agonizing physical and emotional pain, which will continue for an indefinite time.
114. As a lurthcr result of the alhrementioncd iqjuries, Plaintiffs have been and will

continue in the future to be himien:d and prevented from attending to their usual and daily duties, 115. As a further result of the arorementioned injuries, PlaintitTs have sufTered and will
continue to suffer in the future, loss ofli fe's pleasllres, if not their actual lives,

COUNTFOlJR Plaintiffs v. CMS Dcfendnnts Intentional Infliction Of Emotional Distress 116. PlaintitTs incorporate herein by reference all othcrparagraphs of this Complaint. 117. The above described malicious, intentional, and/or reckless acts and omissions of Defendants were outrageous. atrocious, and completely intolerable in a "ivilizcd society, and went

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b~yond all possible bounds of decency.

118. The above described maliciou~, intentional, al1d/orfccklcss acts and omissions ofthe

CMS Defendants, caused and continue to cause the PlainliiTs severe emotional distress, anxiety and

rear.

119. As a direct [md proximal!: result or the malicious and intentional and/or reckless

actions of CMS Defendants, Plaintiffs suffered injuries which are described above.

120. Th!: above desc.ribcd actions ofCMS Defendants were so malicious and intentional

<md displ~yed such a reckless indiffercnce to the Plaintifl's' rights and well-being, that thc imposition

oi'puni\ive damages is warranted.

COUNT FIVE

Plaintiffv. eMS Defendants

Negligent Infliction Of Emotional Distress

121. Plaintiffs incorporate herein by reference all other paragraphs of this Complaint.

122. PlaintitTs believe and th~rel()re aver that the eMS Defendants, lhr(lllgh the actions

of their ofticers, agents, servants and/or employees, as mOre fully set forth in the preceding

paragraphs of this Complaint, did negligently inflict serious emotional distress upon the Plaintiffs

in a negligent and/or reckless manncr.

123. As a dircct result ofthe actions ol'thc eMS Defendants, Plain(j 1'1':;; have been caused

serious emotional damages and have experienced greal emotional trauma.

124. As a dired result of the actions of the eMS Deltmdants, Plaintiffs have suffered and

will continuc to sufIer the dumages described in this Complain!.

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Page 21 of 25

COVNTSIX

Plaintiffs v. All Defendants

Violations Of The Americnns With Disabilities Act, 42 V.S.C §§ 12131 et. seq.

125. Plaintins incorporate herein by reference all other paragraphs of this Complaint.

126. Hey is a recognized disabiljty under the under the Americans with Disabilities Act,

42 l),S,C §§ 12131 et. seq" and the Plaintiffs and the infected class members are "qualilled

individuals with a disability" who are otherwise enlitled to the provision ol'services in the form of

medical !esting, treatment or education from defendants who are legally bound to provide said

services,

127, The Plaintiffs have been excluded from the receipt of services in the form of medical
or testing, trealment or education from all the Defendants. and each of them, both jointly and

severally, solely on the basis of their Hey disability,

128, All defendants are the legally responsible providers of medical testing, treatment and

education lor Plaintills' HCV disability, ami as public entities andlor instrumentalities thereof are in violation of the American with Disabilities Act 42 l),S,C ~~ 12131 eL seq, by virtue of their

unlawfuL discriminatory and intentional practice of excluding Plainlifls l'romlhe bene:lh, provision

and participation in said services,

129, Defendants' acts and omissions were the proximate cause ofthe inj uries, damages, and

losse, suffered by the Plaint; J'is,

130, Defendants' acts and omissions increased tbe risk ofhar111 , injuries and I<.>sses sut'fcred

by the Plainti ns.

131, As a direct and proximate result of defendants' wrong/ill conduct, Plaintiffs have

-/'] -

• Case 1:02-cv-04993-NLH-AMD

Document 27

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Page 22 of 25

suffered and will continue tn suffer serious illness and ilgonizing physical and emotional pain for an

indefinite time.

132. As a further result of defendants' wrongflll cnnduct, Plaintifis have heen and will

continue ill the future to be hindered and prevented trom attending to their usual and daily duties.

133. As a further result of derendant~' wrongrul conduct, Plaintiffs have suffered and will

continue to sutler loss of life's pleasures, if not their actual lives.

DEMAND FOR RELIEF

WHEREFORE, plaintifn, individually and on hehalCorali others similarly situated, demand

. judgment against the derendants jointly, severally, and individually as f()lIows: (a) certifying this action as a class action with plaintiffs as the n:pn:sentatives or the dass;

(b) declaring that the conduct of the defendants was unlawf'tll as described in this Complaint;

(c) enjoining the defendants from continuing to engage in the unlawrul acts and/or omissions described in this Complaint;

(d) ordering the defendants to adopt and impkm~nt a detailed plan to addres~ and correct delCndants' deliberate indifference to the plight of New Jersey State prison inmates, as described in this Complaint, with the Court retainingjurisdidion until tho unlawful conditions and practices alleged in this Complaint no longer exist, and the Court is satisfied that they willn() longer occur in the future;

(e) entering an award against defendants (except defendant Hutehison in his official capacity) and in favor of plaiJJtiff.~ and olher members or the class for compensatory damages, including damages for pain and suffering and emotional distress, and past and future medical expenses, and/or nominal damages;

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Page 23 of 25

(1) disgorging all profits derived by defendants (except defendant Hutchison in his of1icial capacity) as a result oftheir wrongful conduct;

(g) awarding punitive damages against all defendants (except defendant Hutchison in his oftlcial capacity);

(h) awarding plaintiffs their costs of suit, together with reasonable attorney's fees; and

(I) such other relief as the Court deems necessary and proper and/or which is available under stale or lederal law,

AN & PINTO ,/ i

EPHRRD, WOHLGELERNTER

osemary Pinto, Esq. Laura Feldman, Esq, FELDMAN & PINTO 2301 E. Evesham Road, Unit #209 Voorhees, NJ 08043 Attorneys for Plaintiffs

.........

.. ....- - - - - _ .

Thomas More arrone, Esq,

Daniel S, Weinstock, Esq,

Suite 112,20 Brace Road

Cherry Hill, NJ 08034

Attorneys for Plainti ITs

JURYDEMA.ND

Plaintiffs herehy demand a trial by jury nn all issues,

AN & PI 0
/
/{~~.--.......-
Ro~elllar into, "'sq, Laura Feldman, Esq,

FELJI"'.'" , SHEPHERD, WOHLGELERNTRR
& T'"'\"~ll~""1
Thom s or Marrone, Esq, Daniel S, Weinstock, Esq.

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• Case 1:02-cv-04993-NLH-AMD

Document 27

•Filed 07/25/2003

Page 24 of 25

DESIGNATION OF TRIAL COUNSEL
Rosemary Pinio is hereby designated as trial counsel in this matter.

FELDMAN & PINTO //
/

" HERD, WOHLGELERNTER

oscmary Pinto, Esq. Laura Feldman, Esq.

Thomas)

me, Esq.

Daniel S. Weinstdc " Esq.

CERTIFICATION
We hcrehy certify that the foregoing statements made hyus arc true. We are aware that ifany of the foregoing siatements made hy us are willfully Ihlsc, we are suhject to punishment.

]£'EL AN & PINTO / .~~: ---~----
Rosemary Pinto, ,sq.
Laura Feldman, Esq.

FELD

'HEPHERD, WOHLGELERNTER

& TAl'i\tiJI:U.

..
Thoma. ) Marrone, Esq.
Daniel S. Wellstock, Esq.

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• Case 1:02-cv-04993-NLH-AMD
•

Document 27

•Filed 07/25/2003

Page 25 of 25

TN THE UNITED STATES DISTRlCT COURT,f.IV :'['

FOR THE DISTRICT OF NEW JERSEY

.;; J. :U,,[,S(:. CLbir,

WALTER BENNETT, individually and on behalf oiall others similarly situated, Plaintiffs,
v,

CTVIL ACTION 100) JUL 2S A 10: 13

No.: I :02cv04993 (S,M,O.)

:,'r:11 t ,"'~~"'F~ ~"t""""r-~'

:: i

i< C",'l"i: i

"

;(..1'\'

SPECTRUM HEALTHCARE SERVICES, INC"

ct. at.

Defendants.

CERTIFICATION OF SERVICE

I hereby certify that 1caused the below-described documents (0 be mailed via United

States Mail to the person listed below on the date below.

DATE: DOCUMENT: PERSON (S):

July 22, 2003
AMENDED CLASS ACTION C01VIPLAlNT
Joel Schneider, Esq. Archer & Greiner One Cel1tennial Square Haddonfield, NJ 08033

OFFICE OF THE ATTORNEY GhNERAL Department of Law and Public Safely Hughes Justice Complex, 25 W, Market Street 1'.0. Box 112 Trenton, NJ 08625 Attention: Victoria Kuhn, Esquire
FBLDMAN & PINTO

 
 Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

WALTER BENNETT, individllally and on'behal rof
all other similarly situated,
Plaintiffs,

Civ. No. 02-4993 (FLW)

vs.

CORRECTIONAL MEDICAL SERVICES, et ai,

Defendants.

SERENA THOMAS, Individually and as Administratrix ad Proscquendrum to the Estate
of CORNELL W. THOMAS, deceased,

Civ. No. 04-3358 (FLW)

Plaintiff,

vs,

CORRECTIONAL MEDICAL SERVICES, et al.,

Defendants.
-RiCKY NEFFERDORF,
Plaintiff:

Civ. No. 04-3411 (FLW)

vs.

CORRECTIONAL MEDICAL SERVICES, et al.,

Defendants.

Plaintiff,
VS.
CORRECTIONAL MEDICAL SERVICES, et al., Defendants.

Civ. No. 04·3413 (FLW)

Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 2 of 9

DAVID

Plaintiff,

Civ. No. 04·3414 (JBS)

VS.
CORRECTIONAL MEDICAL SERVICES, et ai.,
Defendants. ANTONIO AGUILA
Plaintifl:
vs.
CORRECTIONAL MEDICAL SERVICES, el al.,
Defendants.
MARGARET RE'>:'NOLDS, indiviJ~ally as
Administratrix to the Estate of DANIEL REYNOLDS, deceased,
Plaintift~

Civ. No. 04·3415 (J8S) Civ. No. 04·3416 (FLW)

VS.
CORRECTIONAL MEDICAL SERVICES, et aI.,
Defendants.
- - - - - - - - - - - ... ... - - - " - - - - .~---~----~ - - - , , ' - - - -
LEE BAILEY, et al., Civ. No. 04·3417 (FLW)
Plaintiff,

V~.
CORRECTIONAL MEDICAL SERVICES, ef 'Ii., Defendan ts.

2

Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 3 of 9

tEE .t)f'lL.tl

Plaintiff,

VB.
CORRECTIONAl. MEDICAL SERVICES, et al., Defendants.

Civ. No. 04-3417 (FLW)

PROTECTIVE ORDER

THIS MATIER having come beforc tbe Court on application of counsel for the

defendants; and plaintiffs having no[ objected to the entry ofthis Order; and for good cause

No". \ -t\ ~ shown;

, I ,)J-"

IT IS ON THIS

day of

'~ -:J 2000~;.n~('i./

ORDERED that the following procedures and restrictions shall apply to all information,

documents and testimony produced, given or provided by the partie~ in the course of pIe·trial

discovery in the above-captioned action ("Action") as follows:
1. In connection with discovery proceedings in this Action, any party to this Protective Order may, by written notice to all parties, or by a statement on the record at a deposition, designate any non-public document, material or information as "PROTECTED CONFIDENTIAL MATERJAL" provided the party has a good faith belief that the designated document, material or information is entitled to protection from disclosure, in the manner set forth herein or by written agreement ofthe parties at any time. The provisions herein shall also apply to any non-party who provides testimony, documents or information in such discovery proceedings and who agrees to be bound by the terms of this Protective Order. References to a ''party'' or ''parties'' herein shall also include sllch non-parties.
2. All or any part of a document disclosed or produced herein may be designated as "PROTECTED CONFIDENTIAL MATERI AL" by allY party by marking the words "CONf1IDENTIAL: SUBJECT TO PROTECTIVE ORDER" or substantially similar language on the fitcc of the document and on each separate part or component of the document, material or
information.

4

Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 4 of 9
3, Thc inadvertent production of any document, material or other information during discovery in this Action shall he without prejudice to any claim that such material is privileged under the attorney-client privilege or protected from discovery as work product, and no party shall he held (0 have waived any rights by suoh inadvertent production,
4, Any materials designated as "PROTECTED CONFIDENTIAL MATERIAL" or any infurmation derived therefrom may only be di~c1osed or made available by counsel receiving such information to "Qualified Persons," who in the case of documents, material or information designated as "PROTECTED CONFIDENTIAl, MATERIAL" arc detlned to consist solely of:
a, the Court;
b, counsel to the parties to this Protective Order, and the paralegal(s), clerical and secretarial staff employed by such counsel;
C, court reporters;
d, independent experts and/or advisors, not employed by any party during the normal course ofsllch party's business, but consulted by counsel for such party solely in connection with this Action, whether or not retained to testify at trial;
e, any other person as to whom the producing party agrees in writing,
5, It is specifically agreed and understood that materials designated as "PROTECTED CONFIDENTIAL MATERIAL" shall not be disclosed to persons or categories ofpersons other than those specifically enumerated in Paragraph 4.
6, Materials designated as "PROl'ECTED CONFIDENTIAL MATERIAL" shall be lIsed solely hy counsel in connection with the preparation for the prosecution and/or defense of this Action and any appeal thereof, and in accordance with the provisions of this Protective Order.
7, The parties shall take all necessary and appropriate measures to maintain the confidentiality of the documents or information and shall retain the documents, information or materials in 11 secure manne!'. Plaintiffq' counsel shall be responsible for ensuring that any person who obtains access to "PROTECTED CONFIDENTIAL MATERIAL" shall execute the form set forth in Exhibit A attached hereto along with a copy ofthis protective order before any documents marked "PROTECTED CONFIDENTIAL MATERIAL" are disclosed, Plaintiffs'
counsel disclosing the material that has been designated as "PROTECTED CONFIDENTIAL
MATERIAL" shall maintain the original copies urthe Exhibit A forms. In the event documents marked "PROTECTED CONFIDENTIAL MATERIAL," or information derived therefrom, is discovered to have been disclosed to anyone other than the persons or categories of persons specifically enumerated in Paragraph 4, counsel for the plaintiffs shall produce true and correct
copies of the executed Exhibit A forms within 5 days of a demand for same issued by counsel for
CMS,
5

Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 5 of 9
8. Any person who obtains access to "PROTECTED CONFIDENTIAL MATERIAL" under this Protective Order may make copies, duplicates, extracts, summaries or descriptions oflhe documents or information solely for the purposes of this litigation. All such copies, duplicates, extracts, summaries or descriptions shall be suhject to the terms of this Protective Order to the same extent and manner as original documents.
9. Any unauthorized disclosure of documents or information designated as "PROTECTED CONFIDENTIAL MATERIAL" under this Protective Order shall not result in a waiver of the producing paJty's claim of confidentiality.
JO. Nothing contained in this Protective Order shall preclude the use ofinfonnation
designated "PROTECTED CONfIDENTIAL MATERIAL" in an affidavit, motion, brief, memorandum or other document filed with the Court in connection with this Action, provided that it is necessary for usc in connection with motions, conferences or other pretrial proceedings in this Action, and is properly marked and secured in accordance with this Protective Order. Any such information deSignated as "PROTECTED CONFIDENTIAL MATERIAL" shall be delivered to the .Judge or Clerk under seal for in camera consideration. All documents required to be med under seal by the terms ofthis Protective Order shall be placed in sealed envelopes or other sealed containers, which envelopes or containers shall be marked with the title and case number ofthis Action and shall bear a statement substantially in the following form:
CONFIDENTIAL: SlJBJECT TO PROTECTIVE ORDER
This envelope contains documents which are filed under seal in this case pursuant to the Protective Order filed by this Court. This envelope or container is not to be opened nor the contents thereof displayed or revealed except to the individuals or entities designated in the above-referenced Protective Order, by consent of the parties, or in accordance with a further Order of the Court.
1). All documents filed under seal shall either be retumed to counsel submitting it upon disposition ofthe motion, conference or other pretrial proceeding or it shall remain in the Court's file under sea\. Ifany intormation designated as "PROTECTED CONFIDENTIAL MATERIAL" is used in an affidavit, motion, brief or memorandum, all portions of such alIidavit, motion, brief or memorandum which contain, refer to, paraphrase, quote, describe or contain or relate to such infurmation shall be treated as "PROTECTED CONFIDENTIAL MATERIAL" pursuant to the tanns ofthis i'rotective Order.
12. With respect to depositions of any party, non-party or any person employed by, formerly employed by, or acting on behalf of any party to this Protective Order, may at deposition designate testimony ofthe deponent "PROTECTED CONFIDENTIAL MATERIAL" and request that the court reporter insert a statement regarding the confidentiality of the information into the deposition transcript. Each party shall have until ten (J 0) days after receipt oftbe deposition transcript within which to inform the other parties, in writing, that portions of the transcript are designated as "PROTECTED CONFIDENnAL MA TERL<\L". No such deposition transcript shall be disclosed to any person other than the persons described in this
6

Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 6 of 9

Protective Order and the deponent (and the deponent's counsel in the case of a separately represented non-party) during those ten (10) days, and no person attending such a deposition shall disclose the contents of the deposition to any person other than those described in the Protective Order during the said ten days. lIpon being infonned that certain portions ofa deposition arc designated as "PROTECTED CONFIDENTIAl. MATERIAL" each party shall cause each copy onhe transcript in its possession, custody or control to be so marked.

13. In the event that counsel for the party receiving documents, materials or information designated as "PROTECTED CONFIDENTIAL MATERIAL" objects to such designation of any or all ofsuch items and intends to disclose any ofthose materials to the parties to this litigation, clients or client representatives, or to any other third-party not a party to this action, said cOllnsel shall advise the producing party of the basis ofthe ohjection and the reasons therefore. If the producing party objects to the proposed disclosure, all the items shall be treated as confidential under this Protective Order pending a resolution ofthe parties' dispute, and it shall be the obligation of the party asserting the privilege (the "producing party") to arrange for a hearing before (he Court with respect to the propriety of the designation.

14. Upon notice ofthe receiving party's intention to disclose documents, materials or informaljon designated as "PROTECTED CONFIDENTIAL MATERlAL," the producing party may consent in writing (0 a limited disclosure of the material in question. Any such consent shall not constitute a waiver ofany objection, claim of confidentiality or hasis for a motion as to the propriety of the continued or expanded disclosure ofthe material in question.

15. Entering into, agreeing to and/or complying with the terms of this Stipulated Protective Order shall not:

a. Operate as an admission by any party that any particular documents, material or information contained or retlect cunentIy valuable trade secrets or propriety or commercial information; or

b. Prejudice in any way the right of any pal1y, at any time;

i.

to seek a determination by the Court of whether any particular

document, item or material or piece of information should be subject to the terms of this

Protective Order; or

ii. to make an application to the Court for a determination of whether certain limited materials may he produced for ATTORNEYS EYES ONLY and to be produced
only to counsel representing parties in this matter and to the exclusion of the named inmate plaintiffs, experts or any other third party. In the event that any such application is made the
documents or materials in question may be either withheld from production or may be produced to counsel with the agreement that the materials in question will not be distributed or disclosed to
any other persons pending the outcome of the Court's detenninatiol1 on the propriety of the designation as ATTORNEYS EYES ONLY.

iii. to seek relicf on appropriate notice /Tom any provision(s) of this
Protective Order, either generally or as to any particular documents, item of material, or piece of information; or

7

Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 7 of 9
iv. to seek further protection as to particular documents, materials, or pieces of information pursuant to Fed. R. Civ. P. 26(c).
16. Nothing contained in this Protective Order shall prohibit any person from disclosing any information designated as "PROTECTED CONFIDENTIAL MATERIAL" to any of the following:
a. Any governmental authority or agency pursuant to the valid exercise by any government authority or agency of the powers and authorities granted to it by law, provided that the producing party is given notice that said information will be produced in sufficient time to permit the producing party to challenge the production of said information in the appropriate legal forum; or
b. Any person or entity pursuant to the vaJid and legal use of compulsory process, including the exercise of subpoena powers, provided that the producing party is given notice that said information wiII be produced in sufficient time to permit the producing party to challenge the production of said information in the appropriate legal forum.
17. However, no person or party requested or compelled to produce such information pursuant to the valid of exercise by any government authority or agency of the powers and authorities granted to it by law, pursuant to the valid and legal use of compulsory process, including the exercise of subpoena powers, shall be required to refuse to produce said information if, in so doing, such person or party would subject itselfto penalties or punishment including those tor contempt of court.
18. All documents designated as "PROTECTED CONPIDENTIAI. MATERIAL" in accordance with this Protective Order shall be returned to the producing party at the conclusion of this Action, or at the conclusion of other New Jersey hepatitis C lawsuits prosecuted by the plaintiffs' counsel in this case, whichever is later, or be destroyed. The "conclusion" ofthis Action means sixty (60) days following the exhaustion (or cxpiration oftime for) appeal rights on all claims, the filing of II stipulated dismissal or the entry of II voluntary dismissal, or as may be determined by the Court.
19. This Protective Order shall remain in full force and effect after the termination of this litigation or until cancelled or otherwise modified by Order ofthis Court, or by written agreement of the parties.
"I ~)S~O")
Date::_J./eQi·)~~~!1~~(Tf:5:':..-'
8

Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 8 of 9
THE UNDERSIGNED CONSh"NT TO THE ENTRY OF THIS ORDER ARCHER & GREINER, P.e. Attorneys fur Defendants Correctional Medical Services, Inc., Louis Tripoli, M.D., William Andrade, M.D., James 1. Neal, M.D., James Ruman, R.N., Rock Welch and Abu Ahsan, M.D.
NJ ATT'(~'I!i!"i'-QE . MORATTI, ESQUIRE /DATE
9

Case 1:02-cv-04993-NLH-AMD Document 84 Filed 11/15/2005 Page 9 of 9
EXHIBIT A LIMITED SPECIAL APPEARANCE AND AGREEMENT FOR ACCESS TO C0NFIDENTlAL DQ(:UMRNTS AND INFORMATION ._ _ _ _ _ ._ _ _ _ hereby acknowledge and afftrm that I have read the tenns and conditions ofthe Protective Order entered by the Court in the above-captioned matter on the ___ day _ _ _ _, 2005. I understand the terms oflhe Court's Protective Order and
under oath cons~nt to be bound by the tenns ofthe Protective Order as a condition to being provided access to confidential documents and infonnation furnished by the parties to this action.
By executing this Agreement, I hereby consent 10 the jurisdiction ofthe above-captioned Court for the purpose of enforcing the terms of the Court's Protective Order.
I hereby declare under the penalty of perjury under the laws of the United States of America that the above statements are true and correct.

Dated: _ _ _ _ _ _ _ __
IlI6)ORv2

(Name of recipient)

10

 
 Case 1:02-cv-04993-NLH Document 88 Filed 12/21/2005 Page 1 of 2

ARCHER & GREINER A Professional Corporation One Centennial Square Haddonfield, NJ 08033
(856) 795-2121
Attorneys for Defendants, Correctional Medical Services. Inc., Louis Tripoli, M.D., William Andrade. M.D., James Neal, M.D., James Ruman, R.N., Rock Welch and Abu Ahsan, M.D.
By: JOEL SCHNEIDER KERR! E. CHEWNING
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

WALTER BENNETr, et al., Plaintit1:
VB.
CORRECTIONAL MEDICAL SERVICES, et al., Defendants.

CIVIL ACTION Civ. No. 02-4993(FLW) ELECTRONICALLY FILED

ORDER
THIS MATTER having come before the Court on Motion for Partial Stunmary Judgment filed by def1:mdants, Correctional Medical Services, Inc., Louis Tripoli, M.D., William Andrade, M.D., James Neal, M.D., James Rwnan, R.N., Rock Welch and Abu Ahsan, M.D. ("CMS Defendants"), seeking an Order for partial summary judgment dismissing the common law claims for negligence, medical malpractice and emotional distress asserted by plaintiffs Daniel Amos. Gregory Royal and John Lacey; and the plaintiffs having agreed to dismiss the claims with prejudice; and for good cause having been shown;
" r IT IS this~ day of December, 2005,

-----------~--------------------.

. .

Case 1:02-cv-04993-NLH Document 88 Filed 12/21/2005 Page 2 of 2

ORDERED that the common law claims for negligence (Count II), medical malpractice (COWlt III), intentional infliction of emotional distress (Count IV) and negligent infliction of emotional distress (Count V) asserted by plaintiffs Daniel Amos, Gregory Royal and John Lacey be and hereby are DISMISSED with prej udice as (0 Correctional Medical Services, Inc., Louis Tripoli, M.D., William Andrade, M.D., James Neal, MD., James Ruman, R.N., Rock Welch and Abu Ahsan, M.D.

2068429vl

2

 
 Case 1:02-cv-04993-NLH-AMD Document 144 Filed 02/09/2007 Page 1 of 3

[Doc. No. 129]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

WALTER BENNETT, et al., Plaintiffs,
v. SPECTRUM HEALTHCARE, et al.,
Defendants.

Civil No. 02-4993 (NLH)

ORDER This matter having come before the Court upon the motion [No. 129] of Plaintiffs, seeking an order to strike Defendants' objections to Plaintiffs' second request for documents and to compel Defendants to respond to Plaintiffs' second request for documents; and the Court having considered the submissions of the parties; and the Court having conducted a telephone conference on February 7, 2007 in this matter, as well as the following cases: Montgomery v. Correctional Medical Services, et al., Civil No. 0366; Thomas v. Correctional Medical Services, et al. Civil No. 043358; Nefferdorf v. Correctional Medical Services, et al., Civil No. 04-3411; Smart-El v. Correctional Medical Services, et al., Civil No. 04-3413; Wenner v. Correctional Medical Services, et al., Civil No. 04-3414; Aguila v. Correctional Medical Services, et al., Civil No. 04-3415; Reynolds v. Correctional Medical Services, et al., Civil No. 04-3416; Lopez v. Correctional Medical Services, et al., Civil No. 04-2155; and the Court noting the following

Case 1:02-cv-04993-NLH-AMD Document 144 Filed 02/09/2007 Page 2 of 3
appearances: Daniel S. Weinstock, Esq., Rosemary Pinto, Esq., and Thomas M. Marrone, Esq., appearing on behalf of Plaintiffs; David C. Federman, Esq., appearing on behalf of the Plaintiff in the Lopez matter; Franklin L. Flacks, Esq., appearing on behalf of the Defendant St. Francis Hospital in the Lopez matter; David J. Bishop, Esquire, appearing on behalf of Defendant Alyn R. Caulk, M.D. in the Thomas matter; Sarah B. Campbell, Esq. and Dianne M. Moratti, Esq., appearing on behalf of Defendant Devon Brown and Defendant Dwight Hutchinson; and Gary J. Lesneski, Esq., appearing on behalf of Defendant Correctional Medical Services, Inc. [hereinafter "CMS"] and all CMS Defendants, including Defendant Louis Tripoli; and Plaintiffs having agreed to withdraw their motion to compel without prejudice pending resolution of Defendant Tripoli's motion to stay in this action pursuant to the Servicemembers Civil Relief Act; and for good cause shown,
IT IS on this 9th day of February 2007, hereby ORDERED that Plaintiffs' motion to compel [No. 129] is hereby is DISMISSED without prejudice; and it is further ORDERED that Plaintiffs shall be permitted to refile the motion to compel [No. 129] by letter application following resolution of Defendant Tripoli's motion to stay in this action or following resolution of Defendant CMS' motion to stay in the following actions: Thomas v. Correctional Medical Services, et al. Civil No. 04-3358; Nefferdorf v. Correctional Medical Services, et al., Civil No. 04-3411; Smart-El v. Correctional Medical Services, et al., Civil No. 04-3413; Wenner v. Correctional Medical Services,
2

Case 1:02-cv-04993-NLH-AMD Document 144 Filed 02/09/2007 Page 3 of 3
et al., Civil No. 04-3414; Aguila v. Correctional Medical Services, et al., Civil No. 04-3415; Reynolds v. Correctional Medical Services, et al., Civil No. 04-3416; Lopez v. Correctional Medical Services, et al., Civil No. 04-2155.

cc: Hon. Noel L. Hillman

s/ Ann Marie Donio ANN MARIE DONIO UNITED STATES MAGISTRATE JUDGE

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 Case 1:02-cv-04993-NLH Document 168 Filed 05/14/2008 Page 1 of 48

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

:

WALTER BENNETT, GREGORY ROYAL, :

and JOHN LACEY, individually :

Civil Action No.

and jointly on behalf of all :

02-4993 (NLH)

others similarly situated

:

:

Plaintiffs,

:

:

v.

:

OPINION

:

CORRECTIONAL MEDICAL SERVICES, :

INC., LOUIS TRIPOLI, M.D.,

:

WILLIAM ANDRADE, JAMES J. NEAL,:

M.D., JAMES RUMAN, R.N., ROCK :

WELCH, ABU AHSAN, M.D., GEORGE :

HAYMAN, and JOHN DOE and JANE :

ROE 1-10,

:

:

Defendants.

:

______________________________ :

APPEARANCES: Daniel S. Weinstock, Esq. Thomas More Marrone, Esq. FELDMAN, SHEPHERD, WOHLGELERNTER
& TANNER, ESQS. 20 Brace Road, Suite 112 Cherry Hill, NJ 08034
and Laura A. Feldman, Esq. Rosemary Pinto, Esq. FELDMAN & PINTO 1604 Locust Street, 2R Philadelphia, PA 19103 Attorney for Plaintiffs

Gary J. Lesneski, Esq. Kerri E. Chewing, Esq. ARCHER & GREINER, P.C. One Centennial Square P.O. Box 3000 Haddonfield, NJ 08033-0968 Attorneys for Defendants Correctional Medical Services, Inc., William Andrada, James J. Neal, M.D., James Ruman, R.N., Rock Welch, Abu Ashan, M.D.

Case 1:02-cv-04993-NLH Document 168 Filed 05/14/2008 Page 2 of 48
Sarah Brie Campbell, Esq. Dianne M. Moratti, Esq. OFFICE OF THE NJ ATTORNEY GENERAL Department of Law & Public Safety RJ Hughes Justice Complex P.O. Box 112 Trenton, NJ 08625 Attorney for Defendant George Hayman, NJDOC Commissioner
HILLMAN, District Judge
I. INTRODUCTION
Plaintiffs Walter Bennett, Gregory Royal and John Lacey have
brought an action individually and jointly on behalf of all
persons similarly situated (collectively “Plaintiffs”) seeking
injunctive, declaratory and monetary relief. Plaintiffs allege
in their Second Amended Complaint that Correctional Medical
Services Inc., Louis Tripoli, M.D.,1 William Andrade, M.D., James
J. Neal, M.D., James Ruman, R.N., Rock Welch, Abu Ahsan, M.D.,
(hereinafter “CMS Defendants”), George Hayman, in his capacity as
Commissioner of the New Jersey Department of Corrections
(“NJDOC”),2 John Doe and Jane Roe 1-10 (collectively,
“Defendants”) knowingly exposed Plaintiffs to the hepatitis C
1 The parties stipulated to the dismissal of defendant Louis Tripoli, M.D. on July 2, 2007.
2 By Order entered on February 7, 2007, George Hayman was substituted for Defendant Devon Brown. The Court took notice that Devon Brown was named in his official capacity as Commissioner of the New Jersey Department of Corrections (NJDOC), that Devon Brown is no longer the NJDOC Commissioner, and that George Hayman is currently the NJDOC Commissioner. Plaintiffs’ claims against Hayman are limited to a deliberate indifference to medial needs claim and an ADA claim for which they demand injunctive and monetary relief.
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virus (“HCV”) while Plaintiffs were incarcerated in New Jersey State prisons in deliberate indifference to their serious medical needs in violation of their Eighth and Fourteenth Amendment rights under the U.S. Constitution. They also brought claims for violation of the Americans with Disabilities Act, 42 U.S.C.A. § 12131, et. seq. (“ADA”).3
This Opinion addresses the following outstanding motions: Motion to Certify Class (together with Motion for Leave to File an Overlength Brief Nunc Pro Tunc in Opposition to Plaintiffs’ Motion for Class Certification); Motion for Partial Summary Judgment as to Plaintiffs’ Claim for Injunctive and Declaratory Relief; Motion for Summary Judgment as to Claims by Royal and Lacey, and as to Plaintiffs’ ADA Claims (together with Motion to Seal Certain Documents in Support of Motions for Summary Judgment); and Motion for Summary Judgment filed by defendant George Hayman.
II. JURISDICTION This Court exercises subject matter jurisdiction over Plaintiffs’ federal law claims pursuant to 42 U.S.C. § 1331, and
3 By Order entered on December 21, 2005, Plaintiffs Gregory Royal and John Lacey dismissed their state law claims of negligence, medical malpractice, intentional infliction of emotional distress, and negligent infliction of emotional distress as to defendants Correctional Medical Services Inc., Louis Tripoli, M.D., William Andrade, M.D., James J. Neal, M.D., James Ruman, R.N., Rock Welch, and Abu Ahsan, M.D. Plaintiff Bennett continues to litigate those claims against the CMS Defendants.
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exercises supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 42 U.S.C. § 1332.
III. BACKGROUND
Plaintiffs filed their Complaint on October 16, 2002. On July 25, 2003, an Amended Complaint was filed, and on August 27, 2003, a Second Amended Complaint was filed which is the current version.4 In their Second Amended Complaint, Plaintiffs allege that Defendants knowingly exposed Plaintiffs to HCV while Plaintiffs were incarcerated in New Jersey State prisons. Plaintiffs are seeking injunctive, declaratory and monetary relief against Defendants due to deliberate indifference of their serious medical needs in violation of their Eighth Amendment right to be free from cruel and unusual punishment, applicable to the states through the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. Plaintiffs seek “an injunction requiring defendants to comply with FBOP guidelines, an injunction requiring backscreening of the entire population of inmates who
4 Several other cases have been filed in this Court by inmates or former inmates of the New Jersey State Prisons alleging similar causes of action as alleged in this matter and have been coordinated with this case for discovery management purposes. The other cases are: Jose Lopez v. CMS, 04-2155(NLH); Estate of Cornell Thomas v. CMS, 04-3358(NLH); Ricky Nefferdorf v. CMS, 04-3411(NLH); Frank Hubbard v. CMS, 04-3412(SDW); Jason Smart-El v. CMS, 04-3413(NLH); David Wenner v. CMS, 04-3414(NLH); and Estate of Daniel Reynolds v. CMS, 04-3416(RMB). In 2006, two additional cases were filed: Struble v. Tripoli, 06-1589(NLH), and Amos v. CMS, 06-1892(NLH) which are also coordinated for discovery purposes.
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have passed through and/or remain in the New Jersey state prison system, money damages for violation of constitutional rights, and punitive damages.” The putative class’s theory of recovery under 28 U.S.C. § 1983 is that until 2003, Defendants failed to screen incoming inmates for HCV, and that Defendants have not “backscreened,” inmates for HCV, i.e., screened incarcerated inmates not originally screened upon intake. As a result, Plaintiffs argue that inmates who have HCV have had their condition remain undiagnosed and untreated, and have exposed other inmates to the virus.
The parties agree that HCV is a serious medical condition. See Ellis v. Mohenis Services Inc., No. 96-6307, 1998 WL 564478, at *3 n.2 (E.D.Pa. Aug. 24, 1998) (explaining that HCV remains in the blood and accounts for a large percentage of cirrhosis, liver failure and liver cancer cases (citing to Downs v. Hawkeye Health Servies, Inc., No. 97-3851, 1998 WL 348201, at *3 (8th Cir. July 1, 1998) (quoting from Stedman’s Medical Dictionary 784 (26th ed. 1995)). HCV is not a disease, but a virus that can cause liver disease, and over time, liver damage. HCV is a blood borne virus that can be spread through IV drug use, sexual contact, needle stick injury, tattooing, body piercing, or any other means of transferring blood.
Plaintiff Walter Bennett was incarcerated in the New Jersey State Prisons from approximately April 15, 1992 until June 5,
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2002. Bennett maintains that he had a prior history of intravenous drug use and had a blood transfusion in 1992, both of which are risk factors for HCV. Bennett asserts that while in prison, he underwent blood tests that showed elevated levels of hepatocellular enzymes which should have prompted follow-up blood work and counseling regarding HCV by Defendants. Instead, Bennett argues that he was not tested and diagnosed with HCV until he underwent routine blood procedures shortly before his release from prison. Bennett also complains that Defendants failed to counsel him or educate him as to the consequences concerning the virus. The CMS Defendants’ expert, Carroll M. Leevy, M.D., submitted a report stating that Bennett’s medical records revealed that he had elevated alanine aminotransferase (ALT) levels in 1995 and in 1996. Elevated levels of ALT are an indication of HCV. Dr. Leevy writes that in November 2001, a hepatitis panel was ordered for Bennett that confirmed that he had HCV. She also writes that on April 29, 2002, Bennett was seen in the Infectious Disease Clinic and provided education regarding HCV on May 15, 2002, but was not treated in prison for HCV. Upon release on June 5, 2002, Bennett was treated by his family physician and is currently symptom free.
Plaintiff Gregory Royal was transferred in May 1999 to the New Jersey State Prison and is currently incarcerated at South Woods State Prison. Royal states that in September 2001, he was
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advised by a nurse employed by CMS that he had HCV and liver damage. Royal maintains that he was given an injection but not provided with adequate counseling or treatment for his HCV. In April 2003, Royal states that he was told he was scheduled for a liver biopsy but as of the date of the Second Amended Complaint, he had not had the operation. The CMS Defendants’ expert, Dr. Leevy, provides in her report that Royal’s records show that he had elevated ALT levels in 1999, 2000 and 2001. On April 11, 2001, a hepatitis panel was ordered and came back positive for hepatitis. Royal was given a hepatitis A vaccine in June 2001. Her report continues to describe the education and treatment options discussed with Royal by medical practioners. Dr. Leevy provides that Royal’s treatment for his HCV was delayed due to his not being an ideal candidate for HCV therapy and possible side effects.5 On February 22, 2006, Royal was started on drug treatment but his success with this treatment has not yet been determined.
Plaintiff John Lacey has been incarcerated in New Jersey state prisons since 1983, and admits he is not infected with HCV.
5 In addition, the CMS Defendants provide the affidavit of Mary Thomas, N.P., a nurse practitioner employed by CMS, dated July 13, 2006. Nurse Thomas states that she educated Royal about his treatment options for HCV on numerous occasions, and on August 2, 2004, Royal refused to consent to the evaluation and treatment because he wanted to wait for better treatments to become available.
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IV. DISCUSSION
This Court cannot exercise jurisdiction over cases that are
moot and, therefore, we first address the issue of whether
Plaintiffs’ request for injunctive and declaratory relief is
justiciable if Defendants have adopted current Federal Bureau of
Prison (“FBOP”) guidelines for the management of HCV, and if all
NJDOC inmates have been “back-screened.” For the reasons
explained below, Plaintiffs’ request for injunctive and
declaratory relief is denied as moot.
A. MOOTNESS
In examining whether this case should be dismissed on
grounds of mootness, we must determine whether Plaintiffs had a
live controversy when they filed suit, and if so, whether the
relief provided by Defendants during the pendency of this litigation rendered the injunctive relief requested moot.6
6 In a class action context, special rules regarding mootness apply. Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992). After the class has been certified, the action does not become moot because the claims of the class representative have become moot. Id. This is because “the class acquire[s] a legal status separate from the interest asserted [by its named plaintiff].” Id. (relying on Sosna v. Iowa, 419 U.S. 393, 399 (1975). Different rules apply if the class has not been certified and the putative class representative’s claims are moot. “Normally, when claims of the named plaintiffs become moot before class certification, dismissal of the action is required.” Id. (citing to Kremens v. Bartley, 431 U.S. 119, 132-33 (1977)). If the plaintiff’s claims are not justiciable than there is no “live” case or controversy within the meaning of Article III of the Constitution. Id. (citing to Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1041 (1981).
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Under Article III of the U.S. Constitution, the judicial power of the United States shall extend to “cases” and “controversies.” U.S. Const. art. III, § 2. The “case or controversy” requirement serves to limit the “business of federal courts to ‘questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process,’ and it defines the ‘role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.’” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 39596 (1980)(citing to Flast v. Cohen, 392 U.S. 83, 95 (1968)). This constitutional limitation renders a case moot: “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. (citing to Powell v. McCormack, 395 U.S. 486, 496 (1969). “Article III does not permit federal courts to decide moot cases.” Rosetti v. Shalala, 12 F.3d 1216, 1223 (3d Cir. 1993)(relying on Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3 (1964)).
At the center of the Defendants’ argument for mootness is that Plaintiffs have been provided with the requested injunctive relief and, therefore, no further relief need be provided. It is not enough, however, for Defendants to simply cease the alleged illegal conduct to circumvent an injunction being imposed. “Mere voluntary cessation of allegedly illegal conduct does not moot a
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case; if it did, the courts would be compelled to leave ‘[t]he defendant ... free to return to his old ways.’” Hilton v. Wright, 235 F.R.D. 40, 47 (N.D.N.Y. 2006)(citing United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)).
In addition to the voluntary cessation of the challenged conduct, a case becomes moot if: “(1) it can be said with assurance that ‘there is no reasonable expectation ...’ that the alleged violation will recur, ... and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Phillips v. Pennsylvania Higher Education Assistance Agency, 657 F.2d 554, 569 (3d Cir. 1981), cert. denied by 455 U.S. 924 (1982)(quoting Marshall v. Whittaker Corp., Berwick Forge & Fabricating Co., 610 F.2d 1141, 1145 n.9 (3d Cir. 1979); County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “The ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc., No. 892291, 93-2381, 2003 WL 23519620, at *11 (D.N.J. Oct. 27, 2003)(quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000)).
Under the test for mootness, Defendants have the heavy
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burden of proving that: (1) there is no reasonable expectation
that the alleged violations of failing to screen inmates for HCV
will recur; and (2) the Defendants’ policy for screening new
inmates and “backscreening” current inmates has completely and
irrevocably eradicated the effects of the alleged violation. We
find that Defendants have shouldered this heavy burden.7
Defendants have provided evidence that “an extensive HCV
program regarding the education, screening, testing, diagnosis
and treatment of New Jersey prisoners that follows the FBOP’s
Guidelines.” In support of their argument, the CMS Defendants
submitted the Affidavit of the New Jersey Medical Director for
CMS, Lionel Anicette, Jr., M.D.,8 who states that injunctive
relief requested by Plaintiffs is not necessary because a
7 In addition to mootness, Defendants argue that summary judgment should be granted as to Plaintiffs’ request for injunctive and declaratory relief because: Plaintiffs lack standing; Plaintiffs are not entitled to injunctive and declaratory relief because they cannot prove that the CMS defendants were deliberately indifferent to their medical needs; and, this Court lacks jurisdiction to enforce compliance with injunctive relief under the Prison Litigation Reform Act (“PLRA”) because the relief requested by Plaintiffs does not conform to the standard set forth under 18 U.S.C. § 3626(a)(1)(A), and because this Court cannot exercise jurisdiction over the New Jersey prisons if they are following current FBOP Guidelines. We do not reach the merits of these alternative arguments for summary judgment because we decide that Plaintiffs’ request for injunctive and declaratory relief is moot and should be dismissed on that ground.
8 Dr. Anicette’s Affidavit was submitted under seal because it includes exhibits containing confidential documents. The statements quoted above appear in the Affidavit and were not taken from the exhibits.
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comprehensive HCV program has been adopted and implemented, and
is being monitored to assure that the inmates receive HCV
treatment consistent with the standards set forth in the FBOP
Guidelines for the prevention and treatment of viral hepatitis,
including HCV. Dr. Anicette further states in his Affidavit that
“backscreening” of the New Jersey State inmate population “has
been completed.”
More specifically, the Anicette Affidavit provides a list of
the following actions taken with regard to their screening
policy:
The New Jersey Department of Corrections (NJDOC) has directed that the FBOP’s HCV Guidelines should be followed and this directive has been communicated to all healthcare providers.
a. CMS has subcontracted with the Cooper Health System and its Infectious Disease Department to provide infectious disease consultations to inmates. Cooper Hospital is also in the process of reviewing every HCV inmate’s medical care to assure compliance with the FBOP’s HCV Guidelines.
b. All inmates who meet the treatment criteria in the FBOP’s HCV Guidelines are offered HCV pharmacologic treatment which they can accept or reject. Inmates who accept HCV medications are given a combination of pegylated interferon in combination with ribavirin. This pharmacologic treatment is FDA approved and recommended for use in the FBOP’s HCV guidelines.
c. Inmates in New Jersey, including in excess of 7,000 admitted prior to
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February 1, 2003, have been given a Blood Borne Pathogen Risk Assessment (“BBPRA”)(HCV/HIV). HCV is a blood borne pathogen. Inmates who were identified with a positive risk factor for HCV have been encouraged to consent to a HCV test.
d. Any inmate who requests an HCV test is given the test.
e. All inmates are given extensive counseling and education materials, a NJDOC video on HCV and direct communications with their healthcare providers. 9
f. The inmates’ Electronic Medical Records (“EMRs”) have been updated with comprehensive HCV forms to assure more consistent and thorough HCV documentation.
g. The care and treatment of all HCV inmates is closely tracked.
h. CMS compiles and analyzes statistical data regarding New Jersey’s HCV program to measure and analyze the effectiveness of the program. The data is shared with the NJDOC.
i. The NJDOC monitors the HCV care and treatment given to inmates and CMS is subject to contractual penalties if it does not comply with its contract.
Anicette Affidavit ¶6.
Defendant Hayman also argues that NJDOC requires that CMS
follow FBOP guidelines for HCV detection and treatment, and in
9 Defendant Hayman has stated that in June 2007, it incorporated a new training video entitled “Hepatitis C - What You Need to Know.”
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support thereof attached the affidavit of Ralph Woodward, managing physician employed by NJDOC as director of health care services, who stated that in January 2003, the NJDOC and CMS adopted HCV guidelines based the FBOP guidelines.
Moreover, Plaintiffs admit that adoption of the FBOP Guidelines would provide appropriate relief. Plaintiffs’ expert, Bennett Downs Cecil, III, M.D., states in his written expert opinion that,
at all times subsequent to January of 2003, CMS and the New Jersey Department of Corrections have adopted the most current version of the Federal Bureau of Prison Guidelines with respect to the handling of new inmates. ... Assuming the Guidelines are being followed, appropriate Hepatitis C testing is being done with respect to these inmates, appropriate biopsies are being performed and pharmacologic treatment is being offered where indicated. In addition to Plaintiffs’ expert having no criticism of NJDOC and CMS following the FBOP guidelines, CMS Defendants point out that Courts in this District have ruled that an appropriate standard of care for treatment of HCV in New Jersey State prisons is compliant with FBOP guidelines. See Christy v. Robinson, 216 F.Supp.2d 398, 416 (D.N.J. 2002). Thus, based on the evidence provided, the Court finds that Defendants are following the FBOB Guidelines with respect to HCV treatment and are screening new inmates for HCV. Therefore, Plaintiffs’ request for injunctive relief asking the Court to
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intervene to provide a proper screening mechanism for new inmates is denied as moot.
Although they admit that Defendants have adopted the FBOP Guidelines, the Plaintiffs argue that Defendants have not addressed the second prong of the mootness test because they “have not carried their burden to establish that there is no reasonable probability that the actual and threatened injuries Plaintiffs complained of at the beginning of the litigation have been completely and adequately resolved.” Specifically, in their request for injunctive relief they ask that the Defendants “backscreen” the current inmates in the New Jersey prisons. They argue that even if Defendants adopt a policy of screening new inmates for HCV, the current inmate population was not adequately screened and, therefore, inmates that are unaware that they are HCV positive exist in the prison population. These potentially undiagnosed inmates are not receiving treatment, education or counseling, and can expose uninfected inmates to the virus. Plaintiffs’ expert, Dr. Cecil, opines that if an undiagnosed HCV inmate exists among the prison population, then any HCV policy would fail because the HCV negative inmate population is at risk of becoming infected.
Defendants do not dispute this argument but rather maintain that the current New Jersey prison population has been “backscreened.” In their July 28, 2006 brief, they maintain that
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CMS “recently undertook a substantial project to make certain that this was done and documented in the EMR [Electronic Medical Records].” Their efforts are documented as follows:
The “backscreening” effort started in December 2005 and was completed in May 2006. Except for the inmates who were already diagnosed as HCV positive, those who were already tested for HCV, or those who refused to answer screening questions, all inmates admitted prior to February 1, 2003, more than 7,000 inmates, were offered a new risk assessment for HCV. The risk assessment is documented in the inmates’ EMRs. In support of their argument, the CMS Defendants provide the affidavit of Dr. Anicette who described the efforts undertaken during the December 2005 - May 2006 backscreening project.10 Dr. Anicette states that all inmates admitted prior to February 1, 2003, were offered a new risk assessment that was documented in their EMRs, and those that had positive risk factors were encouraged to take the test for HCV. CMS Defendants also provide the affidavit of Inna Vaynberg, P.A., a physician’s assistant employed by CMS. In her affidavit, she describes a process conducted in late 2005 in which she met with inmates and completed a Blood Borne Pathogen Risk Assessment (“BBPRA”) and documented the assessment in the inmates’ Electronic Medical Record (“EMR”). The purpose of her meeting with the inmates was to assess their HCV risk factors. Attached
10 The CMS Defendants and Dr. Anicette maintain that all inmates were assessed and educated for HCV factors before the backscreening project but took “extra efforts to make sure that this was documented in the EMR.”
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to her affidavit as exhibits were copies of the BBPRA form used
in the EMR, as well as a form she used for discussion purposes
with each inmate to ascertain their risk for HCV. Finally,
Defendant Hayman supplied the affidavit of Ralph Woodward, NJDOC
director of health care services, who confirmed that the “back-
screening” process of all NJDOC inmates was completed in May
2006.
Plaintiffs do not deny that backscreening was completed in
May 2006. Instead, Plaintiffs rely on the deposition testimony
of Victor Wijesinghe, the statewide director of CMS’s HCV
program, to rebut Dr. Anicette. Plaintiffs maintain that Mr.
Wijesinghe testified that “Defendants did not collect data and in
fact did not want to know even the true prevalence rate of HCV in the prisons.”11 Mr. Wijesinghe’s deposition was taken on April
11 Plaintiffs make much of the fact that Defendants do not know the true prevalence rate of HCV among the inmates which they describe as “key” to any HCV treatment policy. Defendants admit they do not know this information. They argue that knowing the true prevalence of HCV in the prisons would require mandatory testing of the blood of every inmate which is illegal under N.J.A.C. 10A:16-5.1. N.J.A.C. 10A:16-5.1(a) provides that “the express written consent of the inmate shall be required for:...(2) invasive procedures;... .” The CMS Defendants did not cite any case law interpreting that statute. A search performed by the Court resulted in one case, John Karolis v. New Jersey Dept. of Corrections, 935 F. Supp. 523, 525 (D.N.J. 1996), that cited to N.J.A.C. 10A:16-5.1 with regard to testing inmates for tuberculosis. The Karolis case did not interpret the statute but did hold that the state’s compelling interest in preventing the spread of tuberculosis in its prisons outweighed the inmates right to free exercise of religion under the Religious Freedom Restoration Act and the First Amendment. Id. at 530-31.
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8, 2004. The CMS Defendants state that the backscreening project described above was started in December 2005 and completed in May 2006. The project was started and completed after Mr. Wijesinghe’s deposition and after Plaintiff’s expert submitted his report. In addition, Defendant Hayman submitted the affidavit of Diane M. Moratti stating that during a hearing held on May 18, 2007, counsel for Plaintiffs confirmed that “backscreening” for HCV risk factors for all inmates had been completed. Thus, there is no need for the Court to order Defendants to “backscreen” all current New Jersey prison inmates as this process has been completed.
Nonetheless, Plaintiffs argue that even if Defendants adopted the FBOP Guidelines for HCV treatment and backscreened all existing inmates, a reasonable expectation exists that Defendants will resume their alleged liable conduct if this Court does not intervene and provide injunctive relief. Plaintiffs point out that Defendants only began screening inmates after they filed suit. Plaintiffs state that “because the CMS Defendants only began following FBOP Guidelines after this litigation began in response to substantial adverse publicity, there is a genuine
Plaintiffs did not provide any argument in opposition to the CMS Defendants’ claim that mandatory testing of inmates for HCV contravenes N.J.A.C. 10A:16-5.1. Since Plaintiffs make no demand for mandatory, involuntary blood-testing of inmates to detect HCV, that precise issue is not before us and we make no finding on whether such a policy would contravene N.J.A.C. 10A:16-5.1.
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issue of material fact whether Defendants will continue [sic] act responsibly without litigation or Court supervision.”
The record shows that Defendants adopted a formal screening policy on February 1, 2003, which is after the first complaint was filed on October 16, 2002. In addition, the CMS Defendants admitted that the “backscreening” project was not started until December 2005 and completed five months later. The timing of these two events, after litigation was filed, prompts the Court to take a closer look at the Defendants’ conduct and scrutinize their actions in order to determine whether it is likely that the current HCV policy is a permanent change, or whether Defendants are likely to revert back their old ways. See Hilton, 235 F.R.D. at 47 (stating that “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant ... free to return to his old ways.’”)(citations omitted).
Based upon the evidence provided to the Court concerning the Defendants’ compliance with the FBOP guidelines for the screening, treatment and education of new inmates into the New Jersey Prison system, and the evidence concerning the December 2005 - May 2006 “backscreening project,” we find that Defendants have satisfied the test for mootness. There is no reasonable expectation that the alleged violations of failing to screen new inmates for HCV will recur. Defendants have provided evidence
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showing that a formal written policy has been adopted, is being followed, and that there are safeguards in the policy to ensure its future compliance. The policy requires tracking of inmates to provide statistical information regarding HCV, and cooperation with local health care providers for treatment of HCV positive inmates.
Thus, if all current New Jersey State prison inmates have had their risk for HCV assessed, i.e., screened, and, the prisons are following the FBOP Guidelines for HCV treatment, then there is no further injunctive relief that the Court could order that has not already been provided by the Defendants. “...[I]f a favorable decision by a federal court could not provide the plaintiffs with more than the defendant has already given them, the entire case, including the question of class certification, would be moot.” Rosetti v. Shalala, 12 F.3d 1216, 1232 (3d Cir. 1993)(citing to California v. San Pablo & Tulare R.R., 149 U.S. 308, (1893)). Therefore, we deny Plaintiffs’ request for injunctive and declaratory relief as moot.
In addition to mootness, Defendants also raise another defense of non-justiciability with regard to plaintiff Lacey standing. For the reasons explained below, Lacey is dismissed individually and as the representative of the putative members of subclass one for lack of standing.
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B. STANDING On May 15, 2006, Plaintiffs filed a motion for class certification. Plaintiffs’ putative class would consist of all New Jersey State prison inmates from January 1990 until the present, divided into two subclasses: (1) all individuals who are or were incarcerated in New Jersey State prisons from January 1990 to the present and who are not infected with HCV; and (2) all individuals who are or were incarcerated in New Jersey State prisons from January 1990 to the present and who are infected with HCV. Even though subclass one does not have an injury, Plaintiffs argue that they have standing because they were exposed to the threat of injury traceable to Defendants. Normally, lack of standing strips this Court of jurisdiction. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003)(quoting that “a federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). Standing raises other considerations, however, in a class action context. In the companion cases Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), the Supreme Court decided that “... a Rule 23 question should be treated first because class certification issues are “logically antecedent” to Article III concerns...and pertain to statutory
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standing, which may properly be treated before Article III standing... .” After Amchem and Ortiz, Federal courts faced with challenges to standing in class certification cases must assess whether certifying the class gives rise to the standing issue. See Clark v. McDonald’s Corp., 213 F.R.D. 198, 204 (D.N.J. 2003) (deciding the class certification issues first because they were “logically antecedent” to those of standing).
Here, we do not address the class certification first because the putative class representative for subclass one, Lacey, lacks standing. In cases where the putative class representative lacks standing, the Article III standing issue is decided first. See id. (finding that “Ortiz exception treating class certification as the antecedent consideration does not apply if the standing issue would exist regardless of whether the named plaintiff filed his claim alone or as part of a class.”); see also, Stone v. Crispers Restaurants, Inc., No. 06-cv-1086, 2006 WL 2850103, at *2 (M.D. Fla. Oct. 3, 2006)(concluding that class certification not be addressed because the putative class representative himself lacked standing).
“At the core of the standing doctrine is the requirement that a plaintiff ‘allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’” County of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991)(citing Allen v. Wright, 468 U.S. 737, 751
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(1984) which cited to Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)). If the plaintiff lacks standing to bring his individual claims, he also lacks standing to assert claims on behalf of a class. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 (3d Cir. 2000)(stating that “... a plaintiff who lacks the personalized, redressable injury required for standing to assert claims on his own behalf would also lack standing to assert similar claims on behalf of a class.”).
In support of their argument that Lacey has standing, Plaintiffs cite to United Food & Comm’l Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551 (1996)(finding Union had standing to bring action under the Worker Adjustment and Retraining Notification Act on behalf of its members). The question before the Court in United Food was whether a union has standing to bring an action on behalf of its members, i.e., whether it has “associational standing,” and did not address whether standing can be conferred if the plaintiff suffered only a threat of an injury. Likewise, Plaintiffs’ reference to Borough of Carlstadt v. U.S. Army Corps of Eng’rs, focuses on “prudential standing” and does not support their position on standing. No. 05-2771, 2006 WL 30514, at *4, n.4 (D.N.J. Feb. 8, 2006)(finding that Plaintiff failed to establish that it had “prudential standing” to maintain its causes of action alleging
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violations of federal statutes). Here, we are not faced with issues of associational standing
or prudential standing. Plaintiff John Lacey, who does not have HCV, has filed suit individually and as representative of a class of persons similarly situated. We must decide whether Lacey has standing to bring a claim pursuant to 42 U.S.C. § 1983 for alleged violations of his Eighth Amendment rights due to the deliberate indifference by Defendants of his serious medical needs.
There is support for the claim that the Eighth Amendment protects against exposure to unreasonable risk of serious damage to the future health of inmates. Helling v. McKinney, 509 U.S. 25, 33 (1993). In Helling, the Supreme Court found that a prisoner stated a claim under the Eighth Amendment by alleging that prison officials were deliberately indifferent by exposing him to environmental tobacco smoke (“ETS”) that posed “an unreasonable risk of serious damage to his future health.” The prisoner, McKinney, was serving a sentence in the Nevada State Prison and was assigned to a cell with another inmate who smoked five packs of cigarettes a day. Id. at 28. Scientific evidence was presented to the court that sufficient exposure to ETS could endanger one’s health. Id. at 29. In addition, the lower court “concluded that society’s attitude had evolved to the point that involuntary exposure to unreasonably dangerous levels of ETS
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violated current standards of decency.” Id. The Court found that McKinney stated a cause of action under
the Eighth Amendment by alleging that the Nevada State prison exposed McKinney with deliberate indifference to levels of ETS that presented an unreasonable risk of serious damage to his future health. Id. at 34. The Supreme Court acknowledged that the Courts of Appeals have recognized that inmates are protected under the Eighth Amendment against imminent dangers that pose a significant risk of proximate and substantial harm. Id. at 34. The Court remanded the case back to the lower court with instructions that McKinney prove both the objective and subjective elements necessary to sustain an Eighth Amendment violation: that he was directly exposed to unreasonably high levels of ETS; that society considers the risk he complains of to be so grave that “it violates contemporary standards of decency;” and that prison officials were deliberately indifferent. Id.
We find material differences between Helling and the case before us. In Helling, the inmate was subjected directly and involuntarily to high levels of ETS on a daily basis. Id. (stating that “[w]ith respect to the objective factor, McKinney must show that he himself is being exposed to unreasonably high levels of ETS.”)(emphasis added). Lacey argues that inmates entered the New Jersey Prisons who were unscreened for HCV, and uneducated about prevention and treatment of the virus. He
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maintains that this situation resulted in non-HCV inmates being exposed to HCV inmates. The difficulty, however, is that we do not know if Lacey was ever actually involuntarily directly exposed to the virus. The virus is spread through blood contact. It is unlike tuberculosis or ETS which is transmitted through the air. To be directly exposed to HCV, there must be direct contact with an infected person, such as sexual intercourse, use of an infected needle that pierces the skin, or other means of transferring blood. Although Lacey provides that such activities occur in the prisons and that Defendants are aware that they occur,12 he has not alleged that he personally was involuntarily directly exposed to HCV. At best, he has alleged that he has been in close proximity with individuals who have HCV creating a possibility of being directly exposed to HCV.
Applying the objective factor test in Helling, we must determine whether being in close quarters with individuals who may have HCV is a risk society views as so grave that “it violates contemporary standards of decency.” Lacey has provided no evidence as to society’s current standard of decency as to HCV. In everyday life, society certainly encounters people on the train, in restaurants, health clubs, and hotels that are HCV
12 In his deposition, Dr. Anicette testified that he is aware that prisoners engage in sexual relations, take intravenous drugs, share tattoo needles, share razors and share toothbrushes while in prison and have engaged in these activities since at least the early 1990's.
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positive. No evidence has been presented to the Court that HCV screening is required to enter any of those places. This is not to say that we make any findings as to society’s contemporary standards of decency with respect to HCV screening, education or treatment. Rather, we are providing examples to show the type of evidence that is missing from the record in order for the Court to make a determination based upon objective evidence. It is Plaintiffs’ burden to provide this evidence and they have not done so.13
Finally, Helling requires that a plaintiff provide subjective evidence so that the Court can determine if a defendant was deliberately indifferent in light of the “prison authorities’ current attitudes and conduct.” Id. (emphasis added). The Supreme Court noted that the smoking policy, adopted by the prison after McKinney filed suit, would bear heavily on the inquiry into deliberate indifference. Thus, Plaintiff Lacey’s allegation that Defendants were deliberately indifferent to his serious medical needs relate to conduct before a formal policy was adopted and screening project completed. Plaintiff
13 We acknowledge the evidence presented indicating that the prison population has a much higher incidence of HCV than the general population. This evidence suggests that some action on the part of prison officials is appropriate. However, as the Court concluded in the previous section, the action requested by Plaintiffs – for Defendants to follow the FBOP Guidelines for the treatment of HCV and to screen all inmates – has been provided by Defendants.
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Lacey has not shown that he has an “injury” because he has not presented any evidence that he was directly exposed to HCV, that Defendants’ conduct violated contemporary standards of decency, or evidence of deliberate indifference in light of the “prison authorities’ current attitudes and conduct.”
Even if Lacey were able to show direct, involuntary exposure, he cannot show that there is an unreasonable risk to
his future health. Lacey admits that he does not have HCV. By
admitting he does not have HCV, Lacey has foreclosed the risk to his future health for contracting the virus due to Defendants’ alleged conduct.14 Exposure by itself does not present a viable claim of an injury. The exposure must be direct and involuntary, be in violation of contemporary standards of decency, be from deliberate indifference of the prison officials and present an unreasonable risk to future health. See Helling, 509 U.S. at 33. Lacey has not met these requirements and, therefore, lacks
14 We note in Helling, that the court discussed other cases in which it found an unreasonable risk to future health. Specifically, the court relied on a decision that found inmates crowded into cells with other inmates suffering from infectious maladies such as hepatitis and venereal disease stated a claim under the Eighth Amendment “... even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.” Id. at 33, quoting Hutto v. Finney, 437 U.S. 678, 682 (1978). Although the Hutto case mentioned “hepatitis” as a disease, the type or level of contagiousness is unknown and it was mentioned as part of prison conditions where inmates were put in “punitive isolation” and “crowded into cells.” These conditions are not alleged in this case.
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standing to bring his claims on behalf of himself and the putative class members in subclass one. Therefore, Lacey’s claims are dismissed from this action.
Conversely, Bennett and Royal are alleged to suffer a cognizable injury. They request to serve as class representatives of former and current inmates who have HCV for damages pursuant to 42 U.S.C. § 1983 for deliberate indifference to their serious medical needs in violation of the Eighth Amendment.
C. MOTION FOR CLASS CERTIFICATION Federal Rule of Civil Procedure 23 governs the certification of class actions. A party seeking class certification bears the burden of proving that each of the requirements under Rule 23 has been met. See, e.g., Baby Neal v. Casey, 43 F.3d 48, 55(3d Cir. 1994). The legal requisites for class certification are: (1) under Rule 23(a), to satisfy all four requisites of numerosity, commonality, typicality, and appropriateness of class relief; (2) to fulfill at least one part of Rule 23(b); and (3) provide the Court with adequate information so that it can enter an Order defining the class and listing the claims, issues, or defenses subject to class treatment pursuant to Rule 23(c)(1)(B). Id.; Watchel v. Guardian Life Ins. Co., 453 F.3d 179, 184 (3d Cir. 2005).
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Rule 23(a) Under Rule 23(a), one or more of the Plaintiffs may sue on behalf of all the members of the proposed class only if: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Baby Neal, 43 F.3d at 55. (1) Numerosity Plaintiffs state that according to the NJDOC Report on Offender Statistics, in 2005 the number of inmates was 26,239. Since Plaintiffs seek certification of a class of all present and former New Jersey State inmates from 1990 to the present, with or without HCV, they argue that the number of inmates for 2005 alone satisfies the numerosity requirement. The CMS Defendants estimate that the size of the original proposed class is between 400,000 to 500,000 individuals.15 These numbers or estimates, however, do not distinguish between inmates with HCV and inmates without HCV. Since subclass
15 The CMS Defendants admit that Plaintiffs meet the numerosity requirement of the original proposed class (including those former and current inmates without HCV). They criticize the size of the class, however, as over broad and imprecise. This argument goes to the requirements under Rule 23(c)(1)(B) which we address in the following section.
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one - those who do not have HCV and have not alleged a cognizable injury - have been found to lack standing, the numerosity requirement must be satisfied from proposed subclass two current or former inmates with HCV. Given the large size of the original proposed class, it is possible that Plaintiffs could meet the numerosity requirement for proposed subclass two. However, there is not enough information presently before the Court to make a clear determination. In order to satisfy the numerosity requirement, Plaintiffs must provide the Court with at least an estimated number of proposed subclass two members with HCV.16 Plaintiffs have not provided the Court with an estimate of class members made up of current or former inmates with HCV and, therefore, do not meet the numerosity requirement of 23(a)(1).
(2) Commonality The commonality prong of Rule 23(a) requires “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). This requirement is met if Plaintiffs share “at least one question of fact or law with the grievances of the prospective class.” Baby Neal, 43 F.3d at 56. This commonality requirement has been recognized as one that is easily met. Id. Also, class members
16 If this were the only defect in Plaintiffs’ motion for class certification, we would deny it without prejudice to allow Plaintiffs to submit an estimate. However, Subclass Two does not qualify for class certification on other grounds.
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can assert such a single common complaint if they demonstrate that all class members are subject to the same harm. Id. (citing to Hassine v. Jeffes, 846 F.2d 169, 177-78 (3d Cir. 1988). The commonality prerequisite does not require that all members of the prospective class share identical claims. Hassine, 846 F.2d at 176-77 (relying on Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985). It requires only that the harm complained of be common to the class, not that Plaintiffs are affected by the harm in the same way. Id. at 177; Baby Neal, 43 F.3d at 56 (rejecting the argument that the commonality requirement cannot be met because of individualized circumstances); Hassine, 846 F.2d at 178 (holding that plaintiffs’ allegation that they were subject to same conditions in prison even if they had not at the time of the assertion been injured by those conditions met the commonality requirements).
The CMS Defendants argue that the Plaintiffs do not share commonality with the prospective class. They note that Bennett is no longer incarcerated and his “HCV has essentially been cured,” and that Royal’s state law claims have been dismissed. They further note that “this Court will not be able to make a determination on the purported ‘common’ question of plaintiffs’ claims under the Eighth Amendment without an individual review of the care provided to every class member.” Plaintiffs counter that they have the same claims for deliberate indifference under
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the Eighth Amendment as other class members. Whether there is a claim common to the putative class is a
close question. A factual issue common to all Plaintiffs is Defendants’ alleged policy of not screening all inmates for HCV prior to 2003. Pitted against this common legal claim, however, are underlying facts that are particular to each plaintiff such as, whether and when a particular inmate was screened, whether he received counseling and education regarding HCV, whether he was directly exposed to the virus, whether he was tested for HCV, and, whether he was provided with proper treatment.
Although we have concerns about the individual claims underlying Plaintiffs’ claim, the commonality requirement is not difficult to meet, and Plaintiffs have done so. In bringing their 42 U.S.C. § 1983 claims, they have alleged that they were subject to the same policy by Defendants of not screening all inmates prior to 2003 which satisfies the requirement that Plaintiffs share “at least one question of fact or law with the grievances of the prospective class.” Baby Neal, 43 F.3d at 56.
(3) Typicality It has been recognized that the requirements for commonality and typicality are broadly defined and tend to merge. See Baby Neal, 43 F.3d at 56. Nevertheless, they are distinct requirements and we scrutinize them individually. “The typicality inquiry is intended to assess whether the action can
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be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees’ interests will be fairly represented.” Id. “Commentators have noted that cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims.” Id. Factual differences do not defeat typicality if “... the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.” Baby Neal, 43 F.3d at 58.
The typicality requirement is often satisfied where plaintiffs request injunctive or declaratory relief. Here, the Plaintiffs requested such relief, but their request became moot. Nonetheless, Plaintiffs present at least one common claim – Defendants’ failure to screen all inmates prior to 2003 – and the Plaintiffs’ claims are typical of the class in that respect. As with the commonality requirement, Bennett and Royal’s claims are typical only with respect to the limited question of Defendants’ screening policy and does not extend to any treatment of inmates for HCV.
(4) Adequacy of Representation The final prerequisite under Rule 23(a) is a determination
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whether “the putative named plaintiff has the ability and the incentive to represent the claims of the class vigorously, that he or she has obtained adequate counsel, and that there is no conflict between the individual’s claims and those asserted on behalf of the class.” Hassine, 846 F.2d 169 at 179 (citations omitted).
There is no challenge by Defendants as to the adequacy of Plaintiffs’ counsel and we find none here. Although there are considerations concerning Bennett’s and Lacey’s individual treatment of HCV, they can represent the claims of the class with respect to Defendants’ alleged policy of failure to screen all inmates for HCV. Again, the adequacy of representation is limited to the screening policy and does not touch upon individualized treatment of HCV for the inmates.
Thus, Plaintiffs do not meet the requirements under Rule 23(a)(1)-numerosity because they have not provided an estimate of the number of current or former inmates who have HCV. Although Plaintiffs meet the requirements under the liberal standards of Rule 23(a)(2)-commonality and 23(a)(3)-typicality, the questions common and typical to the class only concern the limited issue of the Defendants’ HCV screening policy.17 Finally, Plaintiffs meet the adequacy of representation requirement under Rule 23(a)(4).
17 As explained below under Rule 23(b)(3), the individual claims of the Plaintiffs’ HCV treatment dominate over their common claim regarding Defendants’ screening policy.
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Rule 23(b) Finding that Plaintiffs have not met the requirements under 23(a)(1), the Court need not go through the requirements under 23(b) and 23(c). We do so here because even if Plaintiffs were able to provide an estimate of the proposed class, they do not meet the requirements under any of the three subsections of Rule 23(b) and have not provided adequate information to satisfy Rule 23(c). Rule 23(b)(1) Rule 23(b)(1)(A) asks whether prosecution of separate actions would create a risk of inconsistent or varying adjudications with respect to individual members of the putative class resulting in incompatible standards of conduct for the party opposing the class. Rule 23(b)(1)(B) looks to whether prosecution of separate actions would create a risk of adjudications that would be dispositive of interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. See In re Orthopedic Bone Screw Products Liability, No. 93-7074, 1995 WL 273597, at *7 (E.D.Pa. Feb. 22, 1995)(stating that Rule 23(b)(1)(B) class actions are commonly referred to as “limited fund” cases on the theory that a limited fund is available to satisfy the claims of putative plaintiffs and that subsequent plaintiffs would be left without a remedy if plaintiffs who sue
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first could deplete the fund). Plaintiffs appear to argue that they satisfy both
subsections under Rule 23(b)(1). They suggest that litigating Defendants’ HCV policy “thousands of times” runs the risk of inconsistent adjudications. We disagree. Adjudication of Plaintiffs’ deliberate indifference claims concerning their HCV treatment would not result in inconsistent adjudications as to other putative members of the class. The underlying facts in each plaintiff’s § 1983 claim would be particularized to him and would require a determination of each inmate’s medical condition and treatment. “The fact that some plaintiffs may be successful in their suits against a defendant while others may not is clearly not a ground for invoking Rule 23(b)(1)(A).” Paulley v. Chandler, No. 99-P549, 2000 WL 33975579, at *3 (W.D. KY. April 18, 2000)(quoting In re Benedectin Prods. Liability Litig., 749 F.2d 300, 305 (6th Cir. 1984))(omitting citations). Likewise, under Rule 23(b)(1)(B), there is no evidence that a ruling on Plaintiffs’ claims would substantially impair or impeded subsequent plaintiffs. See id. Also, plaintiffs have not provided “substantive evidence” that Defendants’ assets would be insufficient to meet Plaintiffs’ claims. See In re Orthopedic Bone Screw Products Liability, 1995 WL 273597, at *7 (citing In Re School Asbestos Litigation, 789 F.2d 996, 999 (3d Cir. 1986)).
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Rule 23(b)(2) Rule 23(b)(2) inquires whether “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Class actions certified under this Rule are limited to cases in which the plaintiff seeks injunctive or declaratory relief. Reap v. Continental Casualty Co., 199 F.R.D. 536, 547 (D. N.J. 2001). Plaintiffs understandably argued that they met this requirement because they had sought injunctive and declaratory relief from the Court. As we have explained above, such request for relief has been made moot. Plaintiffs do not offer any other grounds to met this requirement and we find none. Rule 23(b)(3) Under Rule 23(b)(3), the Court must determine whether questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is the superior method of adjudication. Plaintiffs maintain that the claims of the class members are identical since they are seeking compensatory damages for constitutional violations, punitive damages and injunctive relief all arising from Defendants’ common HCV policies and practices in New Jersey State prisons. Defendants counter that individual rather than common issues predominate. Defendants argue that the
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claims of the individual members will depend upon their unique medical history and risk factors for HCV, their knowledge of HCV, and treatment with their doctor, as well as the timing of when these events took place.
This inquiry is not unlike the inquiry we undertook to assess the commonality requirement under Rule 23(a). The focus, however is a bit different. Under Rule 23(b)(3), common questions must predominate over any questions affecting individual members. Reap v. Continental Casualty Co., 199 F.R.D. 536, 548 (D.N.J. 2001). Also, treating the Plaintiffs as a class must be the superior method to adjudicating the controversy. Id. The reasoning behind the predominance and superiority requirements is so that certifying a class “would achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Id.
Here, the common thread identified was Defendants’ policy of failing to screen all inmates for HCV prior to 2003. Although that is a common issue of fact that satisfies the commonality requirement, it does not predominate over the individual claims. Plaintiffs’ claims regarding Defendants’ alleged failure to have all inmates screened for HCV has been rendered moot. Their 42 U.S.C. § 1983 claims predominate and those claims involve an
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inquiry into whether Defendants were deliberately indifferent to their serious medical needs. To go forward with Plaintiffs’ § 1983 claims, we must determine if and when an inmate was screened, if he was directly exposed to HCV while in prison, what treatment options were offered to him and, if applicable, the extent of his treatment. These individualized questions leave us with the impression that certifying a class would not be the superior method for fair and efficient adjudication of this case. See Baby Neal, 43 F.3d at 55 (finding that class treatment “makes no sense if there are no common issues; the trial court would gain nothing but logistical headaches from the combination of the cases for trial.”); Reap, 199 F.R.D. at 548 (finding that even if shared common questions of fact or law existed, “the additional individualized inquiries that would have to be undertaken on the issue of damages make clear that individual issues predominate over any common ones.”).
Thus, Plaintiffs do not meet the requirements under any of the three subsections under Rule 23(b) for class certification.
Rule 23(c)(1)(B) Even if Plaintiffs had satisfied the requirements under Rule 23(a) and 23(b), before an Order certifying a proposed class can be entered, there must be adequate information provided to the Court to satisfy the criteria under Rule 23(c)(1)(B). A plaintiff would need to define the class claims, issues, and
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defenses. This requirement was highlighted by the Third Circuit in Watchel v. Guardian Life Ins. Co., 453 F.3d 179, 184 (3d Cir. 2005). In Watchel, the court held that pursuant to Rule 23(c)(1)(B) “... the text of the [certification] order or an incorporated opinion must include (1) a readily discernable, clear, and precise statement of the parameters defining the class or classes to be certified, and (2) a readily discernable, clear, and complete list of the claims, issues or defenses to be treated on a class basis.” Id. at 187-88. Also, the Third Circuit approved the practice whereby plaintiffs submit a precertification “trial plan” to the district courts with this information. Id. at 186.
Here, Plaintiffs did not provide any discussion as to Rule 23(c)(1)(B). The most that Plaintiffs provide is that all of Plaintiffs’ claims “... arise from defendants’ common policies and practices regarding HCV in the prisons of New Jersey.” This statement is too general. See id. at 189 (finding that plaintiffs’ characterization of the common claim failed to articulate the particular claims asserted by plaintiffs). It also does not contemplate the fact that the “common policy” of Defendants’ failure to screen all inmates has been redressed through Defendants’ adoption of the FBOP Guidelines and backscreening project.
Thus, for the reasons explained above, Plaintiffs do not
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meet the requirements for class certification and their motion is

denied. D.

MOTIONS FOR SUMMARY JUDGMENT18

Having determined that Plaintiffs’ demand for injunctive

relief is moot, that Plaintiff Lacey lacks standing, and that

class certification is not appropriate, we address the remaining

issues raised by Defendants’ motions for summary judgment.

Defendant Hayman’s motion seeks to dismiss Plaintiffs’ deliberate

indifference to medical needs claims and ADA claims, and the CMS

Defendants seek to dismiss the deliberate indifference claim of Plaintiff Royal and Plaintiffs’ ADA claims.19

1. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied

that “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.

P. 56©.

18 In light of the sensitive nature concerning the medical records of certain former and current New Jersey State inmates, CMS Defendants’ Motion to Seal Certain Documents in Support of Motions for Summary Judgment is granted.
19 CMS did not challenge the deliberate indifference claims of Walter Bennett on summary judgment.
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An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
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2. CMS’s Motion to Dismiss Gregory Royal’s § 1983 Claim The CMS Defendants argue that Royal’s claims should be dismissed because they were not deliberately indifferent to Royal’s serious medical needs. In support of their argument, they provide evidence concerning the diagnosis of Royal’s HCV in May 2001, and his subsequent treatment. If the issue in this case was merely whether the Defendants provided proper treatment to Royal concerning his HCV, then evidence as to his treatment would address that issue. Royal, however, raise a wider issue than just treatment. Although not entirely clear, he suggests that Defendants either failed to properly screen him upon entering the prison system, and/or directly exposed him to the HCV virus. In order to determine whether summary judgment is proper as to Royal, in addition to evidence regarding his treatment, it must be determined: whether Royal was screened for HCV upon entering the prison; if he ranked in a high risk group for HCV, if he was adequately counseled and educated; and during the time that he was in prison, whether he was directly exposed to HCV. Defendants have not provided a response to the above questions. We do not suggest that answering in the negative would prove a claim, only that a dispute over material issues of fact remain precluding summary judgment of Royal’s deliberate indifference claims at this time.
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3. Hayman’s Motion to Dismiss Walter Bennett’s and Gregory Royals’ § 1983 Claim
Defendant Hayman argues that Bennett’s and Royal’s § 1983 claims should be dismissed because NJDOC was not deliberately indifferent to the inmates’ medical needs. In support of his argument, he recites the NJDOC’s efforts to deal with HCV in the prisons. Hayman states that the NJDOC attended national conferences addressing infectious diseases, including HCV, and worked with CMS to create an appropriate response. Hayman also notes that in the 1990's and early 2000's, there was confusion within the scientific community on how to detect and treat HCV and available medical treatment options evolved over time. It was NJDOC’s understanding that as of April 2000 CMS was following the FBOP guidelines for treatment of HCV and since 2001, the NJDOC participated in the Governor’s Council on State-wide Hepatitis C matters. Hayman further states that in May 2003, the NJDOC distributed HCV educational modules to the entire inmate population describing what HCV is, how it is contracted, how it may be prevented and how it may be treated.
The efforts made by NJDOC with CMS to detect and treat HCV in the prison population is evidence that there is no need for this Court to intervene and issue injunctive or declaratory relief. The general efforts made do not, however, answer what particular efforts were made on behalf of Plaintiffs Royal and
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Bennett to detect and treat HCV. The same questions raised by CMS’s motion are raised here: whether they were screened for HCV upon entering the prison; if they ranked in a high risk group for HCV, if they were adequately counseled and educated; and during their time in prison, whether they were directly exposed to HCV.
Therefore, Defendants have not shown as a matter of law that they are entitled to summary judgment as to Plaintiffs’ § 1983 claims.
4. Plaintiffs’ ADA Claims Defendants also moved for summary judgment as to Plaintiffs’ claims under the Americans with Disabilities Act (“ADA”) 42 U.S.C. §§ 12131, et seq. Defendants argue that Plaintiffs have failed to show that they have a “disability” as defined under the ADA. Further, even if Plaintiffs did have a disability, Defendants state that Plaintiffs cannot show that they were discriminated against by reason of their disability. Because we find that Plaintiffs have not presented evidence that they have a disability under the ADA, we dismiss their ADA claim. Under Title II of the ADA, a plaintiff must establish that: “(1) he is a qualified person with a disability; (2) who is subjected to discrimination by a public entity, or is excluded from participation in or is denied the benefits of the services, programs, or activities of such entity; (3) because of his
46

Case 1:02-cv-04993-NLH Document 168 Filed 05/14/2008 Page 47 of 48
disability.” Washington v. Correctional Medical Services, No. 05-3715, 2006 WL 1210522, at *2 (D.N.J. May 1, 2006). A disability is defined under the ADA as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” 42 U.S. C. § 12102©. In support of their argument that Plaintiffs failed to present evidence of discrimination under the ADA, the CMS Defendants cite to law in other courts for the proposition that Plaintiffs must prove that their disability substantially limits one or more major life activities. See Furnish v. SVI Systems, Inc., 270 F.3d 445, 450 (7th Cir. 2001); Ellis v. Mohenis Services Inc., No. 96-6307, 1998 WL 564478, at *3-4 (E.D. Pa. Aug. 24, 1998); Sussle v. Sirinia Prot. Systems Corp., 269 F. Supp.2d 285, 307 (S.D.N.Y. 2003); Levinson v. Mucker, 289 F.Supp.2d 848, 854 (W.D. Ky 2003). Those cases conclude that the plaintiff was unable to show that Hepatitis C substantially limited one or more of his major life activities. Id.
The Court finds that the Plaintiffs have failed to allege that their Hepatitis C has substantially limited a major life activity. See Zhai v. Cedar Grove Municipality, 193 Fed. Appx. 253, 255-56 (3d Cir. 2006). Bennett and Royal, who allege to have the virus, simply offer to prove that they suffer from the virus. They do not identify any major life activity that has been impaired by having the virus. Plaintiffs provide no
47

Case 1:02-cv-04993-NLH Document 168 Filed 05/14/2008 Page 48 of 48
response to Defendants’ argument that Plaintiffs’ ADA claims should be dismissed on summary judgment. Therefore, since these plaintiffs have failed to offer proof on an essential element of their ADA claim - namely that they suffer from a disability as defined by the statute - their ADA claims must be dismissed in their entirety as a matter of law.
V. CONCLUSION Plaintiffs’ motion for class certification is denied. The Defendants’ motions as to Plaintiffs’ request for injunctive and declaratory relief are granted on the ground that Plaintiffs’ request for such relief is moot. The Defendants’ motions are denied as to the § 1983 claims but granted as to the ADA claims. Defendants’ motion to file an overlength brief and motion to seal are granted. An Order will be entered consistent with this Opinion.

At Camden, New Jersey Dated: May 14, 2008

s/Noel L. Hillman NOEL L. HILLMAN, U.S.D.J.

48

 
 Case 1:02-cv-04993-NLH Document 169 Filed 05/14/2008 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

:

WALTER BENNETT, GREGORY ROYAL, :

and JOHN LACEY, individually :

Civil Action No.

and jointly on behalf of all :

02-4993 (NLH)

others similarly situated

:

:

Plaintiffs,

:

:

v.

:

ORDER

:

CORRECTIONAL MEDICAL SERVICES, :

INC., LOUIS TRIPOLI, M.D.,

:

WILLIAM ANDRADE, JAMES J. NEAL,:

M.D., JAMES RUMAN, R.N., ROCK :

WELCH, ABU AHSAN, M.D., GEORGE :

HAYMAN, and JOHN DOE and JANE :

ROE 1-10,

:

:

Defendants.

:

______________________________ :

APPEARANCES: Daniel S. Weinstock, Esq. Thomas More Marrone, Esq. FELDMAN, SHEPHERD, WOHLGELERNTER
& TANNER, ESQS. 20 Brace Road, Suite 112 Cherry Hill, NJ 08034
and Laura A. Feldman, Esq. Rosemary Pinto, Esq. FELDMAN & PINTO 1604 Locust Street, 2R Philadelphia, PA 19103 Attorney for Plaintiffs

Gary J. Lesneski, Esq. Kerri E. Chewing, Esq. ARCHER & GREINER, P.C. One Centennial Square P.O. Box 3000 Haddonfield, NJ 08033-0968 Attorneys for Defendants Correctional Medical Services, Inc., William Andrada, James J. Neal, M.D., James Ruman, R.N., Rock Welch, Abu Ashan, M.D.

Case 1:02-cv-04993-NLH Document 169 Filed 05/14/2008 Page 2 of 2

Sarah Brie Campbell, Esq. Dianne M. Moratti, Esq. OFFICE OF THE NJ ATTORNEY GENERAL Department of Law & Public Safety RJ Hughes Justice Complex P.O. Box 112 Trenton, NJ 08625 Attorney for Defendant Devon Brown
HILLMAN, District Judge
For the reasons expressed in this Court’s Opinion entered on
this date,
IT IS HEREBY ORDERED this 14th day of May, 2008, that:
(1) Plaintiffs’ Motion to Certify Class [93] is DENIED;
(2) Defendants’ Motion to Seal [94] is GRANTED;
(3) Defendants’ Motion for Partial Summary Judgment on Plaintiffs’ claims for injunctive and declaratory relief [95] is GRANTED;
(4) Defendants’ Motion for Summary Judgment as to Plaintiffs Royal’s and Lacey’s claims and as to Plaintiffs’ claims under the Americans with Disabilities Act [96] is GRANTED IN PART AND DENIED IN PART;
(5) Defendants’ Motion for Leave to File an Overlength Brief Nunc Pro Tunc [127] is GRANTED; and
(6) Defendant Hayman’s Motion for Summary Judgment [167] is GRANTED IN PART AND DENIED IN PART.

At Camden, New Jersey

s/Noel L. Hillman NOEL L. HILLMAN, U.S.D.J.

 
 Case 1:02-cv-04993-NLH-KMW Document 180 Filed 06/09/10 Page 1 of 3 PageID: 6541

Gregory M. Royal #7132S/085299A Southwoods State Prison 215 Burlington lZoad South .. ___ ._ ___._J?rjd.g~t911, N..c..w JcrscyJ)8.3QZ...

RECEI\! D JUN - 9 2010
May 20, 2010

Han: Garrett E. Brown Jr. ChiefJudge, U.S.D.C. Han: Joseph H. Rodriguez, Senior Judge, U.S.D.C. United States Distlict COllli District of New Jersey Mitchell H. Cohen U Courthouse One John F. Gerry Plaza Fourth & Cooper Streets Camden, New Jersey 08101

Rc: Bennett, et al. v. CMS, et ai, Civil Action No. 02-4993(NLH)

Dear Sirs:
Please be advised lhat I'm requesting tbat you isslIe an order to enfhrce the proper payment and execution of a Settlement Document I signed with my attorney Laura A. Feldman, Esq. of the Feldman & Pinto Law Fil111 on Nov 19,2009. I do seriously believe that an order is warranted in this matter, because the terms of the Settlement Conditions have been breached. On the above stated case, I retained the services of Feldman & Pinto Law Firm., fonnerly of Trenton, New Jersey, now located in Philadelphia, Pa.
I was diagnosed with <In illness in the prison system in late 2001 and retained the Feldman & Pinto Law Firm in 2002 to rtlpresent me in my case against (eMS) Correctional Medical Services because of failure to provide treatment along with a number of other e-omplaints. The case was filed under the above Bennett, el aI, v. CMS, et a1. in both class action and individual complaints. III the past (8) eight years o1'thi8 case many clients were dropped for reasons our attorneys feU legally necessary. However Walter Bennett and myself Gregory M. Royal were not dropped, but ended up in a settlement agreement, Unbeknown to myself, my attorneys had brought in another firm to argue the settlement.
~
I've never met nor have I spoken with these other attorneys, our only means of correspondence was by way of mail. );'1'0111 the very beginning we experienc.ed some disagreements on thl' distribution of my funds in the setliement. To date I have not been paid a dime, Daniel S. Weinstock of the Feldman Shepherd Law Firm 1845 Walnut St. 25 th floor, Philadelphia, Pa. is the attomey used by my attorney to handle the

Case 1:02-cv-04993-NLH-KMW Document 180 Filed 06/09/10 Page 2 of 3 PageID: 6542

~ettlement. 1 have reason to believe that this attorney has indeed received my payment from eMS Correctional Medical Services, because Bennctt has already been paid, yet 1havc not, the reaSOn I understand is because I will not grant pemlissiun to review my personal credit .___ ._J.:!istory_whis:hJ§not ill t1!~j!gr~~me!1U_sil1!l.Qd~___ .___...._...__ ...___.__ .__._____. ____________-1
However when my wife call to inquire about my settlement payment the secretary for Mr. Weinstock gives so many reaSOllS that doesn't appear legitimate for them not to give me It Valid reason for not receiving payment of my settlement. Walter Bennett and myself, Gregory Royal, settled this case for the exact same amount, Bellllett Ha;; been paid, whiel, n,akes me believe that eMS made the payment to Daniel S. Weinstock, But for some reason I've not received my payment.

I signed thi~ Settlement Document in good faith, agreeing 10 the General Release and Settlement

Conditions in the terms ofthe agreement. [ believe the agreement has been breached, because I

Refuse to release access to my personal credil history.

rfpayment was made to Berulctt, then il shuuld have beCI1 made to me as well, with 110 questions asked.

I signed into a legal and binding contract, even that amount could never pay for the many years

of pain and suffering I've endured with this Chronic Tllness which I eonti1me to live with today. For the reasons I've explained in this letter/complaint I request that Your Honors issue an order

Enforcing the payment agreed on in my settlement or increase the amount for damages due to
non payment.
r anticipate a favurable response in this matter as soon as possible. Thank you in advance.

&ufIcrs.tyru~~ '~.~} .~

f , c. tiiLW!1liam T.Walsh, Clerk, U.S.D.;"

I

Ms. Kathleen Wicehnik, B.D. State Ethics Commission Mr. Daniel S. Wci11stock, Attorney

Ms. Laura A. Feldman, Attorney Conectional Medical Services,

Case 1:02-cv-04993-NLH-KMW Document 180 Filed 06/09/10 Page 3 of 3 PageID: 6543

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 Case 1:02-cv-04993-NLH-KMW Document 182 Filed 10/15/10 Page 1 of 4 PageID: 6544

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

:

WALTER BENNETT, GREGORY ROYAL, :

and JOHN LACEY, individually :

Civil Action No.

and jointly on behalf of all :

02-4993 (NLH)

others similarly situated

:

:

Plaintiffs,

:

:

v.

:

ORDER

:

CORRECTIONAL MEDICAL SERVICES, :

INC., LOUIS TRIPOLI, M.D.,

:

WILLIAM ANDRADE, JAMES J. NEAL,:

M.D., JAMES RUMAN, R.N., ROCK :

WELCH, ABU AHSAN, M.D., GEORGE :

HAYMAN, and JOHN DOE and JANE :

ROE 1-10,

:

:

Defendants.

:

:

This matter having come before the Court by letter of the Plaintiff to “enforce the proper payment and execution of a Settlement Document”; and
The Court construing Plaintiff’s letter as a motion; and On October 5, 2009, the Court having been informed that the parties had settled the matter; and The Court having entered an order dismissing the action “without costs and without prejudice to the rights of either party upon good cause shown to re-open this matter within sixty (60) days for any necessary proceedings”; and

1

Case 1:02-cv-04993-NLH-KMW Document 182 Filed 10/15/10 Page 2 of 4 PageID: 6545
On June 9, 20101, Plaintiff having filed his instant motion
to enforce the settlement agreement or increase the amount for
damages due to non-payment because Plaintiff’s attorney has
allegedly failed to disburse settlement monies to Plaintiff; and
The Court notes that Plaintiff alleges Defendants disbursed
settlement funds to Plaintiff’s counsel; but
The Court not having subject matter jurisdiction to hear
Plaintiff’s motion because: (1) it was not filed within 60 days
of the Court’s October 5, 2009 Order, (2) the settlement was not
part of the record, and (3) the matter appears to be a dispute between Plaintiff and his counsel2, see Kokkonen v. Guardian Life
Insurance Co. of America, 511 U.S. 375, 378 (1994) (finding as a
general rule that a federal district court does not retain
jurisdiction to enforce a settlement agreement unless the court,
typically as part of its order of dismissal, orders the parties
1 The motion was entered on June 9, 2010, but the motion is dated May 20, 2010. The date of the motion’s receipt, however, is irrelevant and has no bearing on the motion’s outcome.
2 Although the Third Circuit permits district courts to exercise ancillary jurisdiction to resolve attorney fee disputes, Novinger v. E.I. DuPont de Nemours & Co., Inc., 809 F.2d 212, 217 (3d Cir. 1987), the facts of this case are substantially different from Novinger. In Novinger, Plaintiff’s attorney requested a lien on the settlement prior to the conclusion of the case. The district court subsequently issued an order stating that the court would determine attorney’s fees at the conclusion of the case. Here, the court was informed by the parties that the matter had been settled, jurisdiction was not retained to resolve any outstanding issues, and Plaintiff moved for enforcement several months after settlement.
2

Case 1:02-cv-04993-NLH-KMW Document 182 Filed 10/15/10 Page 3 of 4 PageID: 6546
to comply with the terms of the settlement agreement or incorporates terms of a settlement agreement explicitly retaining jurisdiction into one of its orders); Sawka v. Healtheast, Inc., 989 F.2d 138, 141-42 (3d Cir. 1993) (holding that “unless a settlement is part of the record, incorporated into an order of the district court, or the district court has manifested an intent to retain jurisdiction, it has no power beyond the Rules of Civil Procedure to exercise jurisdiction over a petition to enforce a settlement”); Washington Hosp. v. White, 889 F.2d 1294, 1298-99 (3d Cir. 1989) (stating “a district court does not have continuing jurisdiction over disputes about its orders merely because it had jurisdiction over the original dispute”); Knoepfler v. Guardian Life Ins. Co. of Am., 2010 WL 3001380, *3 (D.N.J. July 28, 2010) (finding that the exercise of ancillary jurisdiction to determine an attorney’s fee issue would “resurrect a now-dismissed litigation, rather than facilitate the disposal of it”); and
The Court further noting that Plaintiff’s recourse for his attorney’s alleged failure to abide by the terms of the settlement agreement may be to file a new action for breach of contract in an appropriate forum, see Sawka, 989 F.2d at 140 (assuming arguendo that defendant breached the terms of the settlement agreement, “that is no reason to set the judgment of dismissal aside, although it may give rise to a cause of action
3

Case 1:02-cv-04993-NLH-KMW Document 182 Filed 10/15/10 Page 4 of 4 PageID: 6547

to enforce the agreement”); Accordingly, IT IS HEREBY ORDERED on this 15th day of October, 2010 that
Plaintiff’s motion to enforce the proper payment and execution of the settlement document [180] is DENIED.3

At Camden, New Jersey

s/ Noel L. Hillman NOEL L. HILLMAN, U.S.D.J.

3 Courts “have an ever-present obligation to satisfy themselves of their subject matter jurisdiction and to decide the issue sua sponte. Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3d Cir. 1995).
4

 
 Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 1 of 22
CLOSED,PRETRL,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:02−cv−04993−NLH−KMW

BENNETT, et al v. SPECTRUM HEALTHCARE, et al Assigned to: Judge Noel L. Hillman Referred to: Magistrate Judge Karen M. Williams Demand: $0 Cause: 42:1983 Civil Rights Act
Movant

Date Filed: 10/16/2002 Date Terminated: 10/05/2009 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

KENNETH BECHEAM TERMINATED: 08/10/2006

represented by KENNETH BECHEAM PRISON #449818 NEW JERSEY STATE PRISON POBOX 861 TRENTON, NJ 08625−0861 PRO SE

Plaintiff
WALTER BENNETT individually and on behalf of all others similarly situated

represented by DANIEL S. WEINSTOCK FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER &WEINSTOCK 1845 WALNUT STREET 25TH FLOOR PHILADELPHIA, PA 19103 (215) 567−8300 Email: dweinstock@feldmanshepherd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. BRADLEY MCDERMOTT FELDMAN &PINTO 1604 LOCUST STREET 2R PHILADELPHIA, PA 19103 (215) 546−2604 Email: bmcd@feldmanpinto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

LAURA A. FELDMAN FELDMAN &PINTO 1604 LOCUST STREET, 2R PHILADELPHIA, PA 19103 (215) 546−2604 Fax: (215) 546−9904 Email: lfeldman@feldmanpinto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROSEMARY PINTO FELDMAN &PINTO 1604 LOCUST STREET, 2R PHILADELPHIA, PA 19103 (215) 546−2604 Email: rpinto@feldmanpinto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

THOMAS MORE MARRONE FELDMAN, SHEPHERD

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 2 of 22

&WOHLGELERNTER, ESQS. 1845 WALNUT STREET 25TH FLOOR PHILADELPHIA, PA 19103 (215) 567−8300 Email: tmarrone@feldmanshepherd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
DANIEL AMOS TERMINATED: 04/17/2006

represented by ROSEMARY PINTO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GREGORY ROYAL

represented by DANIEL S. WEINSTOCK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROSEMARY PINTO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

THOMAS MORE MARRONE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JOHN LACEY individually and jointly on behalf of all others similarly situated.

represented by DANIEL S. WEINSTOCK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROSEMARY PINTO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

THOMAS MORE MARRONE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant SPECTRUM HEALTHCARE SERVICES, INC. TERMINATED: 08/27/2003
Defendant

represented by JOEL SCHNEIDER ARCHER &GREINER, PC ONE CENTENNIAL SQUARE PO BOX 3000 HADDONFIELD, NJ 08033−0968 (856) 795−2121 Email: jschneider@archerlaw.com TERMINATED: 08/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 3 of 22

CORRECTIONAL MEDICAL SERVICES, INC.

represented by GARY J. LESNESKI ARCHER &GREINER, PC ONE CENTENNIAL SQUARE PO BOX 3000 HADDONFIELD, NJ 08033−0968 (856) 795−2121 Email: glesneski@archerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

JEFFREY M. SCOTT ARCHER &GREINER, PC ONE CENTENNIAL SQUARE PO BOX 3000 HADDONFIELD, NJ 08033−0968 (856) 795−2121 Email: jscott@archerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOEL SCHNEIDER (See above for address) TERMINATED: 09/20/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

KERRI E. CHEWNING ARCHER &GREINER, PC ONE CENTENNIAL SQUARE PO BOX 3000 HADDONFIELD, NJ 08033−0968 (856) 795−2121 Email: kchewning@archerlaw.com ATTORNEY TO BE NOTICED

Defendant
LOUIS TRIPOLL VICE PRESIDENT OF MEDICAL AFFAIRS FOR CORRECTIONAL MEDICAL SERVICES TERMINATED: 07/03/2007

represented by GARY J. LESNESKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JEFFREY M. SCOTT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOEL SCHNEIDER (See above for address) TERMINATED: 09/20/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

KERRI E. CHEWNING (See above for address) ATTORNEY TO BE NOTICED

Defendant
WILLIAM ANDRADA EAST COAST SUPERVISOR FOR CORRECTIONAL MEDICAL SERVICES TERMINATED: 10/05/2009

represented by GARY J. LESNESKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JEFFREY M. SCOTT (See above for address)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 4 of 22

LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOEL SCHNEIDER (See above for address) TERMINATED: 09/20/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

KERRI E. CHEWNING (See above for address) ATTORNEY TO BE NOTICED

Defendant
DWIGHT HUTCHINSON Individually and For the STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS

represented by SARAH BRIE CAMPBELL OFFICE OF THE NJ ATTORNEY GENERAL DEPARTMENT OF LAW &PUBLIC SAFETY RJ HUGHES JUSTICE COMPLEX PO BOX 112 TRENTON, NJ 08625 (609) 633−8687 Email: Sarah.Campbell@law.dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

VICTORIA L. KUHN OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX PO BOX 112 TRENTON, NJ 08625 (609) 292−8230 Email: victoria.kuhn@dol.lps.state.nj.us TERMINATED: 11/03/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant JOHN DOE

Defendant
JANE ROE 1−10

Defendant
THE STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS TERMINATED: 08/27/2003

represented by VICTORIA L. KUHN (See above for address) TERMINATED: 08/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
M.D. JAMES J. NEAL Regional State Medical Director for Correctional Medical Services TERMINATED: 10/05/2009

represented by GARY J. LESNESKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JEFFREY M. SCOTT (See above for address) LEAD ATTORNEY

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 5 of 22

ATTORNEY TO BE NOTICED

JOEL SCHNEIDER (See above for address) TERMINATED: 09/20/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

KERRI E. CHEWNING (See above for address) ATTORNEY TO BE NOTICED

Defendant
R.N. JAMES RUMAN Regional Vice President for Correctional Medical Services TERMINATED: 10/05/2009

represented by GARY J. LESNESKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JEFFREY M. SCOTT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOEL SCHNEIDER (See above for address) TERMINATED: 09/20/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

KERRI E. CHEWNING (See above for address) ATTORNEY TO BE NOTICED

Defendant
ROCK WELCH Regional Vice President for Correctional Medical Services TERMINATED: 10/05/2009

represented by GARY J. LESNESKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JEFFREY M. SCOTT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOEL SCHNEIDER (See above for address) TERMINATED: 09/20/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

KERRI E. CHEWNING (See above for address) ATTORNEY TO BE NOTICED

Defendant
M.D. ABU AHSAN New Jersey Medical Director for Correctional Medical Services TERMINATED: 10/05/2009

represented by GARY J. LESNESKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JEFFREY M. SCOTT (See above for address) LEAD ATTORNEY

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 6 of 22

ATTORNEY TO BE NOTICED

JOEL SCHNEIDER (See above for address) TERMINATED: 09/20/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

KERRI E. CHEWNING (See above for address) ATTORNEY TO BE NOTICED

Defendant
GEORGE HAYMAN Commissioner of the New Jersey Department of Corrections TERMINATED: 03/05/2009

represented by DIANNE M. MORATTI OFFICE OF NJ ATTORNEY GENERAL RICHARD J. HUGHES JUSTICE COMPLEX CN 112 TRENTON, NJ 08625 (609) 633−3895 Email: dianne.moratti@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

SARAH BRIE CAMPBELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

VICTORIA L. KUHN (See above for address) TERMINATED: 11/03/2006 ATTORNEY TO BE NOTICED

Date Filed 10/16/2002 10/21/2002
10/21/2002 11/18/2002
11/20/2002 11/20/2002 12/06/2002
12/10/2002

# Docket Text
1 COMPLAINT filed; jury demand; FILING FEE $150.00; RECEIPT #298052 (mfs) Additional attachment(s) added on 2/8/2005 (sk, ). (Entered: 10/21/2002)
SUMMONSES issued for SPECTRUM HEALTHCARE, CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA, DWIGHT HUTCHINSON (20 Days) (Mailed to Counsel) (mfs) (Entered: 10/21/2002)
2 NOTICE of Allocation and Assignment filed. ( Camden − Judge Stephen M. Orlofsky − Magistrate Judge Joel B. Rosen) (NM) (mfs) (Entered: 10/21/2002)
3 RETURN OF SERVICE executed personally as to DWIGHT HUTCHINSON 11/8/02 Answer due on 12/2/02 for DWIGHT HUTCHINSON (sb) (Entered: 11/20/2002)
4 LETTER By WALTER BENNETT for issuance of summons upon the STATE OF NJ. (ar1) (Entered: 11/21/2002)
SUMMONS issued for THE STATE OF NJ. (20 Days) (Mailed to Counsel) (ar1) (Entered: 11/21/2002)
5 WAIVER OF SERVICE RETURNED EXECUTED as to DWIGHT HUTCHINSON 11/8/02 Answer deadline projected for 1/7/03. (ar1) (Entered: 12/09/2002)
6 NOTICE of attorney appearance for SPECTRUM HEALTHCARE, CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA by JOEL SCHNEIDER (Cert of Serv) (sb) (Entered: 12/16/2002)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 7 of 22

12/16/2002
01/03/2003
01/07/2003 01/07/2003 01/07/2003 01/08/2003 01/15/2003 01/30/2003 02/03/2003 02/04/2003 02/14/2003
02/24/2003 02/27/2003
03/10/2003 04/01/2003 04/03/2003 04/11/2003 04/28/2003 05/15/2003

7 APPLICATION by SPECTRUM HEALTHCARE, CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA and Clerk's Order extending time to answer. Answer due 1/22/03 for WILLIAM ANDRADA, LOUIS TRIPOLL, CORRECTIONAL MEDICAL, and SPECTRUM HEALTHCARE (Cert of Serv) (sb) (Entered: 12/16/2002)
8 WAIVER OF SERVICE RETURNED EXECUTED as to SPECTRUM HEALTHCARE, CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA on 11/20/02 Answer deadline projected for 1/20/03. (ar1) (Entered: 01/06/2003)
9 LETTER By WALTER BENNETT for issuance of alias summons upon deft. STATE OF NEW JERSEY. (ar1) (Entered: 01/07/2003)
ALIAS SUMMONS issued for THE STATE OF NJ. (20 Days)(Mailed to Counsel) (ar1) (Entered: 01/07/2003)
10 APPLICATION by DWIGHT HUTCHINSON and Clerk's Order extending time to answer. Answer due 1/22/03. (ar1) (Entered: 01/08/2003)
11 ORDER, setting scheduling conference for 3:30pm on 2/18/03 . ( signed by Mag. Judge Joel B. Rosen ) (NM) (ar1) (Entered: 01/08/2003)
12 RETURN OF SERVICE executed as to THE STATE OF NJ 1/9/03 Answer due on 1/29/03. (ar1) (Entered: 01/16/2003)
13 NOTICE of attorney appearance as co−counsel for WALTER BENNETT by ROSEMARY PINTO. (ar1) (Entered: 01/31/2003)
14 WAIVER OF SERVICE RETURNED EXECUTED as to THE STATE OF NJ 1/9/03 Answer deadline projected for 3/10/03. (ar1) (Entered: 02/05/2003)
15 CONSENT ORDER that the time within which all defendants may answer or otherwise plead is hereby extended to February 14, 2003. (signed by Mag. Judge Joel B. Rosen) (NM) (er) Modified on 02/21/2003 (Entered: 02/05/2003)
16 Notice of Intent to submit a Dispositive motion to dismiss portions of the complaint and for summary judgment by SPECTRUM HEALTHCARE, CORRECTIONAL MEDICAL, LOUIS TRIPOLL AND WILLIAM ANDRADA. (ar1) (Entered: 02/19/2003)
17 Notice of Intent to submit a Dispositive motion to dismiss and or for summary judgment by DWIGHT HUTCHINSON AND THE STATE OF NJ. (ar1) (Entered: 02/24/2003)
18 Notice of MOTION for Derrick Howard, Esquire to appear pro hac vice by WALTER BENNETT, [18−1] motion referred to Mag. Judge Joel B. Motion set for 4/4/03 on [18−1] motion . (PO Subm)(Cert of Svc annexed with certification of Rosemary Pinto and affidavit Derrick Howard) (ar1) (Entered: 02/28/2003)
19 LETTER addressed to Judge Rosen by DWIGHT HUTCHINSON AND THE STATE OF NJ; Re: no opposition on motions for pro hac vice and dispositive briefing schedule. (ar1) (Entered: 03/10/2003)
Scheduling conference held before Mag. Judge Joel B. Rosen on 4/1/03. (js) (Entered: 04/02/2003)
20 SCHEDULING ORDER setting Status conference for 4:00pm on 6/10/03. ( signed by Mag. Judge Joel B. Rosen )(NM) (ar1) (Entered: 04/03/2003)
21 AFFIDAVIT of Merit by David Zisa, M.D. on behalf of WALTER BENNETT. (ar1) (Entered: 04/11/2003)
22 ORDER granting [18−1] motion for Derrick Howard, Esquire to appear pro hac vice. (signed by Mag. Judge Joel B. Rosen) (NM) (sb) (Entered: 04/29/2003)
23 Notice of MOTION for leave to file amended complaint by WALTER BENNETT, Motion set for 6/20/03 on [23−1] motion . (Brief/PO Subm) (db) (Entered: 05/19/2003)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 8 of 22

05/28/2003 05/29/2003 06/30/2003 07/24/2003
07/24/2003
07/25/2003
08/01/2003 08/06/2003 08/08/2003 08/11/2003 08/11/2003 08/19/2003
08/27/2003
09/03/2003 09/03/2003 09/03/2003
09/03/2003 09/29/2003 09/29/2003 10/03/2003 10/03/2003

CASE y to Judge Freda L. Wolfson (bm) (Entered: 05/28/2003)
24 ORDER reassigning this action from Judge Orlofsky to Judge Wolfson. (signed by Chief Judge John W. Bissell) (NM) (db) (Entered: 05/29/2003)
Phone Status conference held before Mag. Judge Joel B. Rosen on 6/30/03. (js) (Entered: 07/02/2003)
25 Notice of MOTION for Alan M. Feldman, Esq. to appear pro hac vice by WALTER BENNETT [25−1] motion referred to Mag. Judge Joel B. Rosen Motion set for 9/5/03 on [25−1] motion . (PO Subm) (Cert of Serv) (sb) (Entered: 07/24/2003)
26 CERTIFICATION of Alan M. Feldman, Esq. on behalf of WALTER BENNETT supporting [25−1] motion for Alan M. Feldman, Esq. to appear pro hac vice (sb) (Entered: 07/24/2003)
27 AMENDED COMPLAINT by WALTER BENNETT amending [1−1] complaint against JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN (sb) Additional attachment(s) added on 2/8/2005 (sk, ). (Entered: 08/01/2003)
28 ORDER dismissing as moot [23−1] motion for leave to file amended complaint. (signed by Mag. Judge Joel B. Rosen) (NM) (sb) (Entered: 08/06/2003)
Status conference held before Mag. Judge Joel B. Rosen on 8/6/03. (er) (Entered: 08/08/2003)
29 SCHEDULING ORDER setting Status conference 2:00 10/21/03 (signed by Mag. Judge Joel B. Rosen)(NM) (sb) (Entered: 08/08/2003)
30 LETTER By WALTER BENNETT requesting summonses to be issued on the amended complaint. (sb) (Entered: 08/12/2003)
SUMMONS(ES) issued for JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN (20 Days) (Handed to Courier) (sb) (Entered: 08/12/2003)
31 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 8/1/03; The following actions were taken: dismissing as moot [23−1] motion for leave to file amended complaint. Order entered. By Mag. Judge Joel B. Rosen (sb) (Entered: 08/19/2003)
32 SECOND AMENDED COMPLAINT by WALTER BENNETT, DANIEL AMOS, GREGORY ROYAL, JOHN LACEY, amending [27−1] amended complaint against DEVON BROWN (sb) (Entered: 08/27/2003)
33 LETTER By WALTER BENNETT requesting summonses to be issued as to certain defendants for the second amended complaint. (sb) (Entered: 09/03/2003)
SUMMONS(ES) issued for JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN (20 Days) (Handed to Messenger) (sb) (Entered: 09/03/2003)
34 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 9/3/03; The following actions were taken, granting [25−1] motion for Alan M. Feldman, Esq. to appear pro hac vice. By Mag. Judge Joel B. Rosen (sb) (Entered: 09/04/2003)
35 ORDER granting [25−1] motion for Alan M. Feldman, Esq. to appear pro hac vice (signed by Mag. Judge Joel B. Rosen) (NM) (sb) (Entered: 09/04/2003)
36 LETTER By WALTER BENNETT requesting summons to be issued as to defendant Devon Brown. (sb) (Entered: 09/29/2003)
SUMMONS issued for DEVON BROWN (20 Days) (Handed to Courier) (sb) (Entered: 09/29/2003)
37 WAIVER OF SERVICE RETURNED EXECUTED as to ABU AHSAN 7/25/03 Answer deadline projected for 9/23/03 (sb) (Entered: 10/03/2003)
38 WAIVER OF SERVICE RETURNED EXECUTED as to JAMES RUMAN 7/25/03 Answer deadline projected for 9/23/03 (sb) (Entered: 10/03/2003)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 9 of 22

10/15/2003 10/15/2003 10/22/2003 10/22/2003 11/07/2003 11/17/2003 11/19/2003 12/22/2003
12/22/2003 12/22/2003
12/22/2003
12/22/2003
12/22/2003
12/22/2003 12/22/2003 12/22/2003 12/22/2003

39 WAIVER OF SERVICE RETURNED EXECUTED as to ROCK WELCH 8/21/03 Answer deadline projected for 10/20/03 (sb) (Entered: 10/15/2003)
40 WAIVER OF SERVICE RETURNED EXECUTED as to DEVON BROWN 8/21/03 Answer deadline projected for 10/20/03 (sb) (Entered: 10/15/2003)
Status conference held before Mag. Judge Joel B. Rosen on 10/21/03. (db) (Entered: 10/22/2003)
41 SCHEDULING ORDER setting Status conference 2:30 2/9/04 (signed by Mag. Judge Joel B. Rosen)(NM) (sb) (Entered: 10/23/2003)
42 WAIVER OF SERVICE RETURNED EXECUTED as to JAMES J. NEAL 8/21/03 Answer deadline projected for 10/20/03 (sb) (Entered: 11/07/2003)
Short Phone/Status conference held before Mag. Judge Joel B. Rosen on 11/17/03. (js) (Entered: 11/20/2003)
43 CLASS ACTION SCHEDULING ORDER setting Dispositive Motion due on or before 5/14/04 and setting certain deadlines. (signed by Mag. Judge Joel B. Rosen)(NM) (sb) (Entered: 11/20/2003)
44 Notice of MOTION to dismiss count six of plaintiffs' second amended complaint and for partial summary judgment as to plaintiffs' claims for injunctive and declarartory relief by CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA, JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, Motion set 2/6/04 on [44−1] motion, set for 2/6/04 on [44−2] motion . (Brief/PO Subm) (Cert of Serv) (sb) (Entered: 12/23/2003)
45 STATEMENT of Material Facts by CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA, JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN (sb) (Entered: 12/23/2003)
46 AFFIDAVIT of Louis C. Tripoli on behalf of CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA, JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN supporting [44−1] motion to dismiss count six of plaintiffs' second amended complaint, [44−2] motion for partial summary judgment as to claims for injunctive and declarartory relief (sb) (Entered: 12/23/2003)
47 AFFIDAVIT of Lionel Anicette, Jr. on behalf of CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA, JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN supporting [44−1] motion to dismiss count six of plaintiffs' second amended complaint, [44−2] motion for partial summary judgment as to claims for injunctive and declarartory relief (sb) (Entered: 12/23/2003)
48 AFFIDAVIT of Victor Wijesinghe on behalf of CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA, JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN supporting [44−1] motion to dismiss count six of plaintiffs' second amended complaint, [44−2] motion for partial summary judgment as to claims for injunctive and declarartory relief (sb) (Entered: 12/23/2003)
49 AFFIDAVIT of Joel Schneider on behalf of CORRECTIONAL MEDICAL, LOUIS TRIPOLL, WILLIAM ANDRADA, JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN supporting [44−1] motion to dismiss count six of plaintiffs' second amended complaint, [44−2] motion for partial summary judgment as to claims for injunctive and declarartory relief (sb) (Entered: 12/23/2003)
50 ANSWER by JAMES J. NEAL to second amended complaint (sb) (Entered: 12/23/2003)
51 ANSWER by CORRECTIONAL MEDICAL to second amended complaint (sb) (Entered: 12/23/2003)
52 ANSWER by JAMES RUMAN to second amended complaint (sb) (Entered: 12/23/2003)
53 ANSWER by ABU AHSAN to second amended complaint (sb) (Entered: 12/23/2003)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 10 of 22

12/22/2003 12/22/2003 12/22/2003 12/24/2003
12/24/2003 12/24/2003
01/08/2004
01/14/2004 01/27/2004 02/23/2004 02/23/2004
03/04/2004 03/08/2004 04/07/2004 04/12/2004 04/12/2004 04/22/2004 05/07/2004 05/19/2004
05/26/2004
06/01/2004 06/01/2004

54 ANSWER by WILLIAM ANDRADA to second amended complaint (sb) (Entered: 12/23/2003)
55 ANSWER by LOUIS TRIPOLL to second amended complaint (sb) (Entered: 12/23/2003)
56 ANSWER by ROCK WELCH to second amended complaint (sb) (Entered: 12/23/2003)
57 Notice of MOTION to dismiss and for Summary judgment by DEVON BROWN, Motion set for 1/16/04 on [57−1] motion . (Brief/PO Subm) (er) (Entered: 12/30/2003)
58 STATEMENT of uncontested facts by DEVON BROWN (er) (Entered: 12/30/2003)
59 CERTIFICATE OF SERVICE by DEVON BROWN Service Re: [58−1] statement, [57−1] motion to dismiss and for Summary judgment (er) (Entered: 12/30/2003)
60 CONSENT ORDER directing Riverfront State Prison to produce inmates Daniel Amos and John Lacey for depositions. Signed by Judge Joel B. Rosen on 1/8/04. (sb) (Entered: 01/09/2004)
61 CONSENT ORDER for the deposition of inmate plaintiff, Gregory M. Royal. Signed by Judge Joel B. Rosen on 1/14/04. (sb) (Entered: 01/16/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Status Conference held on 1/27/2004. (bb, ) (Entered: 01/28/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Status Conference held on 2/23/2004. (bb, ) (Entered: 02/23/2004)
62 SCHEDULING ORDER: Status Conference set for 4/22/2004 02:30 PM before Magistrate Judge Joel B. Rosen.Signed by Judge Joel B. Rosen on 2/23/04. (sb) (Entered: 02/24/2004)
63 REVISED SCHEDULING ORDER: Motions due by 5/17/2004.Signed by Judge Joel B. Rosen on 3/4/04. (sb) (Entered: 03/04/2004)
64 CONSENT PROTECTIVE ORDER. Signed by Judge Joel B. Rosen on 3/8/04. (sb) (Entered: 03/08/2004)
65 ORDER for the deposition of inmate plaintiff, Daniel L. Amos. Signed by Judge Joel B. Rosen on 4/7/04. (sb) (Entered: 04/07/2004)
66 Mail Returned as Undeliverable. Mail sent to Rosemary Pinto. No forwarding address. (sb) (Entered: 04/12/2004)
67 Mail Returned as Undeliverable. Mail sent to Rosemary Pinto. No forwarding address. (sb) (Entered: 04/12/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Status Conference held on 4/22/2004. (bb, ) (Entered: 04/27/2004)
68 REVISED SCHEDULING ORDER: Motions due by 6/15/2004. Signed by Judge Joel B. Rosen on 5/7/04. (sb) (Entered: 05/10/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Status Conference held on 5/19/2004, Telephone Conference held on 5/19/2004. (bb, ) (Entered: 05/20/2004)
69 NOTICE of Attorney Appearance by Thomas More Marrone, Esq. and Daniel S. Weinstock, Esq. by DANIEL AMOS, WALTER BENNETT, JOHN LACEY, GREGORY ROYAL (sb) (Entered: 05/26/2004)
70 NOTICE of exclusion by putative class member, Jerald D. Albrecht. (sb) (Entered: 06/01/2004)
71 REVISED SCHEDULING ORDER setting certain deadlines. Signed by Judge Joel B. Rosen on 6/1/04. (sb) (Entered: 06/03/2004)

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06/09/2004 06/09/2004 06/16/2004 06/23/2004 06/25/2004
06/25/2004
06/25/2004 06/29/2004 07/01/2004 07/02/2004 07/02/2004 07/19/2004 03/11/2005

72 MOTION for a Stay of Proceedings pursuant to the Servicemember's Civil Relief Act by LOUIS TRIPOLL. (Attachments: # 1 Text of Proposed Order # 2 Affidavit # 3 Cert of serv# 4 Brief # 5 Table of Authorities# 6 Exhibit 1# 7 Exhibit 3# 8 Exhibit 4# 9 Exhibit 5# 10 Exhibit 6# 11 Exhibit 7 part A# 12 Exhibit 7 part B# 13 Exhibit 7 part C# 14 Exhibit 7 part D)(sb) (Entered: 06/10/2004)
Setting return date as to 72 MOTION for a Stay of Proceedings pursuant to the Servicemembers Civil Relief Act for 7/16/2004 before Magistrate Judge Joel B. Rosen. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 06/10/2004)
73 RESPONSE in Support re 72 MOTION to Stay Proceedings Pursuant to Servicemembers Civil Relief Act filed by ABU AHSAN, WILLIAM ANDRADA, CORRECTIONAL MEDICAL SERVICES, INC., JAMES J. NEAL, JAMES RUMAN, ROCK WELCH. (Attachments: # 1 Certificate of Service)(SCHNEIDER, JOEL) (Entered: 06/16/2004)
76 BRIEF in Opposition re 72 MOTION to Stay filed by DANIEL AMOS, WALTER BENNETT, JOHN LACEY, GREGORY ROYAL. (Attachments: # 1 Exhibit A# 2 Text of Proposed Order)(sb) (Entered: 06/28/2004)
74 MOTION for Summary Judgment by DEVON BROWN. Responses due by 8/16/2004 (Attachments: # 1 Brief in Support of Motion for Summary Judgment# 2 Statement of Uncontested Facts# 3 Affidavit of Dr. Richard Cevasco# 4 Exhibit A through M# 5 Cover Page for Volume II# 6 Title Page Volume II# 7 Exhibit N and Numbers 1 through 3# 8 Exhibit Numbers 4 through 6# 9 Exhibit Numbers 7 through 9# 10 Text of Proposed Order # 11 Certification of Service)(KUHN, VICTORIA) (Entered: 06/25/2004)
75 MOTION to Dismiss and Motion for Partial Summary Judgment by ABU AHSAN, WILLIAM ANDRADA, CORRECTIONAL MEDICAL SERVICES, INC., JAMES J. NEAL, JAMES RUMAN, LOUIS TRIPOLL, ROCK WELCH. Responses due by 7/9/2004 (Attachments: # 1 Brief in Support of Motion# 2 Statement Material Facts# 3 Affidavit Joel Schneider# 4 Exhibit A−C of Schneider# 5 Exhibit D Schneider Affidavit# 6 Exhibit E−K Schneider Affidavit# 7 Exhibit L Schneider Affidavit# 8 Exhibit M−P Schneider Affidavit# 9 Affidavit Victor W# 10 Affidavit Anicette (Part 1)# 11 Affidavit Anicette (Part 2)# 12 Affidavit Tripoli# 13 Exhibit Part 1 Tripoli Affidavit# 14 Exhibit Part 2 Tripoli Affidavit# 15 Exhibit Part 3 Tripoli Affidavit# 16 Exhibit Part 4 Tripoli Affidavit# 17 Affidavit Ahsan# 18 Certification of Service# 19 Text of Proposed Order)(SCHNEIDER, JOEL) (Entered: 06/25/2004)
Setting return date as to 74 MOTION for Summary Judgment, 75 MOTION to Dismiss and Motion for Partial Summary Judgment for 8/6/2004 before Judge Freda L. Wolfson. PLEASE BE ADVISED THAT THESE MOTIONS WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 06/28/2004)
77 REPLY to Response to Motion re 72 MOTION to Stay Proceedings Pursuant to The Servicemembers Civil Relief Act filed by LOUIS TRIPOLL. (Attachments: # 1 Exhibit 8# 2 Certificate of Service)(SCHNEIDER, JOEL) (Entered: 06/29/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Discovery Hearing held on 7/1/2004. (bb, ) (Entered: 07/02/2004)
78 ORDER OF ADMINISTRATIVE TERMINATION WITHOUT PREJUDICE. Signed by Judge Joel B. Rosen on 7/2/04. (sb) (Entered: 07/02/2004)
***Civil Case Terminated. (sb) (Entered: 07/02/2004)
79 TRANSCRIPT of Proceedings held on July 1, 2004 before Judge Joel B. Rosen. Court Reporter: J &J Court Transcribers, Inc. (sb) (Entered: 07/20/2004)
80 SCHEDULING ORDER: Status Conference set for 6/3/2005 10:30 AM before Magistrate Judge Joel B. Rosen. Amended Pleadings due by 7/1/2005. Discovery due by 9/30/2005. Motions due by 3/30/2006.Signed by Judge Joel B. Rosen on 3/11/05. (sb) (Entered: 03/11/2005)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 12 of 22

06/27/2005 08/11/2005 10/07/2005
11/15/2005
11/15/2005 11/16/2005
11/18/2005 12/08/2005 12/13/2005 12/20/2005 12/21/2005 12/27/2005 02/22/2006 03/23/2006 04/07/2006 04/17/2006
04/21/2006

81 SCHEDULING ORDER: Status Conference set for 10/7/2005 10:00 AM before Magistrate Judge Joel B. Rosen. Discovery due by 12/30/2005.Signed by Judge Joel B. Rosen on 6/27/05. (sb) (Entered: 06/28/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 8/11/2005. (bb) (Entered: 08/12/2005)
82 SCHEDULING ORDER: Status Conference set for 11/28/2005 10:00 AM and on December 15, 2005 at 2:30PM before Magistrate Judge Joel B. Rosen. Discovery due by 12/30/2005.Signed by Judge Joel B. Rosen on 10/7/05. (sb) (Entered: 10/11/2005)
83 MOTION for Partial Summary Judgment to Dismiss the Common Law Claims of Daniel Amos, Gregory Royal and John Lacey by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. Responses due by 11/29/2005 (Attachments: # 1 Brief # 2 Affidavit of Kerri E. Chewning, Esquire with attached Exhibits# 3 Text of Proposed Order # 4 Civil Cover Sheet)(CHEWNING, KERRI) (Entered: 11/15/2005)
84 PROTECTIVE ORDER. Signed by Judge Joel B. Rosen on 11/15/05. (sb) (Entered: 11/16/2005)
Setting return date as to 83 MOTION for Partial Summary Judgment to Dismiss the Common Law Claims of Daniel Amos, Gregory Royal and John Lacey for 12/16/2005 before Judge Freda L. Wolfson. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 11/16/2005)
85 Letter from JUDGE JOEL B. ROSEN addressed to Mr. Hutchison dated November 18, 2005. (sb) (Entered: 11/21/2005)
86 RE−SCHEDULING ORDER: Status Conference set for 2/21/2006 11:30 AM before Magistrate Judge Joel B. Rosen.Signed by Judge Joel B. Rosen on 12/8/05. (sb) (Entered: 12/08/2005)
87 Letter from Thomas Marrone re 83 MOTION for Partial Summary Judgment to Dismiss the Common Law Claims of Daniel Amos, Gregory Royal and John Lacey. (sb) (Entered: 12/14/2005)
TEXT Minute Entry for proceedings held before Judge Freda L. Wolfson : Telephone Conference held on 12/20/2005. (jg, ) (Entered: 12/21/2005)
88 ORDER granting 83 Motion for Partial Summary Judgment. Signed by Judge Freda L. Wolfson on 12/21/05. (sb) (Entered: 12/21/2005)
89 Substitution of Attorney − Attorney DIANNE M. MORATTI and DIANNE M. MORATTI for DEVON BROWN added.. (Attachments: # 1 Certificate of Service)(MORATTI, DIANNE) (Entered: 12/27/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Status Conference held on 2/22/2006. (bb, ) (Entered: 02/22/2006)
90 SCHEDULING ORDER: setting certain deadlines. Signed by Judge Joel B. Rosen on 3/23/06. (sb) (Entered: 03/24/2006)
91 ORDERED that the request of the CMS defendents to take the depositions of plaintiffs Bennett, Royal, and Lacey is granted. Signed by Judge Joel B. Rosen on 4/7/06. (sb) (Entered: 04/07/2006)
92 ORDER that named plaintiff, DANIEL AMOS is dimissed from this action; ORDERED that plaintiffs are granted leave to file an amendedn complaint on behalf of DANILE AMOS within five days from the entry of this order. Signed by Judge Joel B. Rosen on 4/17/06. (db, ) (Entered: 04/19/2006)
Minute Entry for proceedings held before Judge Joel B. Rosen : Discovery Hearing held on 4/21/2006. (bb, ) (Entered: 04/24/2006)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 13 of 22

05/15/2006 05/15/2006 05/16/2006 05/16/2006
05/16/2006
05/16/2006 05/16/2006 05/16/2006

93 MOTION to Certify Class by GREGORY ROYAL, JOHN LACEY, WALTER BENNETT. (Attachments: # 1 Brief # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E)(sb) (Entered: 05/15/2006)
Setting return date as to 93 MOTION to Certify Class for 6/16/2006 before Judge Freda L. Wolfson. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 05/15/2006)
94 MOTION to Seal Certain Documents in Support of Motions for Summary Judgment (documents submitted in camera) by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Certification of Kerri E. Chewning, Esquire# 2 Text of Proposed Order # 3 Certificate of Service)(CHEWNING, KERRI) (Entered: 05/16/2006)
95 MOTION for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. Responses due by 6/2/2006 (Attachments: # 1 Statement of Material Facts In Support of Motion for Summary Judgment on Plaintiffs' Claim for Injunctive Relief# 2 Brief # 3 Affidavit of Louis C. Tripoli, M.D. with Exhibit A# 4 Exhibit B Part One to Tripoli Affidavit# 5 Exhibit B Part Two Tripoli Affidavit# 6 Exhibit B Part Three and Exhibits C and D Part One to Tripoli Affidavit# 7 Exhibit D Part Two to Tripoli Affidavit# 8 Exhibit D Part Three to Tripoli Affidavit# 9 Exhibit E to Tripoli Affidavit# 10 Exhibit F Part One to Tripoli Affidavit# 11 Exhibit F Part Two and Exhibit G Part One to Tripoli Affidavit# 12 Exhibit G Part Two to Tripoli Affidavit# 13 Exhibit G Part Three to Tripoli Affidavit# 14 Affidavit of Joel Schneider, Esquire with Exhibit A# 15 Exhibit B and C to Schneider Affidavit# 16 Exhibit D to Schneider Affidavit# 17 Exhibit E − G to Schneider Affidavit# 18 Exhibit H and I to Schneider Affidavit# 19 Affidavit of George Riehm# 20 Text of Proposed Order # 21 Certificate of Service)(SCHNEIDER, JOEL) (Entered: 05/16/2006)
96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal) by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. Responses due by 6/2/2006 (Attachments: # 1 Affidavit of Joel Schneider, Esquire with Exhibit A# 2 Exhibit B and C to Schneider Affidavit# 3 Exhibit D to Schneider Affidavit# 4 Exhibit E to G to Schneider Affidavit# 5 Exhibit H and I to Schneider Affidavit# 6 Affidavit of George Riehm# 7 Text of Proposed Order # 8 Certificate of Service)(SCHNEIDER, JOEL) (Entered: 05/16/2006)
97 STATEMENT of Material Fact in Support re 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal) filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (SCHNEIDER, JOEL) (Entered: 05/16/2006)
98 BRIEF in Support re 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal) filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (SCHNEIDER, JOEL) (Entered: 05/16/2006)
99 AFFIDAVIT in Support re 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal), 95 MOTION for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief Affidavit No. 1 with Exhibits A − C filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Exhibit D part one to Anicette Affidavit No. 1# 2 Exhibit D part two to Anicette

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 14 of 22

05/16/2006
05/17/2006
05/25/2006 06/02/2006 06/12/2006 06/14/2006 06/15/2006 06/21/2006 07/05/2006 07/12/2006 07/13/2006 07/14/2006 07/14/2006

Affidavit No. 1# 3 Exhibit D part three and Exhibits F − G to Anicette Affidavit No. 1# 4 Exhibit H part one to Anicette Affidavit No. 1# 5 Exhibit H part two to Anicette Affidavit No. 1# 6 Exhibit H part three and Exhibits I − M to Anicette Affidavit No. 1# 7 Exhibit N and O to Anicette Affidavit No. 1# 8 Exhibit P to Anicette Affidavit No. 1# 9 Exhibit Q and R to Anicette Affidavit No. 1)(SCHNEIDER, JOEL) (Entered: 05/16/2006)
100 AFFIDAVIT in Support re 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal), 95 MOTION for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief No. 2 with Exhibits A and B part one filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Exhibit B part two to Anicette Affidavit No. 2# 2 Exhibit B part three to Anicette Affidavit No. 2# 3 Exhibit B part four to Anicette Affidavit No. 2# 4 Exhibit C to Anicette Affidavit No. 2)(SCHNEIDER, JOEL) (Entered: 05/16/2006)
Setting return date as to 94 MOTION to Seal Certain Documents in Support of Motions for Summary Judgment (documents submitted in camera), 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal), 95 MOTION for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief. for 6/16/2006 before Judge Freda L. Wolfson. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 05/17/2006)
Minute Entry for proceedings held before Judge Joel B. Rosen : Status Conference held on 5/25/2006. (bb, ) (Entered: 05/26/2006)
101 ORDER setting briefing schedule as to pending motions. Signed by Judge Freda L. Wolfson on 6/2/06. (sb) (Entered: 06/05/2006)
102 SCHEDULING ORDER: Status Conference set for 9/21/2006 03:00 PM before Magistrate Judge Joel B. Rosen. Discovery due by 10/2/2006.Signed by Judge Joel B. Rosen on 6/12/06. (sb) (Entered: 06/12/2006)
103 ORDER setting briefing schedule re 93 MOTION to Certify Class. Signed by Judge Freda L. Wolfson on 6/14/06. (sb) (Entered: 06/14/2006)
Motions No Longer Referred: 94 MOTION to Seal Certain Documents in Support of Motions for Summary Judgment (documents submitted in camera) (sb) (Entered: 06/15/2006)
104 AMENDED ORDER. Opposition to the CMS defendants' Motion to Seal Certain Documents shall be filed on or before July 14, 2006. Defendant's reply brief shall be filed on or before August 4, 2006. Signed by Judge Freda L. Wolfson on 6/21/06. (sb) (Entered: 06/22/2006)
105 ORDER REASSIGNING CASE. Case reassigned to Judge Noel L. Hillman for all further proceedings. Judge Freda L. Wolfson no longer assigned to case. Signed by Judge Garrett E. Brown, Jr. on 7/5/2006. (TH, ) (Entered: 07/06/2006)
106 Letter from State Defendant Devon Brown requesting an Amended Briefing Schedule. (Attachments: # 1 Text of Proposed Order)(KUHN, VICTORIA) (Entered: 07/12/2006)
107 ORDER setting briefing schedule as to plaintiffs' Motion for Class Certification and defendants' Motions for Summary Judgment. Signed by Judge Noel L. Hillman on 7/13/06. (sb) (Entered: 07/14/2006)
108 MOTION to Intervene by KENNETH BECHEAM. (sb) Additional attachment(s) added on 7/14/2006 (sb, ). (Entered: 07/14/2006)
Setting return date as to 108 MOTION to Intervene for 8/18/2006 before Magistrate Judge Joel B. Rosen. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY

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07/14/2006 07/21/2006
07/28/2006 07/28/2006 07/28/2006 07/28/2006 07/28/2006 07/28/2006
07/31/2006 08/01/2006 08/04/2006 08/10/2006 08/18/2006

THE COURT. (sb) (Entered: 07/14/2006)
109 BRIEF in Opposition re 94 MOTION to Seal Certain Documents in Support of Motions for Summary Judgment (documents submitted in camera) filed by WALTER BENNETT. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(MARRONE, THOMAS) (Entered: 07/14/2006)
110 REPLY to Response to Motion re 94 MOTION to Seal Certain Documents in Support of Motions for Summary Judgment (documents submitted in camera) filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Certificate of Service)(CHEWNING, KERRI) (Entered: 07/21/2006)
111 STIPULATION allowing Plaintiff's Counsel to file a Supplemental Affidavit of Adequate Representation by WALTER BENNETT. (PINTO, ROSEMARY) (Entered: 07/28/2006)
112 AFFIDAVIT of Rosemary Pinto re 93 MOTION to Certify Class Addendum to Exhibit E by GREGORY ROYAL, JOHN LACEY, WALTER BENNETT. (PINTO, ROSEMARY) (Entered: 07/28/2006)
113 BRIEF in Opposition re 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal) filed by WALTER BENNETT. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(MARRONE, THOMAS) (Entered: 07/28/2006)
114 BRIEF in Opposition re 93 MOTION to Certify Class filed by DEVON BROWN. (Attachments: # 1 Declaration # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Certificate of Service)(WOOD, MARY) (Entered: 07/28/2006)
115 BRIEF in Opposition re 95 MOTION for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief filed by WALTER BENNETT. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10)(MARRONE, THOMAS) (Entered: 07/28/2006)
116 RESPONSE in Opposition re 93 MOTION to Certify Class filed by JAMES J. NEAL, JAMES RUMAN, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Affidavit Joel Schneider Esquire# 2 Exhibit A−B of Schneider Aff.# 3 Exhibit C of Schneider Aff# 4 Exhibit D−G of Schneider Aff# 5 Exhibit H−I of Schneider Aff# 6 Exhibit J−M of Schneider Aff# 7 Exhibit N of Schneider Aff# 8 Exhibit O−P of Schneider Aff# 9 Exhibit Q of Schneider Aff# 10 Exhibit R of Schneider Aff# 11 Exhibit S−Z of Schneider Aff# 12 Exhibit AA−JJ of Schneider Aff# 13 Affidavit of Inna Vaynberg# 14 Affidavit of Mary Thomas# 15 Affidavit of Carroll Leevy# 16 Text of Proposed Order # 17 Certificate of Service)(SCHNEIDER, JOEL) (Entered: 07/28/2006)
117 STIPULATION AND ORDER permitting a Supplemental Affidavit of Rosemary Pinto, Esq. Signed by Judge Noel L. Hillman on 7/31/06. (sb) (Entered: 07/31/2006)
118 RESPONSE in Opposition re 108 MOTION to Intervene filed by GREGORY ROYAL, JOHN LACEY, WALTER BENNETT. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10)(PINTO, ROSEMARY) (Entered: 08/01/2006)
119 BRIEF in Opposition re 108 MOTION to Intervene filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Certificate of Service)(CHEWNING, KERRI) (Entered: 08/04/2006)
120 ORDER denying without prejudice 108 Motion to Intervene. Signed by Judge Joel B. Rosen on 8/10/06. (sb) (Entered: 08/11/2006)
121 REPLY to Response to Motion re 93 MOTION to Certify Class filed by WALTER BENNETT. (MARRONE, THOMAS) (Entered: 08/18/2006)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 16 of 22

08/18/2006 08/18/2006 08/18/2006
08/18/2006
08/18/2006 08/22/2006 08/23/2006 08/30/2006 09/18/2006 09/19/2006 09/20/2006

122 REPLY to Response to Motion re 95 MOTION for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (CHEWNING, KERRI) (Entered: 08/18/2006)
123 REPLY to Response to Motion re 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal) filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (CHEWNING, KERRI) (Entered: 08/18/2006)
124 STATEMENT of Material Fact in Support re 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal), 95 MOTION for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (CHEWNING, KERRI) (Entered: 08/18/2006)
125 AFFIDAVIT in Support re 96 MOTION for Summary Judgment as to Claims by Gregory Royal and John Lacey and the Americans with Disabilities Act Claim by Walter Bennett (additional documents to be filed under seal), 95 MOTION for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Affidavit of Kerri E. Chewning, Esquire with attached exhibit)(CHEWNING, KERRI) (Entered: 08/18/2006)
126 CERTIFICATE OF SERVICE by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA re 123 Reply to Response to Motion,, 124 Statement of Material Fact in Support of Motion,, 125 Affidavit in Support of Motion,,, 122 Reply to Response to Motion, (CHEWNING, KERRI) (Entered: 08/18/2006)
127 MOTION for Leave to File an Overlength Brief Nunc Pro Tunc in Opposition to Plaintiffs' Motion for Class Certification by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Certification of Kerri E. Chewning, Esquire# 2 Text of Proposed Order # 3 Certificate of Service)(CHEWNING, KERRI) (Entered: 08/22/2006)
Setting return date as to 127 MOTION for Leave to File an Overlength Brief Nunc Pro Tunc in Opposition to Plaintiffs' Motion for Class Certification for 9/15/2006 before Judge Noel L. Hillman. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 08/23/2006)
128 RE−SCHEDULING ORDER: Status Conference set for 9/21/2006 at 12:00 PM before Magistrate Judge Joel B. Rosen. Signed by Judge Joel B. Rosen on 8/30/06. (js) (Entered: 08/31/2006)
129 MOTION to Compel Discovery by WALTER BENNETT. (Attachments: # 1 Text of Proposed Order # 2 Brief # 3 Notice of Motion# 4 Certificate of Service # 5 Exhibit A# 6 Exhibit B# 7 Exhibit C# 8 Exhibit D# 9 Exhibit E# 10 Exhibit F)(PINTO, ROSEMARY) (Entered: 09/18/2006)
Setting return date as to 129 MOTION to Compel Discovery for 10/20/2006 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 09/19/2006)
130 . (Attachments: # 1 Certificate of Service)(SCHNEIDER, JOEL) (Entered: 09/20/2006)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 17 of 22

09/20/2006
09/21/2006
09/21/2006 09/26/2006 10/05/2006 10/05/2006 10/06/2006
10/06/2006 10/06/2006
10/13/2006 10/19/2006 11/03/2006
11/03/2006 11/09/2006 01/12/2007 01/27/2007 02/07/2007

131 MOTION to Stay Pursuant to the Servicemembers Civil Relief Act by LOUIS TRIPOLL. (Attachments: # 1 Brief # 2 Affidavit of Kerri E. Chewning, Esquire with attached exhibits# 3 Text of Proposed Order # 4 Certificate of Service)(CHEWNING, KERRI) (Entered: 09/20/2006)
Setting return date as to 131 MOTION to Stay Pursuant to the Servicemembers Civil Relief Act for 10/20/2006 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 09/21/2006)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 9/21/2006. (bb, ) (Entered: 09/21/2006)
132 SCHEDULING ORDER: Telephone Status Conference set for 10/17/2006 03:00 PM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 9/26/06. (sb) (Entered: 09/27/2006)
133 BRIEF in Opposition re 131 MOTION to Stay Pursuant to the Servicemembers Civil Relief Act filed by WALTER BENNETT. (MARRONE, THOMAS) (Entered: 10/05/2006)
134 AMENDED DOCUMENT by WALTER BENNETT. Amendment to 133 Brief in Opposition to Motion Cover Page Tables &Order. (MARRONE, THOMAS) (Entered: 10/05/2006)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. The Certificate of Service that was submitted with the Brief in Opposition, document number 133, filed by T. MARRONE did not contain a signature. PLEASE RESUBMIT THE CERTIFICATE OF SERVICE WITH A PROPER ELECTRONIC OR SCANNED SIGNATURE BY 10/10/06. (sb) (Entered: 10/06/2006)
135 RESPONSE re 133 Brief in Opposition to Motion. (MARRONE, THOMAS) (Entered: 10/06/2006)
136 BRIEF in Opposition re 129 MOTION to Compel Discovery filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Certification of Kerri E. Chewning with attached exhibits# 2 Certificate of Service)(CHEWNING, KERRI) (Entered: 10/06/2006)
137 REPLY to Response to Motion re 131 MOTION to Stay Pursuant to the Servicemembers Civil Relief Act filed by LOUIS TRIPOLL. (Attachments: # 1 Certificate of Service)(CHEWNING, KERRI) (Entered: 10/13/2006)
138 REPLY to Response to Motion re 129 MOTION to Compel Discovery filed by WALTER BENNETT. (Attachments: # 1 Brief in Support of Plaintiffs' Reply# 2 Certificate of Service)(PINTO, ROSEMARY) (Entered: 10/19/2006)
139 Substitution of Attorney − Attorney SARAH BRIE CAMPBELL and SARAH BRIE CAMPBELL for DEVON BROWN and DWIGHT HUTCHINSON added. Attorney VICTORIA L. KUHN terminated.. (Attachments: # 1 Certificate of Service)(CAMPBELL, SARAH) (Entered: 11/03/2006)
Judge Joel Schneider added. Judge Joel B. Rosen no longer assigned to case. (js) (Entered: 11/03/2006)
Judge Ann Marie Donio added. Judge Joel Schneider no longer assigned to case. (sb) (Entered: 11/09/2006)
140 SCHEDULING ORDER:Telephone Status Conference set for 2/7/2007 10:00 AM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 1/12/07. (sb) (Entered: 01/16/2007)
141 Letter from Sarah Campbell. (Attachments: # 1 Text of Proposed Order)(CAMPBELL, SARAH) (Entered: 01/27/2007)
142 ORDERED that Commissioner George Hayman is substituted as a defendant in this matter for former Commissioner Devon Brown and ORDERED that the

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 18 of 22

02/07/2007 02/08/2007 02/09/2007 02/16/2007 02/27/2007 02/28/2007 03/01/2007 03/12/2007 03/12/2007 03/14/2007 03/20/2007 03/20/2007 03/27/2007 04/04/2007 04/10/2007
04/10/2007
04/10/2007
04/11/2007

caption be amended to reflect the substitution. Signed by Judge Ann Marie Donio on 2/7/07. (sb) (Entered: 02/07/2007)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 2/7/2007. (jm1, ) (Entered: 02/09/2007)
143 SCHEDULING ORDER:Telephone Status Conference set for 2/27/2007 10:00 AM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 2/8/07. (sb) (Entered: 02/09/2007)
144 ORDER Dismissing without prejudice 129 Motion to Compel; Plaintiff shall be permitted to refile the motion to compel [No.129] by letter application. Signed by Judge Ann Marie Donio on 2/9/07. (gn ) (Entered: 02/13/2007)
145 Letter from Correctional Medical Services, Inc re: telephone conference issues. (CHEWNING, KERRI) (Entered: 02/16/2007)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 2/27/2007. (jm1, ) (Entered: 02/28/2007)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 2/28/2007. (jm1, ) (Entered: 03/02/2007)
146 SCHEDULING ORDER: Telephone Status Conference set for 3/8/2007 01:30 PM before Magistrate Judge Ann Marie Donio.. Signed by Judge Ann Marie Donio on 3/1/07. (th, ) (Entered: 03/02/2007)
Set Deadlines/Hearings: Telephone/Status Conference reset for 3/14/2007 10:30 AM before Magistrate Judge Ann Marie Donio. Rosemary Pinto, Esq. to initiate call. (jm1, ) Modified on 3/12/2007 (jm1, ). (Entered: 03/12/2007)
Set/Reset Hearings: Telephone/Status Conference reset for 3/14/2007 10:00 AM before Magistrate Judge Ann Marie Donio. (jm1, ) (Entered: 03/12/2007)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 3/14/2007. (jm1, ) (Entered: 03/15/2007)
147 ORDER dismissing without prejudice 131 Motion to Stay. Signed by Judge Ann Marie Donio on 3/20/07. (sb) (Entered: 03/21/2007)
148 SCHEDULING ORDER:Telephone Status Conference set for 3/27/2007 02:30 PM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 3/20/07. (sb) (Entered: 03/21/2007)
Set/Reset Hearings: Telephone/Status Conference reset for 4/4/2007 02:00 PM before Magistrate Judge Ann Marie Donio. Rosemary Pinto, Esq. to initiate conference. (jm1, ) (Entered: 03/27/2007)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 4/4/2007. (jm1, ) (Entered: 04/05/2007)
149 NOTICE of Appearance by JEFFREY M. SCOTT on behalf of JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA (SCOTT, JEFFREY) (Entered: 04/10/2007)
150 CERTIFICATE OF SERVICE by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA (SCOTT, JEFFREY) (Entered: 04/10/2007)
151 MOTION for Leave to Appear Pro Hac Vice by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Declaration by Carlton Johnson# 2 Text of Proposed Order)(SCOTT, JEFFREY) (Entered: 04/10/2007)
Setting Deadlines as to 151 MOTION for Leave to Appear Pro Hac Vice. Motion returnable date set for 5/18/2007 before Magistrate Judge Ann Marie Donio.

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 19 of 22

04/11/2007 04/12/2007 04/23/2007 05/09/2007 05/10/2007
05/10/2007 05/11/2007 05/11/2007 05/14/2007
05/15/2007
05/17/2007 05/18/2007
05/21/2007

PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 04/11/2007)
152 SCHEDULING ORDER:Telephone Status Conference set for 5/9/2007 03:00 PM before Magistrate Judge Ann Marie Donio. Discovery due by 5/30/2007.Signed by Judge Ann Marie Donio on 4/11/07. (sb ) (Entered: 04/11/2007)
153 DECLARATION of Jeffery M. Scott re 151 MOTION for Leave to Appear Pro Hac Vice by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (SCOTT, JEFFREY) (Entered: 04/12/2007)
154 ORDER granting 151 Motion for Leave to Appear Pro Hac Vice. The attorney admitted pro hac vice is directed to make payment of $150, made payable to Clerk, U.S. District Court. Signed by Judge Ann Marie Donio on 4/23/07. (sb) (Entered: 04/24/2007)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 5/9/2007. (jm1, ) (Entered: 05/10/2007)
155 MOTION to Compel by GREGORY ROYAL, JOHN LACEY, WALTER BENNETT. (Attachments: # 1 Notice of Motion# 2 Text of Proposed Order # 3 Brief # 4 Certificate of Service # 5 Exhibit A# 6 Exhibit B# 7 Exhibit C# 8 Exhibit D# 9 Exhibit E# 10 Exhibit F# 11 Exhibit F1)(PINTO, ROSEMARY) (Entered: 05/10/2007)
Pro Hac Vice fee: $ 150, receipt number 306191 received from pro hac attroney Carlton Johnson. (db, ) (Entered: 05/14/2007)
Setting Deadlines as to 155 MOTION to Compel. Motion Returnable for 6/15/2007 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db, ) (Entered: 05/11/2007)
156 SCHEDULING ORDER: Telephone Conference set for 6/25/2007 at 02:00 PM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 05/11/07. (db, ) (Entered: 05/14/2007)
157 BRIEF in Opposition re 155 MOTION to Compel filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Certification # 2 Exhibit # 3 Certificate of Service)(LESNESKI, GARY) (Entered: 05/14/2007)
158 BRIEF in Opposition re 155 MOTION to Compel filed by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (Attachments: # 1 Certification # 2 Exhibit # 3 Certificate of Service)(CHEWNING, KERRI) (Entered: 05/15/2007)
159 REPLY to Response to Motion re 155 MOTION to Compel filed by GREGORY ROYAL, JOHN LACEY, WALTER BENNETT. (Attachments: # 1 Brief # 2 Certificate of Service)(PINTO, ROSEMARY) (Entered: 05/17/2007)
160 Minute Entry for proceedings held before Judge Ann Marie Donio : Motion Hearing held on 5/18/2007 re 155 MOTION to Compel filed by JOHN LACEY, WALTER BENNETT, GREGORY ROYAL. Ordered motion Granted in part, Dimissed in part, Order to be entered and filed. (Court Reporter Carl Nami Jr..) (db, ) (Entered: 05/18/2007)
161 ORDERED that plaintiffs' motion to strike defendant CMS' objections and to compel responses to Request No. 32 is dismissed without prejudice and ORDERED that plaintiffs' motion to strike defendant CMS' objections and to compel responses to Request No. 33 is granted in part and dismissed in part. Signed by Judge Ann Marie Donio on 05/21/07. (db, ) (Entered: 05/22/2007)

Case: 1:02-cv-4993 As of: 10/14/2012 01:07 PM EDT 20 of 22

06/08/2007
06/25/2007 06/26/2007 07/02/2007 07/27/2007 07/31/2007 08/07/2007
08/16/2007 08/29/2007
08/29/2007 05/14/2008 05/14/2008
05/28/2008
05/28/2008

162 ORDERED that counsel for deft CMS shall submit in writing as to the status of production of pleadings not available through PACER no later than June 15, 2007 and ORDERED that deft CMS shall produce for deposition no later than June 19, 2007 a corporate designee. Signed by Judge Ann Marie Donio on 6/8/07. (db, ) (Entered: 06/11/2007)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 6/25/2007. (jm1, ) (Entered: 06/26/2007)
163 SCHEDULING ORDER: Telephone Conference set for 7/27/2007 11:30 AM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 6/26/07. (sb) (Entered: 06/27/2007)
164 STIPULATION by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, CORRECTIONAL MEDICAL SERVICES, INC., LOUIS TRIPOLL, WILLIAM ANDRADA. (LESNESKI, GARY) (Entered: 07/02/2007)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 7/27/2007. (jm1, ) (Entered: 07/27/2007)
165 SCHEDULING ORDER: Signed by Judge Ann Marie Donio on 7/31/07. (gn ) (Entered: 08/01/2007)
166 TRANSCRIPT of Proceedings held on May 18, 2007 before Judge Ann Marie Donio. Court Reporter: Carl J. Nami. PLEASE NOTE: The complete transcript of these proceedings is maintained in paper format on file in the Clerks Office. To request copies of this transcript, contact the Official Court Reporter or Transcription Service who prepared the transcript. (sb) (Entered: 08/07/2007)
Judge Ann Marie Donio no longer assigned to case. (MB, ) (Entered: 08/16/2007)
167 MOTION for Summary Judgment by GEORGE HAYMAN.Responses due by 9/21/2007 (Attachments: # 1 Brief # 2 Declaration of Dr. Ralph Woodward with Exhibits A−C# 3 Exhibit D−E to the Declaration of Ralph Woodward# 4 Declaration of Dianne M. Moratti# 5 Exhibit A−B to Declaration of Dianne Moratti# 6 Exhibit C to Declaration of Dianne Moratti, pt. 1# 7 Exhibit C to the Declaration of Dianne Moratti, pt. 2# 8 Exhibit C to the Declaration of Dianne Moratti, pt. 3# 9 Exhibit D to Declaration of Dianne Moratti# 10 Exhibit E to Declaration of Dianne Moratti# 11 Statement of Material Facts# 12 Text of Proposed Order # 13 Certificate of Service)(MORATTI, DIANNE) (Entered: 08/29/2007)
Setting Deadlines as to 167 MOTION for Summary Judgment. Motion returnable for 10/5/2007 before Judge Noel L. Hillman.(Please be advised the motion will be decided on the papers unless otherwise notified by the court) (gn ) (Entered: 08/30/2007)
168 OPINION filed. Signed by Judge Noel L. Hillman on 5/14/2008. (gn ) (Entered: 05/14/2008)
169 ORDER denying 93 Motion to Certify Class; granting 94 Motion to Seal; granting 95 Motion for Partial Summary Judgment; granting in part and denying in part 96 Motion for Summary Judgment; granting 127 Motion for Leave to File; granting in part and denying in part 167 Motion for Summary Judgment. Signed by Judge Noel L. Hillman on 5/14/2008. (gn ) (Entered: 05/14/2008)
170 MOTION for Reconsideration re 169 Order on Motion to Certify Class,, Order on Motion to Seal,, Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,, Order on Motion for Leave to File,,, by GEORGE HAYMAN. (Attachments: # 1 Brief, # 2 Text of Proposed Order, # 3 Certificate of Service)(CAMPBELL, SARAH) (Entered: 05/28/2008)
Setting Deadlines as to 170 MOTION for Reconsideration re 169 Order on Motion to Certify Class,, Order on Motion to Seal,, Order on Motion for Partial Summary Judgment Motion returnable for 7/7/2008 before Judge Noel L. Hillman. (Please be advised the motion will be decided on the papers unless otherwise notified by the court) (gn ) (Entered: 05/29/2008)

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10/17/2008 03/05/2009 06/22/2009 07/02/2009 07/08/2009
08/18/2009
08/27/2009
08/28/2009 08/28/2009 08/28/2009 09/17/2009 09/18/2009
09/18/2009 09/25/2009 10/05/2009
10/05/2009 05/20/2010

171 Letter from John Tell addressed to Judge Hillman dated 10/10/08, Re: Class Certification. (js) (Entered: 10/17/2008)
172 ORDER granting 170 Motion for Reconsideration. Signed by Judge Noel L. Hillman on 3/5/09. (js) (Entered: 03/06/2009)
Magistrate Judge Karen M. Williams added. (MB, ) (Entered: 06/22/2009)
173 AMENDED SCHEDULING ORDER: Final Pretrial Conference set for 9/1/2009 at 1:30 PM before Magistrate Judge Karen M. Williams. Signed by Magistrate Judge Karen M. Williams on 7/2/09. (js) (Entered: 07/06/2009)
NOTICE of Hearing: Jury Trial set for 10/26/2009 9:30 AM in Camden − Courtroom 3A before Judge Noel L. Hillman. Pretrial Conference set for 10/19/2009 10:00 AM in Camden − Courtroom 3A before Judge Noel L. Hillman. (gn ) (Entered: 07/08/2009)
TEXT ORDER The Court has changed the TIME ONLY for the Final Pretrial Conference set for September 1, 2009. The NEW TIME is 2:30 p.m. All other provisions in the Scheduling Order dated July 2, 2009, shall remain in effect. Signed by Magistrate Judge Karen M. Williams on 08/18/09. (Powers, Lynda) (Entered: 08/18/2009)
TEXT ORDER Upon letter application dated August 24, 2009, and it appearing that all counsel join in this request, the Court is conducting a telephone status conference on August 28, 2009 at 9:00 a.m. Counsel for the defendant will initiate the call. Signed by Magistrate Judge Karen M. Williams on 08/27/09. (LP) (Entered: 08/27/2009)
174 AMENDED SCHEDULING ORDER: Final Pretrial Conference RESCHEDULED for 9/18/2009 09:00 AM before Magistrate Judge Karen M. Williams.. Signed by Magistrate Judge Karen M. Williams on 8/28/09. (th, ) (Entered: 08/30/2009)
Minute Entry for proceedings held before Magistrate Judge Karen M. Williams: TelephoneStatus Conference held on 8/28/2009. (dmw, ) (Entered: 08/31/2009)
Minute Entry for proceedings held before Magistrate Judge Karen M. Williams: TelephoneStatus Conference held on 8/28/2009. (dmw, ) (Entered: 09/01/2009)
175 NOTICE of Appearance by J. BRADLEY MCDERMOTT on behalf of WALTER BENNETT (MCDERMOTT, J.) (Entered: 09/17/2009)
TEXT ORDER This Order confirms the directive given to counsel during the Final Pretrial Conference held on September 18, 2009; and the Court noting the following appearances: Brad McDermott, Esquire, appearing on behalf of the plaintiff; and Kerri E. Chewning, Esquire, appearing on behalf of the defendants. Counsel is to resubmit the Joint Final Pretrial Order to the Court on or before September 24, 2009 revising Part V; plaintiffs' witness list is to include witness addresses and a summary of testimony. Signed by Magistrate Judge Karen M. Williams on 09/18/09. (LP) (Entered: 09/18/2009)
Minute Entry for proceedings held before Magistrate Judge Karen M. Williams: Final Pretrial Conference held on 9/18/2009. (dmw, ) (Entered: 09/21/2009)
176 JOINT FINAL PRETRIAL ORDER. Signed by Magistrate Judge Karen M. Williams on 9/25/09. (js) (Entered: 09/25/2009)
177 STIPULATION of Dismissal with prejudice as to Defendants James Neal, James Ruman, Rock Welch, Abu Ahsan and William Andrade only by JAMES J. NEAL, JAMES RUMAN, ROCK WELCH, ABU AHSAN, GREGORY ROYAL, WALTER BENNETT, WILLIAM ANDRADA. (CHEWNING, KERRI) (Entered: 10/05/2009)
178 ORDER DISMISSING CASE. Signed by Judge Noel L. Hillman on 10/5/09. (js) (Entered: 10/06/2009)
179 Letter addressed to Mr. Weinstock from GREGORY M. ROYAL. (drw, ) (Entered: 05/21/2010)

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06/09/2010 06/09/2010 10/15/2010

180 Letter from GREGORY M. ROYAL requesting the issuance of an order to enforce proper payment &execution of the Settlement Document signed on 11/192009. (drw, ) (Entered: 06/09/2010)
181 LETTER/MOTION requesting the issuance of an order to enforce proper payment &execution of the settlement document signed on 11/19/2009. (see Letter/Motion Document No. 180 Letter filed by GREGORY ROYAL. (gn ) (Entered: 10/01/2010)
182 ORDER denying Pltf.'s 181 Motion to enforce the proper payment and execution of the settlement document. Signed by Judge Noel L. Hillman on 10/15/2010. (drw, ) (Entered: 10/15/2010)