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Case 3:11-cv-02266-WJN-DB Document 21 Filed 07/27/12 Page 1 of 45

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SEBASTIAN RICHARDSON,

PLAINTIFF,

v.

THOMAS R. KANE, JOSEPH

NORWOOD, BRYAN A. BLEDSOE,

ASSOC. WARDEN DAVID YOUNG,

ASSOC. WARDEN DONALD

HUDSON, JR., CAPTAIN BRADLEY

TRATE, DEPUTY CAPTAIN SEAN

SNIDER, LT. JAMES FLEMING, LT.

PEDRO CARRASQUILLO, LT.

CHRIS MATTINGLY, LT.

MATTHEW SAYLOR, LT. AARON I

SASSAMAN, LT. JASON SEEBA, LT. !

ROGER MILLER, LT. THOMAS

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JOHNSON, LT. CAMDEN

!

SCAMPONE, AND LT. KYLE

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WHITIAKER,

I

Case No.: ll-cv-02266 Jury Trial Demanded
Judge Nealon

DEFENDANTS.

I

i

I !

Electronically Filed

:
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AMENDED COMPLAINT

Plaintiff Sebastian Richardson brings this action for damages, injunctive,

and class relief against the Defendants, complaining and alleging as follows:

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NATURE OF THE CASE 1. This civil rights case is brought against Defendants for injunctive relief and monetary damages for violations of Plaintiff Sebastian Richardson's ("Plaintiff' or "Mr. Richardson"), Eighth and Fifth Amendment rights under the United States Constitution. Mr. Richardson also asserts class claims for injunctive relief on behalf of all current and future prisoners in the Special Management Unit (SMU) at the United States Penitentiary at Lewisburg (USP Lewisburg), pursuant to Federal Rule of Civil Procedure 23, for the unconstitutional and unconscionable conditions of confinement that Plaintiff individually, and all inmates collectively, must endure on a day-to-day basis.
Defendants, acting under color of federal law, engaged and continue to engage in a pattern, practice or policy of placing hostile inmates together in cells and/or recreation cages despite the serious risk that the hostile inmates will cause substantial material harm to each other. As part of this placement pattern, practice or policy, Defendants punish inmates who refuse dangerous placements by putting them in restraints for hours at a time, sometimes as long as twenty-four (24) hours or more. These restraints significantly restrict an inmate's arm and leg motion, and in some cases, inmates are strapped to a bed with their limbs tied down in a brutal procedure known as four pointing. If an inmate does not refuse the hostile cellmate placement, violence is likely to occur. Furthermore, Defendants, again
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acting under color of federal law, engaged and continue to engage in a pattern, practice or policy of failing to intervene to prevent substantial material harm to inmates resulting from dangerous placements. There have been at least two inmate deaths at USP Lewisburg attributable to this systemic failure. Defendants have deprived and continue to deprive the members of the class of their constitutional right to be free from cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution and their right to due process under the Fifth Amendment. If appropriate injunctive relief is not granted, the harms suffered will be irreparable, may lead to death, and will continue for the foreseeable future.
Plaintiff has personally endured two categories of this conduct: (1) He has been forced to share a cell with a known hostile inmate, facing the threat of violence from that cell pairing; and (2) he has been placed in restraints on multiple occasions for refusing dangerous cell assignments with hostile inmates. Plaintiff seeks compensatory and punitive damages on behalf of himself, as well as injunctive relief on behalf of all current and future USP Lewisburg inmates.
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JURISDICTION AND VENUE
2. Plaintiff brings this action under the Fifth and Eighth Amendments to the United States Constitution and under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 3. This Court has subject matter jurisdiction over the federal claims presented herein pursuant to 28 U.S.c. §§ 1331 and 1343. 4. Venue is appropriate in this district pursuant to 28 U.S.c. § 1391 (b), because this is the district in which Plaintiff's c1aims arose. 5. This Court has personal jurisdiction over each Defendant because it is believed that at all times relevant to this action all Defendants were employed in Lewisburg, Pennsylvania, and/or their acts and omissions caused the harm complained of by Plaintiff in the Commonwealth of Pennsylvania.
PARTIES 6. Plaintiff, Sebastian Richardson, is a prisoner incarcerated at USP Lewisburg, a federal prison operated by the Bureau of Prisons ("BOP"), located in Union County, Pennsylvania. 7. Defendant Thomas R. Kane is the Acting Director of the Bureau of Prisons ("BOP"). Mr. Kane is being sued in his official capacity.
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8. Defendant Joseph Norwood is the Regional Director of the Northeast Region for the BOP, which includes USP Lewisburg . Mr. Norwood is being sued in his official capacity. 9. Defendant Bryan A. Bledsoe is the Warden of USP Lewisburg. He is responsible for overseeing and implementing inmate housing and recreation placement decisions and for approving the use of restraints. Mr. Bledsoe is being sued in his individual and official capacities. 10. Defendant David Young is an Associate Warden at USP Lewisburg. He is responsible for custody and security at the institution, including decisions involving cellmate and recreation cage placements and the use of restraints. Mr. Young is being sued in his individual and official capacities. 11 . Defendant Donald Hudson, Jr. is an Associate Warden at USP Lewisburg. He is responsible for custody and security at the institution, including decisions involving cellmate and recreation cage placements and the use of restraints. Mr. Hudson is being sued in his individual and official capacities . 12. Defendant Bradley Trate is a Captain at USP Lewisburg. He is responsible for custody and security at the institution, including decisions involving cellmate and recreation cage placements and the use of restraints. Mr. Trate is being sued in his individual capacity.
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13. Defendant Sean Snider is a Deputy Captain at USP Lewisburg. He is responsible for custody and secm;ty at the institution, including decisions involving cell mate and recreation cage placements and the use of restraints. Mr. Snider is being sued in his individual capacity. 14. Defendants Scampone, Fleming, Carrasquillo, Saylor, Mattingly, Sassaman, Seeba, Miller, Johnson, and Whittaker are Lieutenants at USP Lewisburg. They are responsible for custody and security at the institution, including decisions involving cellmate and recreation cage placements and the use of restraints. These Defendants are being sued in their individual capacities.
FACTS General Background on the LISP Lewisburg Special Management Unit 15. In 2008, the BOP created a Special Management Unit ("SMU") at USP Lewisburg. 16. According to the SMU Program Statement, the SMU program is meant to serve inmates who present "unique security and management" concerns including inmates who have a history of violence or who "participated in or had a leadership role in geographical group/gang-related activity." U.S. Dept. of Justice, Program Statement: Special Management Units § 1. 17. Inmates within the federal correctional system are sent to the SMU because the SMU is designed to provide "greater management of their interaction to ensure the
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safety, security, or orderly operation of the Bureau facilities, or protection of the public." Id. § 1. 18. The SMU cells were originally designed to hold one person. The amount of space available to inmates is further limited by the pattern, practice or policy of forcing SMU members to take cellmates. 19. Inmates are placed together in cells throughout their time at the SMU, regardless of an inmate's self-professed inability to get along with others or history of violence. 20. In the first two levels of the program, SMU inmates are required to stay in their cells for 23 hours a day. 21. In the first two levels of the program, SMU inmates are usually offered one (1) hour of "recreation" per day, five days per week, which consists of taking inmates from their cells and placing them in recreation cages. 22. Many inmates choose not to go out of their cells to the recreation cages due to their fear of attack by a hostile inmate, and thus remain in their cells 24 hours a day. 23. These conditions place inmates with a history of violence and gang membership in close quarters for every hour of every day, leading to an obvious and pervasive threat of violence.
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24. It is the responsibility of the BOP, the Northeast Regional Office of the BOP, and all officials and corrections officers at USP Lewisburg to ensure that this threat of violence does not become a reality. 25. Because of this known potential for inmate on inmate violence, upon entering the SMU program at USP Lewisburg, inmates participate in an intake interview with USP Lewisburg officials, often referred to as the "Quay" hearing. 26. One of the purposes of this interview is to gather information about the inmate so that prison officials can make safe and appropriate placement decisions for the inmate and avoid placing hostile inmates together. 27. At this intake interview, security information in the inmate's BOP file is reviewed and inmates disclose their separation needs and known enemies, including specific geographic groups or gangs with whom an inmate has problems. 28. Following the intake interview, the new inmate is given a cell block assignment, cell assignment, and recreation cage schedule. These placement decisions are determined in part by the Cell Assignment Committee (the Committee), with assistance from the Corrections Officers on each cell block. 29. Upon information and belief, at all times relevant to this case the Committee included Defendants Bledsoe, Trate, Young, and Hudson. 30. Defendants Young and Hudson are specifically tasked by the BOP's SMU Program Statement with inmate placement decisions: "[t]he Associate Warden is
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responsible for determining which inmates may be housed or participate in activities together, as necessary to protect the safety, security, and good order of the institution." U.S. Dept. of Justice, Program Statement: Special Management Units § 6. 31. In making decisions on inmate placement, the Committee is required to consider inmate safety. Therefore, the Committee is required to account for an inmate's particular need to be separated from other individuals or groups inside the prison who are hostile towards him. 32. Some categories of inmates who are known to be hostile to one another are rival gang members and inmates who are known to be assaultive to their cellmates. A "hostile" inmate may also be someone who has had a particular conf1ict with the proposed cellmate. 33. Infonnation discussed at the Quay hearing, as well as infonnation about separation needs, is shared with staff so that they can carry out their duties. 34. After the Quay hearing, inmates continue to inform Corrections staff of new inmate enemies or geographic groups or gangs that they believe pose a substantial risk of material harm to them. 35. Defendants are aware, by virtue of their experience and training and the history of violent attacks in the SMU, that placing hostile inmates in a cell or
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recreation cage together creates a substantial risk that the inmates will engage in violent conduct that can lead to injury or death. 36. Despite this knowledge, Defendants maintain a practice of intentionally bringing hostile inmates to other inmates' cells as proposed cellmates. 37. Inmates are rotated to new cells every twenty-one (21) days. During this rotation, inmates sometimes receive new cellmates. Inmates also receive new cellmate assignments if their cellmate leaves the SMU, either by completing the SMU "program" or by some other method. 38. Thus, the possibility is regularly renewed that every inmate in the SMU will be placed with a hostile cellmate who poses a substantial risk of harm to the inmate. 39. Many inmates have suffered violent physical harm at the hands of other inmates in cells and/or recreation cages. 40. From 2008 until July 2011, there were 272 reported incidents of inmate on inmate violence. 41. Inmates frequently inform Corrections staff that a placement assignment is inappropriate because the prospective cellmate is hostile to the inmate and poses a substantial risk of material harm to the inmate. 42. These warnings are either ignored by the Corrections staff or are directly acknowledged but not acted upon . It is thus a pattern, practice or policy of COlTections staff to force inmates to accept placements that pose a substantial risk
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of material harm to inmates, and to reserve reassignment until after inmate-oninmate violence actually takes place. 43. Upon information and belief, Defendants are involved in the cell and recreation cage assignment practices and policies, know the risks of harm posed by these practices, and fail to make any changes to these policies and practices at USP Lewisburg to abate the risks of harm.
Failure to Intervene to Prevent Inmate on Inmate Violence 44. The danger created by assigning hostile inmates to the same cell or recreation cage is compounded by the fact that the USP Lewisburg Defendants have a pattern, practice or policy that Corrections Officers are not to enter cells or recreation cages to stop inmate on inmate attacks until the attack has concluded and the victim of the attack may have already sustained serious injury. 45. The risk that the victim inmate will suffer serious harm from the attack is readily apparent to the Corrections Officers in each and everyone of these cases. In fact, two inmates have died at the hands of hostile cellmates in the last two years. See R.A. Walker, "Group: Prison Conditions Lead to 'Cycle of Violence,"'(Sept. 15,2010) available at http://www .sungazette.comJpage/content.detail/id/553671.html.
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46. Defendants have nonetheless adopted a pattern, practice or policy of failing to intervene to prevent harm in these circumstances.
Punitive Use of Restraints 47. To enforce the pattern, practice or policy of placing hostile inmates together, the Defendants engage in a pattern, practice or policy of punishing inmates who resist dangerous placements by placing them in punitive restraints. 48. These restraints include "four point restraints" (four-pointing), "black boxes," and/or "ambulatory restraints." 49. "Ambulatory restraints" are defined by BOP policy as "soft and hard restraint equipment which allow the inmate to eat, drink, and take care of basic human needs without staff intervention." See U.S. Department of Justice, Program Statement 5566.06, Use of Force and Application of Restraints (hereinafter P.S. 5566.06") at 11. At USP Lewisburg, however, "ambulatory restraints" are hard restraints and are applied in such a manner as to cause severe pain and to prevent the inmate from eating, drinking, and toileting. 50. A "black box" is another type of restraint. It is made of a plastic or rubber material that fuses the left and right handcuff together to make them more restrictive than traditional handcuffs .
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51. Four-point restraints, otherwise known as "four-pointing," involve placing an inmate on a bed frame. The inmate's hands are restrained separately overhead, attached by metal shackles to either the bed frame or to the wall behind the bed, while the inmate's legs are also separated and restrained by metal shackles to the foot of the bed frame. While in four-point restraints, the inmate's limbs are stretched out, and his ability to move is completely restricted. 52. "Hard restraints" consist of metal handcuffs, metal shackles and a metal chain that encircles the body. Such a chain is usually put around an inmate's waist. At USP Lewisburg, however, the practice is to put the chain farther up on the torso so that it is actually around the inmate's chest. The handcuffs are attached to the chain. The chain can be tightened, as can the handcuffs and shackles. The handcuffs prevent the inmate from moving his wrists. In addition, the inmate cannot move his hands up or down because the handcuffs are attached to the chesthigh chain. The shackles prevent an inmate from climbing up to the top bunk of a cell and severely limit an inmate's ability to walk. 53. According to the policy, restraints are only to be used to control an inmate who is a danger to government property, himself and/or others, and never as punishment. See U.S. Department of Justice, Program Statement 5566.06, Use of Force and Application of Restraints.
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54. "An employee may not use brutality, physical violence, or intimidation toward inmates, or use any force beyond that which is reasonably necessary to subdue an inmate." See id. 55. Under BOP policy, force, including the application of restraints, can be used "only as a last alternative after all other reasonable efforts to resolve a situation have failed." See P.S. 5566.06 at 1. 56. Staff must use "only that amount of force necessary to gain control of the inmate, to protect and ensure the safety of inmates, staff and others, to prevent serious property damage, and to ensure institution security and good order." See id. 57. BOP policy forbids the Use of Force or restraints to punish inmates and dictates that restraints should only be used "when other effective means of control have failed or are impractical." See id. at 6-7 . 58. Restraints may not be used "in a manner that causes unnecessary physical pain or extreme discomfort." See id. at 7. 59. At USP Lewisburg, restraints are applied contrary to BOP policy, as a form of punishment for refusing to ce)) with a hostile inmate. 60. USP Lewisburg officials regularly put in restraints inmates who resist accepting a placement with a hostile inmate.
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61. Restraints are appJied and maintained in an excessively tight manner, causing severe pain, numbness, swollen wrists and fingers, open wounds, breathing problems and possibly nerve damage.
62. The inmate may also later be placed in four-point restraints. 63. Under BOP policy, only the Warden is permitted to authorize four-pointing.
See PS 5566.06 at 12. 64. The inmate remains restrained for as long as USP Lewisburg officials choose,
without any meaningful oversight or process. 65. In addition to causing extreme pain, numbness, and breathing problems,
being in hard restraints impacts every aspect of daily life. 66. To eat, an inmate must use the bottom bunk in the cell as a table. 67. Because an inmate in restraints cannot move his hands independently from each other or away from his body, eating can only be attempted by leaning the whole torso (with hands protruding in front) towards the food tray on the bottom bunk to grab the food, followed by an attempt to get the food into the mouth by stretching the hands upwards. 68. Eating causes a great deal of pain because the restraints move up the forearms during this process, cutting into the skin.
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69. Drinking water from a cup is nearly, if not completely, impossible in restraints, due to the configuration of hands attached to each other and bound to the chest. 70. Getting water from the metal push-button sinks is similarly difficult and results in being sprayed with water. In the wintertime, when the cells are cold because the windows are often intentionally kept open by staff, trying to get water from the sink can have lasting chilling effects. 71. Hygiene is difficult to maintain while in hard restraints. 72. Inmates in restraints are not permitted to shower or shave regularly. 73. If an inmate is fOltunate enough to get a toothbrush or toothpaste, he can try to blUSh his teeth, but this is nearly impossible when in restraints. 74. Inmates in restraints are supposed to be offered a bathroom break every two hours, during which their handcuffs (or at least one handcuff) are released so that they can use the toilet. 75. However, staff regularly deny inmates bathroom breaks, which forces the inmates to use a painful process to try to move aside their clothing and use the toilet while still in the hard restraints. 76. Because of the tight handcuffs and the arrangement of the hands in front of the body, attached tightly to each other and the upper chest, it is incredibly painful to the inmate's hands, wrists, and arms to try to use the toilet. As a result of this
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awkward and painful process, the floor of the cell becomes covered in urine and feces. 77. While inmates are in the cells, the cells are not cleaned and there are no cleaning supplies made available to them. 78. Inmates in restraints are routinely double-celled. When in hard restraints in a cell with another restrained inmate, one inmate must sleep on a thin mattress on the floor, because it is impossible to climb to the top bunk when in restraints. 79. The mattresses often have Oleoresin Capsicum ("OC") spray or residue from other chemical weapons on their surface from the manner in which they are handled by the Ofticers. 80. Because the mattresses remain on the floor, they also are often splattered with urine and feces due to the inmates' inability to toilet while in restraints. 81. Under these circumstances, inmates are frequently deprived of sleep. 82. Defendants are aware of the conditions in the restraints rooms, described above. 83. Defendants order or authorize inmates' placement in these conditions, in hard restraints, as part of their program to enforce hostile cell assignments. 84. Inmates have no process by which to challenge the imposition of prolonged and painful periods in restraints. This punishment exists wholly outside of the BOP disciplinary system.
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85. As of the date of this complaint, Plaintiff Richardson has been unconstitutionally restrained twice in this manner for refusing to accept a cellmate whom Defendants knew presented a risk of substantial harm to Plaintiff's safety.
The February 3, 20 II (0 March 2, 2011 Restraints Placement
86. For 28 days, from February 3, 2011 to March 2, 2011, Defendants kept the Plaintiff, Mr. Richardson, in hard restraints in unsanitary and inhumane conditions, as described above, intentionally, in order to punish him for refusing to accept a dangerous cell assignment. 87. Mr. Richardson arrived at USP Lewisburg in March 2010 to participate in the SMU program. 88. When he arrived, during his Quay hearing, Mr. Richardson told Lewisburg staff which categories of inmates he could not safely be celled with. 89. Apart from these discussions in March 2010, USP Lewisburg staff knew about Mr. Richardson's separation needs because he had been housed at Lewisburg previously - during 2007 and 2008. 90. After his arrival in 2010, Mr. Richardson was celled with a compatible inmate. 91. This compatible cell pairing lasted for approximately seven months until Defendants moved that inmate out of Mr. Richardson's cell.
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92. On February 3,2011, conections staff asked Mr. Richardson to "cuff up" to accept a cellmate known as "the Prophet." 93. Mr. Richardson knew that "the Prophet" had a highly assaultive reputation and had attacked over 20 former cellmates. 94. Defendants knew about these assaults as well, as many had occurred at USP Lewisburg. 95. When "the Prophet" was brought to Mr. Richardson's cell, he had just been released from hard restraints, which he had been placed in for refusing a cellmate and he was rocking back and forth in agitation as he waited outside Mr. Richardson's cell door. 96. Due to his fear of assault, Mr. Richardson refused to cuff up to accept the hostile inmate as a cellmate. 97 . Corrections staff asked Richardson if he was refusing a cellmate, and he replied that he was. 98. Staff then took "the Prophet" away. 99. Approximately thirty minutes later, Defendant Fleming led a Use of Force team to Mr. Richardson's cell. The team asked him if he would submit to restraints, and he replied that he would. Mr. Richardson agreed to go with them and did not resist or refuse any of their instructions.
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100. The Use of Force team took Me. Richardson to a laundry area where he was stripped, put into paper clothes, and placed into hard restraints. 101. The team members put the restraints on so tightly that as they were applied, Me. Richardson reflexively began screaming in pain. 102. As part of the restraints, the team also applied the chain so tightly around Mr. Richardson's chest that it caused pain and interfered with his breathing. 103. The team also applied metal shackles to Me. Richardson's ankles. The shackles were applied so tightly that they cut into Me. Richardson's Achilles tendon and ankle. This made walking very painful, as any normal flexing of the foot causes the shackles to cut further into the Achilles tendon. 104. Mr. Richardson was then taken from the laundry area to a cell and placed with a cellmate who was also in hard restraints. The window in the cell was open, even though it was February and very cold. 105. Three days later, on or about February 6, 2011, Mr. Richardson was moved to a different cej] and placed with another inmate who was also in restraints. The other inmate was pleading for help because of the pain caused by the restraints. He stated that he could not breathe because of the chest chain and he could not feel his hands because of the tight handcuffs. 106. On Febmary 10. 20 II, Me. Richardson was put into four-point restraints.
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107. Defendant Bledsoe authorized the application of four-point restraints on Mr. Richardson . 108. Mr. Richardson screamed out in pain when the four-point restraints were applied, as his arms and legs were pulled away from his body by means of tightly cuffed metal handcuffs and shackles attaching his wrists and ankles to points on the bed frame. 109. While in four-point restraints, Mr. Richardson asked for water and for a urinal. He was denied both by the Lieutenants, including Defendant Scampone, who came in to check on his restraints. 110. As a result, while restrained to the bed, Mr. Richardson urinated on himself and was left in soiled paper clothing. 111. During this time period in four-point restraints, in early February, Defendant Scampone opened the window in Mr. Richardson's cell. 112. Mr. Richardson suffered due to the cold air coming in through the open window. 113. He spent over eight hours in four-point restraints that painfully stretched his body and caused pain to his ankles and wrists. 114. Approximately eight hours later, Mr. Richardson was taken out of four-point restraints and put back in hard "ambulatory" restraints. He remained in hard restraints from February 10 to February 23, in the cell conditions described above.
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115. On or about February 23, 2011, Defendants took Mr. Richardson out of restraints for approximately two hours and he was given a shower - the first in weeks. 116. After the shower, Defendants again tried to force Mr. Richardson into a dangerous cellmate assignment. 117. Mr. Richardson refused and was immediately put back into hard restraints. 118. Defendant Fleming told Mr. Richardson that because he had been out of restraints for approximately two hours, they could "start his time over" in restraints, or words to that effect. 119. In this manner, Defendants were able to keep Mr. Richardson in hard restraints for longer periods of time than permitted under BOP policy. 120. Under BOP policy, staff must regularly check on the placement of an inmate's restraints. The Lieutenant is also supposed to determine whether the inmate should remain in restraints or whether he should be released. I 121. Defendants Mattingly, Carrasquillo, Fleming, Saylor, Sassaman, Seeba, Miller and Johnson conducted checks on Mr. Richardson during this restraints placement and would either enter the cell along with medical staff for the "restraint
I The inmate's health is also supposed to be checked during a "restraint check." At USP-Lewisburg. however, medical and custody staff routinely ignore inmates' complaints of pain and other medical problems caused by tight restraints.
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checks," or, as was often the case, would walk by the cell with medical staff without entering the cell. 122. Mr. Richardson told each of these Defendants that the restraints were too tight and were causing him severe pain. He would plead with each of these Defendants to loosen the restraints and would plead for a bathroom break. 123. Defendants Mattingly, Carrasquillo, Fleming, Saylor, Sassaman, Seeba, Miller and Johnson routinely denied these requests, causing Mr. Richardson to remain in extremely painful restraints with his paper clothing soiled by his own waste. 124. Defendants Mattingly, Carrasquillo, Fleming, Saylor, Sassaman, Seeba, Miller and Johnson had the authority to release Mr. Richardson from restraints. They were aware of his complaints of pain and were aware that he was not threatening harm or taking any other actions which would justify restraints . 125. Despite this knowledge, Defendants Mattingly, Carrasquillo, Fleming, Saylor, Sassaman, Seeba, Miller and Johnson refused to release Mr. Richardson from restraints and ignored his pleas for help. 126. During the "restraint checks," Mr. Richardson also told medical staff that the restraints were too tight and that he needed medical attention. However, a Lieutenant is required to be present with the medical staff during the medical
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checks, and the medical staff deferred to the Lieutenants to determine whether the inmate needed medical attention and whether the restraints were too tight. 127. Instead of responding to the complaints of pain caused by the restraints, when Mr. Richardson asked medical staff for medical attention, treatment, and relief, medical staff looked at the Lieutenant present in the cell and then told Mr. Richardson that they were not able to assist him. 128. Medical staff also falsely recorded these interactions in Mr. Richardson's medical records. 129. During the "restraint checks" and at other times, Defendants, including the Lieutenants identified above, repeatedly asked Mr. Richardson if he was ready to accept any cellmate they put him with, so that he could be let out of restraints. 130. Defendants Trate and Snider told Mr. Richardson that the only way out of restraints was to accept any cellmate they chose for him, hostile or not, or words to that effect. 131. When Mr. Richardson offered to identify compatible inmates he could cell with, who were currently at the institution, Defendants Trate and Snider told him that the Warden (Defendant Bledsoe) would not accept that as a solution and that the only way out of restraints was to accept any cellmate he was given. 132. When Mr. Richardson complained to Defendant Young about the use of painful restraints as punishment for refusing dangerous cellmates and about his
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injuries from the restraints, Defendant Young responded that "this is what we have to do here," and that this practice would not change, or words to that effect. 133. At some points during the restraints period, the tightness of the restraints cut off Mr. Richardson's circulation to his hands and arms and they went numb. 134. As a result of the restraints, Mr. Richardson suffered intense pain, swelling, pressure sores, abrasions, cuts, numbness, nerve damage, and other injuries. 135. Mr. Richardson was in hard "ambulatory" restraints for approximately 15 days before he received a toothbrush and toothpaste. 136. Mr. Richardson was forced to sleep on the floor approximately 50% of the time, in the unsanitary conditions described above. 137. Mr. Richardson was refused a bathroom break for the majority of the time during this 28-day period, forcing him to attempt, painfully, to use the toilet while in restraints. 138. Defendants kept Mr. Richardson in restraints, in conditions amounting to torture, as described above, almost continuously for 28 days, from February 3, 2011 to March 2, 2011. 139. During this 28-day period, Mr. Richardson had approximately 15 different cellmates, each of them also in hard restraints applied in the same painful and torturous manner.
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140. As was the case with Mr. Richardson, many of these inmates were put into restraints for refusing hostile cellmates. 141. Defendants applied both hard "ambulatory" restraints and four-point restraints to Mr. Richardson for no legitimate reason, causing extreme pain and injuries, as described above.
The May 17! 2011 to June 2, 2011 Restraints Placement
142. After being released from restraints on March 2, 201 1, Mr. Richardson was celled with a compatible cellmate. This inmate had been at USP Lewisburg the entire time that Mr. Richardson had been in restraints. 143. When that cellmate advanced to the next step in the SMU program, he was moved out of Mr. Richardson's cell. 144. Defendants then brought an inmate to Mr. Richardson's cell who suffered from mental illness and needed medication to control his behavior. 145. That inmate told Mr. Richardson that he would be alright as long as he received his medications. 146. Defendants knew that this inmate needed medications, and he had been receiving them up to that point at USP Lewisburg. 147. The day after he was placed in Mr. Richardson's cell, the medical staff failed to bring the inmate his medications.
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148. Both Mr. Richardson and his cellmate notified staff repeatedly that the cellmate needed his medications, but staff refused to respond. The inmate continued to go without his medications. 149. Without his medications, the inmate's behavior quickly became erratic and threatening. He would stay awake at night, talking in different voices, and acting strangely. Mr. Richardson became fearful of his behavior. 150. Mr. Richardson remained celled with the inmate for approximately seven days, his fear and anxiety increasing. 151. During this time period, staff would walk by the cell door and peer in the window. 152. Eventually the inmate was moved out of the cell and put into a single cell. 153. Mr. Richardson later learned that the Use of Force team had been "ready to go" at the time that the inmate had been brought to his cell, implying that Defendants had expected Mr. Richardson to refuse him. 154. Defendant Young later asked Mr. Richardson whether he would accept as a cellmate an inmate who had stabbed him while they were both at USP-Pollack. 155. Staff later threatened to tind him another dangerous cellmate. 156. On May 17, 2011, Corrections staff brought an unknown inmate to Mr. Richardson's cell and told Mr. Richardson to cuff up in order to accept him as a cellmate.
27

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157. After the recent attempts by Defendants to place hostile cellmate with him and the threat to force another hostile cell assignment on Mr. Richardson, Mr. Richardson no longer trusted any of the cellmate assignments and therefore refused this cell assignment. 158. As with the earlier incident, a "Use of Force" team was assembled and brought to his cell on May 17, 2011. 159. The "team," led by Defendants Saylor and Fleming, put Mr. Richardson into hard restraints. Mr. Richardson submitted to the restraints and complied with the orders of the "team," offering no resistance. 160. The hard restraints were placed on Mr. Richardson in the same tight manner as before, causing severe pain and swelling. 161. As with the first restraints placement, Mr. Richardson was kept in the small unsanitary restraints room, with extremely limited ability to eat, drink, toilet, and sleep. 162. At one point during this restraints placement, Defendant Scampone twisted Mr. Richardson's handcuffs even tighter, causing more pain, and told him that he would let Mr. Richardson out of restraints if he would comply and go wherever they put him. 163. Mr. Richardson responded that he would only accept a cell assignment that was safe for him.
28

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164. Defendant Whittaker made similar threats to Mr. Richardson, and also told him that he would be taken out of restraints by "the team" so that he could then be put back into restraints and his time would "start over." ]65. At one point during this restraints placement, Mr. Richardson heard another inmate who was in restraints screaming out in pain in a nearby cell. 166. The inmate screamed that staff was breaking his arm. 167. Shortly after that, Corrections Officer Dreese walked by Mr. Richardson's cell and said "You're next!" 168. Soon after that, Mr. Richardson was put into four-point restraints again on May 31, 2011, by Lt. Carrasquillo and a "Use of Force" team. 169. Defendant Bledsoe authorized the application of four-point restraints on Mr. Richardson. 170. Defendants kept Mr. Richardson in four-point restraints from May 31, 2011 until June 1, 2011. 171 . During this time period, Defendant Johnson denied Mr. Richardson a bathroom break, which resulted in his urinating on himself and remaining in his soiled clothing, still in four-point restraints, for hours. 172. Defendants took Mr. Richardson out of four-points and put him back into hard "ambulatory" restraints on June 1, 2011, where he remained for one more day.
29

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173. As with the earlier restraints placement, Mr. Richardson pleaded with and complained to the Lieutenants who accompanied medical staff during the "restraint checks," including Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker, and at other times, that the restraints were too tight and were causing him severe pain. 174. The Lieutenants, including Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker refused to loosen the restraints and refused to permit medical staff to do so, causing Mr. Richardson's pain to be prolonged. 175. During this restraints placement, Defendants repeatedly told Mr. Richardson that he could only come out of restraints if he agreed to be celled with whomever they chose, regardless of whether the placement was dangerous. 176. Defendants, including Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker, applied both hard "ambulatory" restraints and four-point restraints to Mr. Richardson for no legitimate reason, causing extreme pain and injuries, as described above. 177. Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker had the authority to release Mr. Richardson from restraints. They were aware of his complaints of pain and were aware that he was not threatening harm or taking any other actions which would justify restraints.
30

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178. Despite this knowledge, Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker refused to release Mr. Richardson from restraints and ignored his pleas for help. 179. Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker kept Mr. Richardson in hard restraints or fourpoint restraints for 17 days in unsanitary and inhumane conditions, as described above, in order to punish him for refusing to accept a dangerous cell assignment. 180. Defendant Bledsoe authorized and approved of Mr. Richardson's placements in restraints, both "ambulatory" and four-point, from February 3, 2011 to March 2, 2011 and again from May 17, 2011 to June 2, 2011. 181. Defendant Bledsoe ordered these restraints placements knowing and approving of the excessively tight manner in which the restraints were applied, the prolonged time period during which Mr. Richardson was subjected to the restraints, and the conditions in the cells in which Mr. Richardson was kept in restraints. 182. Despite this knowledge, Defendant Bledsoe refused to take any actions to stop the harm being inflicted on Mr. Richardson and instead ordered that the abusive treatment be continued. 183. Despite this knowledge, Defendant Bledsoe refused to order Mr. Richardson released from restraints, although he had the authority to do so.
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184. Defendant Norwood knew of and approved of the restraint practices at USP Lewisburg, including Mr. Richardson's placement in restraints, because he was regularly provided information, including reports. by staff at Lewisburg about the use of restraints. 185. Defendants Trate, Snider, Hudson and Young ordered or knew of and acquiesced in the prolonged placements of Mr. Richardson in severely painful restraints in the unsanitary and inhumane conditions described above. 186. As a direct and proximate result of the said acts of Defendants, Plaintiff Richardson suffered, and continues to suffer, the following injuries and damages:
a. Violation of his rights under the Fifth and Eighth Amendments to the United States Constitution;
b. Physical injuries; c. Pain and suffering; d. Emotional distress.
Class Action Allegations 187. Pursuant to Rule 23(a), 23(b)(1) and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiff seeks relief on behalf of himself and a class of similarly situated individuals who are currently or will be imprisoned at the SMU at USP Lewisburg.
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188. Plaintiff seeks to represent a class defined as follows: All persons who are cunently or will be imprisoned in the SMU program at USP Lewisburg. The class period commences from the time of this filing, and continues so long as USP Lewisburg Officials and Corrections Officers persist in the unconstitutional patterns, practices, or policies of (1) placing hostile inmates together in cells or recreation cages, and enforcing this placement through the use of punitive restraints, and (2) failing to take any reasonable measures to protect the inmates from inmate-an-inmate violence. 189. Because cell assignments are rotated periodically, and decisions about who should be placed in recreation cages together frequently change, every participant in the SMU program has been or is subject to the threat that he will be placed with a hostile inmate. Such placement creates a substantial risk that an inmate will be harmed at the hands of another inmate. 190. Because all cell assignments are enforced via the threat of restraints should an inmate resist, every participant in the SMU program has been or is subject to the threat that restraints will be used against them punitively by USP Lewisburg officials or officers. 191. Because USP Lewisburg officials and officers react to incidents inside a cell or recreation cage under the same pattern, practice or policy of non-intervention until the incident is over, every participant in the SMU program has been or is
33

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subject to the threat that officers will fail to intervene should a serious risk of substantial material harm arise while an inmate is being attacked by another inmate in a cell or recreation cage. 192. Defendant the BOP is responsible for inmate safety at all USP institutions, including USP Lewisburg. As such, the BOP is responsible for ensuring that the conditions of confinement in its facilities do not violate the Constitution. 193. Defendants Kane, Norwood, Bledsoe, Young, and Hudson are responsible for creating and implementing policy at the BOP Institutions under their control, including USP Lewisburg. As such, each Defendant has a responsibility to ensure that the conditions of confinement at USP Lewisburg do not violate the Constitution. 194. Defendants Kane, Norwood, Bledsoe, Young, and Hudson were, at all times relevant to this complaint, aware of the conditions of confinement at USP Lewisburg by virtue of both the requirements of their positions and the inmate grievance process. 195 . The inmate grievance policy requires that grievances be reviewed first by Bledsoe, and if the grievance is denied, the inmate must then grieve to Norwood, and finally to Kane.
34

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196. Upon information and belief, hundreds of grievances have been filed in the last three years complaining of the conditions of confinement at USP Lewisburg, including Plaintiff's own grievances. 197. Defendant Bledsoe, as Warden of USP Lewisburg, is informed as a matter of course of any inmate being placed in restraints or instances of inmate on inmate violence. 198. Defendant Norwood, according to BOP policy, is sent notice of every occasion an inmate is restrained for longer than eight (8) hours or there is an instance of inmate on inmate violence. 199. Defendants Bledsoe, Young, and Hudson are also aware of the day to day problems and incidents related to inmate placement at USP Lewisburg by virtue of their responsibility for inmate safety and institutional security. 200. In overseeing and participating in inmate placement decisions, Defendants Bledsoe, Young, and Hudson are required to consider the past instances of inmate on inmate violence and placement refusals by inmates. 201. Defendants Kane, Norwood, Bledsoe, Young, and Hudson are responsible for creating and implementing the policy at USP Lewisburg whereby inmates who refuse dangerous cell assignments with hostile inmates are placed in prolonged and painful restraints, as described above.
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202. The members of this Class are so numerous that joinder of all members is impracticable. Upon information and belief, there are approximately 1,363 inmates at USP Lewisburg, and an estimated 1,050 to 1,100 in the SMU program. Additionally, it is impossible to determine which inmates currently housed in other Federal institutions may be transferred to USP Lewisburg in the future. 203. Common questions of law and fact exist as to all members of the Class. A class action is superior to other available methods for fair and efficient adjudication of the controversy. A non-exclusive list of the questions of law and fact common to the Class include: (1) whether there exists a pattern, practice or policy of placing hostile inmates together in cells or recreation cages; (2) whether the use of restraints in enforcing inmate placement decisions constitutes further conduct in violation of the Eighth Amendment; and (3) whether USP Lewisburg officials' failure to protect inmates from frequent and predictable inmate violence after forcing hostile inmates together in a cell or recreation cage amounts to an Eighth Amendment violation. 204. Plaintiff's claims are typical of the class members, in that each member of the class has suffered, or will potentially suffer, harm as a result of the same acts or omission engaged in by Defendants. 205. Plaintiff will fairly and adequately protect the interests of the members of the Class, and has retained counsel competent and experienced in class action and
36

Case 3:11-cv-02266-WJN-DB Document 21 Filed 07/27/12 Page 37 of 45
plisoners' civil rights litigation. Plaintiff's counsel has the resources, expertise, and experience to prosecute this action against Defendants. Plaintiff has no interest hostile to or in conflict with those of the proposed class with respect to the claims raised in this complaint. 206. Certification is walTanted under Rule 23(b)(1)(A) because prosecuting separate actions for members of the Class would, as a practical matter, create a risk of inconsistent and varying adjudications with respect to individual class members. Individual adjudications may also substantially impede or impair other class members' ability to protect their interests. 207. The Defendants have acted, or refuse to act, on grounds generally applicable to the class. Final injunctive relief is appropriate with respect to all of the members of the class pursuant to Rule 23(b)(2).
CAUSES OF ACTION Count I
Plaintiff Sebastian Richardson vs. Defendants Bledsoe, Young, Hudson, Trate, Snider, Fleming, Mattingly, CalTasquillo, Saylor, Sassaman, Seeba, Miller, Johnson, and Scampone
Eighth Amendment violation, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for February 3, 2011 to
March 2, 2011 restraints placement 208. Plaintiff incorporates by reference the allegations in the preceding paragraphs of this Complaint.
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209. Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution was clearly established as of Febmary 3, 2011. 210. Defendants, acting under color of federal law, deprived Plaintiff of his constitutional right to be free from cruel and unusual punishment. 211. Defendants Bledsoe, Young, Hudson, Trate, Snider, Fleming, Mattingly, Carrasquillo, Saylor, Sassaman, Seeba, Miller, Johnson, and Scampone violated Plaintiff's Eighth Amendment rights by their conduct as described above. 212. Due to Defendants' acts and omissions, Plaintiff suffered serious bodily injury and pain, and is therefore entitled to relief.
Count II
Plaintiff Sebastian Richardson vs. Defendants Bledsoe, Young, Hudson, Trate, Snider, Saylor, Fleming, Scampone, Seeba, Carrasquillo, Johnson, Whittaker,
Mattingly, and Miller Eighth Amendment Violation, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for May 17,2011 to June
2, 2011 Restraints Placement 213. Plaintiff incorporates by reference the allegations in the preceding paragraphs of this Complaint. 214. Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution was clearly established as of May 17,2011.
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215. Defendants, acting under color of federal law, deprived Plaintiff of his constitutional right to be free from cruel and unusual punishment. 216. Defendants Bledsoe, Young, Hudson, Trate, Snider, Saylor, Fleming, Scampone, Seeba, Carrasquillo, Johnson, Whittaker, Mattingly, and Miller violated Plaintiff's Eighth Amendment rights by their conduct, as described above, 217. Due to Defendants' acts and omissions, Plaintiff suffered serious bodily injury and pain, and is therefore entitled to relief.
Count III Plaintiff Sebastian Richardson vs. Defendants Bledsoe, Young, Hudson, Trate,
Snider, Fleming, Mattingly, Carrasquillo, Saylor, Sassaman, Seeba, Miller, Johnson, and Scampone
Fifth Amendment violation, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for February 3, 2011 to March 2, 2011 restraints placement
218. Plaintiff incorporates by reference the allegations in the preceding paragraphs of this Complaint.
219. Plaintiffs right under the Fifth Amendment of the United States Constitution to meaningful process in connection with a deprivation of liberty was clearly established as of May 17,2011 .
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220. Defendants Bledsoe, Young, Hudson, Trate, Snider, Fleming, Mattingly, Canasquillo, Saylor, Sassaman, Seeba, Miller, Johnson, and Scampone violated Plaintiff's Fifth Amendment rights by depriving him of any meaningful process plior to and during their use of punitive measures against him, including but not limited to, subjecting him to hard "ambulatory" restraints and four-point restraints from February 3, 2011 to March 2, 2011, and by taking those punitive measures in an arbitrary manner without any legitimate penological purpose. 221. Due to Defendants' acts and omissions, Plaintiff suffered the injuries and damages described above, and is therefore entitled to relief.
Count IV Plaintiff Sebastian Richardson vs. Defendants Bledsoe, Young, Hudson, Trate, Snider, Saylor, Fleming, Scampone, Seeba, Carrasquillo, Johnson, Whittaker,
Mattingly, and Miller Fifth Amendment violation, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for May 17,2011 to June 2,
2011 restraints placement
222. Plaintiff incorporates by reference the allegations in the preceding paragraphs of this Complaint. 223. Plaintiff's right under the Fifth Amendment of the United States Constitution to meaningful process in connection with a deprivation of liberty was clearly established as of May 17,2011.
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224. Defendants Bledsoe, Young, Hudson, Trate, Snider, Saylor, Fleming, Scampone, Seeba, Carrasquillo, Johnson, Whittaker, Mattingly, and Miller violated Plaintiff s Fifth Amendment rights by depriving him of any meaningful process prior to and during their use of punitive measures against him, including but not limited to, subjecting him to hard "ambulatory" restraints and four-point restraints from May 17,2011 to June 2, 2011, and by taking those punitive measures in an arbitrary manner without any legitimate penological purpose. 225. Due to Defendants' acts and omissions, Plaintiff suffered the injuries and damages described above, and is therefore entitled to relief.
Count V Class vs. Defendants Kane, Norwood, Bledsoe, Young, and Hudson
Eighth Amendment Violation 226. Plaintiff asserts this claim on behalf of himself and a class of all similarly situated inmates at USP Lewisburg, as described in Paragraph 188. 227. Plaintiff incorporates by reference as if fully set forth herein the allegations contained in this Complaint. 228. Plaintiff and the class members have a right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. This means that prison officials must protect prisoners from excessive risks of substantial material harm.
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Case 3:11-cv-02266-WJN-DB Document 21 Filed 07/27/12 Page 42 of 45

229. Defendants, acting under color of federal law, engaged in a pattern, practice or policy of placing hostile inmates together in cells and/or recreational cages despite the substantial risk that the hostile inmates would cause significant harm to each other, and enforcing this pattern, practice or policy through the threat and use of punitive restraints. Furthermore, Defendants, again acting under the color of federal law, engaged in a pattern, practice or policy of failing to intervene to protect inmates from predictable harm at the hands of hostile inmates, with whom the inmates were placed by Defendants. Thus, Defendants have deprived the members of the class of their constitutional rights to be free from cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and will continue to do so unless their patterns, practices and policies are changed. If appropriate declaratory and injunction relief is not granted, the harms suffered wilJ be irreparable, may lead to death, and will continue for the foreseeable future. 230. Defendants' acts and omissions have caused and will continue to cause serious bodily injury to Plaintiff and every other inmate housed at USP Lewisburg, currently or in the future, and therefore the class is entitled to injunctive relief.
Count VI Class vs. Defendants Kane, Norwood, Bledsoe, Young, and Hudson
Fifth Amendment violation
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, . . - - - - - - - - - - - - - - - - - - - - - - - - -_..... _. Case 3:11-cv-02266-WJN-DB Document 21 Filed 07/27/12 Page 43 of 45
231. Plaintiff asserts this claim on behalf of himself and a class of all similarly situated inmates at USP Lewisburg, as described in Paragraph 188. 232. Plaintiff incorporates by reference as if fully set forth herein the allegations contained in this Complaint. 233. Plaintiff and the class members have a right to meaningful process in connection with any depIivation of their liberty, pursuant to the Fifth Amendment to the United States Constitution. 234. Defendants, acting under color of federal law, engaged in a pattern, practice or policy of denying inmates meaningful process in connection with their placement in punitive restraints, by ordering that falsified documents be prepared and submitted by USP Lewisburg staff in order to justify these placements and by maintaining and using a system whereby the use of prolonged, punitive restraints cannot be effectively challenged by inmates through the disciplinary process. Thus, Defendants have deprived the members of the class of their constitutional right to have meaningful process in connection with a deprivation of their liberty in violation of the Fifth Amendment to the United States Constitution, and will continue to do so unless their patterns, practices and policies are changed. If appropriate declaratory and injunction relief is not granted, the harms suffered will be ineparable, may lead to death, and will continue for the foreseeable future.
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235. Defendants' acts and omissions have caused and will continue to cause serious bodily injury to Plaintiff and every other inmate housed at USP Lewisburg, currently or in the future, and therefore the class is entitled to injunctive relief.
Prayer for Relief WHEREFORE, Plaintiff prays as follows:
1. That Defendants be adjudged to have violated Plaintiff's rights under the Fifth and Eighth Amendments to the United States Constitution;
2. That judgment be entered for Plaintiff against Defendants Bledsoe, Young, Hudson, Trate, Snider, Fleming, Mattingly, Carrasquillo, Saylor, Sassaman, Seeba, Miller, Johnson, Scampone, and Whittaker, in their individual capacities, for compensatory and punitive damages, together with the costs of litigation, including reasonable attorneys' fees;
3. That this action be certified under Federal Rule of Civil Procedure 23(b)(2); 4. That Defendants be adjudged to have violated the class members' rights
under the Fifth and Eighth Amendment to the United States Constitution; 5. That the Court issue an injunction preventing Defendants from continuing
their unconstitutional housing, recreation, and restraint patterns, practices and policies; and, 6. That the Court award any such other and further relief deemed appropriate.
44

Case 3:11-cv-02266-WJN-DB Document 21 Filed 07/27/12 Page 45 of 45

~.
• . . . Dated: July 20, 2012 Ij'; .

Respectfully Submitted,
PENNSYLVANIA INSTITUTIONAL LAW PROJECT
lsI Jennifer J. Tobin
Jennifer J. Tobin Attorney I.D. No. PA 202047 718 Arch Street, Ste. 304 South Philadelphia, PA 19106 Tel: 215-925-2966 Fax: 215-925-5337
E: jtobin@pailp.org
DECHERTLLP
Stephen D. Brown
Christine C. Levin Jennifer L. Burdick Francis J. Dermody Sean P. McConnell Dechert LLP Cira Centre 2929 Arch St. Philadelphia, PA 19104 215-994-4000
Attorneys for Plaintiff Sebastian Richardson

45

 
 , - - - - - - - - - - - - - - , - - - -- - -----, ...
Case 3:11-cv-02266-WJN-DB Document 54 Filed 10/08/14 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SEBASTIAN RICHARDSON,

Plaintiff

No.3:CV-II-2266

vs. THOMAS R. KANE, et aI.,
Defendants

(Judge Nealon)
PER
ORDER

FILED
SCRAt\'TO~~ OCT 08 2t',,<.
f-k}/\
DEParyplERK

AND NOW, THIS 8th DAY OF OCTOBER, 2014, upon consideration of

this Court's recent Order of October 3,2014, see (Doc. 53), in the above-captioned

action, and an inquiry by this Court into the status of the above-captioned action,

and it appearing that by Order dated March 14, 2014, this Court granted an

enlargement of time for discovery, until ninety (90) days after the Third Circuit

Court of Appeals issues a decision on Richardson's appeal of his class certification

claims at docket number 13-8046, see (Doc. 50), and it further appearing that the

Third Circuit Court of Appeals has decided that Richardson's appeal will be held

c.a. v. pending their decision in Shelton v. Bledsoe, No. 12-4226, a matter which

remains pendingl, IT IS HEREBY ORDERED THAT:

1The Court notes that Shelton v. Bledsoe, Civil Action No. 3:CV-II-0368, is another case that is awaiting the Third Circuit's decision in Shelton v. Bledsoe, No.

Case 3:11-cv-02266-WJN-DB Document 54 Filed 10/08/14 Page 2 of 2
1. The above-captioned action shall be STAYED, pending further order of court.
2. The above-captioned action shall be ADMINISTRATIVELY CLOSED.2
3. This action shall be reopened after the Third Circuit Court of Appeals issues a decision on Richardson's appeal of his class certification claims at docket number 13-8046.
u6el~~ nited States District Judge
12-4226. By Order dated October 6, 2014, this Court determined that because oral argument was held on September 11, 2013 in Shelton, No. 12-4226, and the matter remains pending, Shelton v. Bledsoe, Civil Action No.3 :CV-11-0368 was to be stayed, and administratively closed, with the parties notifying the Court within thirty (30) days of the conclusion of the Third Circuit's proceedings in Shelton v. Bledsoe, No. 12-4226.
2 The Court notes that "an order merely directing that a case be marked closed constitutes an administrative closing that has no legal consequence other than to remove that case from the district court's active docket." Penn W. Associates, Inc. v. Cohen, 371 F.3d 118, 128 (3d Cir. 2004). "[A]dministrative closings comprise a familiar, albeit essentially ad hoc, way in which courts remove cases from their active files without making any final adjudication." Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240, 247 (3d Cir. 2013). "This means that a court may reopen a closed case-either on its own or at the request of either party-even if it lacks an independent jurisdictional basis for doing so." Id. ("[T]he court's order required it to act as a judicial backstop in the event that the arbitration fell apart. This practice is not only permissible but also laudable. When problems arise during arbitration, it often makes sense for the parties to return to a judge who is already familiar with the case."). "In no event does such an order bar a party from restoring the action to the Court's active calendar upon an appropriate application. " Penn W. Associates, Inc., 371 F.3d at 127.
-2-

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SEBASTIAN RICHARDSON,

Plaintiff

No.3:CV-11-2266

vs. THOMAS R. KANE, et aI.,
Defendants

(Judge Nealon)

FILED SCRANTON
APR - 9 2013

MEMORANDUM

PER ~1t1IL~~J~V:~~­
DEPUTY CLERK

On December 7, 2011, Sebastian Richardson, an inmate confined in the United States

Penitentiary, Lewisburg ("USP-Lewisburg"), Pennsylvania, filed the above captioned Bivens)

action and class action lawsuit. Named as Defendants are the following seventeen (17), current and

former, employees of the Bureau of Prisons ("BOP"): Thomas Kane, Acting Director of BOP;

Joseph Norwood, Regional Director of the Northeast Region; Bryan A. Bledsoe, Warden; David

Young, Associate Warden; Donald Hudson, Associate Warden; Bradley Trate, Captain; Sean

Snider, Deputy Captain; and Lieutenants Scampone, Fleming, Carrasquillo, Saylor, Mattingly,

Sassaman, Seeba, Miller, Johnson, and Whittaker.

Richardson seeks damages and injunctive relief for claims of excessive use of force and

conditions of confinement in violation of the Eighth Amendment, alleging Defendants punished

him for rejecting dangerous cell assignments by placing him in painfully tight metallic restraints for

weeks at a time. (Doc. 21, Amended Complaint). Plaintiff alleges that the restraints were purely

punitive, as he posed no security threat to anyone. Id.

1. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).

Additionally, Richardson asserts class claims for injunctive relief on behalf of all current and future prisoners in the Special Management Unit (SMU), pursuant to Federal Rules of Civil Procedure 23, for the unconstitutional and unconscionable conditions of confinement that Plaintiff, individually, and all inmates collectively, must endure on a day-to-day basis. Id. Specifically, Plaintiff alleges that Defendants place "hostile" inmates together in cells and/or recreation cages with the knowledge that they will harm each other, Defendants improperly use restraints to force inmates to cell together, and when the cellmates fight, Defendants will not intervene. Id. Richardson seeks to represent a class of inmates that would allege similar violations. Id. Finally, Richardson sues the United States under the FTCA. Id.
Presently before the Court is Plaintiffs motion to dismiss or, in the alternative, for a more definite statement. (Doc. 24). For the reasons set forth below the Court will grant, in part, Defendants' motion to dismiss, and deny Defendants' motion for a more definite statement.
I. Class Certification Pursuant to Federal Rule of Civil Procedure 23, Plaintiff moves for an order certifying a class consisting of all persons who are currently, or will be, imprisoned in the Special Management Unit ("SMU") at USP-Lewisburg. (Doc. 21, Amended Complaint at ~ 188). Plaintiff states that the class period commences from the filing of the above-captioned action and continues so long as USP-Lewisburg officials and corrections officers persist in the unconstitutional policy of placing hostile inmates in double cells or recreational cages without taking any reasonable measures to protect the inmates from inmate-on-inmate violence, and using punitive restraints to enforce this policy. Id. Plaintiff alleges that in 2008, the Bureau of Prisons created an SMU program at USP-
-2-

Lewisburg. Id. at ~ 15. The SMU program is meant to serve inmates who present "unique security management: concerns including inmates who have a history of violence" or who "participated in or had leadership roles in geographical groups/gang related activity." U.S. Dept. of Justice, Program Statement: Special Management Units § 1.
Plaintiff alleges that the SMU cells were originally designed to hold one person, however, the amount of space available to inmates is limited by the pattern, practice or policy of forcing SMU members to take cellmates. Id. at ~ 18.
Plaintiff claims that upon entering the SMU program at USP-Lewisburg, inmates participate in an intake interview with USP-Lewisburg officials, often referred to as a "Quay" hearing. Id. at ~ 25. The Quay hearing serves as an opportunity for Defendants to gather information about the inmate so that the prison officials can make safe and appropriate placement decisions, and avoid placing hostile inmates together. Id. at ~ 26. At this interview, inmates disclose their separation needs and known enemies and identify specific geographic groups or gangs with whom an inmate has problems. Id. at 27.
Following the Quay hearing, a Cell Assignment Committee2, with the assistance of corrections officers on each block, assigns each inmate to a cell block and a specific cell. Id. at ~ 28. The Cell Assignment Committee is responsible for considering the inmate's safety when making placement decisions. Id. at ~ 31. Once settled at USP-Lewisburg, inmates frequently update Corrections Officers orally or in writing of new inmate adversaries, or geographic groups or gangs that they believe pose a substantial risk of material harm to them. Id. at ~ 34.
2Relative to Plaintiffs case, the Committee included Defendants Bledsoe, Trate, Young and Hudson. Id. at ~ 29.
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Inmates are rotated to new cells every twenty-one (21) days. Id. at ~ 37. During this rotation, inmates sometimes receive new cellmates. Id. Inmates also receive new cellmate assignments if their cellmate leaves the SMU, either by completing the SMU "program" or by some other method. rd. Thus, this rotation renews the potential for an inmate to be placed with a hostile inmate. Id. at ~ 38. Plaintiff alleges that there have been at least 272 reported incidents of inmateon-inmate violence at Lewisburg from 2008 until July 2011. Id. at ~ 40. To exacerbate the situation, inmates are unable to avoid inappropriate placements because Defendants enforce their policy by placing those who refuse to be celled with a hostile inmate into painful and confining restraints. Id. at ~~ 42-43.
Plaintiff contends that Defendants persist in the unconstitutional patterns, practices, and policies of: (1) placing hostile inmates together in cells or recreations cages, and enforcing this placement through use of punitive restraints, and (2) failing to take any reasonable measures to protect the inmates from inmate-on-inmate violence. Id. at ~ 188. As such, Plaintiff seeks to have a class certified to challenge the constitutionality of the unlawful policies or practices employed at USP-Lewisburg. Id.
II. Certification Under Rule 23(a) The class-action device is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yam asaki, 442 U.S. 682, 700-01 (1979). Class relief is "peculiarly appropriate" when the "issues involved are common to the class as a whole" and when they "tum on questions of law applicable in the same manner to each member of the class." Id. at 701. It is appropriate in cases where it "saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be
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litigated in an economical fashion under Rule 23." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano, 442 U.S. at 701).
Class certification is proper only if the trial court is satisfied that the prerequisites of Rule 23 are met. See In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 2008) (citing Gen Tel. Co. ofSw. v. Falcon, 457 U.S. 147, 161(1982)). To meet the prerequisites of Rule 23, a plaintiff must establish both that the four requirements of Rule 23(a) have been met-numerosity, commonality, typicality, and adequacy-and that the pleading requirements of Rule 23(b)(I), (2), or (3) have been met. See generally FED. R CIV. P. 23. The plaintiff bears this burden by a preponderance of the evidence. See Hydrogen Peroxide, 552 F.3d at 320. In analyzing whether Rule 23's requirements have been met, the Court makes the factual and legal inquiries necessary and considers all relevant evidence and arguments presented by the parties. Id. at 307.
A threshold requirement to a Rule 23 action is the actual existence of a class which is sufficiently definite and identifiable. See Kline v. Sec. Guards. Inc., 196 F.RD. 261,266 (E.D. Pa. 2000); Reilly v. Gould. Inc., 965 F. Supp. 588, 596 (M.D. Pa. 1997); Clay v. Am. Tobacco Co., 188 F.R.D. 483 (S.D. Ill. 1999). The initial inquiry on class definition is distinct from the analysis required by Federal Rule of Civil Procedure 23. See Sanneman v. Chtysler Corp., 191 F.RD. 441, 446 n.8 (E.D. Pa. 2000).
The four prerequisites to a class action, under Federal Rule of Civil Procedure 23(a), are: (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. As a shorthand, courts regularly refer to the prerequisites as
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numerosity, commonality, typicality, and adequacy of representation. See,~, In re Warfarin Sodium Antitrust Litig., 391 F.3d 516,527 (3d Cir. 2004); Georgine v. Amchem Prods.. Inc., 83 FJd 610, 624 (3d Cir .1996), affd sub nom. Amchem Prods.. Inc. v. Windsor, 521 U.S. 591 (1997). All four Rule 23(a) prerequisites for class certification serve as "guideposts for determining whether maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Am chern, 521 U.S. at 626.
Here, Plaintiff s proposed class consists of all persons who are currently or will be imprisoned in the Special Management Unit ("SMU") at USP-Lewisburg, pursuant to the unconstitutional policy of placing hostile inmates in double cells or recreational cages without taking any reasonable measures to protect the inmates from inmate-on-inmate violence, and using punitive restraints to enforce this policy. This class definition is untenable because it is not objectively, reasonably ascertainable.
As noted above, "[c] lass certification presupposes the existence of an actual 'class'." White v. Williams, 208 F.RD. 123, 129 (D.N.J. 2002) (quoting In re Sch. Asbestos Litig., 56 FJd 515, 519 (3d Cir. 1995)). A "proposed class must be sufficiently identifiable" and it must be "administratively feasible to determine whether a given individual is a member of the class." Id. (quoting Mueller v. CBS. Inc., 200 F.RD. 227, 233 (W.D. Pa. 2001)). See also Kline v. Sec. Guards. Inc., 196 F.RD. 261, 266 (E.D. Pa. 2000) (holding that plaintiffs must minimally define the class "in a way that enables the court to determine whether an individual is a class member"). This consideration necessitates that class membership be defined in an "objective manner." See Kemblesville HHMO Center. L LC v. Landhope Realty Co., 2011 WL 3240779, *4 (E.D. Pa. 2011)
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(quoting Rowe v. E.1. Dupont De Nemours & Co., 262 F.R.D. 451,455 (D.N.J. 2009) (citing
Bentley v. Honeywell Int'l Inc., 223 F.R.D. 471, 477 (S.D. Ohio 2004)).
Thus, certification is denied when detennining membership in the class essentially requires
a mini-hearing as to each prospective class member. Id. (citing Agostino v. Ouest Diagnostics Inc.,
256 F.R.D. 437, 478 (D.N.J. 2009) (citing Fonnan v. Data Transfer. Inc., 164 F.R.D. 400, 403
(E.D. Pa. 1995)). See also Mann v. TD Bank. N.A., 2010 WL 4226526, *1 (D.N.J. 2010)
(concluding putative class ran afoul of requirement that it "be reasonably ascertainable" where
court "would have to hear anecdotal evidence from each prospective class member" to detennine
membership under proposed definition); Kondratick v. Beneficial Consumer Disc. Co., 2006 WL
305399, *7 (E.D. Pa. 2006) (holding that "[t]o detennine if an individual is a class member, a court must be able to do so by reference to the class definition"); Solo v. Bausch & Lomb Inc., 2009 WL
4287706 (D.S.C. 2009) (class not appropriate for certification where detennining class membership
would require "fact-intensive mini-trials"V
Moreover, Courts have denied certification where the putative class "contains members lacking Article III standing," thus requiring any putative class to be "defined in such a way that
anyone within it would have standing." Denney v. Deutsche Bank AG, 443 F.3d 253,264 (2d Cir.
3See also Allen-Wright v. Allstate Ins. Co., 2008 WL 5336701 (E.D. Pa. 2008) (identifying problems with a class definition that required case-by-case factual detennination); Fonnan v. Data Transfer. Inc., 164 F.R.D. 400, 403 (E.D. Pa. 1995) (same).
The Court does proceed to resolve factual or legal disputes relevant to class certification, even when there is "[a]n overlap between a class certification requirement and the merits of a claim." Hydrogen Peroxide, 552 F.3d at 316,318 (cited in In re Schering Plough COW. ERISA Litigation, 589 F.3d 585, 600 (3d Cir. 2009)). Under this class definition, however, the contemplated threshold detenninations involve numerous potentially disparate merits-based inquiries, and-as noted above-the duty of the Court to make threshold legal and factual detenninations to decide class certification does not extend so far.
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2006) (affirming the denial of a plaintiff class because the definition of the class was "so amorphous and diverse" that it was not "reasonably clear that the proposed class members have all suffered a constitutional or statutory violation warranting some relief') (citing Adashunas v. Negley, 626 F.2d 600,604 (7th Cir. 1980)); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289,334 (S.D. N.Y. 2003) (noting that "each member of the class must have standing with respect to injuries suffered as a result of defendants' actions").
Courts likewise have held that a class definition is overly broad where the class encompassed persons who had not suffered any injury. See Owen v. Regence Bluecross Blueshield, 388 F. Supp. 2d 1318, 1334 (D. Utah 2005) ("[T]he proposed definition of the class is overbroad because many of the proposed class members have suffered no damages."); Zapka v. Coca-Cola Co., 2000 WL 1644539, *3 (N.D. Ill. 2000) (holding class definition improper where it included individuals who were not harmed); Canady v. Allstate Ins. Co., 1997 WL 33384270 (W.D. Mo. 1997) ("Because the court cannot accept plaintiffs' blanket contention that every member of the proposed broad class has allegedly suffered harm as a result of the defendants' wrongdoing, the court must find that the class definition is overbroad.").
Even where all class members have been injured, a class definition may be overly broad if the question of liability is specific to each class member. For example, in Holmes v. Pension Plan of Bethlehem Steel Com., 213 F.3d 124 (3d Cir. 2000), the Court of Appeals affirmed the district court's finding that the class definition was overly broad because the determination of actual liability with respect to any class member would require an individualized inquiry into the equities of each claim. Id. at 137-38.
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r - - - - - - - - - -- - - - - - - -- - - - - ------.--- .--.-..-.--.-.--.---,---- - -- - - - - - - - - - ,
Here, the Court notes, initially, that Plaintiffs request to certify a class consisting of all persons who are currently or will be imprisoned in the SMU at USP-Lewisburg, is over broad as it clearly encompasses persons who have not suffered any injury. Plaintiff alleges, and Defendants do not dispute, that there are approximately 1,363 inmates at USP-Lewisburg, and 1050 to 1,100 in the SMU program. (Doc. 21, Amended Complaint at ~ 202). Plaintiffs numbers or estimates, however, do not distinguish between inmates with hostile cell mates and inmates without hostile cell mates. As such, the proposed definition is amorphous and vague. Plaintiff fares no better in breaking the class down into subclasses according to the specific harm alleged.
To the extent that Plaintiff seeks to certify a class based on inmates housed pursuant to a policy of housing inmates with a "hostile" inmate, the determination of class membership under this definition would require this Court to adjudicate, on a person-by-person basis, whether each proposed class member was placed with an inmate that prison officials knew, or should have known, posed a threat to that inmate.4 That is, class membership would not be ascertainable without the imposition of "serious administrative burdens incongruous with the efficiencies expected in a class action." Sanneman v. Chrysler Corp., 191 F.R.D. 441,446 (E.D. Pa. 2000) (concluding certification inappropriate where determining class membership would create such burdens). Plaintiff attempts to define the class by stating that "from 2008 until July 2011, there
4The underlying Constitutional analysis for membership in the class is pursuant to the Eighth Amendment prohibition of cruel and unusual punishment. To succeed on such an Eighth Amendment claim, a prisoner must show that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists"; (3) the defendant actually drew this inference; and (4) the defendant deliberately disregarded the apparent risk. Farmer v. Brennan, 511 U.S. 825,828 (1994) (quoting Wilson v Seiter, 501 U.S. 294, 297,302-03(1991); Hudson v. McMillian, 503 U.S. 1,5 (1992».
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r - - - - - - - - - -- - - - - - - - -- - - - - -- - . -----._---- - - -- - - -- - - - - - - - - - "
have been 272 reported incidents ofinmate on inmate violence". (Doc. 21, '40). However, this statement, in addition to being unsubstantiated, fails to identify if these incidents were solely confined to the SMU or elsewhere within USP-Lewisburg. Furthermore, Plaintiff seeks to certify the class as "all persons who are currently or will be imprisoned in the SMU at USP-Lewisburg, with the class period commencing from the filing of the above captioned action". (Doc. 21) (emphasis added). Thus, the 272 incidents Plaintiff references are outside the time period for the proposed class.
To the extent that Plaintiff seeks to certify a class based on inmates who, pursuant to a prison practice, are placed in painful punitive restraints for refusing a dangerous cell assignment, Plaintiff again seeks to certify a class that would require a very fact specific inquiry as to its membership. Once again, class membership would depend on a determination as to if a class member is presented with a hostile inmate and refuses, and if the class member was then improperly placed in some type of restraint as a result of his refusal, and was injured by the use of the restraints. "If the court is required to conduct individual inquiries to determine whether each potential class member falls within the class, the court should deny certification." Ramirez v. Palisades Collection. LLC, 250 F.R.D. 366,369 (N.D. Ill. 2008).
Because it would be impossible to definitively identify class members prior to individualized fact-finding and litigation, the Court need not consider whether the class meets the requirements of Rule 23(a) and 23(b). Thus, the Court declines to certify the proposed class.
III. Motion to Dismiss Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), the court must "accept all
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factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008». While a complaint need only contain "a short and plain statement of the claim," FED. R. CIV. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Igbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, and a court '''is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id. (quoted case omitted). Thus, "a judicial conspiracy claim must include at least a discernible factual basis to survive a Rule 12(b)(6) dismissal." Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009) (per curiam).
In resolving the motion to dismiss, the court must "conduct a two-part analysis." Fowler, 578 F.3d at 210. First, the court separates the factual elements from the legal elements and disregards the legal conclusions. Id. at 210-11. Second, the court must "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a " 'plausible claim for relief. '" Id. at 211 (quoted case omitted).
In addition, because Plaintiff complains about "prison conditions," the screening provisions of 42 U.S.C. § 1997e apply, as do the screening provisions of28 U.S.C. § 1915(e), given that he was granted in forma pauperis status to pursue this suit. The court's obligation to dismiss a
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complaint under the PLRA screening provisions for complaints that fail to state a claim is not

excused even after defendants have filed a motion to dismiss. See Lopez v. Smith, 203 F.3d 1122,

1126 n.6 (9th Cir. 2000). Hence, if there is a ground for dismissal which was not relied upon by a

defendant in a motion to dismiss, the court may nonetheless sua sponte rest its dismissal upon such

ground pursuant to the screening provisions of the PLRA. See id:; Dare v. U.S., 2007 WL

1811198, *4 (W.D. Pa. 2007), affd, 264 Fed Appx. 183 (3d Cir. 2008).

A.

Alle~ations in Complaint

Plaintiff arrived at USP-Lewisburg in March, 2010 to participate in the SMU program.

(Doc. 21, Amended Complaint at ~ 87). When he arrived, during his Quay hearing, Plaintiff told

Lewisburg staff which categories of inmates he could not safely be celled with. Id. at ~ 88.

After his arrival in 2010, Plaintiff was celled with a compatible inmate. Id. at ~ 90. This

compatible cell pairing lasted for approximately seven (7) months until Defendants moved that

inmate out of Plaintiffs cell. Id. at ~ 91.

On February 3, 2011, corrections staff asked Plaintiff to "cuff up" to accept a cellmate

known as "the Prophet". Id. at ~ 92. Plaintiff knew that "the Prophet" had a highly assaultive

reputation and had attacked over 20 fonner cellmates. Id. at ~ 93. Defendants knew about these

assaults as well, as many had occurred at USP-Lewisburg. Id. at ~ 94. When "the Prophet" was

brought to Plaintiffs cell, he had just been released from hard restraints, which he had been placed

in for refusing a cellmate and he was rocking back and forth in agitation as he waited outside

Plaintiffs cell door. Id. at ~ 95. Due to his fear of assault, Plaintiff refused to cuff up to accept the

hostile inmate as a cellmate. Id. at ~ 96. Corrections staff asked Plaintiff if he was refusing a

cellmate, and he replied that he was. Id. at ~ 97. Staff then took "the Prophet" away. Id. at ~ 98.

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Approximately thirty (30) minutes later, Defendant Fleming led a Use of Force team to Plaintiffs cell. Id. at ~ 99. The team asked him if he would submit to restraints, and he replied that he would. Id. Plaintiff agreed to go with them and did not resist or refuse any of their instructions. Id. The Use of Force team took Plaintiff to a laundry area where he was stripped, put into paper clothes, and placed into hard restraints. Id. at ~ 100. The team members put the restraints on so tightly that as they were applied, Plaintiff reflexively began screaming in pain. Id. at ~ 101. As part of the restraints, the team also applied the chain so tightly around Plaintiff s chest that it caused pain and interfered with his breathing. Id. at ~ 102. The team applied metal shackles to Plaintiffs ankles. Id. at ~ 103. The shackles were applied so tightly that they cut into Plaintiff s Achilles tendon and ankle. Id. This made walking very painful and any normal flexing of the foot causes the shackles to cut further in to the Achilles tendon. Id. Plaintiff was then taken from the laundry area to a cell and placed with a cellmate who was also in hard restraints. Id. at ~ 104. The window in the cell was open, even though it was February and very cold. Id.
Three days later, on or about February 6, 2011, Plaintiff was moved to a different cell and placed with another inmate who was also in restraints. Id. at ~ 105. The other inmate was pleading for help because of the pain caused by the restraints. Id. He stated that he could not breath because of the chest pain and he could not feel his hands because of the tight handcuffs. Id.
On February 10,2011, Plaintiffw(l$ put in four-point restraints. Id. at ~ 106. Defendant Bledsoe authorized the application of four-point restraints on Plaintiff. Id. at ~ 107. Plaintiff screamed out in pain when the four-point restraints were applied, as his arms and legs were pulled away from his body by means of tightly cuffed metal handcuffs and shackles attaching his wrists and ankles to points on the bed frame. Id. at ~ 108. While in four-point restraints, Plaintiff asked
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for water and for a urinal. Id. at ~ 109. He was denied both by Lieutenants, including Defendant Scampone, who came in to check on his restraints. Id. As a result, while restrained to the bed, Plaintiff urinated on himself and was left in soiled paper clothing. Id. at ~ 110. During this time period, Defendant Scampone opened the window in Plaintiffs cell. Id. at ~ 111. Plaintiff suffered due to the cold air coming in through the open window. Id. at ~ 112. Plaintiff spent over eight (8) hours in four-point restraints that painfully stretched body and caused pain to his ankles and wrists. Id. at ~ 113. Approximately eight (8) hours later, Plaintiff was taken out of four-point restraints and put back in hard "ambulatory" restraints. Id. at ~ 114. He remained in hard restraints from February 10 to February 23, 2011 in the cell conditions described above. Id.
On February 23,2011, Defendants took Plaintiff out of restraints for approximately two (2) hours and he was given a shower, the first in weeks. Id. at ~ 115. After the shower, Defendants again tried to force Plaintiff into a dangerous cellmate assignment. Id. at ~ 116. Plaintiff refused and was immediately put back into hard restraints. Id. at ~ 117. Defendant Fleming told Plaintiff that because he had been out of restraints for approximately two (2) hours, they could "start him time over' in restraints, or words to that effect. Id. at ~ 118. In this manner, Defendants were able to keep Plaintiff in hard restraints for longer period of time than permitted under BOP policy. Id. at ~ 119.
Under BOP policy, staff must regularly check on the placement of an inmate's restraints. The Lieutenant is also supposed to determine whether the inmate should remain in restraints or whether he should be released. Id. at ~ 120. The inmate's health is supposed to be checked during a "restraint check." At USP-Lewisburg, however, medical and custody staff routinely ignore inmates' complaints of pain and other medical problems caused by right restraints. Id.
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, - - - - - - - - - -- - - -- - - -- - ---_....__._----_..._.._--- _.__..........._.. _.._ -- -- - - -- - - - - - - - - - - - - - - ,
Defendants Mattingly, Carrasquillo, Fleming, Saylor, Sassaman, Seeba, Miller, and Johnson conducted checks on Plaintiff during this restraints placement and would either enter the cell along with medical staff for the "restraint checks," or, as was often the case, would walk by the cell with medical staff without entering the cell. Id. at ~ 121. Plaintiff told each of these Defendants that the restraints were too tight and were causing him severe pain. Id. at ~ 122. He would plead with each of these Defendants to loosen the restraints and would plead for a bathroom break. Id. Defendants Mattingly, Carrasquillo, Fleming, Saylor, Sassaman, Seeba, Miller, and Johnson routinely denied these requests, causing Plaintiff to remain in extremely painful restraints with his paper clothing soiled by his own waste. Id. at ~ 123. Defendants Mattingly, Carrasquillo, Fleming, Saylor, Sassaman, Seeba, Miller, and Johnson were aware of Plaintiffs complaints of pain and were aware that he was not threatening harm or taking any other actions which would justify restraints, yet, despite this knowledge and having the authority to release Plaintiff from restraints, these Defendants refused to release Plaintiff from the restraints and ignored his pleas for help. Id. at ~~ 124, 125. Plaintiff also requested help from the medical staff during the "medical checks", however, the medical staff would tell him that they were not able to assist him, or they would "falsely record these interactions in [Plaintiffs] medical records." Id. at ~~ 126, 127.
During the "restraint checks", and at other times, Defendants repeatedly asked Plaintiffifhe was ready to accept any cellmate they put him with, so that he could be let out of restraints. Id. at ~ 129. Defendants Trate and Snider told Plaintiff that the only way out of restraints was to accept any cellmate they chose for him, hostile or not. Id. at ~ 130. When Plaintiff offered to identify compatible inmates he could cell with, who were currently at the institution, Defendants Trate and Snider told him that the Warden, Defendant Bledsoe, would not accept that as a solution and that
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the only way out of restraints was to accept any cellmate he was given. Id. at ~ 131. When Plaintiff complained to Defendant Young about the use of painful restraints as punishment for refusing dangerous cellmates and about his injuries from the restraints, Defendant Young responded that "this is what we have to do here," and that this practice would not change. Id. at ~ 132.
Plaintiff was in hard "ambulatory" restraints for approximately fifteen (15) days before he received a toothbrush and toothpaste. Id. at ~ 135. He was forced to sleep on the floor approximately 50% of the time, in unsanitary conditions, and was refused a bathroom break for the majority of the time during this twenty-eight (28) day period, forcing him to attempt, painfully, to use the toilet while in restraints.s Id. at ~~ 136, 137. During this period, Plaintiff had approximately fifteen (15) different cellmates, each of them also in hard restraints applied in the same painful and torturous manner. Id. at ~ 139.
After being released from restraints on March 2,2011, Plaintiff was celled with a compatible cellmate. Id. at ~ 142. This inmate had been at USP-Lewisburg the entire time Plaintiff had been in restraints. Id. When that cellmate advanced to the next step in the SMU program, he was moved out of Plaintiffs cell. Id. at ~ 143. Defendants then brought an inmate to Plaintiffs cell who suffered from mental illness and needed medication to control his behavior. Id. at ~ 144. That inmate told Plaintiff he would be alright as long as he received his medications. Id. at ~ 145. Defendants knew that this inmate needed medication and he had been receiving them up to that point at USP-Lewisburg. Id. at ~ 146. The day after he was placed in Plaintiffs cell, the medical staff failed to bring the inmate his medications. Id. at ~ 147. Both Plaintiff and his cellmate
5Because of the tight handcuffs and the position of the hands in front of the body, attached lightly to each other and the upper chest, it is incredibly painful to the inmate's hands, wrists, and arms to try to use the toilet. Id. at ~ 76.
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notified staff repeatedly that the cellmate needed his medications, but staff refused to respond and the inmate continued to go without his medications. Id. at ~ 148. Without his medications, the inmate's behavior quickly became erratic and threatening. Id. at ~ 149. He would stay awake at night, talking in different voices and acting strangely. Id. Plaintiff became fearful of his behavior. Id. Plaintiff remained celled with this inmate for approximately seven (7) days, his fear and anxiety increasing. Id. at ~ 150. During this time period, staff would walk by the cell door and peer in the window. Id. at ~ 151. Eventually the inmate was moved out of the cell and put into a single cell. Id. at ~ 152. Plaintifflater learned that the Use of Force team had been "ready to go" at the time that he inmate had been brought to his cell, implying that Defendants' had expected Plaintiff to refuse him. Id. at ~ 153.
On May 17, 2011, Corrections staff brought an unknown inmate to Plaintiff s cell and told him to cuff up in order to accept him as a cellmate. Id. at ~ 156. After the recent attempts by Defendants to place hostile cellmates with him and the threat to force another hostile cell assignment on Plaintiff, Plaintiff no longer trusted any of the cellmate assignments and therefore refused this cell assignment. Id. at ~ 157. As with the earlier incident, a "Use of Force" team was assembled and brought to Plaintiffs cell on May 17,2011. Id. at ~ 158. The "team", led by Defendants Saylor and Fleming, put Plaintiff into hard restraints. Id. at ~ 159. Plaintiff submitted to the restraints and complied with the orders of the "team", offering no resistance. Id. The hard restraints were placed on Plaintiff in the same tight manner as before, causing severe pain and swelling. Id. at ~ 160. Plaintiff was then kept in the small unsanitary restraints room with extremely limited ability to eat, drink, toilet, and sleep. Id. at ~ 161. At one point during this restraints placement, Defendant Scampone twisted Plaintiffs handcuffs even tighter, causing more
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pain and told him that he would let Plaintiff out of the restraints if he would comply and go wherever they put him. Id. at ~ 162. Plaintiff responded that he would only accept a cell assignment that was safe for him. Id. at ~ 163. Defendant Whittaker made similar threats to Plaintiff and told him that he would be taken out of restraints by "the team" so that he could then be put back into restraints and his time would "start over." Id. at ~ 164.
On May 31, 2011, Plaintiff was put into four-point restraints by Lt. Carrasquillo and a "Use of Force" team. Id. at ~ 168. Defendant Bledsoe authorized the application of four-point restraints on Plaintiff. Id. at ~ 169. Defendants kept Plaintiff in four-point restraints from May 31, 2011, until June 1,2011. Id. at ~ 170. During this time period, Defendant Johnson denied Plaintiff a bathroom break, which resulted in him urinating on himself and remaining his soiled clothing for hours. Id. at ~ 171. Defendants took Richardson out of four-points and put him back into hard "ambulatory" restraints on June 1,2011, where he remained for one more day. Id. at ~ 172.
As with the earlier restraints placement, Plaintiff pleaded with and complained to the Lieutenants who accompanied medical staff during the "restraint checks," including Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker, and at other times, that the restraints were too tight and were causing him severe pain. Id. at ~ 173. The Lieutenants, including Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker refused to loosen the restraints and refused to permit medical staff to do so, causing Plaintiffs pain to be prolonged. Id. at ~ 174. During this restraints placement, Defendants repeatedly told Plaintiff that he could only come out of restraints if he agreed to be celled with whomever they chose, regardless of whether the placement was dangerous. Id. at ~ 175.
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On December 7, 2011, Plaintiff filed the instant action. He claims that Defendants Carrasquillo, Fleming, Johnson, Mattingly, Miller, Saylor, Scampone, Seeba, and Whittaker kept him in hard restraints or four-point restraints for seventeen (17) days in unsanitary and inhumane conditions in order to punish him for refusing to accept a dangerous cell assignment. Id. at ~ 179. He alleges that Defendant Bledsoe authorized and approved of Plaintiffs placements in restraints, both "ambulatory" and four-point, from February 3,2011 to March 2, 2011 and again from May 17, 2011 to June 2, 2011. Id. at ~ 180. He contends that Defendant Bledsoe ordered these restraint placements knowing and approving of the excessively tight manner in which the restraints were applied, the prolonged time period during which Plaintiff was subjected to the restraints, and the conditions in the cells in which Plaintiff was kept in restraints. Id. at ~ 181. Despite this knowledge, Defendant Bledsoe refused to taken any actions to stop the harm being inflicted on Plaintiff and instead ordered that the abusive treatment be continued. Id. at ~ 182. Defendant Bledsoe refused to order Plaintiff released from restraints, although he had the authority to do so. Id. at ~ 183. Plaintiff states that as a direct result of Defendants' acts, Plaintiff suffered, and continues to suffer, the following injuries and damages, "violation of his rights under the Fifth and Eighth Amendments to the United States Constitution, physical injuries, pain and suffering, and emotional distress." Id. at ~ 186. For relief, Plaintiff seeks injunctive relief, as well as compensatory and punitive damages.
B. Qualified Immunity Defendants assert that they are entitled to qualified immunity. See (Doc. 28, brief in support at 8-22). Qualified immunity provides not merely a "defense to liability," but rather, "immunity from suit." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Mitchell v. Forsyth,
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472 U.S. 511, 526 (1985)). It is therefore important to "resolv[e] immunity questions at the earliest possible stage in the litigation." Pearson v. Callahan, 555 U.S. 223,232 (2009) (quoting Hunter, 502 U.S. at 227). Certain officials performing "discretionary functions," are shielded from suit if their conduct did not violate a "clearly established statutory or constitutional right[ ] of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800,818 (1982)); see also Wilson v. Layne, 526 U.S. 603,609 (1999). Also, if an official reasonably believes his conduct to be lawful, he is protected by qualified immunity, which affords "ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Kelly v. Borough of Carlisle, 622 F.3d 248, 254 (3d Cir. 2010) (quoting Hunter, 502 U.S. at 229).
Application of qualified immunity implicates two distinct inquiries. The first inquiry evaluates whether the defendant violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201-02 (2001), abrogated in part by Pearson, 555 U.S. 223; Curley v. Klem, 499 F.3d 199,206 (3d Cir. 2007); Williams v. Bitner, 455 F.3d 186, 190 (3d Cir. 2006). If the plaintiff fails to put forth evidence that the defendant committed a constitutional infraction, then the court must dispose of the claim in the defendant's favor. Saucier, 533 U.S. at 201; see also Wilson, 526 U.S. at 609. However, if the evidence shows that the defendant committed a constitutional violation, the second inquiry assesses whether the right in question was "clearly established" at the time the defendant acted. Pearson, 555 U.S. at 231-32; Saucier, 533 U.S. 201-02. A right is "clearly established" if a reasonable actor under the circumstances would have known that his or her conduct impinged upon constitutional mandates. Pearson, 555 U.S. 223; Williams, 455 F.3d at 191. Hence, a defendant may not invoke qualified immunity if the defendant's conduct diverges from that of a reasonable
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actor under the circumstances. Williams, 455 F.3d at 191. The court is not required to conduct
these inquiries sequentially. Pearson, 555 U.S. at 240. The court may eschew difficult
constitutional issues and award qualified immunity to a defendant if it is apparent that the
defendant did not violate rights that were clearly established at the time the defendant acted. Id.
If immunity is raised at the summary judgment stage, and if the court chooses to address the
plaintiffs showing of constitutional violations-the first inquiry described above-then the court's
analysis of the alleged violations essentially merges with its analysis of the merits. See Gruenke v.
Seip, 225 F.3d 290,299-300 (3d Cir. 2000); Russoli v. Salisbury TW., 126 F. Supp. 2d 821,
838-41 (E.D. Pa. 2000); see also Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996)
("[C]rucial to the resolution of [the] assertion of qualified immunity is a careful examination of the
record ... to establish ... a detailed factual description of the actions of each individual defendant
(viewed in a light most favorable to the plaintift)."). 1. Whether Defendants Violated Richardson's EiKhth Amendment6 RiKhts. The Eighth Amendment protects prisoners from cruel and unusual punishment, including
"the unnecessary and wanton infliction of pain." Hudson v. McMillian, 503 U.S. 1,5 (1992)
(quoting Whitley v. Albers, 475 U.S. 312, 319 (1986»; see also U.S. const. amend. VIII. To
prevail on an Eighth Amendment claim, an inmate must show: (1) a deprivation that is objectively
6Because Plaintiff relies on the same evidence to establish both a Fifth and Eighth Amendment claim and because the Eighth Amendment '''is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified, '" the more-specific-provision rule of the Eighth Amendment forecloses Plaintiffs Fifth Amendment claim as a matter oflaw. Betts v. New Castle Youth Dev. Ctr., 621 F.2d 249, 260-61 (3d Cir. 2010) (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986».
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------------------------------~--~. -~-~---~-
sufficiently serious; and (2) "a sufficiently culpable state of mind" of the defendant official. See Fannerv. Brennan, 511 U.S. 825, 834 (1994).
There are separate standards for Eighth Amendment violations depending on the type of claim. An Eighth Amendment challenge to prison conditions is subject to the deliberate indifference standard. See Fuentes v. Wagner, 206 F.3d 335,345 (3d Cir. 2000) (citing Fanner, 511 U.S. at 837). Prison officials are deliberately indifferent when they know of and disregard a substantial risk of serious hann to a prisoner. Fanner, 511 U.S. at 836. Furthermore, a prisoner must produce evidence of serious or significant physical or emotional injury resulting from a challenged prison condition. Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995). An Eighth Amendment challenge asserting excessive force is subject to a malicious and sadistic standard. The inquiry under this standard is whether prison officials applied force "in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing hann." Hudson, 503 U.S. at 6 (citations and quotations omitted); see also Fuentes, 206 F.3d at 345. In an excessive force case, a prisoner need not show significant injury; however, de minimis uses of physical force are insufficient to establish an Eighth Amendment violation. Hudson, 503, U.S. at 9-10. Excessive force claims are typically based in emergency situations where prison officials must use force and act quickly and decisively to maintain or restore discipline. See Hudson, 503 U.S. at 6-7.
Although, the initial use of restraints may properly be characterized as an excessive force claim, the court concludes that the prolonged use of restraints at issue here is more properly analyzed under the deliberate indifference standard. See A.M. ex. reI. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572,587 (3d. Cir. 2004) (concluding that the deliberate indifference
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~-------------------------------------~------------------------------------------------
standard is appropriate where it did not appear that officials "were required to make split-second decisions to maintain or restore order through the use of excessive physical force"); Howard v. Bureau of Prisons, 2008 WL 318387, *13 (M.D. Pa. 2008) ("Outside the context ofa prison disturbance, which is characterized as 'a single instance of prisoner unrest where there is a need to act quickly,' Eighth Amendment claims are judged by the deliberate indifference standard."); Trammell v. Keane, 338 F.3d 155, 162-63 (2d Cir. 2003) (applying deliberate indifference standard in determining whether deprivation orders, depriving prisoner of certain amenities, were reasonably calculated to restore prison discipline and security). But see Zimmerman v. Schaeffer, 645 F. Supp. 2d 226, 248 (M.D. Pa. 2009).7
A prisoner must show extreme deprivations to make out a viable conditions of-confinement claim. Hudson, 503 U.S. at 9. "[O]n1y those deprivations denying 'the minimal civilized measures of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Hudson, 503 U.S. at 9, quoting Wilson, 501 U.S. at 298 (quoting Rhodes v. Chapman, 452 U.S. 337,346, (1981». A prisoner's Eighth Amendment rights are violated when prison officials "act[] or fail[ ] to act with deliberate indifference to a substantial risk of serious harm to a prisoner." Farmer, 511 U.S. at 836; Kaucher v. Cnty. of Bucks, 455 F.3d 418, 427 (3d Cir. 2006). The test is SUbjective:
7In Zimmerman v. Schaeffer, 654 F. Supp. 2d 226 (M.D. Pa. 2009), the Honorable Sylvia Rambo concluded that, in the factual circumstances of that case, the use of restraints was more appropriately viewed as an excessive force case. Id. at 248-49. There, the application of restraints was "closely connected to the use of force in initially subduing Plaintiffs in each incident, and in all cases, a lengthy application of mechanical restraints was authorized in advance." Id. at 249. In the present matter, this Court finds the deliberate indifference standard to be appropriate given the divergent factual circumstances. Here, the initial use of force against Richardson was unplanned and there is no evidence in the record to suggest that USP-Lewisburg officials intended a lengthy restraint period.
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[A] prison official cannot be found liable ... unless the person knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer, 511 U.S. at 837; see also Fuentes, 206 F.3d at 345 & n.12. A prison official's subjective state of mind can be inferred when the risk of harm is obvious. See Hope v. Pelzer, 536 U.S. 730, 738 (2002); Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (stating that "subjective knowledge on the part of the official can be proved by circumstantial evidence to the effect that the excessive risk was so obvious that the official must have known of the risk"). The length of confinement in the challenged prison condition is a relevant factor in Eighth Amendment analysis. See Hutto v. Finney, 437 U.S. 678, 686 (1978); Hope v. Pelzer, 536 U.S. 730 (2002); Holley v. Johnson, 2010 WL 2640328,*12 (W.D. Va. 2010). Defendants assert that they cannot be held deliberately indifferent as to the health and safety of Richardson because: (1) it is important to the safety and security of the institution and all those who reside and work within it that inmates comply whenever they are given direct orders from staff; (2) Plaintiff acknowledges that he had the power to release himself from the restraints by simply agreeing to comply with the orders to accept the new cellmates; (3) there is currently no evidence that Plaintiff was injured by improperly applied restraints, and in light of Plaintiffs statements that medical staff performed "restraint checks," it would be logical for nonmedical staff to assume that the restraints were not causing Plaintiff injury; see Ayala v. Terhune, 195 F. App'x 87,91 (3d Cir. 2006) (affirming district court dismissal of claim that prison officials did not adequately respond to prison grievances regarding medical care where the plaintiff was under the care of physician) (citing Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993); White v. Farrier,
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849 F.2d 322,327 (8th Cir. 1988)); (4) if inmates were allowed to refuse to obey direct orders without any negative consequences, there would be no way that staff could maintain control over the high security prison population at USP-Lewisburg, and staff, inmates, the institution, and the community at large could all become endangered by their inability to control the prison population; and (5) Plaintiff does not allege that staff provided him with no way to lessen the amount of restraints placed upon him by simply adjusting his own behavior, and his allegations include instances when he was released from his restraints only to be placed back into them when he again refused a direct order. (Doc. 28 at 19-20).
Nonetheless, the Court concludes that there remains disputed issues of material fact as to whether Defendants were deliberately indifferent to an excessive risk to Richardson's health and safety. Richardson asserts that the ambulatory restraints caused swelling, pressure sores, abrasions, cuts, numbness, and nerve damage. (Doc. 21 at, 134). Richardson asserts that he was unable to lie down flat, to bathe, or to clean himself after use of the facilities. He claims he complained to prison officials and medical staff several times about losing feeling in his arms and legs and circulation in his wrists. According to Richardson, prison officials ignored his complaints and requests for medical attention.
Taking this evidence in the light most favorable to the nonmoving party and making all reasonable inferences therefrom, the Court concludes that Plaintiff has set forth sufficient allegations that Defendants were deliberately indifferent to a substantial risk of serious harm to Plaintiff in violation of the Eighth Amendment, and that the harm was obvious. Therefore, the Court must move to the second prong of the qualified immunity analysis and determine whether the right was clearly established.
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2. Whether Richardson's Ri&hts Were Clearly Established. To determine whether a government official is entitled to qualified immunity, the court must ascertain "whether a reasonable public official would know that his or her specific conduct violated clearly established rights." Grant, 98 F.3d at 121 (citing Anderson v. Creighton, 483 U.S. 635,636-37 (1987». The Supreme Court has warned against conceptualizing an individual's rights at too distant a "level of generality," and it has held that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 639-40; McKee v. Hart, 436 F.3d 165, 171 (3d Cir. 2006). The court must examine whether the defendant should have known that his or her actions contravened statutory or constitutional guarantees. Gruenke, 225 F.3d at 299-300. "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640 (citation omitted). Thus, whether a right is clearly established is a fact specific inquiry undertaken in the context of the case. See McKee, 436 F.3d at 171. Defendants claim that maintaining Plaintiff in ambulatory restraints for twenty-eight (28) days was not an obvious violation of his Eighth Amendment rights. They assert that "there is no authority that staff cannot place inmates in restraints for periods of time when the inmate has refused an order." (Doc. 37, at 12). Admittedly, '[t]here are relatively few cases dealing with keeping an inmate in handcuffs for a prolonged period of time." Barker v. Goodrich, 2010 WL 55719 (S.D. Ohio 2010). Despite
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the paucity of factually similar precedent, a defendant may be on notice that his conduct violates clearly established law in novel factual circumstances. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
In Hope v. Pelzer, the Supreme Court found that restraining an inmate to a hitching post for seven (7) hours violated a clearly established constitutional right. The prisoner in Hope was restrained in a standing position, with his shirt off, subject to sunburn and scorching heat, without water or bathroom breaks and taunted by corrections officers. Id. at 734-35. The Court found that a reasonable person would have known this conduct to be in clear violation of the Eighth Amendment. Id. at 741-42. The Court also referenced state correctional facility regulations, Eleventh Circuit precedent, and a Department of Justice report advising of the "constitutional infirmity" of hitching posts, in support of its conclusion. Id. at 741-42.
In the instant matter, Defendants cite to cases involving the prolonged restraint of prisoners in handcuffs or ambulatory restraints in which courts have held there was no clearly established Eighth Amendment violation, even post-Hope. However, none of those cases approximate the factual circumstances in the instant matter. In fact, the Court has not identified a single case in which an inmate was held in ambulatory restraints (or any other type of restraints) for more than three (3) days. See Key v. McKinney, 176 F.3d 1083, 1086 (8th Cir. 1999) (no Eighth Amendment violation where prisoner handcuffed and shackled for twenty-four (24) hours); Hunter v. Bledsoe, 2010 WL 3154963 (M.D. Pa. 2010) (ambulatory restraints used for twenty-four (24) hours); Holley, 2010 WL 2640328 (ambulatory restraints used for forty-eight (48) hours); Moore v. Miller, 2009 WL 113258 (W.D. Va. 2009) (twenty-six (26) hours); Keyes v. O'Brien, 2006 WL 2125912 (W.D. Va. 2006) (no Eighth Amendment violation where prisoner placed in ambulatory restraints for thirty (30) hours); Garraway v. United States, 2006 WL 3054606, *8 (D. Colo. 2006) (fifty (50)
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hours in ambulatory restraints); Saleh v. Ray, 2003 WL 23484639, *6 (D. Kan. 2003) (twenty-four (24) hours in ambulatory restraints, no Eighth Amendment violation); see also Zimmerman, 654 F. Supp. 2d at 232 (nineteen (19) hours or more in restraint chair). In the instant matter, Plaintiff alleges that he remained in restraints for twenty-eight (28) consecutive days. Like Hope, this Court finds such conduct an "arguably obvious" violation of the Eighth Amendment. See Hope, 536 U.S. at 741 ("Arguably, the violation was so obvious that our own Eighth Amendment cases gave respondents fair warning that their conduct violated the Constitution.").
The Court's conclusion is buttressed by the special reporting requirements implicated whenever an inmate is placed in restraints for more than eight (8) hours. It is undisputed that the prolonged restraint of Richardson compelled Defendants to provide frequent status reports. Prison regulations also required constant monitoring of prisoners in restraints. Hope indicates that excessive, prolonged restraint of inmates violates the Eighth Amendment. Notwithstanding the significant factual distinctions between Hope and the present matter, a reasonable official in Defendants' position would have known that placing Richardson in restraints for twenty-eight (28) days violated the Eighth Amendment. Taking Hope together with the BOP regulations regarding use of ambulatory restraints, Defendants had fair notice that their alleged conduct, if proven true, violated a clearly established right under the Eighth Amendment. Thus, the Court rejects the defense of qualified immunity.
c. Motion for a More Definite Statement
Defendants ask, in the alternative, that the Court order Plaintiff to file a more definite statement of his claim pursuant to Federal Rule of Civil Procedure 12(e). Rule 12(e) provides that a "party may move for a more definite statement of a pleading to which a responsive pleading is
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allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." FED. R. CIV. P. 12(e). Defendants argue that they cannot prepare a responsive pleading in this case because many of Plaintiffs specific allegations do not name a specific Defendant, making it impossible for Defendants to properly respond.
"Because Federal Rule of Civil Procedure 8 requires only a short and plain statement of the claim, motions for a more definite statement are 'highly disfavored'." Country Classics at Morgan Hill Homeowners' Ass'n v. Country Classics at Morgan Hill. LLC, 780 F. Supp. 2d 367,371 (E.D. Pa. 2011) (quoting Hughes v. Smith, 2005 WL 435226, *4 (E.D. Pa. 2005». "Therefore, 12(e) motions will be granted only 'if a pleading is so vague or ambiguous that the opposing party cannot reasonably be required to make a responsive pleading.'" Id. (citing S.E.C. v. Saltzman, 127 F. Supp. 2d 660, 667 (E.D. Pa. 2000». A motion for more definite statement is "'used to provide a remedy for an unintelligible pleading rather than as a correction for a lack of detaiL'" Premier Payments Online, Inc. v. Payment Sys. Worldwide, 848 F. Supp. 2d 513, 522 (E.D. Pa. 2012) (quoting Frazier v. SEPTA, 868 F. Supp. 757, 763 (E.D. Pa. 1994), and citing Country Classics, 780 F. Supp. 2d at 371). Rule 12(e) is thus" 'directed to the rare case where because of the vagueness or ambiguity of the pleading the answering party will not be able to frame a responsive pleading.'" Id. (quoting Schaedler v. Reading Eagle Publ'n, Inc., 370 F.2d 795, 798 (3d Cir. 1967».
Defendants do not claim that the Amended Complaint is unintelligible. Rather, they complain that the Amended Complaint makes general references to "staff', "unnamed members of the 'Use of Force Team' ," "medical staff," and "unidentified lieutenants." The Court notes, however, that it is unnecessary to identify each person listed in the Amended Complaint in order to provide sufficient notice to Defendants of the basis of the claims against them. As such, the Court
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concludes that the Amended Complaint is not so vague or ambiguous that Defendants cannot frame responsive pleadings. See Pozarlik v. Camelback Assocs.. Inc., 2012 WL 760582, *2 (M.D. Pa. 2012) ("Granting a Rule 12(e) motion is appropriate only when the pleading is 'so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith, without prejudice to itself."'), quoting Sun Co. v. Badger Design & Constructors, 939 F. Supp. 365, 368 (E.D. Pa. 1996). Defendants' request for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e) is, therefore, denied.
A separate Order will be issued.

Dated: April 9, 2013

United States District Judge

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 Case 3:11-cv-02266-MWB-SES Document 61-1 Filed 09/06/16 Page 1 of 44
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 15-2876 _____________
SEBASTIAN RICHARDSON, Appellant
v.
DIRECTOR FEDERAL BUREAU OF PRISONS; BRYAN A. BLEDSOE; DAVID YOUNG, Associate Warden at USP Lewisburg; DONALD C. HUDSON, JR., Associate Warden; CAPTAIN BRADLEY TRATE;
SEAN SNIDER, Deputy Captain; LT. JAMES FLEMING; LT. PEDRO CARRASQUILLO; LT. CHRIS MATTINGLY; LT. MATTHEW SAYLOR; LT. AARON SASSAMAN; LT. JASON SEEBA; ROGER MILLER; LT. THOMAS JOHNSON; LT. CAMDEN
SCAMPONE; LT. KYLE WHITTAKER _____________
On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 3-11-cv-02266
District Judge: The Honorable William J. Nealon, Junior

Case 3:11-cv-02266-MWB-SES Document 61-1 Filed 09/06/16 Page 2 of 44

Argued May 17, 2016
Before: SMITH, HARDIMAN, and NYGAARD, Circuit Judges
(Filed: July 15, 2016)

Alexandra Morgan-Kurtz

[ARGUED]

Pennsylvania Institutional Law Project

429 Forbes Avenue

Suite 800

Pittsburgh, PA 15219

Su Ming Yeh, Esq. Pennsylvania Institutional Law Project 718 Arch Street Suite 304S Philadelphia, PA 19106
Counsel for Appellant

Michael J. Butler

[ARGUED]

Office of United States Attorney

228 Walnut Street,

P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

2

Case 3:11-cv-02266-MWB-SES Document 61-1 Filed 09/06/16 Page 3 of 44
________________
OPINION ________________
SMITH, Circuit Judge.
Plaintiff Sebastian Richardson, a former inmate at the United States Penitentiary at Lewisburg, is seeking both individual monetary damages for alleged violations of his constitutional rights at USP Lewisburg and classwide injunctive relief to prevent future constitutional violations at the penitentiary. While the procedural history of this case is complex, we are presented with a single issue on appeal. We must determine whether Richardson’s class-wide claims for injunctive relief are moot because Richardson was transferred out of USP Lewisburg after he filed an amended class action complaint but before he moved for class certification.
We conclude that Richardson’s class claims are not moot. As we have previously held, when individual claims for relief are acutely susceptible to mootness, a would-be class representative may, in some circumstances, continue to seek class certification after losing his personal stake in the case. Additionally, even though Richardson never filed a motion for class certification, we hold that the class certification issue was clearly presented to the District Court both in
3

Case 3:11-cv-02266-MWB-SES Document 61-1 Filed 09/06/16 Page 4 of 44

Defendants’ motion to dismiss Richardson’s amended class complaint and in Richardson’s response to that motion. Richardson’s claims, therefore, relate back to the date on which he filed his amended class action complaint. Accordingly, he may continue to seek class certification in this case. We will therefore remand this case to the District Court for further proceedings consistent with this opinion.

I.

Sebastian Richardson arrived at USP Lewisburg in

March 2010 and was immediately placed in the Special

Management Unit program (SMU program). The SMU

program was created to house inmates with special

security concerns, namely individuals with past histories

of violence and individuals who “participated in or had

leadership roles in geographical groups/gang related

activity.” U.S. Dep’t of Justice, Program Statement:

Special Management Units, P5217.01, § 1 (Nov. 19,

2008),

available

at

https://www.bop.gov/policy/progstat/5217_001.pdf.

Upon entering the SMU program, inmates are

interviewed to determine their “separation needs and

known enemies” so that they are not placed with

incompatible individuals. Richardson v. Kane, No.

3:CV-11-2266, 2013 WL 1452962, at *2 (M.D. Pa. Apr.

9, 2013). Once in the program, inmates are rotated

between cells every twenty-one days, sometimes

receiving new cellmates as they rotate. Id.

4

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Richardson’s amended complaint alleges that through a “pattern, practice or policy,” Pl.’s Am. Compl. 2, ECF No. 21, officials at USP Lewisburg frequently placed inmates in cells with hostile cellmates, unnecessarily increasing the risk of inmate-on-inmate violence. Id. at 10-11. He further alleges that if an inmate refused to accept a hostile cellmate, he would be placed in painful restraints as a form of punishment. Id. at 12. Richardson claims that he was subjected to this policy and that it violated his Fifth and Eighth Amendment rights.
In support of this claim, Richardson explains how—after seven months of living with a compatible cellmate—corrections staff asked him to “cuff up” on the cell door so that a new inmate could be transferred into his cell. Id. at 19. Richardson alleges that this inmate, known among the prison population as “the Prophet,” had attacked over twenty former cellmates. Id. Richardson refused to “cuff up” because he did not want to be placed with “the Prophet.” Corrections staff then asked if Richardson was refusing his new cellmate, and he replied that he was. Id. After taking “the Prophet” away, corrections staff returned thirty minutes later with a Use of Force team and asked Richardson if he would submit to the use of restraints. Richardson complied. Id.
Richardson was then taken down to a laundry room where he was stripped, dressed in paper clothes, and put in “hard” restraints. Id. at 20. Next, he was
5

Case 3:11-cv-02266-MWB-SES Document 61-1 Filed 09/06/16 Page 6 of 44
locked in a cell with another prisoner (who was also in hard restraints) and left there for three days before being transferred yet again. Id. All told, Richardson alleges that he was held in hard restraints for nearly a month, was forced to sleep on the floor for much of that time, and frequently was refused both showers and bathroom breaks. Richardson also claims that there have been at least 272 reports of inmate-on-inmate violence at USP Lewisburg between January 2008 and July 2011 and that dozens of other inmates have suffered treatment similar to his as a result of this unwritten practice or policy. Id. at 10.
While still in the SMU program at USP Lewisburg, Richardson brought suit against a number of prison officials alleging that this unwritten policy violated his constitutional rights. Richardson’s amended complaint seeks individual monetary damages and classwide injunctive relief for “[a]ll persons who are currently or will be imprisoned in the SMU program at USP Lewisburg.” Id. at 33.
Richardson’s amended complaint notes that he is seeking class certification under Federal Rule of Civil Procedure 23(b)(2), which generally provides for only injunctive relief.1 It also explains why such relief should
1 We need not weigh in on “whether there are any forms of ‘incidental’ monetary relief that are consistent with the interpretation of Rule 23(b)(2),” because Richardson has
6

Case 3:11-cv-02266-MWB-SES Document 61-1 Filed 09/06/16 Page 7 of 44
be granted and discusses the specific Rule 23 factors courts must consider when determining whether to certify a class. Id. at 41-44. The District Court, however, found Richardson’s class definition “untenable because it [wa]s not objectively, reasonably ascertainable.” Kane, 2013 WL 1452962, at *4. Certification was therefore denied. While this did not prevent Richardson from pursuing his individual claims for damages against the Defendants, the District Court eventually stayed Richardson’s case in its entirety pending this Court’s resolution of Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015). In Shelton, we granted a motion for interlocutory appeal of the same issue that was decided by the District Court here: the ascertainability of an identically defined class of prisoners at USP Lewisburg. We held that ascertainability is not required for Rule 23(b)(2) classes and therefore remanded the case to the District Court to “consider whether the properly-defined putative class meets the remaining Rule 23 requirements for class certification.” Id. at 565.
After we decided Shelton, Richardson sought leave to appeal the District Court’s denial of class certification in his case. A motions panel of this Court granted the request. This case, then, raises substantive issues nearly
not sought such incidental monetary relief in this case. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 366 (2011).
7

Case 3:11-cv-02266-MWB-SES Document 61-1 Filed 09/06/16 Page 8 of 44
identical to those we considered in Shelton. Indeed, Richardson argues that Shelton controls our decision in this case and that we should reverse the District Court’s order denying class certification and remand for further proceedings consistent with Shelton.
Defendants disagree. While they admit that Shelton would control the outcome of Richardson’s class action claims, they argue that these claims have become moot for two reasons. First, they argue that because Richardson’s individual claims for injunctive relief are moot, he cannot represent a class seeking the same injunctive relief. Specifically, because Richardson was not housed in the SMU when the District Court denied class certification, they argue that he does “not have standing to represent a class of USP Lewisburg inmates housed in the SMU.” Appellees’ Br. 10. Second, Defendants note that all the individuals Richardson named as defendants have since retired or changed jobs. Defendants argue that this moots Richardson’s claims for injunctive relief because they read the amended complaint to allege harms resulting only from conduct that is personal to the individual defendants (as opposed to conduct that is systematic and institutional in nature). Accordingly, Defendants assert that Richardson’s claims for injunctive relief are moot under Spomer v. Littleton, 414 U.S. 514 (1974), as there is no reason to believe the allegedly unconstitutional conduct will continue under
8

Case 3:11-cv-02266-MWB-SES Document 61-1 Filed 09/06/16 Page 9 of 44
the new prison administration. Appellees’ Br. 11. We address these two arguments in turn.2
II.
Defendants argue that Richardson’s class action claims are moot because Richardson failed to move for class certification before he was transferred out of USP Lewisburg. While Richardson, of course, still has standing to seek damages for any past constitutional violations that occurred while he was housed in the SMU program at USP Lewisburg, he must have separate standing for forward-looking, injunctive relief. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”). To determine whether Richardson has standing to seek injunctive relief, we ask whether he can “show that he is likely to suffer future injury from the defendant’s conduct.” McNair v. Synapse Grp. Inc., 672 F.3d 213, 223 (3d Cir. 2012) (internal quotation marks and citations omitted). Typically, “[i]n the class action context, [this] requirement must be satisfied by at least one named plaintiff.” Id. While it is clear that
2 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1292(e) as a result of Richardson’s petition for interlocutory appeal under Federal Rule of Civil Procedure 23, which was granted on July 30, 2015.
9

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Richardson had standing to seek injunctive relief when he filed his amended complaint (as he was still housed in the SMU program at USP Lewisburg), we must ask whether his claims for injunctive relief are now moot because he is no longer housed there.3 Generally speaking, a case will become moot “when . . . the parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (internal citations and quotation marks omitted). Mootness jurisprudence characterizes this as “the personal stake requirement.” Id.
The Supreme Court in Geraghty, however, noted that Article III mootness is more “flexible” than other justiciability requirements, especially in the context of class action litigation. Id. at 400. Indeed, we have recognized that “[i]n the class action context, special mootness rules apply” for determining at what point in time a named plaintiff must still have a personal stake in the litigation to continue seeking to represent a putative class action. Brown v. Phila. Hous. Auth., 350 F.3d 338, 343 (3d Cir. 2003).
These special mootness rules have evolved over time to allow a plaintiff to continue seeking class certification in certain circumstances even though his
3 Richardson was transferred out of USP Lewisburg on September 10, 2012, a mere six weeks after he filed his amended complaint.
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individual claim for relief has become moot. One such special rule is commonly referred to as the “relation back doctrine.” See Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975) (“[W]hether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.”). This doctrine permits courts to relate a wouldbe class representative’s (now moot) claim for relief back in time to a point at which that plaintiff still had a personal stake in the outcome of the litigation. The plaintiff can thus continue to represent, or seek to represent, a class of similarly situated persons despite no longer having a justiciable claim for individual relief. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (“‘[T]he termination of a class representative’s claim does not moot the claims of the unnamed members of the class.’” (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975))).
For example, courts have often recognized that the relation back doctrine applies to claims that are “inherently transitory” or “capable of repetition yet evading review.” See McLaughlin, 500 U.S. at 46; Geraghty, 445 U.S. at 398-99; N.J. Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 31 (3d Cir. 1985). Such cases can still be heard in federal court even if the named plaintiff’s claims have become moot during the litigation. Here, however, we consider a different
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application of the relation back doctrine: the picking off exception to mootness.
A.
In Weiss v. Regal Collections, we held that when a plaintiff’s individual claim for relief is “acutely susceptible to mootness” by the actions of a defendant, that plaintiff may continue to represent the class he is seeking to certify even if his individual claim has been mooted by actions of the defendant. 385 F.3d 337, 34748 (3d Cir. 2004). This has colloquially been termed the “picking off” exception to mootness. See Wilson v. Gordon, __ F.3d __, 2016 WL 2957155, at *9 (6th Cir. May 23, 2016). Because Weiss (the only case in this Circuit to recognize the picking off exception) was partially overruled by the Supreme Court in CampbellEwald Co. v. Gomez, 136 S. Ct. 663 (2016), we find it necessary to reexamine the basis for this exception to determine whether this holding in Weiss is still good law. We will therefore trace the development of the picking off exception and explain why we conclude that it has survived Campbell-Ewald.
We find one of the first invocations of the picking off exception in White v. Mathews, 559 F.2d 852, 857 (2d Cir. 1977). Here, plaintiff George White alleged that the Social Security Administration delayed processing numerous disability claims in violation of the Social Security Act. However, because the Administration had
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processed White’s claim while his class certification motion was pending, the court had to determine whether the mooting of his individual claim mooted the entire class action. Id. The court first recognized that if it did not relate White’s claim back to the date on which he sought class certification, the Social Security Administration “could avoid judicial scrutiny of its procedures by the simple expedient of granting hearings to plaintiffs who seek, but have not yet obtained, class certification.” Id. While White did “not suggest that this occurred here,” it explained that it must take into account “the ‘reality’ of that possibility in the future.” Id. Accordingly, the court held that White’s claim could relate back to the date he sought class certification, thus preventing mootness. Id.
Of note, White also recognized that the district court could have ruled on the motion to certify more quickly if it “had been concerned about mootness.” Id. But it also concluded that “a district court should have enough time to consider these important issues of class status carefully, particularly when no purpose would be served by rushing a ruling.” Id. This timing issue will be discussed in more detail below.
While White first recognized the logic of the picking off exception, it was not until the following year that this exception was expanded to permit relation back—not just to the date of the motion for class certification, but to the date of the class complaint. In
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Blankenship v. Secretary of HEW, all the named plaintiffs received complete relief (in the form of expedited review of their disability claims) before they moved for class certification. 587 F.2d 329, 333 (6th Cir. 1978). This, the defendants argued, mooted the entire class action. The Sixth Circuit disagreed. It recognized that the plaintiffs’ claims
epitomize[d] the type of claim which continually evades review if [they are] declared moot merely because the defendants have voluntarily ceased the illegal practice complained of in the particular instance. Thus, the defendants may expedite processing for any plaintiffs named in a suit while continuing to allow long delays with respect to all other applicants.
Id. The court was concerned by the use of these tactics because they seemed to give the defendants the ability to exploit a loophole that would, in some cases, prevent class certification indefinitely. As Blankenship recognized, if defendants were allowed to “pick off” would-be class representatives, the defendants might be able to ensure “that no remedy could ever be provided for continuing abuses.” Id. Every time someone filed a complaint and sought class status, the defendants could, as they did in Blankenship, expedite review of that plaintiff’s disability claim and prevent that person from
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becoming a class representative. Id. Requiring such piecemeal litigation would undermine the very purpose of class action litigation. Thus, Blankenship held that even if the would-be class representative’s claim became moot, “the class members retain[ed] a live interest in th[e] case so that the class action should not be declared moot, and the class certification should ‘relate back’ to the date of the filing of the complaint.” Id.
Two years later, the Supreme Court acknowledged this same practical concern and recognized that “[t]o deny the right to appeal simply because the defendant has sought to ‘buy off’ the individual private claims of the named plaintiffs would be contrary to sound judicial administration.” Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 339 (1980). In Roper, however, the Supreme Court did not have to decide whether the relation back doctrine could be used to relate a claim back to the date on which a plaintiff filed a class complaint, as opposed to the class certification motion, because the named plaintiff’s claim became moot only after the denial of class certification was appealed. Thus, the Court held only that the named plaintiff’s loss of a personal stake in the litigation while appealing the class certification issue did not prevent him from continuing to seek to represent the class. That being said, for the reasons discussed below, we agree with the Sixth Circuit that there is “no distinction between picking off a named plaintiff when a motion for class certification has been
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filed and is then pending and picking off a named plaintiff after the motion for class certification has been denied.” Wilson, __ F.3d at __, 2016 WL 2957155, at *10. In other words, while the Supreme Court’s holding in Roper is limited in scope, we believe its logic extends more broadly.
Indeed, just a year after Roper was decided, the Fifth Circuit came to the same conclusion. The court held that the picking off exception permits application of the relation back doctrine even when the District Court has not yet ruled on the issue of class certification:
By tendering to the named plaintiffs the full amount of their personal claims each time suit is brought as a class action, the defendants can in each successive case moot the named plaintiffs’ claims before a decision on certification is reached. A series of individual suits, each brought by a new named plaintiff, could individually be “picked off” before class certification; as a practical matter, therefore, a decision on class certification could, by tender to successive named plaintiffs, be made . . . difficult to procure . . . .
Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1050 (5th Cir. 1981). In support of this position, the court cited several cases that “have considered the effect
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of a defendant governmental agency’s voluntary performance of a specific action demanded in the lawsuit.” Id. at 1051. It concluded that “[i]n each of these cases the court has held that the defendant could not prevent a decision on the plaintiff’s motion for certification by rendering the individual plaintiff’s demand for injunctive relief moot before the court has reasonably been able to consider the motion.” Id. The above cases thus highlight the development of and rationale for the picking off exception to mootness.
All this brings us back to Weiss. We held in Weiss that a would-be class representative can continue to seek class certification even after losing his personal stake in the litigation if the claims raised are “acutely susceptible to mootness.” 385 F.3d at 347 (internal citations omitted). We also held that this picking off exception to mootness would permit us to relate a claim for relief back to the date the would-be class representative filed his class action complaint, not just to the date of the class certification decision (as the Supreme Court did in Roper). Id. at 348.
Indeed, Weiss noted that while “most of the cases applying the relation back doctrine have done so after a motion to certify has been filed[,] . . . reference to the bright line event of the filing of the class certification motion may not be well-founded.” Id. at 347 (internal citations and quotation marks omitted). We explained that a bright line rule was not consistent with the general
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principle that “the class action process should be able to ‘play out’ according to the directives of Rule 23 and should permit due deliberation by the parties and the court on the class certification issues.” Id. at 348. That being said, Weiss also recognized that the picking off exception was still limited. For example, Weiss explained that relation back is not appropriate if the plaintiff “undu[ly] delay[s]” raising the issue of class certification. Id.
A brief discussion of the facts in Weiss helps make the reasoning behind this approach clear. Richard Weiss filed suit against Regal Collections on behalf of himself and a putative nationwide class of similarly situated individuals alleging that Regal Collections’ debt collection practices violated the Fair Debt Collections Practices Act (FDCPA). Id. at 339. Weiss sought monetary, declaratory, and injunctive relief. Id. at 33941. In response, and a mere “six weeks after plaintiff filed his amended complaint,” id. at 348 n.18, Regal Collections made a Rule 68 offer to Weiss in the amount of $1000 plus attorney fees, the full amount available under the FDCPA. Id. at 339-40. This offer came before Weiss had moved for class certification, and did not provide for any injunctive, declaratory, or class-wide relief. Recognizing that class action mootness principles may not always track those of individual claims for relief, Weiss held that Regal Collections’ Rule 68 offer mooted Weiss’s individual claim for relief, but further
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held that this did not prevent Weiss from continuing to seek class certification as a would-be class representative. In other words, Weiss’s loss of a personal stake in the litigation did not moot the case.
We concluded that if Regal Collections’ offer of relief to Weiss could moot the entire class action, “it would encourage a race to pay off named plaintiffs very early in the litigation, before they file motions for class certification.” Id. at 348 n.19 (internal quotation marks and citations omitted). This would “encourage premature certification decisions,” id. at 347, and undermine the import of Rule 23(c)(1)(a), which now states that certification decisions should be made “at an early practicable time,” Fed. R. Civ. P. 23(c)(1)(a), instead of “as soon as practicable after commencement of an action.” Id. advisory committee notes to 2003 amendment. This change reflects the view of the Advisory Committee that there are “many valid reasons that may justify deferring the initial certification decision.” Id.
Twelve years after Weiss, the Supreme Court took up an issue that had been bedeviling courts across the country: whether an unaccepted Rule 68 offer could moot an individual plaintiff’s claim for relief. As mentioned above, we held in Weiss that a Rule 68 offer did moot the individual claim for relief, but we also held that the would-be class representative still had an interest in seeking class certification and thus the case was not
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moot. The Supreme Court, however, disagreed with our first holding, and instead explained that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case . . . .” Campbell-Ewald, 136 S. Ct. at 672. This meant that someone in Weiss’s position still had a personal stake in the outcome of the litigation even though he was offered complete relief under Rule 68. The Supreme Court, therefore, did not need to reach the arguably more difficult question: whether a named plaintiff who did in fact lack a personal stake in the outcome of the litigation could continue to seek class certification even though his claim became moot before filing a motion for class certification.
Accordingly, as we have already recognized, “Campbell-Ewald overrules our previous holding in Weiss that ‘[a]n offer of complete relief will generally moot the plaintiff’s claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation.’” Weitzner v. Sanofi Pasteur, Inc., 819 F.3d 61, 64 (3d Cir. 2016) (quoting Weiss, 385 F.3d at 340). However, Campbell-Ewald did not address the picking off exception. Doing so was clearly unnecessary under Campbell-Ewald’s logic. Accordingly, we do not read Campbell-Ewald to overrule Weiss’s holding regarding the picking off exception to mootness.
Nor do we read Campbell-Ewald to answer the question posed in this case. Richardson’s individual claim for injunctive relief is still moot. Richardson was
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transferred out of USP Lewisburg before he filed any documents other than his amended class action complaint. Because of this transfer, Richardson’s personal stake in the claims for injunctive relief was extinguished.4 We therefore will apply the picking off exception just as we did in Weiss to determine whether Richardson may continue to represent the class of
4 Richardson has not carried his burden of showing that he fits into either the “capable of repetition yet evading review” or the “inherently transitory” exceptions to mootness. Specifically, Richardson has not shown that he has a reasonable expectation of being placed in the SMU Program again in the future, nor has he shown that the amount of time an inmate spends in the SMU Program is typically so brief as to evade review by becoming moot before a District Court can rule on class certification. Cf. Jersey Cent. Power & Light, 772 F.2d at 31 (“Thus, a matter is not necessarily moot simply because the order attacked has expired; if the underlying dispute between the parties is one ‘capable of repetition, yet evading review,’ it remains a justiciable controversy within the meaning of Article III.”); Lusardi v. Xerox Corp., 975 F.2d 964, 981 (3d Cir. 1992) (“Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” (citing Geraghty, 445 U.S. at 399)).
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inmates still being held in the SMU Program at USP Lewisburg despite the mootness of his individual claim.5
Next, we briefly analyze a few post-Weiss cases which further support the continued use of the picking off exception and help to clarify its scope. Specifically, we look at when this doctrine should apply by considering what constitutes a reasonable amount of time within which it would be expected that a plaintiff should have moved for class certification. We also consider a few additional arguments that have been made more recently in support of the picking off exception. This will help us to determine infra whether and how the exception should apply in this case.
While Campbell-Ewald, as mentioned above, does not actually address the picking off exception, we see in it some support for the principles animating the exception in the Court’s discussion of class action standing. Specifically, the Court noted that while a class does not become an independent entity until certification, “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” 136 S. Ct. at 672. This
5 Crucially, in doing so we must still determine whether Richardson “undu[ly] delay[ed]” presenting the issue of class certification to the District Court—a requirement the plaintiff satisfied in Weiss. Weiss, 385 F.3d at 348. That issue is discussed in Part B below.
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statement seems to suggest a corollary: when a would-be class representative is not given a “fair opportunity” to show that certification is warranted (perhaps because her individual claim became moot before she could reasonably have been expected to file for class certification), she should be permitted to continue seeking class certification for some period of time after her claim has become moot.
Without this “fair opportunity,” there would be, as we explained in Weiss, a race between the plaintiff and the defendant to see who could act first—the plaintiff in moving for class certification or the defendant in mooting the claims of would-be class representatives. Such a race would often thwart proper factual development of class action claims and thus prevent courts from fully and fairly assessing the merits of class certification. Cf. Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (“To pronounce finally, prior to allowing any discovery, the non-existence of a class or set of subclasses, when their existence may depend on information wholly within defendants’ ken, seems precipitate and contrary to the pragmatic spirit of Rule 23.”).
Indeed, we have seen this exact problem arising in district courts across the country. Plaintiffs increasingly file so-called “placeholder” motions for class certification solely to prevent defendants from mooting the claims of would-be class representatives. See, e.g., Wasvary v. WB Holdings, LLC, No. 15-10750, 2015 WL
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5161370, at *3 (E.D. Mich. Sept. 2, 2015); Church v. Accretive Health, Inc., 299 F.R.D. 676, 679 (S.D. Ala. 2014); Beaudry v. Telecheck Servs., Inc., No. 3:07-CV0842, 2010 WL 2901781, at *2 (M.D. Tenn. July 20, 2010). These placeholder motions “come[] with a cost,” as, they
burden[] the Court with an obviously premature motion that is devoid of content and the motion remains on the Court’s docket as pending, which is reflected on the Court’s reports for an unspecified period of time. See [Church v. Accretive Health, Inc., 299 F.R.D. 676,] 2014 U.S. Dist. LEXIS 56939 at *3 (“Plaintiff’s straight-out-of-thechute Rule 23 Motion is highly unlikely to advance her cause one iota, but is virtually certain to impose administrative costs, unnecessary distractions, and an unhelpful drag on efficiency and judicial economy.”).
Dickerson v. Lab. Corp. of Am., No. 8:14-cv-1390-T30TBM, 2014 U.S. Dist. LEXIS 100323 (M.D. Fla. July 23, 2014). Our ruling today is intended to have the salutary effect of discouraging these premature motions in favor of motions brought within a reasonable period of time and after proper factual development of the claims has occurred. This is so because a plaintiff, by waiting until it would be appropriate to seek class certification,
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does not run the risk of having the entire class action mooted in the interim.
Indeed, Weiss has already had this beneficial effect in some of the district courts in this Circuit. See Smith v. Interline Brands, Inc., 87 F. Supp. 3d 701, 701-03 (D.N.J. 2014) (denying a premature motion for class certification and explaining that after Weiss, waiting to seek class certification until the facts are fully developed will not expose the would-be class representative to a premature mootness challenge). Smith also noted that our approach in Weiss “is a sensible recognition of the undesirability of a premature motion for class certification, unsupported by discovery and largely untethered to the requirements for actually certifying a class.” Id. at 703. We could not agree more.6
6 In the Middle District of Pennsylvania, where this case was filed, Local Rule 23.3 requires the filing of a motion for class certification within ninety days of the complaint. While neither side raised arguments concerning this rule on appeal, we take this occasion to note that a strict time limitation like the one imposed by Local Rule 23.3 “may be inconsistent with Rule 23(c)(1)(A)’s emphasis on the parties’ obligation to present the court with sufficient information to support an informed decision on certification. Parties need sufficient time to develop an adequate record.” Ann. Manual Complex Lit. § 21.133 (4th ed.). Further, Local Rule 23.3 may conflict with this
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Other circuits have recently been moving in this same direction. In Pitts v. Terrible Herbst, Inc., for example, the Ninth Circuit concluded that the relation back doctrine should be extended to situations in which a defendant could “‘buy off’ the small individual claims of the named plaintiffs,” 653 F.3d 1081, 1091 (9th Cir. 2011), because such claims are “acutely susceptible to mootness.” Id. (quoting Weiss, 385 F.3d at 347). If such an exception to mootness were not adopted, Pitts explained, “[i]t would effectively ensure that claims that are too economically insignificant to be brought on their own would never have their day in court.” Id. at 1091. The effect would be to broadly undermine the purpose of Rule 23 and class action litigation. Cf. Stewart v. Cheek & Zeehandelar, LLP, 252 F.R.D. 384, 386 (S.D. Ohio 2008) (“[T]reating pre-certification settlement offers as mooting the named plaintiffs’ claims would have the disastrous effect of enabling defendants to essentially opt-out of Rule 23.” (internal quotation marks and citation omitted)). The court in Pitts therefore held that a named plaintiff’s claim could relate back to the date of filing the class action complaint. 653 F.3d at 1092.
Court’s recognition—as reflected in the change to Federal Rule of Civil Procedure Rule 23(c)(1)(A)—that class certification questions should not be hastily raised or resolved.
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The Eleventh Circuit has also taken this approach. In Stein v. Buccaneers Ltd. Partnership, the court recognized that it was bound by Zeidman (the Fifth Circuit’s7 1981 opinion adopting the picking off exception) and held that the picking off exception to mootness should apply when defendants are able “‘effectively to prevent any plaintiff in the class from procuring a decision on class certification.’” 772 F.3d 698, 706 (11th Cir. 2014) (quoting Zeidman, 651 F.2d at 1050).
Stein also concluded that “nothing . . . suggests the relation-back doctrine turns on whether the named party’s individual claims become moot before or after the plaintiffs move to certify a class. Quite the contrary.” Id. at 707. Stein then explained that in class action litigation, in no way does “the filing of a certification motion, rather than the entry of a certification order, affect[] legal rights.” Id. at 708. Indeed, Stein further held that the motion itself “does nothing significant” and merely “indicates that the named plaintiff intends to represent a class if allowed to so do,” something that a class action complaint also does. Id. at 707. Thus, it is erroneous for courts to conclude that the filing of the
7 Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
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class certification motion somehow “fundamentally changes the legal landscape” of the case. Id.
Stein instead concluded that the focus should be on whether “the named plaintiff acts diligently to pursue the class claims.” Id. What constitutes “diligence” in each case may vary, but Stein concluded that it was sufficient to simply state that if a plaintiff “acts without undue delay” seeking class certification, relation back is permissible. Id. And because it concluded that the filing of the class certification motion should lack legal significance, Stein held that when the relation back doctrine applies, “certification relates back not to the filing of the motion to certify but to the filing of the complaint.” Id. (internal citations omitted).
The Tenth Circuit has similarly held that the relation back doctrine may be applied to relate a nowmoot individual claim back to the date of the class action complaint. In Lucero v. Bureau of Collection Recovery, Inc., the court adopted a narrow formulation of this rule, holding that when “satisfaction of the plaintiff’s individual claim [occurs] before the court can reasonably be expected to rule on the class certification motion,” the plaintiff’s stake in the litigation is not extinguished. 639 F.3d 1239, 1250 (10th Cir. 2011). Indeed, Lucero adopted reasoning similar to that in Stein when it explained that “[w]e find no authority on which to distinguish the case in which a class certification motion is pending or filed within the duration of the offer of
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judgment from our case [in which no motion has yet been filed]: any Article III interest a class may or may not have in a case is or is not present from its inception.” Id. at 1250.
Based primarily on Weiss, but also upon consideration of the well-reasoned approaches of our sister circuits, we reaffirm the validity of the picking off exception. When an individual plaintiff’s claim for relief is acutely susceptible to mootness and it is clear from the complaint that the plaintiff is seeking to represent a class, we may relate such a claim back to the date of the filing of the class complaint.
That said, our holding should not be read to give plaintiffs a free pass to delay the determination of class status. As Lucero noted, this mootness exception should apply only in situations where the mooting of the individual claim “occurred at so early a point in litigation that the named plaintiff could not have been expected to file a class certification motion.” 639 F.3d at 1249 (internal quotation marks and citations omitted). If, on the other hand, “the plaintiff had ample time to file the class certification motion,” this exception should not apply and “courts [should] adhere to the general rule that the mooting of named plaintiff’s claim prior to class certification moots the entire case.” Id. (internal quotation marks and citations omitted).
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B.
We now address whether the mooting of Richardson’s individual claim occurred “at so early a point in litigation” that his failure to file a motion for class certification was not unreasonable. Id. In making this determination, we are mindful of two separate but related considerations. Weiss explained that plaintiffs cannot “undu[ly] delay” seeking class certification, 385 F.3d at 348, while Campbell-Ewald suggested that plaintiffs must still have a “fair opportunity” to seek class certification, 136 S. Ct. at 672.
i.
We begin by considering whether Richardson was given a fair opportunity to present the issue of class certification to the District Court before he was transferred out of the SMU program. Fortunately, for purposes of this case, we need not determine the outer bounds of what might constitute a “fair opportunity” to seek class certification because the facts of this case make it clear that Richardson was not given such an opportunity. 8 Richardson was transferred out of USP
8 The Court of Appeals for the Tenth Circuit grappled with what might constitute the outer bounds of a “fair opportunity” in Clark v. State Farm, explaining that “when the defendant makes a full offer of judgement— thereby mooting the named plaintiff’s claims—at so early
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Lewisburg’s SMU program a mere six weeks after he filed his amended complaint; this is much shorter than the 90 days allowed by Local Rule 23.3 (which may itself, as we explained in the margin, be too short), and is the same amount of time Weiss was given to seek certification before his claim was mooted.9 Thus,
a point in the litigation that the named plaintiff could not have been expected to file a class certification motion, the class’s claims are not moot and the case may proceed. But where the plaintiff has had ample time to file the class certification motion, district courts adhere to the general rule that the mooting of a named plaintiff’s claim prior to class certification moots the entire case.” Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1139 (10th Cir. 2009). In Clark, however, the court did not need to decide whether it would adopt our approach in Weiss. It held that even under Weiss, Clark’s claim would be moot as he delayed seeking class certification for two years after the case was remanded to the district court.
9 In Weiss, we held that the plaintiff had not unduly delayed seeking class certification because his claim was mooted a mere six weeks after he filed his complaint. 385 F.3d at 348 n.18. As discussed further in this Part, the corollary of this conclusion is that Weiss had not exhausted his fair opportunity to seek class certification in the six weeks he had been given.
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whatever the outer bounds may be, it is clear that if a defendant acts to moot a would-be class representative’s claim within six weeks of the filing of a class action complaint, that plaintiff did not have a fair opportunity to present his case for class certification to the District Court. We will accordingly relate his claim back to the date on which the amended class complaint was filed. Weiss, 385 F.3d at 348.
ii.
We take care to note that the concept of a “fair opportunity” is bounded by the admonition from Weiss mentioned above: that a plaintiff must present the issue of class certification to the District Court without “undue delay.” Id. Such delay would prevent relation back to the date of the complaint. Id.
The contours of this undue delay standard have yet to be fleshed out. In Weiss, as mentioned earlier, the would-be class representative only had six weeks to move for class certification. By holding that there was no undue delay, we implicitly suggested that there had also not been a fair opportunity to seek class certification before the case became moot and thus instructed the trial court on remand to permit Weiss to file a motion for class certification. Id.
This concept of undue delay was also discussed by the Fifth Circuit under similar circumstances in Sandoz v.
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Cingular Wireless LLC, 553 F.3d 913 (5th Cir. 2008). Sandoz filed a class action complaint against Cingular Wireless in state court. Twenty-four days after the case was removed to federal court, Cingular made a Rule 68 offer of judgment and then sought to dismiss the case for lack of subject matter jurisdiction. The district court concluded that the Rule 68 offer did not moot the entire case and denied the motion to dismiss. The case was taken up on interlocutory appeal, and the Fifth Circuit concluded that application of the relation back doctrine was appropriate. Unlike the situation in Weiss, however, “Sandoz did not file her motion to certify until thirteen months after she filed her complaint, and relation back is warranted only when the plaintiff files for certification ‘without undue delay.’” Id. at 921 (quoting Weiss, 385 F.3d at 348). The court therefore concluded that “[o]n remand, the district court must determine, under these unique facts, whether Sandoz timely sought certification of her collective action. If she did, then her motion relates back to the filing of her initial state court petition.” Id.10
10 On remand, the district court held that “[i]n sum, between the time defendants answered the petition and made their offer of judgment, the litigation has been embroiled in the single issue of whether defendants' offer of judgment mooted the plaintiff’s claim and/or mooted the entire litigation. After that issue was preliminarily
33

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Unfortunately, applying this “undue delay” analysis to the facts of our case presents an added challenge. Typically, when determining whether the plaintiff has unduly delayed, we measure the time between the filing of the complaint (or amended complaint) and the filing of the motion for class certification. Richardson, however, never filed a motion for class certification. We hold that that is of no moment here. His failure to file a motion for class certification does not prevent relation back because the issue was clearly presented to the District Court without undue delay.
Two weeks after Richardson filed his amended complaint, Defendants filed a motion to dismiss the entire case. In this motion, Defendants argued, among other things, that Richardson could not meet the four requirements for class certification listed in Rule 23(a). Defs. Mot. to Dismiss 26, ECF No. 28. Richardson responded to this motion one month later, reiterating the arguments he made earlier in his amended complaint regarding class certification and explaining why the
resolved by this court, prior to appeal, plaintiff timely filed her motion for certification as instructed by the District Judge. Under these circumstances, it would be a miscarriage of justice to conclude that plaintiff’s motion for class certification was filed untimely.” Sandoz, 2009 WL 2370643, at *4.
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proposed class meets all the requirements of Rule 23(a). Pl.’s Resp. to Defs. Mot. to Dismiss 29, ECF No. 33. Defendants’ motion and Richardson’s response thus put the issue of class certification squarely before the District Court.11 There was no need for Plaintiff to file a separate motion seeking class certification. Richardson’s amended complaint made it clear that he was seeking certification under Rule 23(b)(2) and Defendants’ motion to dismiss recognized that fact. Indeed, the District Court concluded that the issue of class certification was properly presented—a determination to which we give substantial deference—because it considered and denied class certification based only on the class action complaint, Defendants’ motion to dismiss, and Richardson’s response.12
11 Although Richardson had yet to file a written motion for class certification, the record reveals curious references which Defendants’ have failed to explain. Specifically, their motion to dismiss mentioned a nonexistent “motion” by Richardson for class certification at least twice. Defs. Mot. to Dismiss 25, 32, ECF No. 28. 12 The District Court cited the amended complaint when it stated that Richardson had moved for class certification pursuant to Rule 23. Kane, 2013 WL 1452962, at *1. While the amended complaint did explain that Richardson sought to represent a class of similarly situated individuals and asked for class certification in its
35

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We agree that, ordinarily, the “proper procedure is for the named representative to file a motion for class certification.” Weiss, 385 F.3d at 348. Yet the absence of a motion should not necessarily be fatal. Accordingly, we join the courts of appeals which have held that “[n]othing in the plain language of Rule 23(c)(1)(A) either vests plaintiffs with the exclusive right to put the class certification issue before the district court or prohibits a defendant from seeking early resolution of the class certification question.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939-40 (9th Cir. 2009); see also Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 59 (1st Cir. 2013); Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011). We embrace the view that “[t]he only requirement [in Rule 23(c)(1)(A)] is that the certification question be resolved ‘[a]t an early practicable time.’” Vinole, 571 F.3d at 940 (quoting Rule 23(c)(1)(A)). There is no per se rule that a plaintiff must move for class certification before the issue can be considered by the District Court. However, “[t]o say that a defendant may freely move for resolution of the class-
prayer for relief, it did not by itself constitute, nor did it include, a motion for class certification. Richardson too recognized that he had yet to file a motion for class certification when he later explained that he was waiting to file the motion until his earlier motion to consolidate his case with Shelton was considered. Pl.’s Resp. to Defs. Mot. to Dismiss 28, ECF No. 33.
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certification question whenever it wishes does not free the district court from the duty of engaging in a rigorous analysis of the question . . . .” Pilgrim, 660 F.3d at 949 (internal quotation marks omitted). Indeed, “a court should typically await the development of a factual record before determining whether the case should move forward on a representative basis.” Manning, 725 F.3d at 59.
We also believe that permitting either party to raise the issue of class certification strikes the proper balance between permitting prompt and efficient judicial resolution of cases in which “we cannot see how discovery or for that matter more time would have helped” the named plaintiff, Pilgrim, 660 F.3d at 949, and ensuring that district courts allow for the factual development that is often necessary to determine the propriety of class certification. Because a district court must have the freedom to balance these interests, we conclude that a per se rule requiring the plaintiff to move for certification is improper.
Applying these principles to this case, it is clear that even though Richardson never filed a motion to certify the class, certification was still squarely presented to and properly considered by the District Court.13 Both
13 We also note that the District Court applied the proper standard in evaluating the certification question even though the motion was styled as a motion to dismiss. As
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sides briefed the issue and explained why they believed the class should or should not be certified. And again, as discussed above, the argument that the mere filing of a motion for class certification somehow alters the “legal landscape” of the case “makes no sense” when it is already clear from the complaint alone that the plaintiff is seeking such relief. Stein, 772 F.3d at 707. We therefore hold that the District Court did not err in considering the merits of class certification absent an affirmative motion by Richardson.
For purposes of determining undue delay, we can thus read Defendants’ motion to dismiss and Richardson’s response as sufficiently presenting the issue of class certification to the District Court. Because the issue was both raised by Defendants and responded to by Richardson within seven weeks of the filing of the amended complaint, we cannot conclude that Richardson
we have held before, “the Rule 23 requirements differ in kind from legal rulings under Rule 12(b)(6).” In re Cmty. Bank of N. Va., 622 F.3d 275, 303 (3d Cir. 2010) (internal citations and quotation marks omitted). A motion to dismiss tests the legal sufficiency of a claim, but “[b]y contrast, an order certifying a class usually is the district judge’s last word on the subject; there is no later test of the decision’s factual premises.” Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001).
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unduly delayed presenting the issue of class certification to the District Court even though he never filed a motion for class certification.
iii.
Our analysis can be summed up as follows. First, Richardson did not have a “fair opportunity” to seek class certification before his individual claim became moot because Defendants transferred Richardson out of the SMU Program six weeks after he filed his amended class action complaint. In other words, he could not be expected to have presented the class certification issue to the District Court within that amount of time. Second, because the class certification question was both raised by Defendants and responded to by Richardson within seven weeks of the filing of the amended class complaint, we excuse Richardson’s failure to file a motion for class certification as the issue was squarely presented to the District Court without undue delay. Accordingly, under Weiss, we can relate the District Court’s denial of class certification back to the date of Richardson’s amended class complaint.14 Because Richardson’s individual
14 We are not presented with a situation in which no class members, named or otherwise, currently have standing to seek relief in this case. Defendants have not alleged that the SMU program at Lewisburg has been shut down. We must therefore assume that the program is still active and
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claims for injunctive relief were live at the time he filed this complaint, the subsequent mooting of these claims does not prevent Richardson from continuing to seek class certification or from serving as the class representative.15
III.
Defendants also argue that this case is moot because the prison officials Richardson seeks to enjoin are no longer employed at USP Lewisburg. Defendants thus attempt to analogize this case to Spomer v. Littleton, arguing that Richardson has not alleged that the supposedly unconstitutional practices at USP Lewisburg would continue under a new administration. 414 U.S. at 520-21. Defendants are correct that, in light of Spomer, Richardson had to plead more than a mere “personal” grievance against individuals at the prison in order to avoid the mooting of his claims for injunctive relief. Richardson instead had to allege that his grievances were
that unnamed class members still have live claims to assert. 15 On remand, therefore, the District Court may consider the additional class certification requirements that it did not previously reach when it erroneously concluded that the class was unascertainable. It may also reconsider whether consolidation with Shelton is appropriate. In making these determinations, the District Court may order supplemental briefing as it sees fit.
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systematic, pervasive, or institutional and thus likely to continue under a new prison administration. Our review shows that Richardson has made sufficient allegations that—at least at the motion to dismiss stage—will prevent a mootness determination under Spomer.
As we have previously explained, even when “a substitution of successors in office is procedurally sound, to obtain injunctive relief against the successor there must be some indication that the successor would otherwise continue the unconstitutional practices alleged in the complaint.” Sarteschi v. Burlein, 508 F.2d 110, 114 (3d Cir. 1975). In other words, the question we must ask under Spomer and Sarteschi is “whether the alleged violation is personal to the departed official or whether it reflects a continuing state practice.” Peck v. McDaniel, No. 2:12-cv-01495, 2014 WL 6747115, at *5 (D. Nev. Dec 1, 2014).
This approach is also supported by the commentary to Federal Rule of Civil Procedure 25(d),16
16 Federal Rule of Civil Procedure 25(d) states in relevant part:
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which permits such substitutions. Specifically, the Advisory Committee explains that “[i]n general [Rule 25(d)] will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office.” Fed. R. Civ. P. 25 advisory committee notes to 1937 adoption. If a practice is ongoing and “institutional,” the relevant defendant is the one who has the power to stop it.
In this case, Defendants argue that because the unconstitutional actions alleged in the amended complaint are characterized as being in violation of BOP policy, the conduct must be personal to Defendants. They argue that “Richardson’s amended complaint is devoid of any allegation that the current Director of the Bureau of Prisons, the Warden of USP Lewisburg, and his new associate wardens would violate inmates’ constitutional rights by blatantly disregarding prison
An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party. Later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded.
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policy and subjecting inmates to harm.” Appellees’ Br. 23. In response, Richardson argues that “Spomer is inapplicable to the case at bar as Mr. Richardson’s allegations do not relate to the personal conduct of the named defendants, but rather to facts concerning institutional practices and policies.” Appellant’s Reply Br. 15.
While Richardson does allege that conduct at issue violated BOP policy, this does not necessarily mean that the conduct was idiosyncratic or limited to the personal hostility of a particular individual. Instead, the amended complaint alleges that there was an unspoken practice or procedure of retribution in the prison, which is more akin to an “institutional practice,” as the Ninth Circuit determined in Hoptowit v. Spellman. 753 F.2d 779, 782 (9th Cir. 1985) (concluding that the claims did “not relate to the personal conduct of the principal named defendants” but “concern[ed] institutional practices and physical conditions at the penitentiary”).
In particular, right from the beginning of his amended complaint, Richardson asserts that the injuries here are the result of a “pattern, practice, or policy,” and then refers to the constitutional violations he is alleging as “systematic failure[s]” at USP Lewisburg. Pl.’s Am. Compl. 2, 3. We, of course, take no position on whether Richardson can succeed in showing that this practice has in fact continued under the new prison administration. We simply hold that “[t]his is enough for the complaint
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not to be dismissed,” and caution just as we did in Sarteschi that—should future developments in this case show that the alleged abuses are in fact no longer occurring at USP Lewisburg—“it would be appropriate, upon proper motion by defendants, to enter judgment in favor of [Defendants].” 508 F.2d at 114.
IV. For the foregoing reasons, we will vacate the District Court’s order dismissing Richardson’s class claims and remand for further proceedings consistent with this opinion.
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Attorneys for Plaintiff:

Attorney for Defendants:

Alexandra Morgan-Kurtz Pennsylvania Institutional Law Project 100 Fifth Ave, Ste 900 Pittsburgh, Pa 15222 Tel: 412-434-6175 Fax: 412-434-5706
Su Ming Yeh Pennsylvania Institutional Law Project 718 Arch Street, Ste 304 South Philadelphia, Pa 19106 Tel: 215-925-2966 Fax: 215-925-5337

Michael J. Butler Assistant United States Attorney 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108 Tel: 717-221-4482 Fax: 717-221-4582

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SEBASTIAN RICHARDSON, Plaintiff,
v. THOMAS R. KANE, et al.,

CIVIL ACTION Case No.: 3:11-cv-02266 Judge William J. Nealon

Defendants.

JOINT CASE MANAGEMENT PLAN
Having complied with the meet and confer requirements set forth in the LOCAL RULES, or with any orders specifically modifying their application in the above-captioned matter, the parties hereby submit the following Joint Case Management Plan.
1.0 Principal Issues
1.1. Separately for each party, please give a statement summarizing this case:

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By Plaintiffs:
This is a civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against various corrections officers at the United States Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”) in their individual capacity; and a class action claim pursuant to the Eighth Amendment to the United States Constitution and Federal Rule of Civil Procedure 23 against the Federal Bureau of Prisons (the “BOP”) and Supervisory Defendants in their official capacity. Plaintiff Sebastian Richardson brings the damages claims on his own behalf, and the claim for injunctive relief on behalf of all current and future prisoners at the Special Management Unit (the “SMU”) of USP Lewisburg for the unconstitutional and unconscionable conditions of confinement that Plaintiff individually endured, and all inmates at the SMU collectively, must endure on a day-today basis.
Defendants have deprived Mr. Richardson, and continue to deprive the members of the class, of their constitutional right to be free from cruel and unusual punishment, by engaging in a pattern, practice or policy of placing hostile inmates together in cells and/or recreation cages despite the serious risk that the hostile inmates will cause substantial harm to each other. Inmates face a Hobson’s choice: if an inmate accepts a dangerous cell assignment and violence ensues, corrections officers stand idly by and do not intervene. Inmates who refuse placement assignments are punished by being placed in restraints for hours at a time, sometimes for more than twenty-four (24) hours. These restraints significantly restrict an inmate’s arm and leg motion, and in some cases, inmates are strapped to a bed with their limbs tied to the posts in a procedure known as four pointing. If appropriate injunctive relief is not granted to remedy the Defendant’s violations of the Constitutional rights of the members of the class, the harms suffered will be irreparable, may lead to death, and will continue for the foreseeable future.
Plaintiff has repeatedly been placed in restraints as punishment for refusing dangerous cell assignments with hostile inmates. Plaintiff seeks compensatory and punitive damages on behalf of himself, as well as injunctive relief on behalf of all current and future USP Lewisburg inmates.
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By Defendants:
This is a combined Bivens and FTCA action brought by Sebastian Richardson, a federal prisoner, against numerous prison staff at USP Lewisburg and other high-ranking officials of the BOP. See Complaint (Doc. No. 1.)
Richardson raises claims on his own behalf, as well as a claim for injunctive relief on behalf of a purported class of current and future USP Lewisburg inmates.
Richardson claims that contrary to a Bureau Program Statement, former warden Bledsoe and his former associate wardens Young and Hudson were on a committee that made decisions to place “hostile inmates” together. Richardson claims that the program statement required the committee to consider the safety of the inmates; and Bledsoe, Young, and Hudson violated that program statement or did not consider it when they placed inmates in cells or recreation cages together. He went on to claim that they should have known based on their personal experience that placing these hostile inmates together would cause danger to the inmates.
Richardson next claims that contrary to the Bureau’s policy that inmates are to be kept safe, Kane, Norwood, Bledsoe, Young, and Hudson had a practice whereby staff were directed not to intervene in cell fights until the victim of the attack is seriously injured.
Richardson finally claims that Kane, Norwood, Bledsoe, Young, and Hudson used restraints, or acquiesced in the use of restraints, contrary to Bureau policy, by forcing inmates into restraints if they did not accept hostile inmates.
This matter is inextricably intertwined with Shelton v. Bledsoe, 11-cv-1618. Currently pending before the Shelton Court is a motion to dismiss based on the insufficient allegations in the complaint, qualified immunity, and personal jurisdiction of the acting director of the BOP.
Because the two cases are related and because discovery will be duplicated, this Court should wait until an order is issued in Shelton prior to setting a discovery schedule. If necessary, the Court should consolidate the two cases for discovery only.
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1.2. The facts the parties dispute are as follows:
The parties dispute whether various Defendants were involved in or responsible for decisions regarding inmate housing placement, recreation placement, and the application of restraints. [Defendants dispute that this is even an issue in the case].
The parties dispute whether there is a pattern, practice or policy of confining inmates to cells with other known hostile inmates.
The parties dispute whether Defendants were aware of an excess risk to safety of inmates in the SMU arising out of cell and recreational assignment patterns, practices or polices and ignored it.
The parties dispute the methods used to apply restraints to inmates at USP Lewisburg and the effects that the restraints have on inmates.
The parties dispute whether all of the notations in inmates’ medical records concerning the effects of the restraints are accurate.
The parties dispute whether Richardson’s confinement rises to the level of an Eighth Amendment violation.
The parties dispute whether Defendants’ conduct violated clearly established constitutional rights of which a reasonable person would have known.
The parties dispute whether a reasonable officer would determine that Defendants’ conduct was lawful in the situation he confronted.
The parties dispute whether Richardson received any injury, substantial or otherwise, as a result of Defendants’ placement of restraints on him.
The parties dispute whether Richardson’s behavior required Defendants to maintain him in restraints.
agree upon are as follows:
The parties agree that at the time in question, all individual Defendants were employees of USP Lewisburg.
The parties agree that Plaintiff Richardson was placed in restraints while incarcerated at USP Lewisburg.
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1.3. The legal issues the parties dispute are as follows: The parties dispute whether the Defendants’ have a pattern, practice or policy that caused injuries to Mr. Richardson in the circumstances described in the Amended Complaint (violating Mr. Richardson’s Eighth Amendment rights) and that violated and continues to violate the Eighth Amendment rights of all inmates in the SMU.
By Plaintiff: Plaintiff’s Amended Complaint alleges that Defendants placed him in painful restraints (and kept him in restraints) because he refused to accept dangerous cell assignments. Plaintiff further alleges that the Defendants forced him to choose between accepting a dangerous cell assignment and being placed in painful restraints in accordance with a policy and practice at USP Lewisburg.
By Defendant: Defendants dispute the remaining allegations in the complaint.
agree upon are as follows: The parties agree that jurisdiction and venue are proper in this Court. The parties agree that federal law governs any constitutional claims.
1.4. Identify any unresolved issues as to service of process, personal jurisdiction, subject matter jurisdiction, or venue:
None. 1.5. Identify any named parties that have not yet been served:
None. 1.6. Identify any additional parties that: Plaintiff intends to join:
None at this time. Plaintiff reserves the right to add additional defendants based upon facts learned in discovery.
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Defendants intends to join: None.
1.7. Identify any additional claims that: Plaintiffs intends to add:
None at this time. Defendant intends to add:
None. 2.0 Disclosures The undersigned counsel certify that they have made the initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) or that they will do so within the time provided by that rule.
Plaintiff made his initial disclosures on June 7, 2013. Defendants made their initial disclosures on June 6, 2013. 2.1. Separately for each party, list by name and title/position each person whose identity has been disclosed. By Plaintiff Plaintiff has no additional disclosures at this time aside from those listed in his initial disclosures. By Defendant See attached initial disclosures. 3.0 Early Motions Identify any motion(s) whose early resolution would likely have a significant effect either on the scope of discovery or other aspects of the litigation: By Plaintiff: Plaintiff will be filing a Motion for Class Certification within the next few weeks.
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By Defendants: Defendants may file a motion on the pleadings per Rule 12 (c) of the Federal Rules of Civil Procedure based on the Court’s decision in Shelton.
4.0 Discovery 4.1. Briefly describe any discovery that has been completed or is in progress: By Plaintiff:
Plaintiff served preliminary discovery on Defendants to ascertain the identities of several “Doe” Defendants in order to amend the caption of the complaint to include the names of these defendants and effect service of process. This discovery is complete. Plaintiff served a second set of discovery requests, relating to his individual claims for damages, on July 30, 2013. On May 19, 2014, Plaintiffs submitted a letter to Defendants responding to their objections and requesting that Defendants’ production be supplemented. Defendants provided supplemental discovery responses on October 9, 2014. On October 8, 2014, the District Court entered an order staying all additional discovery pending decision of the appeal in this case. Plaintiff objects to any further stay or delay of discovery, due to the past delays, the age of the case, and the remand by the U.S. Court of Appeals for the Third Circuit to proceed accordingly. By Defendant(s): Discovery should not begin until the cases have been consolidated and the motion to dismiss has been ruled upon in Shelton.
4.2. Describe any discovery that all parties agree should be conducted, indicating for each discovery undertaking its purpose or what kinds of information will be developed through it (e.g. “plaintiff will depose Mr. Jones, defendant’s controller, to learn what defendant’s revenue recognition policies were and how they were applied to the kinds of contracts in this case”):
7

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By Plaintiff: Plaintiff will take the depositions of Defendants and other fact witnesses and serve interrogatories and document requests related to the following topics (the relevant time period is from 2008 to the present unless otherwise stated): A. Cell Assignments 1. Policies and procedures for cell assignments, including who makes them, how are they generally made, and what criteria are used. 2. The existence of written procedures regarding assignments 3. All documents regarding Mr. Richardson’s cell assignments in particular 4. All documents regarding cell assignments which resulted in cellmate-on-cellmate assaults or violence including, but not limited to, all investigations or reviews of how those assignments were made B. Inmate Expressions of Concern about Safety Regarding Cell Assignments 1. Procedures and practices regarding how to handle inmates’ expressions of concern regarding safety of cell assignments 2. Inmates’ expressions of concern and inmate complaints regarding cell assignments or cell assignment procedures 3. Mr. Richardson’s expression of concern regarding any and all of his cell assignments C. Guards or Lewisburg Employees’ Expressions of Concern for Safety 1. Expressions of concern by Lewisburg guards or employees regarding safety at the Lewisburg SMU 2. Expressions of concern by Lewisburg guards or employees regarding cell assignments, either in a particular case or generally
8

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3. Expressions of concern by Lewisburg guards or employees regarding their safety or inmates’ safety as a result of inmate-oninmate violence at Lewisburg
D. Use of Restraints to Enforce Cell Assignments 1. Policies, practices and procedures regarding use of restraints including, but not limited to, use of restraints when an inmate refuses a cell assignment or cellmate 2. All instances where restraints were used to force an inmate to accept a cell assignment or cellmate, or where an inmate refused a cell assignment or cellmate 3. Facts regarding use of restraints on Mr. Richardson as alleged in the Amended Complaint including, but not limited to, who was involved in deciding to use the restraints, why the restraints were used and for how long, and what, if any, relationship the use of restraints had to do with a cell assignment
E. Information Regarding the Defendants 1. Work history 2. Any prior complaints alleging violation of inmates’ constitutional rights, nature of these complaints, and resolution of these complaints 3. Training or involvement with development or implementation of practices and procedures as noted above in categories A and D 4. Involvement with Mr. Richardson
Plaintiff’s counsel (along with any experts retained) will also need to tour the SMU at USP Lewisburg. Plaintiff objects to any further stay or delay of discovery, due to the past delays, the age of the case, and the remand by the U.S. Court of Appeals for the Third Circuit to proceed accordingly.
9

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By Defendants: Discovery should not begin until the cases have been consolidated and the motion to dismiss has been ruled upon in Shelton.
4.3. Describe any discovery that one or more parties want(s) to conduct but to which another party objects, indicating for each such discovery undertaking its purpose or what kinds of information would be developed through it: By Plaintiff:
None at this time. Plaintiff objects to any further stay or delay of discovery, due to the past delays, the age of the case, and the remand by the U.S. Court of Appeals for the Third Circuit to proceed accordingly. By Defendants: Discovery should not begin until the cases have been consolidated and the motion to dismiss has been ruled upon in Shelton.
4.4. Identify any subject area limitations on discovery that one or more parties would like imposed, at the first stage of or throughout the litigation: By Plaintiff:
None at this time. Plaintiff objects to any further stay or delay of discovery, due to the past delays, the age of the case, and the remand by the U.S. Court of Appeals for the Third Circuit to proceed accordingly. By Defendants: Discovery should not begin until the cases have been consolidated and the motion to dismiss has been ruled upon in Shelton.
4.5. For each of the following discovery tools, recommend the per-party or perside limitation (specify a number) that should be fixed, subject to later modification by stipulation or court order on an appropriate showing (where the parties cannot agree, set forth separately the limits recommended by plaintiff(s) and by defendant(s)): 4.5.1. depositions (excluding experts) to be taken by:
10

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Plaintiff:

25. (Due to the large number of individuals disclosed by Defendants in the prior case management plan, Plaintiff may seek to depose additional individuals beyond this number. We anticipate that some of these depositions will be relatively short)

Defendants:

Without waiving their position regarding discovery, 10. Plaintiffs will be required to seek court permission per the Federal Rules of any deposition over 10.

4.5.2. interrogatories to be served by:

Plaintiff:

25

Defendants:

Without waiving their position regarding discovery, 25 interrogatories per each side is normal practice. There are currently 18 defendants, which would equal 450 interrogatories. Alternatively, 25 from each Defendant to Plaintiff.

4.5.3. document production requests to be served by:

Plaintiff: 50 for individual Defendants and 50 for supervisory Defendants.

Defendants: Without waiving their position regarding discovery, 25 per side.

4.5.4. requests for admission to be served by:

Plaintiff:

50

Defendants:

Without waiving their position regarding discovery, 25 requests per each side is normal practice. There are currently 18 defendants, which would equal 900 requests. Alternatively, 25 from each Defendant to Plaintiff.

4.6. Discovery of Electronically Stored Information

Counsel certify that they have conferred about the matters addressed in M.D. Pa. LR 26.1 and that they are in agreement about how those matters will be addressed in discovery.

Counsel have conferred regarding electronic discovery.

11

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Counsel certify that they have conferred about the matters addressed in M.D. Pa. LR 26.1 and that they are in agreement about how those matters will be addressed in discovery with the following exceptions:

Counsel have conferred and informed their clients to preserve any and all electronic information. Counsel also agreed that to the extent there are emails or electronic information not contained in hard copy, the parties will produce those documents. The Bureau of Prisons stores only limited amounts of electronic information. To the extent there is any electronic information, the parties will agree to format any media to be used in its production.

5.0 Protective Order

5.1. If entry of a protective order is sought, attach to this statement a copy of the proposed order. Include a statement justifying the propriety of such a protective order under existing Third Circuit precedent.

By Plaintiff:

Not applicable at this time.

By Defendants:

To the extent the Court requires a protective order regarding discovery while the current motion to dismiss is pending, Defendants will draft such an Order.

5.2. If there is a dispute about whether a protective order should be entered, or about certain terms of the proposed order, briefly summarize each party’s position below:

Not applicable at this time.

6.0 Scheduling

6.1. Final date for joining additional parties:

Plaintiff

February 13, 2017

Defendants

February 13, 2017

6.2. Final date for amending pleadings:

Plaintiff

February 13, 2017

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Defendants

February 13, 2017

6.3. All fact discovery commenced in time to be completed by:

July 14, 2017. The Parties may need to seek an extension of the discovery deadline, in light of the number of depositions anticipated in this case. The parties will submit an appropriate motion, if necessary.

Defendants: September 15, 2017

6.4. All potential dispositive motions should be filed by:

September 14, 2017.

6.5. Reports from retained experts due:

from Plaintiff by:

July 24, 2017

from Defendant(s) by: December 6, 2017

6.6. Supplementations (replies/rebuttals) due: December 20, 2017

6.7. All expert discovery commenced in time to be completed by:

By Plaintiff: July 24, 2017

By Defendant: December 6, 2017

6.8. This case may be appropriate for trial in approximately:

___ 240 Days from the filing of the action in this court ___ 365 Days from the filing of the action in this court ___ Days from the filing of the action in this court _X_ The parties agree that the Court may determine when the case is appropriate for trial.

6.9. Suggested Date for the final Pretrial Conference

At the convenience of the Court.

6.10. Trial

6.10.1. Suggested Date for Trial

At the convenience of the Court.

13

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7.0 Certification of Settlement Authority (All Parties Shall Complete the Certification)
I hereby certify that the following individual(s) have settlement authority.
For Plainitff:
Sebastian Richardson
For Defendants:
Bruce D. Brandler United States Attorney For the Middle District of Pennsylvania
8.0 Alternative Dispute Resolution (“ADR”)
8.1. Identify any ADR procedure to which this case already has been assigned or which the parties have agreed to use.
ADR procedure __________________N/A________ Date ADR to be commenced_________N/A_______ Date ADR to be completed__________N/A_______
8.2. If the parties have been unable to agree on an ADR procedure, but one or more parties believe that the case is appropriate for such a procedure, identify the party or parties that recommend ADR and the specific ADR process recommended.
Plaintiff would be willing to participate in a settlement conference at the close of discovery.
8.3. If all parties share the view that no ADR procedure should be used in this case, set forth the basis for that view:
None.
9.0 Consent to Jurisdiction by a Magistrate Judge
Indicate whether all parties agree, pursuant to 28 U.S.C. § 636(c)(1), to have a magistrate judge preside as the judge of the case with appeal lying to the United States Court of Appeals for the Third Circuit:
All parties agree to jurisdiction by a magistrate judge of this court:
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___ Y _x__ N
If parties agree to proceed before a magistrate judge, please indicate below which location is desired for the proceedings:
__ Scranton/Wilkes-Barre
_ Harrisburg
10.0 Other Matters
Make any other suggestions for the case development process, settlement, or trial that may be useful or necessary to the efficient and just resolution of the dispute.
By Plaintiff:
The Court has asked the parties to address whether consolidation with Shelton v. Bledsoe, 3:11-cv-1618, is appropriate at this time. From the outset of this litigation, the intent of Plaintiffs has been to consolidate these actions. However, given the numerous delays and duplicative motions by Defendants, Plaintiff is concerned that consolidation with Shelton, and Defendants’ pending objections to the Motion to Dismiss Report and Recommendation, may result in additional delays. As a result, Plaintiffs’ council believes that consolidation is inappropriate at this time, but should be revisited in the future.
By Defendants:
In Richardson, the Third Circuit particularly noted these two cases should be considered consolidated. Defendants would agree to such consolidation for discovery purposes only. Although Plaintiffs Richardson and Shelton have a team of highly qualified attorneys, there is only one counsel for Defendants, Michael J. Butler. Based on the extent of the discovery both plaintiffs want to conduct, fairness to counsel and to the defendants who are similar in both cases, the Court should consolidate these matters for discovery purposes only – and only if necessary after this Court has rule on the Objections to the Report and Recommendation.
11.0 Identification of Counsel
Counsel shall be registered users of the court’s Electronic Case Files System (ECF) and shall file documents electronically in accordance with the Local Rules of Court
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and the Standing Order RE: Electronic Case Filing Policies and Procedures. Electronic filing is required unless good cause is shown to the Chief Judge why counsel cannot comply with this policy. Any request for waiver of electronic filing must be filed with the Clerk’s Office prior to the case management conferred. The Chief Judge may grant or deny such request. Identify by name, address, and telephone number lead counsel for each party. Also please indicate ECF User status below. Dated: Attorney(s) for Plaintiff(s): Alexandra Morgan-Kurtz
ECF User(s) Waiver requested (as separate document) Fed. R. Civ. P. 7.1 (statement filed if necessary)  Dated: Attorney(s) for Defendant(s): Michael J. Butler ECF User(s) Waiver requested (as separate document) Fed. R. Civ. P. 7.1 (statement filed if necessary)
 Fed. R. Civ. P. 7.1 requires a nongovernmental corporate party to file a statement with the initial pleading, first entry of appearance, etc., that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock, or state there is no such corporation.
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Respectfully submitted,
/s/ Alexandra Morgan-Kurtz Alexandra Morgan-Kurtz Pennsylvania Institutional Law Project 100 Fifth Ave, Suite 900 Pittsburgh, Pa 15222 T: (412) 434-6175
/s/Su Ming Yeh Su Ming Yeh PA ID No. 95111 Pennsylvania Institutional Law Project 718 Arch Street, Suite 304S Philadelphia, PA 19106 T: (215) 925-2966
Attorneys for Plaintiff
BRUCE D. BRANDLER United States Attorney
/s/ Michael J. Butler Michael J. Butler Assistant United States Attorney United States Attorney 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108
Attorney for Defendants
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Case 3:11-cv-02266-MWB-SES Document 66 Filed 01/20/17 Page 18 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SEBASTIAN RICHARDSON, PLAINTIFF,
v. THOMAS R. KANE, et al.
DEFENDANTS.

Case No.: 3:11-cv-02266
Judge William J. Nealon Magistrate Judge Carlson
Electronically Filed

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above Joint Case Management Plan filed by Su Ming Yeh was served upon the following via ECF on January 20, 2017:

Michael Butler United States Attorney's Office 228 Walnut Street Suite 220 Harrisburg, PA 17108 Email: Michael.J.Butler@usdoj.gov

DATE: January 20, 2017

/s/Su Ming Yeh Attorney ID: PA 95111 Pennsylvania Institutional Law Project 718 Arch Street, Suite 304 South Philadelphia, PA 19106 T: 215-925-2966 smyeh@pailp.org

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 Case 3:11-cv-02266-MWB-SES Document 80 Filed 06/26/17 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SEBASTIAN RICHARDSON, Plaintiff
v. THOMAS R. KANE, et al.,
Defendants

: Civil No. 3:11-CV-2266 : : (Judge Nealon) : : (Magistrate Judge Carlson) : : : :

REPORT AND RECOMMENDATION

I. Introduction and Statement of the Case

This is a putative class action brought by Sebastian Richardson, an inmate in the custody of the Federal Bureau of Prisons who was formerly incarcerated within the Special Management Unit (“SMU”) at the United States Penitentiary in Lewisburg, Pennsylvania.1 The action, styled as a Bivens2 action, presents constitutional claims arising out of the defendants’ alleged practice of forcing inmates to accept dangerous cell assignments with known hostile inmates without employing sufficient institutional safeguards, or otherwise be punished for refusing

1 When this action was initiated on December 7, 2011, Richardson asserted that he was an inmate in the SMU at USP Lewisburg. He was subsequently transferred to another facility during the pendency of the litigation, and after he asserted classbased civil rights claims that are the subject of this report and recommendation on class certification. 2 Bivens v. v. Six Unknown Named Agents, 403 U.S. 388 (1971).

Case 3:11-cv-02266-MWB-SES Document 80 Filed 06/26/17 Page 2 of 23
such cell arrangements by being subjected to painful and extended placement in
hard restraints. Richardson also alleges that the defendants subject inmates to
unreasonably dangerous prison conditions within the SMU by refusing to intervene
in inmate-on-inmate attacks within cells or recreation cages. He claims that all of
these practices are systemic and pervasive, and he seeks, inter alia, injunctive
relief to prohibit these practices.
Now pending before the Court is Richardson’s motion to certify the
following class:
All persons who are now currently or will be imprisoned in the SMU program at USP Lewisburg. The class period commenced from the time of the filing of the Amended Complaint in this action, and continues so long as USP Lewisburg Officials and Corrections Officers persist in the unconstitutional patterns, practices, or policies of (1) placing hostile inmates together in cells or recreation cages, and enforcing this placement through the use of punitive restraints, and (2) failing to take any reasonable measures to protect inmates from inmate-oninmate violence by hostile inmates.
The motion is fully briefed and is ripe for disposition.
As the Court takes up this threshold issue, we most assuredly do not write
upon a blank slate. Quite the contrary, we are constrained to examine this question
in light of the express guidance that the United States Court of Appeals for the
Third Circuit provided in a companion case that also seeks certification of an
identical class of federal inmates at the SMU, and which challenges substantially
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the same practices, procedures and policies that are at issue in the instant action.
As Richardson notes, the Third Circuit has discussed in detail substantially similar
issues regarding the proposed certification of a nearly identical class in a
companion case filed by a USP Lewisburg inmate in Shelton v. Bledsoe, 775 F.3d
554 (3d Cir. 2015), which warrants mention at the outset of this report.
The proposed class in Shelton was defined as follows:
All persons who are currently or will be imprisoned in the SMU program at USP Lewisburg. The class period commences from the time of this filing, and continues so long as USP Lewisburg Officials and Corrections Officers persist in the unconstitutional patterns, practices, or policies of (1) placing hostile inmates together in cell or recreation cages, and enforcing this placement through the use of punitive restraints, and (2) failing to take any reasonable measures to protect the inmates from inmateon-inmate violence by hostile inmates.
775 F.3d at 563. This proposed class is essentially identical to the proposed class
in this case, and is based on substantially similar factual allegations and legal
claims. The defendants correctly note that the Third Circuit did not certify this
proposed class, instead ruling that the district court misapplied the legal standards
to the claims in that case, and remanding for further consideration of whether the
putative class “meets the remaining Rule 23 requirements for class certification.”
Id. at 565. In that ruling, however, the Court specifically held that “ascertainability
is not a requirement for class certification of a 23(b)(2) class seeking only
injunctive and declaratory relief.” Id. at 563. The Third Circuit’s further 3

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discussion of the relevant issues in Shelton suggested that the Court believed that the proposed class may be appropriate. In reversing the district court’s denial of class certification, the Court of Appeals provided some indication of its views of the putative class and the relevant Rule 23 factors. Although the Court did not certify the class in Shelton, the defendants’ characterization of the Court’s decision as a “limited decision” with a “narrow holding” in our view minimizes the breadth of the rulings announced in the case, their relevance to the certification issues presented here and the degree to which this prior ruling guides the exercise of our discretion. (Doc. 74, at 9)
Notably, in addition its findings regarding any requirement that the class be ascertainable for certification of a class seeking injunctive relief pursuant to Rule 23(b)(2), the Court also observed that the class in Shelton was “easily capable of the type of description demanded by Rule 23(c)(1)(B).” Id. at 563. The Court then suggested that the class was not overly broad simply because some of the putative class members had not yet suffered an injury – something that is also true in this case. Id. at 564. Indeed, the Court noted that “there is no requirement that every class member suffer an injury before a class is certifiable under Rule 23” and that the threat of injury alone is sufficient, something that the Court found to be “particularly true in the context of a claim under the Eighth Amendment, which protects against the risk – not merely the manifestation – of harm.” Id. at 564-65.
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Thus, the Court found that the proposed class in Shelton was neither overbroad nor improperly defined for purposes of Rule 23, and, therefore, instructed on remand that the district court consider “whether the properly-defined putative class meets the remaining Rule 23 requirements for class certification.” Id. at 565. We are not free to discount this prior appellate court guidance in a parallel case. Nor may we substitute our judgment for the carefully considered opinion of the court of appeals on virtually identical legal issues. In short, we believe that these rulings now also provide important and binding guidance in this case, and these rulings now limit and focus the Court’s inquiry in this case to whether Richardson’s complaint adequately satisfies the remaining requirements prescribed by Rule 23(a) for certification of the class, since the Shelton ruling in our view would also apply directly to Richardson’s efforts to certify a Rule 23(b)(2) class.
With our judgment guided in this fashion by the prior rulings of the Court of Appeals, upon consideration of the parties’ briefs and the Third Circuit’s guidance in Shelton under substantially similar allegations regarding an identical class of plaintiff-inmates at the same institution, it will be recommended that the motion for class certification be granted, and the proposed class certified pursuant to Rule 23 of the Federal Rules of Civil Procedure.
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II. Discussion A. Factual Allegations This action presents a constitutional challenge to the BOP’s and USP
Lewisburg’s alleged practice of ignoring individual SMU prisoners’ objections to being celled with inmates they believe or know to be hostile to them, and the concomitant practice of using punitive restraints to compel dangerous cell assignments on inmates who resist them. The lawsuit also challenges the policy and practice at USP Lewisburg of refusing to intervene in violent episodes that regularly occur within the SMU. (Am. Compl. ¶¶ 15-16.)
The amended complaint alleges that the BOP created the SMU program in 2008 in order to house inmates who present “unique security and management” concerns. Id. The plaintiff alleges that the prison cells at the SMU were originally designed to hold one inmate, id. at ¶ 18, but have since been used to house two inmates who are confined together within the cell for 23 out of 24 hours per day, something that the plaintiff alleges creates dangerous conditions where inmates with histories of violent behavior and gang affiliation are held in close proximity virtually around the clock. (Id. ¶¶ 18-23.)
According to Richardson, although the BOP uses a screening process that is designed to make celling decisions based upon inmates’ respective separation
6

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needs, inmates are often housed with others who are known to be hostile to them, thereby creating a dangerous environment where cellmate-on-cellmate violence is a real and recurring possibility. The plaintiff avers that this practice is pervasive within the SMU, and has resulted in frequent violent episodes. (Id. ¶¶ 37-40.)
Richardson asserts that when inmates refuse to accept cell assignments with inmates that they know or believe to be hostile to them, they are placed in hard metal restraints, which are applied in a manner intended to cause pain and restrict movement. (Id. ¶¶ 47-49, 59-60.) Richardson states that while in these restraints, inmates are substantially restricted in their ability to eat, drink, or use the toilet, and suffer intense pain and other physical ailments. (Id. ¶¶ 61, 76-76.) He also claims that the SMU uses restraint rooms, where inmates who are placed in restraints are left on the floors of cells that are unhygienic. (Id. ¶¶ 76-80.)
Richardson alleges that officials at the SMU and within the BOP are aware of the conditions alleged in the amended complaint, and that they deliberately place inmates in restraints in order to coerce them to accept cell assignments that the inmates maintain are hostile and dangerous. (Id. ¶¶ 82-83.) According to the amended complaint, there is no meaningful oversight process to which inmates may resort in order to challenge the use of restraints, which are part of an ongoing practice to which all inmates at the institution are subjected. (Id. ¶¶ 83-84, 18991.) In addition, Richardson contends that the BOP has implemented a policy that
7

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prevents SMU staff from intervening and stopping violent incidents when they arise or occur within the prison and recreation cages, something he claims as a further violation of the SMU inmates’ rights under the Eighth Amendment.
Richardson alleges that as of the date this action was commenced, the SMU housed between 1,050 and 1,100 inmates – all of whom would be part of the class of inmates Richardson seeks to represent in this case.
B. Class Certification: Legal Requirements Richardson seeks class certification in order to resolve the putative class’s Fifth and Eighth Amendment claims for declaratory and injunctive relief, in order to end the BOP’s alleged practice of placing inmates in double cells or recreation cages with hostile inmates, without meaningful measures to protect inmates from inmate-on-inmate violence, the punitive use of restraints used to enforce the allegedly unconstitutional policy, and the institution’s alleged policy of not intervening to stop inmate-on-inmate attacks when they occur. Rule 23(a) provides that a plaintiff seeking to represent a class must demonstrate that:
(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
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(4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Richardson seeks class certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, which provides that a class action may be maintained if the requirements of Rule 23(a) are satisfied and if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2). As Richardson notes, and as the Third Circuit explained in Shelton, Rule 23(b)(2) of the Federal Rules of Civil Procedure is intended to permit plaintiffs to pursue injunctive relief on behalf of a group of similarly situated individuals against a general course of conduct. Shelton, 775 F.3d at 561 (“[T]he key to the (b)(2) class is the ‘indivisible nature of the injunctive or declaratory remedy warranted – the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’”) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)); see also Baby Neal for and by Kanter v. Kasey, 43 F.3d 48, 64 (3d Cir. 1994) (noting that the “proper role” of a Rule 23(b)(2) class is to “remedy[] systemic violations of basic rights of large and often amorphous classes”); Hassine v. Jeffes, 846 F.2d 169, 178 n.6 (3d Cir. 1988) (a Rule 23(b)(2)
9

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class is “an especially appropriate vehicle for civil rights actions seeking . . . declaratory relief for prison reform.”).
As the rule states, a Rule 23(b)(2) class must satisfy the prerequisites prescribed by Rule 23(a) and must comply with the Rule 23(b)(2)’s requirement that final injunctive or declaratory relief is appropriate for the class as a whole. Shelton, 775 F.3d at 563; Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011). In other words, a Rule 23(b)(2) class is appropriate where “a single injunction or declaratory judgment would provide relief to each member of the class.” Gates v. Rohm and Haas Co., 655 F.3d 255, at *4 (3d Cir. 2011) (internal quotation marks omitted).
In this case, it is submitted that the Third Circuit’s ruling in Shelton with respect to the suitability of Rule 23(b)(2) to the very same claims that are being made in this case compel a finding that the claims for declaratory and injunctive relief are equally suitable for class litigation under Rule 23(b)(2), provided that Richardson has satisfied the requirements of Rule 23(a), which we address below.
C. The Class Satisfies the Requirements of Rule 23(a) 1. Numerosity
Under Rule 23(a), a proposed class representative may only sue on behalf of a class that is so numerous that joinder is impractical. “No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named
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plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). Richardson has proposed a class of all inmates housed in the SMU at USP Lewisburg, which number exceeds 1,000 inmates, and the defendants have not challenged certification on grounds that the class is insufficiently numerous. As Richardson notes, in other prison class-action litigation in this circuit, courts have found that far smaller prisoner populations satisfy the requirement. See, e.g,. Logory v. Cty. of Susquehanna, 277 F.R.D. 135, 140-41 (M.D. Pa. 2011) (class of 170 pre-trial detainees sufficient); Death Row Prisoners of Pa. v Ridge, 169 F.R.D. 618, 621 (E.D. Pa. 1996) (185 inmates satisfied numerosity); Pabon v. McIntosh, 546 F. Supp. 1328, 1333 (E.D. Pa. 1982) (finding that joinder of 30 to 40 inmates would be impractical).
Because the plaintiff has proposed a class in this action that far exceeds the 40 potential plaintiffs that would satisfy the rule, and because the defendants have not argued that the proposed class is insufficiently large for purposes of Rule 23(a)(1), it is submitted that Richardson has satisfied the numerosity requirement.
2. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The Third Circuit has explained that “concepts of commonality and typicality are broadly defined and tend to merge. Both criteria
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seek to assure that the action can be practically and efficiently maintained and that the interests of the absentees will be fairly and adequately represented. Despite their similarity, however, commonality and typicality are distinct requirements under Rule 23.” Baby Neal, 43 F.3d at 56 (internal citations omitted). The commonality requirement itself will be satisfied if the representative plaintiff shares at least one question of fact or law with the grievances of the prospective class.” Stewart, 275 F.3d at 227 (quoting Baby Neal, 43 F.3d at 56) (emphasis in Stewart). On this score, we have been specifically cautioned by the Court of Appeals in the companion case of Shelton v. Bledsoe, supra, that the commonality requirement of Rule 23(a)(2) does not require that the representative plaintiff “ha[s] endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class.” Shelton, 775 F.3d at 564 (quoting Hassine, 846 F.3d at 177) (emphasis in Hassine).
Because the requirement is satisfied by demonstrating even a single common issue, it is often easily met. Baby Neal, 43 F.3d at 56. Class members, therefore, can assert a single common complaint even if they have not all suffered the same injury since “demonstrating that all class members are subject to the same harm will suffice.” Id. (citing Hassine, 846 F.2d at 177-78) (original emphasis). Moreover, the alleged constitutional violation may be the threat of violence and assault, which need not actually occur before prisoners can maintain a class suit.
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See Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985) (finding constitutional violation where prisoners were subjected to constant threat of violence and sexual assault, and rejecting the argument that a plaintiff must actually be assaulted before he can obtain relief). Indeed, the Third Circuit has found that actions seeking to enjoin a common policy imposed on prison inmates satisfy the commonality requirement. See Hagan v. Rogers, 570 F.3d 146, 158 (3d Cir. 2009) (reversing district court’s denial of class certification for lack of commonality and typicality, finding that the plaintiff alleged a common threat of injury to the inmate population as a whole).
Guided by this legal framework, it is submitted that Richardson also satisfies that commonality requirement in this case. Here, Richardson proposes a class made up of all current and future inmates in the SMU at USP Lewisburg, all of whom are allegedly subject to the same offending policies and practices that allegedly have been implemented at that institution, and which are the subject of Richardson’s claim for injunctive and declaratory relief. Richardson has alleged that the inmates within the SMU are all subject to the same threat of harm as a result of the defendants’ celling policies and practices. In particular, Richardson alleges a common threat of harm from inmate-on-inmate violence that is predictable in this setting, and the increased risk of injury because of SMU policy that prevents prison staff from intervening in violence after it erupts, as well as
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injuries that result from the use of restraints that are employed against inmates who refuse to accept celling assignments they believe to be dangerous.
These allegations represent common issues of both law and fact, and turn on the overarching contention that the threat of violence at the United States Penitentiary, Lewisburg, is increased to an unconstitutional degree by the defendants’ alleged policies and practices. With the class allegations cast in these broad terms, there appears to be the requisite degree of commonality to these claims given that all class members face the same potential risk of harm due to these cell placement policies while they are held within the SMU at USP Lewisburg. It may be that the class will include some inmates who have not yet suffered actual injury, and others who have suffered injury, and there may be some differences in the types of injuries that may have been suffered as the result of alleged policies and practices. However, in Shelton, the Court of Appeals did not find this fact dispositive on the question of class certification. Therefore, while these factual distinctions that may exist, they do not defeat a finding of commonality, at least with regard to the broad injunctive and declaratory relief that R8chardson seeks with respect to what alleged to be a common policy and threat of violence to which all inmates at the SMU are subject. As the Third Circuit has explained, in such cases these potential differences in the factual background of
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each class member’s claims are unlikely to affect the broad prospective relief
sought here:
This is especially true where plaintiffs request declaratory and injunctive relief against a defendant engaging in a common course of conduct toward them, and there is, therefore, no need for individualized determinations of the propriety of injunctive relief. Indeed, (b)(2) classes [such as that proposed in this case] have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.
Baby Neal, 43 F.3d at 57. In consideration of the fact that all of the proposed class
members are currently or will in the future be subject to the defendants’ alleged
policies regarding the celling of dangerous inmates, and the punitive steps taken
when inmates’ refuse cell assignments that they believe present a danger, it is
submitted that the commonality requirement is met here.3
3 The defendants argue that Richardson has not demonstrated commonality, and argue that issues of celling inmates, meting out discipline in instances where inmates fail to comply with orders, the use of ambulatory restraints, and the alleged refusal of SMU staff to intervene when violence breaks out are so fact-bound relative to each inmate’s individual circumstances that the claims are not only not common, they are incapable of adjudication in a class action. The defendants also urge the Court to examine the merits of each of these claims in considerable depth, citing the court to decisions in non-class actions, including cases where substantial evidence was already in the record, and conclude that none of the plaintiff’s claims even makes out a constitutional violation. We recommend that the Court focus on Richardson’s claims more broadly at this stage, where he is seeking to certify a class that challenges specific alleged policies that he claims create an unreasonably dangerous environment for inmates, and which unfairly punish and harm inmates
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3. Typicality Rule 23(a)(3) requires that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). As with commonality, courts have set a “low threshold” for satisfying typicality. Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183 (3d Cir. 2001). This requirement focuses on “whether the named plaintiffs’ claims are typical, in common-sense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned with those of the class.” Beck v. Maximus, Inc., 457 F.3d 291, 295-96 (3d Cir. 2006). A class representative’s claims do not need to be identical to the claims of other class members to be considered typical. Johnston v. HBO Film Management, Inc., 265 F.3d 178, 184 (3d Cir. 2001). Instead, “[i]f the claims of the named plaintiffs and putative class members involve the same conduct by the defendant, typicality is established regardless of factual differences.” Newton, 259 F.3d at 183-84. Despite the defendants’ insistence that Richardson’s claims are atypical, and plainly different than those other inmates, the Court notes that in cases where the named plaintiff’s claims arise out of the same policies and practices that give rise to claims of other class members, who rely on the same legal theories, the claims
who are subject to them with no effective means of recourse. As noted, insofar as Richardson is seeking class certification under Rule 23(b)(2) to pursue this injunctive and declaratory relief, the case law that has been cited supports certification for such claims.
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are usually considered to be typical. See Stewart, 275 F.3d at 227-28; Newton, 259 F.3d at 183; Barnes v. Am. Tobacco Co., 161 F.3d 127, 141 (3d Cir. 1998). Although the defendants argue vigorously that there will be factual differences in the class members’ claims, the Third Circuit has observed that “even relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories.” Baby Neal, 43 F.3d at 58.
As with commonality, it is submitted that the typicality requirement is satisfied here, in large measure because Richardson’s claims are predicated on the alleged unconstitutional practices and policies employed within the SMU, to which all inmates are allegedly subjected. The overarching similarity the legal theories that would be offered as support for the class’ claims are sufficient to meet Rule 23(a)(3)’s typicality requirement.
4. Adequacy Finally, Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The typicality and adequacy requirements “tend[] to merge because both look to potential conflicts and to whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Beck, 457 F.3d at 296 (quoting Anchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (internal quotation marks
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omitted)). The adequacy requirement “assures that the named plaintiffs’ claims are not antagonistic to the class and that the attorneys for the class representatives are experienced and qualified to prosecute the claims on behalf of the entire class.” Baby Neal, 43 F.3d at 55.
The defendants do not challenge counsel’s experience or competency to prosecute claims on behalf of the class, but they do argue that Richardson is an inadequate representative because he is no longer housed at the SMU and thus has little at stake in the claims for injunctive or declaratory relief in contrast to current SMU inmates. The defendants also argue that Richardson would necessarily be adverse to some of the inmates who make up the class. In making this last argument, the defendants are essentially claiming that no SMU inmate could adequately represent the interests of the class in a case where inmates within the class were alleged to have been hostile to one another – something that is at the heart of this litigation about the practice of celling dangerous and hostile inmates together within the SMU, and the sufficiency of institutional safeguards to prevent inmate-on-inmate violence..
It is recommended that the Court decline the defendants’ invitation to find that Richardson – or, in effect, any – inmate who has been, is, or will be housed at the SMU at USP Lewisburg would be incapable of serving as a class representative in a lawsuit challenging as unconstitutional prison conditions involving inmate-on-
18

Case 3:11-cv-02266-MWB-SES Document 80 Filed 06/26/17 Page 19 of 23
inmate violence and institutional policies relating to that violence. Granted, Richardson acknowledges that gang affiliations or other separation needs result in some inmates being “hostile” to one another, but this does not mean that no inmate could effectively serve as a class representative to advance the class’ overarching interest in challenging conditions that allegedly put them all at risk of violence, punitive restraints, unsanitary and dangerous conditions, and serious risk of physical injury. To find otherwise would be tantamount to concluding that inmates in the SMU could never collectively challenge celling practices in the manner that Richardson and Shelton seek to do.
With respect to the defendants’ argument that Richardson is inadequate to serve as a class representative because he is no longer housed at the SMU, the Court disagrees.
Although their argument seems very close to asserting that Richardson’s transfer from USP Lewisburg precludes his ability to serve as a class representative on grounds of mootness, the defendants are careful not to frame the argument in this way, since the Third Circuit considered and rejected that very argument in a decision issued last July. In that appeal, the defendants presented the court of appeals with the question of “whether Richardson’s class-wide claims for injunctive relief are moot because Richardson was transferred out of USP Lewisburg after he filed an amended class action complaint but before he moved
19

Case 3:11-cv-02266-MWB-SES Document 80 Filed 06/26/17 Page 20 of 23
for class certification.” Richardson v. Bledsoe, 829 F.3d 273, 276 (3d Cir 2016). In a lengthy precedential decision that clarified the law in this area with respect to mootness in class litigation, the court of appeals found that Richardson’s claims were not moot, noting that while individual claims for relief are “acutely susceptible to mootness, a would-be class representative may, in some circumstances, continue to seek class certification after losing his personal stake in the case.” Id. The court also found that even though Richardson had not filed a motion for class certification before he was transferred, he had clearly presented the class-claims to the district court, and his claims, therefore, were deemed to relate back to the date on which he filed the amended complaint. Id. “Accordingly,” the court stated, “he may continue to seek class certification in this case.” Id.
Notwithstanding this ruling and the court’s guidance, the defendants have argued that the fact of Richardson’s transfer means that “he does not have a personal stake in the class litigation . . . [and therefore] Richardson cannot adequately or fairly represent a class of current and future inmates at USP Lewisburg which challenges the on-going conditions at the prison facility to which he has no recent knowledge or experience.” (Doc. 74, at 23) The defendants do not cite to any persuasive authority in support of this argument, and we view this argument as largely foreclosed at this time since the argument runs substantially
20

Case 3:11-cv-02266-MWB-SES Document 80 Filed 06/26/17 Page 21 of 23
contrary to the Third Circuit’s reasoning and holding in this case last year. Indeed, to embrace the defendants’ argument would mean that the Court would be bound to find that Richardson was entitled to pursue class-action certification, while nonetheless being inadequate as a class representative because he is no longer held at USP Lewisburg. This would directly contradict the Third Circuit’s teaching in this very case. There is, therefore, nothing in the record of this case that would support a finding that Richardson falls short of what is required by Rule 23(a)(4), and there is a ruling from the court of appeals that sets the stage for Richardson to seek certification on behalf of the class notwithstanding his transfer.
For these reasons, it is submitted that both Richardson and his counsel are adequate to represent the interests of the putative class in this action seeking declaratory and injunctive relief.
In sum, we conclude where we began, by noting that the prior rulings of the Court of Appeals in this case, and a closely parallel case define and prescribe the scope of our discretion in addressing this motion for class certification. Richardson v. Bledsoe, 829 F.3d 273, 276 (3d Cir 2016); Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015). Viewing this motion for class certification through the analytical lens of these prior appellate court decisions, we conclude that the prudent and prudential path would be to grant the motion for class certification. While we reach this view on the threshold question of class certification, of course
21

Case 3:11-cv-02266-MWB-SES Document 80 Filed 06/26/17 Page 22 of 23
nothing in this Report and Recommendation should be construed as addressing in
any fashion the ultimate merits of any putative class claims. That task must await
another day.
III. Recommendation
Accordingly, having found that the Third Circuit’s ruling in Shelton compels
a finding that the claims in this case are well-suited for class certification under
Rule 23(b) (2), and finding that the requirements of Rule 23(a) are otherwise
satisfied, IT IS RECOMMENDED THAT the district court enter an order
provisionally certifying the proposed class, and appointing Richardson’s counsel as
class counsel.
The parties are further advised that:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive
22

Case 3:11-cv-02266-MWB-SES Document 80 Filed 06/26/17 Page 23 of 23
further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
/s/ Martin C. Carlson Martin C. Carlson United States Magistrate Judge Dated: June 26, 2017
23

 
 Case 3:11-cv-02266-MWB-SES Document 98 Filed 10/17/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SEBASTIAN RICHARDSON,

:

:

Plaintiff,

:

:

v.

:

:

BRYAN A. BLEDSOE, THOMAS R. :

KANE, JOSEPH NORWOOD, DAVID :

YOUNG, DONALD HUDSON, JR., :

CAPTAIN BRADLEY TRATE, SEAN :

SNIDER, LT. CHRIS MATTINGLY, :

LT. JAMES FLEMING, LT. PEDRO :

CARRASQUILLO, LT. MATTHEW :

SAYLOR, LT. JASON SEEBA,

:

LT. ROGER MILLER, LT. THOMAS :

JOHNSON, LT. CAMDEN

:

SCAMPONE, LT. KYLE

:

WHITTAKER, LT. AARON

:

SASSAMAN, LT. THOMAS

:

JOHNSON,

:

:

Defendants.

:

No. 3:11-CV-02266 (Judge Brann)

ORDER

1. On January 27, 2017, Plaintiff filed a Motion for Class Certification

pursuant to Federal Rule of Civil Procedure 23.

2. Plaintiff did not introduce any evidence into the record to support this

motion.

3. Discovery is currently ongoing.

Case 3:11-cv-02266-MWB-SES Document 98 Filed 10/17/17 Page 2 of 3
4. Under Rule 23(a), “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members 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.
5. The United States Court of Appeals for the Third Circuit has stated that “[f]actual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence. In other worlds, to certify a class the district court must find that the evidence more likely than not establishes each fact necessary to meet the requirements of Rule 23.” In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 320 (3rd Cir. 2008); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”).
- 2 -

Case 3:11-cv-02266-MWB-SES Document 98 Filed 10/17/17 Page 3 of 3
6. Because Plaintiff has not introduced any evidence into the record to support his Motion for Class Certification, this Court is unable to make the factual findings necessary to grant it.
THEREFORE, this 17th day of October 2017, IT IS HEREBY ORDERED that: 7. Plaintiff’s Motion for Class Certification, ECF No. 68, is DENIED
WITHOUT PREJUDICE. 8. Plaintiff is GRANTED leave to re-file his Motion for Class Certification
within a reasonable time after discovery is complete. 9. The deadline to complete discovery is extended to March 16, 2018.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann United States District Judge
- 3 -

 
 Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 1 of 15
CASREF,PRISNR,R/R,REOPEN,STANDARD
United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:11−cv−02266−MWB−SES

Richardson v. Bledsoe et al Assigned to: Honorable Matthew W. Brann Referred to: Magistrate Judge Susan E. Schwab Case in other court: Third Circuit, 15−02876 Cause: 28:1331 Fed. Question: Violation 5th & 8th Amendme
Plaintiff

Date Filed: 12/07/2011 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Sebastian Richardson

represented by Alexandra T Morgan−Kurtz PA Institutional Law Project 100 Fifth Ave Suite 900 Pittsburgh, PA 15222 412−434−6175 Email: amorgan−kurtz@pailp.org ATTORNEY TO BE NOTICED

Christine C. Levin Dechert LLP 2929 Arch Street Philadelphia, PA 19104 (215) 994−4000 Email: christine.levin@dechert.com ATTORNEY TO BE NOTICED

Deborah M. Golden PO Box 1346 Suite 400 Washington, DC 20013 202−630−0332 Email: deb.golden@gmail.com ATTORNEY TO BE NOTICED

Francis J Dermody , III Dechert LLP Circa Centre 2929 Arch Street Philadelphia, PA 19104 215 994−4000 Email: francis.dermody@dechert.com TERMINATED: 10/06/2017 ATTORNEY TO BE NOTICED

Ivy A. Finkenstadt Washington Lawyers' Committee 11 Dupont Circle, N.W. Suite 400 Washington, DC 20036 (202) 319−1000 Fax: (202) 319−1010 Email: ivy_finkenstadt@washlaw.org TERMINATED: 09/28/2012 ATTORNEY TO BE NOTICED

James Davy The Pennsylvania Institutional Law Project 718 Arch St. Suite 304S Philadelphia, PA 19106

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 2 of 15
215−925−2966 Email: jdavy@pailp.org ATTORNEY TO BE NOTICED
Jennifer J. Tobin Tobin Law Office, LLC 702 N. 3rd Street #71 Philadelphia, PA 19123 267−258−8918 Email: jtobin0913@gmail.com TERMINATED: 10/06/2017 ATTORNEY TO BE NOTICED
Marybeth Walsh Institutional Law Project/Community Justice Project 1705 Allegheny Building Pittsburgh, PA 15219 412.434.6002 Email: mwalsh@pailp.org TERMINATED: 05/15/2013 ATTORNEY TO BE NOTICED
Su Ming Yeh Pennsylvania Institutional Law Project Cast Iron Bldg. 718 Arch Street Suite 304 South Philadelphia, PA 19106 215−925−2966 Email: smyeh@pailp.org ATTORNEY TO BE NOTICED

V. Defendant Bryan A Bledsoe Warden of USP Lewisburg
Defendant Thomas R. Kane Acting Director of the Bureau of Prisons(BOP)

represented by Michael Butler United States Attorney's Office 228 Walnut Street Suite 220 Harrisburg, PA 17108 717−221−4482 Fax: 17172212246 Email: Michael.J.Butler@usdoj.gov ATTORNEY TO BE NOTICED
Samuel Dalke US Attorney's Office, Middle District of PA − Prisoner 228 Walnut Street, Suite 220 P.O. Box 11754 Harrisburg, PA 17108 Email: samuel.s.dalke@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED
Samuel Dalke (See above for address)

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 3 of 15

ATTORNEY TO BE NOTICED

Defendant
Joseph Norwood Regional Director of the Northeast Region for the BOP

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
David Young Associate Warden at USP Lewisburg

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald Hudson, Jr. Assoc. Warden

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Captain Bradley Trate

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sean Snider Deputy Captain

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Chris Mattingly

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. James Fleming

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 4 of 15

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Pedro Carrasquillo

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Matthew Saylor

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lt. Seaman Lieutenant at USP Lewisburg TERMINATED: 07/27/2012

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Jason Seeba

represented by David J. MacMain The MacMain Law Group LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 484−318−7703 Fax: 484−328−3996 Email: dmacmain@macmainlaw.com ATTORNEY TO BE NOTICED

Matthew J. Connell The MacMain Law Group LLC 101 Lindenwood Drive Suite 160 Malvern, PA 19355 484−318−7703 Fax: 484−328−3996 Email: mconnell@macmainlaw.com ATTORNEY TO BE NOTICED

Michael Butler (See above for address) TERMINATED: 06/01/2018 ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Roger Miller

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 5 of 15

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Thomas Johnson

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Camden Scampone

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Kyle Whittaker

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Aaron Sassaman

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant Lt. Thomas Johnson

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/07/2011
12/12/2011 01/14/2012

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $350, Receipt Number 2350285), filed by Sebastian Richardson. (Attachments: # 1 Civil Cover Sheet)(ga, ) (Entered: 12/07/2011)
2 NOTICE of Appearance by Marybeth Walsh on behalf of Sebastian Richardson (Walsh, Marybeth) (Entered: 12/12/2011)
3 WAIVER OF SERVICE Returned by Sebastian Richardson. Bryan A Bledsoe waiver sent on 12/13/2011, answer due 2/13/2012; J. Fleming waiver sent on 12/13/2011, answer due 2/13/2012; D Hudson waiver sent on 12/13/2011, answer due 2/13/2012;

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 6 of 15

01/30/2012 02/07/2012 02/07/2012 02/10/2012 02/17/2012 02/17/2012 03/09/2012
03/30/2012 03/30/2012 04/09/2012 04/24/2012
04/27/2012

Miller waiver sent on 12/13/2011, answer due 2/13/2012; Joseph Norwood waiver sent on 12/13/2011, answer due 2/13/2012; M. Saylor waiver sent on 12/13/2011, answer due 2/13/2012; Scampone waiver sent on 12/13/2011, answer due 2/13/2012; Seeba waiver sent on 12/13/2011, answer due 2/13/2012; S. Snider waiver sent on 12/13/2011, answer due 2/13/2012; B Trate waiver sent on 12/13/2011, answer due 2/13/2012; Whittaker waiver sent on 12/13/2011, answer due 2/13/2012; David Young waiver sent on 12/13/2011, answer due 2/13/2012. (Tobin, Jennifer) (Entered: 01/14/2012)
4 WAIVER OF SERVICE Returned by Sebastian Richardson. P Carrasquilla waiver sent on 12/13/2011, answer due 2/13/2012; Lt. Mattly waiver sent on 12/13/2011, answer due 2/13/2012. (Tobin, Jennifer) (Entered: 01/30/2012)
5 WAIVER OF SERVICE Returned by Sebastian Richardson. Thomas R. Kane waiver sent on 12/13/2011, answer due 2/13/2012. (Tobin, Jennifer) (Entered: 02/07/2012)
6 MOTION to Appear Pro Hac Vice − Attorney Ivy Finkenstadt is seeking special admission. Filing fee $ 50, receipt number 0314−2395778. by Sebastian Richardson.(Finkenstadt, Ivy) (Entered: 02/07/2012)
7 SPECIAL ADMISSIONS FORM APPROVED as to Ivy FinkenstadtSigned by Honorable William J. Nealon on 2/10/12. (ga, ) (Entered: 02/10/2012)
Summons Reissued as to U.S. Attorney and U.S. Attorney General. (bw, ) (Entered: 02/17/2012)
DOCKET ANNOTATION: Document # 8 letter from an outside party not associated with the case deleted and taken off the docket. (kc, ) (Entered: 02/17/2012)
8 WAIVER OF SERVICE Returned by Sebastian Richardson. Bryan A Bledsoe waiver sent on 2/24/2012, answer due 4/24/2012; P Carrasquilla waiver sent on 2/24/2012, answer due 4/24/2012; J. Fleming waiver sent on 2/24/2012, answer due 4/24/2012; D Hudson waiver sent on 2/24/2012, answer due 4/24/2012; Thomas R. Kane waiver sent on 2/24/2012, answer due 4/24/2012; Lt. Mattly waiver sent on 2/24/2012, answer due 4/24/2012; Miller waiver sent on 2/24/2012, answer due 4/24/2012; Joseph Norwood waiver sent on 2/24/2012, answer due 4/24/2012; M. Saylor waiver sent on 2/24/2012, answer due 4/24/2012; Scampone waiver sent on 2/24/2012, answer due 4/24/2012; Seeba waiver sent on 2/24/2012, answer due 4/24/2012; S. Snider waiver sent on 2/24/2012, answer due 4/24/2012; B Trate waiver sent on 2/24/2012, answer due 4/24/2012; Whittaker waiver sent on 2/24/2012, answer due 4/24/2012; David Young waiver sent on 2/24/2012, answer due 4/24/2012. (Tobin, Jennifer) (Entered: 03/09/2012)
9 MOTION for Extension of Time to to serve complaint on defendants by Sebastian Richardson.(Tobin, Jennifer) (Entered: 03/30/2012)
10 BRIEF IN SUPPORT re 9 MOTION for Extension of Time to to serve complaint on defendants filed by Sebastian Richardson. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Proposed Order)(Tobin, Jennifer) (Entered: 03/30/2012)
11 ORDER granting 9 Motion to Extend Time. Plaintiff shall serve the remaining Defendants on or before June 5, 2012.Signed by Honorable William J. Nealon on 4/9/12 (ga, ) (Entered: 04/09/2012)
12 MOTION for Extension of Time to File Answer re 1 Complaint by Bryan A Bledsoe, P Carrasquilla, Johnson, Thomas R. Kane, Lt. Mattly, Miller, Joseph Norwood, M. Saylor, Scampone, Seaman, Seeba, S. Snider, B Trate, Whittaker, David Young. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence in Part)(Butler, Michael) (Entered: 04/24/2012)
13 ORDER − IT IS HEREBY ORDERED THAT said Motion (Doc.12) is GRANTED. re 12 MOTION for Extension of Time to File Answer re 1 Complaint. Those defendants served with the Summons and Complaint on January 14, 2012, may file a response to the Complaint on or before sixty (60) days after service of the Summons and Complaint upon the newly−identified Defendants. Signed by Honorable William J. Nealon on 4/27/12. (ga, ) (Entered: 04/27/2012)

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 7 of 15

06/04/2012 06/08/2012 06/18/2012 07/17/2012
07/19/2012 07/20/2012 07/27/2012 07/27/2012 08/02/2012 08/03/2012 08/13/2012
08/23/2012
08/23/2012
08/23/2012

14 Unopposed MOTION to Amend/Correct Caption by Sebastian Richardson. (Attachments: # 1 Exhibit(s), # 2 Certificate of Concurrence, # 3 Proposed Order)(Tobin, Jennifer) (Entered: 06/04/2012)
15 ORDER granting 14 Motion to Amend/Correct Signed by Honorable William J. Nealon on 6/8/12 (lh, ) (Entered: 06/08/2012)
16 WAIVER OF SERVICE Returned by Sebastian Richardson. Thomas Johnson waiver sent on 5/14/2012, answer due 7/13/2012; Aaron Sassaman waiver sent on 5/14/2012, answer due 7/13/2012. (Tobin, Jennifer) (Entered: 06/18/2012)
17 Second MOTION for Extension of Time to File Answer re 1 Complaint by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Seaman, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael) (Entered: 07/17/2012)
18 ORDER granting 17 Motion for Extension of Time to Answer. Defendants may file their response to the amended complaint on or before August 13, 2012. Signed by Honorable William J. Nealon on 7/19/12 (ga, ) (Entered: 07/19/2012)
19 Unopposed MOTION to Amend/Correct 1 Complaint with certificate of service by Sebastian Richardson. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Certificate of Concurrence, # 4 Proposed Order)(Tobin, Jennifer) (Entered: 07/20/2012)
20 ORDER granting 19 Motion to Amend Complaint. Plaintiff's Amended Complaint, attached to his motion as Exhibit A, is to be filed by the Clerk. Signed by Honorable William J. Nealon on 7/27/12 (ga, ) (Entered: 07/27/2012)
21 AMENDED COMPLAINT against All Defendants, filed by Sebastian Richardson.(ga, ) (Entered: 07/27/2012)
22 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Francis J Dermody, III on behalf of Sebastian Richardson Attorney Francis Dermody is seeking special admission. Filing fee $ 50, receipt number 0314−2544253.. (Dermody, Francis) (Entered: 08/02/2012)
23 SPECIAL ADMISSIONS FORM APPROVED as to Francis DermodySigned by Honorable William J. Nealon on 8/3/12. (ga, ) (Entered: 08/03/2012)
24 MOTION to Dismiss or, in the Alternative, MOTION for More Definite Statement by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Butler, Michael) Modified on 4/12/2013 (wjnlc2, ). (Entered: 08/13/2012)
25 MOTION to Exceed Page Limitation by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence Certificate of Nonconcurrence/Concurrence)(Butler, Michael) (Entered: 08/23/2012)
26 BRIEF IN SUPPORT re 25 MOTION to Exceed Page Limitation filed by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young.(Butler, Michael) (Entered: 08/23/2012)
27 AMENDED DOCUMENT by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. Amendment to 25 MOTION to Exceed Page Limitation Amended Certificate of Nonconcurrence/Concurrence. (Butler, Michael) (Entered: 08/23/2012)

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 8 of 15

08/27/2012
08/31/2012 09/12/2012 09/14/2012 09/19/2012 09/21/2012
09/27/2012 09/28/2012 10/03/2012 10/09/2012
04/09/2013 04/09/2013 04/10/2013 04/16/2013

28 BRIEF IN SUPPORT re 24 MOTION to Dismiss or, in the Alternative MOTION for More Definite Statement filed by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Seaman, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Table of Authorities, # 2 Unpublished Opinion(s) Part 1, # 3 Unpublished Opinion(s) Part 2, # 4 Unpublished Opinion(s) Part 3, # 5 Unpublished Opinion(s) Part 4)(Butler, Michael) (Entered: 08/27/2012)
29 ORDER granting 25 Motion for Leave to File Excess Pages Signed by Honorable William J. Nealon on 8/31/12 (ga, ) (Entered: 08/31/2012)
30 Unopposed MOTION for Extension of Time to to file response brief in oppositionwith certificate of service by Sebastian Richardson. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Tobin, Jennifer) (Entered: 09/12/2012)
31 ORDER granting pltf's 30 Motion to Extend Time to file a brief in opposition to defts' motion to dismiss or, in the alternative, motion for a more definite statement. Pltf shall file his brief in opposition to defts' motion on or before 9/21/12.Signed by Honorable William J. Nealon on 9/14/12 (ao, ) (Entered: 09/14/2012)
32 Unopposed MOTION to Exceed Page Limitation with certificate of service by Sebastian Richardson. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Tobin, Jennifer) (Entered: 09/19/2012)
33 BRIEF IN OPPOSITION re 24 MOTION to Dismiss or, in the Alternative MOTION for More Definite Statement with certificate of service filed by Sebastian Richardson. (Attachments: # 1 Unpublished Opinion(s) Celestine v. Foley, # 2 Unpublished Opinion(s) Collins v. Bledsoe, # 3 Unpublished Opinion(s) DeFranks v. Ct. of Comm. Pleas, # 4 Unpublished Opinion(s) Graff v. Subbiah, # 5 Unpublished Opinion(s) Hubbard v. Danberg, # 6 Unpublished Opinion(s) Inmates of Northumberland v. Reish, # 7 Unpublished Opinion(s) Mut. Indus. v. Am. Int'l Indus, # 8 Unpublished Opinion(s) NE Land Dev. v. Scranton, # 9 Unpublished Opinion(s) Pozarlik v. Camelback, # 10 Unpublished Opinion(s) Rosenberg v. AVIS, # 11 Unpublished Opinion(s) Royster v. Beard, # 12 Unpublished Opinion(s) Transp. v. Ross, # 13 Unpublished Opinion(s) Vlachos v. Tobyhanna, # 14 Unpublished Opinion(s) Womack v. Smith)(Tobin, Jennifer) (Entered: 09/21/2012)
34 NOTICE by Sebastian Richardson of Attorney Withdrawal (Finkenstadt, Ivy) (Entered: 09/27/2012)
35 ORDER granting 32 Motion for Leave to File Excess Pages Signed by Honorable William J. Nealon on 9/27/12 (ga, ) (Entered: 09/28/2012)
36 NOTICE to Withdraw as Attorney by Sebastian Richardson.(Walsh, Marybeth) Modified on 8/5/2013 (wjnlc2, ). (Entered: 10/03/2012)
37 REPLY BRIEF re 24 MOTION to Dismiss or, in the Alternative MOTION for More Definite Statement filed by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young.(Butler, Michael) (Entered: 10/09/2012)
38 MEMORANDUM − (Order to follow)Signed by Honorable William J. Nealon on 4/9/13. (ga) (Entered: 04/09/2013)
39 ORDER IT IS HEREBY ORDERED THAT: Defendants' Motion to Dismiss or, in the Alternative, for a More Definite Statement (Doc. 24), is GRANTED in part and DENIED in part. Defendants are directed to file an answer to the Amended Complaint, (Doc. 21), within thirty (30) days of the date of this Order. (Dee Order for complete details).Signed by Honorable William J. Nealon on 4/9/13. (ga) (Entered: 04/09/2013)
40 NOTICE by Sebastian Richardson of Attorney Withdrawal (Dermody, Francis) (Entered: 04/10/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Walsh had failed, courtesy hard copy of Docs. 38 , 39 mailed with instructions for updating ECF account

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 9 of 15

05/09/2013
05/14/2013 05/15/2013
05/30/2013 06/20/2013 11/05/2013
11/08/2013 12/19/2013 01/03/2014
03/13/2014 03/14/2014 03/25/2014 09/30/2014
10/03/2014 10/08/2014

info. (ep) (Entered: 04/16/2013)
41 Affirmative Defenses and ANSWER to 21 Amended Complaint by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Seaman, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young.(Butler, Michael) (Entered: 05/09/2013)
42 NOTICE of Appearance by Su Ming Yeh on behalf of Sebastian Richardson (Yeh, Su Ming) (Entered: 05/14/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Walsh CONTINUES TO FAIL, courtesy hard copy of Notification of Docs. 41 , 42 mailed with instructions for updating ECF account info; if counsel is no longer associated with case, co−counsel or replacement counsel are urged to file praecipe for withdrawal or substitution of attorney.(ep) (Entered: 05/15/2013)
43 NOTICE by Sebastian Richardson of Attorney Withdrawal (Tobin, Jennifer) (Entered: 05/30/2013)
44 CASE MANAGEMENT PLAN − JOINT by Sebastian Richardson. (Yeh, Su Ming) (Entered: 06/20/2013)
45 Consent Motion for a Protective Order by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. . (Butler, Michael) (Entered: 11/05/2013)
46 CONSENT MOTION and PROTECTIVE ORDER. Signed by Honorable William J. Nealon on 11/8/2013. (rm) (Entered: 11/08/2013)
47 Unopposed MOTION to Amend/Correct 44 Case Management Plan (Joint) by Sebastian Richardson. (Attachments: # 1 Proposed Order)(Yeh, Su Ming) (Entered: 12/19/2013)
48 ORDER granting 47 Motion to Amend the Joint Case Management Plan. All fact discovery commenced in time to be completed by April 4, 2014. All potentially dispositive motions should be filed by June 16,2014. Reports from retained experts due: from plaintiff(s) by: April 18, 2014 and from defendant(s) by: May 19, 2014. Supplementations due: June 2, 2014. All expert discovery commenced in time to be completed by: June 2, 2014. Proposed final Pretrial Conference: January 2015. Proposed Trial Date February 2015.Signed by Honorable William J. Nealon on 1/3/14 (ga) (Entered: 01/03/2014)
49 Unopposed MOTION for Extension of Time to Complete Discovery by Sebastian Richardson. (Attachments: # 1 Proposed Order)(Yeh, Su Ming) (Entered: 03/13/2014)
50 ORDER granting 49 Motion for Extension of Time to Complete Discovery. (See Order for complete details) Signed by Honorable William J. Nealon on 3/14/14 (ga) (Entered: 03/14/2014)
51 NOTICE of Appearance by Alexandra T Morgan−Kurtz on behalf of Sebastian Richardson (Morgan−Kurtz, Alexandra) (Entered: 03/25/2014)
52 MOTION for Protective Order Amended Consent Motion for Protective Order by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young.(Butler, Michael) (Entered: 09/30/2014)
53 ORDER granting 52 Motion for Protective Order Signed by Honorable William J. Nealon on 10/3/2014 (bg) (Entered: 10/06/2014)
54 ORDER STAYING CASE − The above−captioned action shall be STAYED, pending further order of court. The above−captioned action shall be ADMINISTRATIVELY CLOSED. This action shall be reopened after the Third Circuit Court of Appeals issues a decision on Richardson's appeal of his class certification claims at docket number 13−8046.Signed by Honorable William J. Nealon on 10/8/14. (ga) (Entered:

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 10 of 15

07/30/2015 07/30/2015 08/04/2015
08/07/2015 07/15/2016 08/19/2016 08/19/2016 09/06/2016 11/01/2016 11/01/2016 12/15/2016 12/23/2016
12/23/2016
12/27/2016 01/20/2017

10/08/2014)
55 ORDER of USCA granting Petition for Leave to Appeal pursuant to Fed. R. Civ. P. 23(f). (Gillie, Caitlyn) (Entered: 07/30/2015)
57 NOTICE OF APPEAL by Sebastian Richardson from grant of Petition for permission to Appeal pursuant to FRCP 23f. Filing fee $ 0.00 The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (bg) (Entered: 08/05/2015)
56 NOTICE OF APPEAL in Prisoner Case by Sebastian Richardson. Filing Fee and Docket Fee PAID. Filing fee $ 505, receipt number 0314−3506352. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Yeh, Su Ming) (Entered: 08/04/2015)
58 USCA Case Number 15−2876 for 57 Notice of Appeal filed by Sebastian Richardson. USCA Case Manager Caitlyn (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (ca3kr) (Entered: 08/07/2015)
59 JUDGMENT of USCA (certified copy) ADJUDGED and ORDERED that the judgment of the District Court entered April 9, 2013, be and the same is REVERSED AND REMANDED. Costs taxed against Appellees. (McIntyre, Timothy) (Entered: 07/15/2016)
60 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Deborah M. Golden on behalf of Sebastian Richardson Attorney Deborah Golden is seeking special admission. Filing fee $ 50, receipt number 0314−3845469.. (Attachments: # 1 Special Admission Agency Letter)(Golden, Deborah) (Entered: 08/19/2016)
DOCKET ANNOTATION: Attorney Deborah Golden is active with the DC state bar. (lh) (Entered: 08/19/2016)
61 MANDATE of USCA as to 56 Notice of Appeal, filed by Sebastian Richardson. Costs taxed against Appellees in the amount of $884.08. (Attachments: # 1 USCA Opinion)(Gillie, Caitlyn) (Entered: 09/06/2016)
62 ORDER REFERRING CASE to Magistrate Judge Martin C. Carlson. The Clerk of Court is directed to LIFT THE STAY issued by the Court on October 8, 2014 and REOPEN the above−captioned action Signed by Honorable William J. Nealon on 11/1/16. (ga) (Entered: 11/01/2016)
Stay Lifted (ga) (Entered: 11/01/2016)
63 SCHEDULING ORDER: A Telephonic Case Management Conference is set for 1/6/2017 at 10:00 AM before Magistrate Judge Martin C. Carlson. Signed by Magistrate Judge Martin C. Carlson on December 15, 2016. (kjn) (Entered: 12/15/2016)
64 MOTION to Continue Joint Case Management Conference and Plan by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Seaman, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Butler, Michael) (Entered: 12/23/2016)
65 ORDER granting 64 Motion to Continue. IT IS ORDERED that the case management proceedings in this case are RESCHEDULED as follows: Joint Case Management Plan form must be filed on or before January 20, 2017. A telephonic case management conference will be held on January 25, 2017 at 10:00 a.m. SEE ORDER FOR FURTHER DETAILS. Signed by Magistrate Judge Martin C. Carlson on 12/23/2016 (ve) (Entered: 12/23/2016)
Set/Reset Hearings: Telephonic Case Management Conference is set for 1/25/2017 at 10:00 AM before Magistrate Judge Martin C. Carlson. (kjn) (Entered: 12/27/2016)
66 CASE MANAGEMENT PLAN − Joint by Sebastian Richardson. (Yeh, Su Ming) (Entered: 01/20/2017)

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 11 of 15

01/25/2017
01/25/2017 01/27/2017 01/27/2017 02/18/2017
02/21/2017 03/06/2017 03/06/2017 03/06/2017 03/07/2017 03/16/2017 04/14/2017
06/16/2017
06/16/2017
06/26/2017

67 CASE MANAGEMENT ORDER / ORDER LIFTING STAY − Close of Fact Discovery: 9/15/2017. Plaintiff's Expert Reports are due by 12/6/2017. Defendant's Expert Reports are due by 12/6/2017. Dispositive Motions / Motions for Class Certificationa re due by 10/22/2017. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on January 25, 2017. (kjn) (Entered: 01/25/2017)
Stay Lifted. (kjn) (Entered: 01/25/2017)
68 MOTION to Certify Class by Sebastian Richardson. (Attachments: # 1 Proposed Order)(Morgan−Kurtz, Alexandra) (Entered: 01/27/2017)
69 BRIEF IN SUPPORT re 68 MOTION to Certify Class filed by Sebastian Richardson.(Morgan−Kurtz, Alexandra) (Entered: 01/27/2017)
70 MOTION for Extension of Time to Nunc Pro Tunc Motion to Extend Time to Respond to Motion for Class Certification (Doc. Nos. 68, 69) by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Seaman, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Proposed Order, # 2 certificate of non−currence/concurrence)(Butler, Michael) (Entered: 02/18/2017)
71 ORDER granting dfts' mtn for exttm 70 . Dfts shall respond to the MOTION to Certify Class 68 by 3/6/2017.Signed by Magistrate Judge Martin C. Carlson on 2/21/17. (ma) (Entered: 02/21/2017)
72 Unopposed MOTION to Exceed Page Limitation by Bryan A Bledsoe, Donald Hudson, Jr, Thomas R. Kane, Joseph Norwood, David Young. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael) (Entered: 03/06/2017)
73 (Brief in Support) re: 72 by Bryan A Bledsoe, Donald Hudson, Jr, Thomas R. Kane, Joseph Norwood, David Young.(Butler, Michael) Modified on 3/7/2017 (kjn). (Entered: 03/06/2017)
74 BRIEF IN OPPOSITION re 68 MOTION to Certify Class filed by Bryan A Bledsoe, Donald Hudson, Jr, Thomas R. Kane, Joseph Norwood, David Young.(Butler, Michael) (Entered: 03/06/2017)
75 ORDER granting 72 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Martin C. Carlson on March 7, 2017. (kjn) (Entered: 03/07/2017)
76 NOTICE of Appearance by Samuel Dalke on behalf of All Defendants (Dalke, Samuel) (Entered: 03/16/2017)
77 MOTION to Amend/Correct 41 Answer to Amended Complaint, by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Exhibit(s), # 2 Certificate of Nonconcurrence, # 3 Proposed Order)(Butler, Michael) (Entered: 04/14/2017)
78 ORDER: Granting dfts' mtn for lv to amend answer and affirmative defenses 77 . The Clerk is directed to file Dfts Amended Affirmative Defenses and Amended Answer to Amended Complaint, which is attached as Exhibit A to Defendants Mtn for Leave to Amend 77 .Signed by Magistrate Judge Martin C. Carlson on 6/16/17. (ma) (Entered: 06/16/2017)
79 AMENDED ANSWER to Amended Complaint 21 by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young.(ma) (Entered: 06/16/2017)
80 REPORT AND RECOMMENDATION − IT IS RECOMMENDED THAT the district court enter an order provisionally certifying the proposed class, and appointing Richardsons counsel as class counsel. 68 Objections to R&R due by 7/10/2017.Signed by Magistrate Judge Martin C. Carlson on 6/26/2017. (sc) (Entered: 06/27/2017)

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 12 of 15

07/10/2017
07/11/2017 07/20/2017 07/20/2017
07/20/2017
07/24/2017 07/26/2017 08/07/2017 08/08/2017 08/08/2017 08/14/2017 08/16/2017 08/16/2017 08/28/2017
08/30/2017

81 Unopposed MOTION for Extension of Time to file objections to report and recommendation of June 26, 2017 by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Dalke, Samuel) (Entered: 07/10/2017)
82 ORDER granting 81 Motion to Extend Time to file Objections to the R&R. Objections due 7/24/2017.Signed by Honorable William J. Nealon on 7/11/2017 (bg) (Entered: 07/11/2017)
VERBAL ORDER − Case Reassigned to Honorable Matthew W. Brann. Honorable William J. Nealon no longer assigned to the case. (kc) (Entered: 07/20/2017)
83 MOTION to Exceed Page Limitation by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Dalke, Samuel) (Entered: 07/20/2017)
84 BRIEF IN SUPPORT re 83 MOTION to Exceed Page Limitation filed by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young.(Dalke, Samuel) (Entered: 07/20/2017)
85 OBJECTION to 80 Report and Recommendations . (Attachments: # 1 Unpublished Opinion(s))(Dalke, Samuel) (Entered: 07/24/2017)
86 ORDER granting 83 Motion for Leave to File Excess Pages. Signed by Honorable Matthew W. Brann on 7/26/2017. (jn) (Entered: 07/26/2017)
87 MOTION for Extension of Time to File Brief in Response to Defendants' Objections filed by Sebastian Richardson. (Attachments: # 1 Proposed Order)(Morgan−Kurtz, Alexandra) (Entered: 08/07/2017)
88 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Christine C. Levin on behalf of Sebastian Richardson Attorney Philip Fornaci is seeking special admission. Filing fee $ 50, receipt number 0314−4163698.. (Levin, Christine) (Entered: 08/08/2017)
89 ORDER granting 87 Motion for Extension of Time to File a Response to Defendants' Objections to the Report and Recommendation. IT IS HEREBY ORDERED that the deadline to file Plaintiff's Response is extended 7 days, or until August 14,2017. Signed by Honorable Matthew W. Brann on 8/8/2017. (jn) (Entered: 08/08/2017)
90 MEMORANDUM OF LAW by Sebastian Richardson re 85 Objection to Report and Recommendations . (Morgan−Kurtz, Alexandra) (Entered: 08/14/2017)
91 MOTION for Extension of Time to Complete Discovery by Sebastian Richardson. (Attachments: # 1 Proposed Order)(Morgan−Kurtz, Alexandra) (Entered: 08/16/2017)
92 ORDER granting 91 Motion for Extension of Time to Complete Discovery. Discovery deadline is extended to 12/14/2017. Signed by Honorable Matthew W. Brann on 8/16/2017. (jn) (Entered: 08/16/2017)
93 Unopposed MOTION for Extension of Time to by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Butler, Michael) (Entered: 08/28/2017)
94 ORDER granting 93 Motion to Extend Time. Defendants may file their reply brief on or before 9/11/2017. Signed by Honorable Matthew W. Brann on 8/30/2017. (jn) (Entered: 08/30/2017)

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 13 of 15

09/11/2017 10/06/2017 10/17/2017
02/07/2018 02/28/2018 03/01/2018 03/02/2018
03/02/2018
03/05/2018 03/08/2018 03/13/2018 04/20/2018
05/04/2018 05/18/2018

95 REPLY BRIEF re 80 REPORT AND RECOMMENDATIONS re 68 MOTION to Certify Class filed by Sebastian Richardson (Objection Reply Brief) filed by Bryan A Bledsoe, Donald Hudson, Jr, Thomas R. Kane, Joseph Norwood, David Young.(Butler, Michael) (Entered: 09/11/2017)
96 SCHEDULING ORDER: Telephonic Status Conference scheduled for 10/13/2017 at 3:00 PM before Honorable Matthew W. Brann. (See Order for further details.) Signed by Honorable Matthew W. Brann on 10/6/2017. (jn) (Entered: 10/06/2017)
98 ORDER: IT IS HEREBY ORDERED that Plaintiff's 68 Motion to Certify Class is DENIED WITHOUT PREJUDICE. Plaintiff is GRANTED leave to re−file his Motion for Class Certification within a reasonable time after discovery is complete.The deadline to complete discovery is extended to 3/16/2018. Signed by Honorable Matthew W. Brann on 10/17/2017. (jn) (Entered: 10/17/2017)
99 NOTICE of Appearance by James Davy on behalf of All Plaintiffs (Davy, James) (Entered: 02/07/2018)
100 Letter from Plaintiff Sebastian Richardson Requesting Discovery Conference. (Morgan−Kurtz, Alexandra) (Entered: 02/28/2018)
101 Letter from Defendants, Opposing Plaintiff's Request for a Discovery Conference . (Butler, Michael) (Entered: 03/01/2018)
102 Unopposed MOTION to Take Deposition from Plaintiff Sebastian Richardson by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael) (Entered: 03/02/2018)
103 BRIEF IN SUPPORT re 102 Unopposed MOTION to Take Deposition from Plaintiff Sebastian Richardson filed by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young.(Butler, Michael) (Entered: 03/02/2018)
104 BRIEF IN OPPOSITION re 102 Unopposed MOTION to Take Deposition from Plaintiff Sebastian Richardson (Opposition to Date of Deposition) filed by Sebastian Richardson. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) 1)(Yeh, Su Ming) (Entered: 03/05/2018)
105 SCHEDULING ORDER: Telephonic Status Conference scheduled for 3/12/2018 at 3:00 PM before Honorable Matthew W. Brann. (See Order for further details.) Signed by Honorable Matthew W. Brann on 3/8/2018. (jr) (Entered: 03/08/2018)
107 SCHEDULING ORDER: IT IS HEREBY ORDERED that Discovery is extended until 6/11/2018. Defendants' 102 MOTION to Take Deposition is DENIED AS MOOT. Signed by Honorable Matthew W. Brann on 3/13/2018. (jr) (Entered: 03/13/2018)
108 MOTION to Compel Discovery by Sebastian Richardson. (Attachments: # 1 Proposed Order, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s), # 14 Exhibit(s))(Morgan−Kurtz, Alexandra) (Entered: 04/20/2018)
109 BRIEF IN SUPPORT re 108 MOTION to Compel Discovery filed by Sebastian Richardson. (Attachments: # 1 Exhibit(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s))(Davy, James) (Entered: 05/04/2018)
110 MOTION for Extension of Time to file Brief in Opposition to Motion to Compel Production of Documents by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Jason Seeba, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Butler, Michael) (Entered: 05/18/2018)

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 14 of 15

05/21/2018 05/30/2018
05/30/2018
06/01/2018
06/01/2018 06/05/2018 06/05/2018 06/06/2018 06/07/2018 06/08/2018 06/08/2018 06/08/2018 06/08/2018 06/08/2018 06/11/2018 06/14/2018

111 ORDER granting 110 Motion to Extend Time. IT IS HEREBY ORDERED that Defendants may file their brief in opposition to Plaintiff's motion to compel discovery on or before 6/1/2018. Signed by Honorable Matthew W. Brann on 5/21/2018. (jr) (Entered: 05/21/2018)
112 MOTION to Take Deposition from Sebastian Richardson by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael) (Entered: 05/30/2018)
113 BRIEF IN SUPPORT re 112 MOTION to Take Deposition from Sebastian Richardson filed by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Sean Snider, Bradley Trate, Kyle Whittaker, David Young.(Butler, Michael) (Entered: 05/30/2018)
114 BRIEF IN OPPOSITION re 108 MOTION to Compel Discovery filed by Bryan A Bledsoe, Pedro Carrasquillo, James Fleming, Donald Hudson, Jr, Thomas Johnson, Thomas R. Kane, Chris Mattingly, Roger Miller, Joseph Norwood, Aaron Sassaman, Matthew Saylor, Camden Scampone, Sean Snider, Bradley Trate, Kyle Whittaker, David Young. (Attachments: # 1 Exhibit(s), # 2 Certificate of Word Compliance)(Butler, Michael) (Entered: 06/01/2018)
115 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Michael Butler terminated on behalf of Defendant Jason Seeba. (Butler, Michael) (Entered: 06/01/2018)
116 ORDER REFERRING case to Chief Magistrate Judge Schwab for referral of matters to U.S. Magistrate Judge for resolution of motion. Signed by Honorable Matthew W. Brann on 6/5/2018. (jr) (Entered: 06/05/2018)
117 ORDER granting 112 Motion to Take Deposition from Sebastian Richardson. Defendants may take the deposition of Plaintiff Sebastian Richardson, at the ADX Florence, Colorado on June 8, 2018. Signed by Honorable Matthew W. Brann on 6/5/2018. (jr) (Entered: 06/05/2018)
118 ORDER REFERRING CASE to Magistrate Judge Susan E. Schwab. Telephone Conference set for 6/11/2018 at 2:00 PM before Magistrate Judge Susan E. Schwab. Signed by Magistrate Judge Susan E. Schwab on 6/6/2018. (ktt) (Entered: 06/06/2018)
119 Letter from Plaintiff Sebastian Richardson regarding telephone conference. (Morgan−Kurtz, Alexandra) (Entered: 06/07/2018)
120 SCHEDULING ORDER: Telephone Discovery Conference set for 6/12/2018 at 3:00 PM before Magistrate Judge Susan E. Schwab. Signed by Magistrate Judge Susan E. Schwab on 6/8/2018. (ktt) (Entered: 06/08/2018)
121 NOTICE of Appearance by David J. MacMain on behalf of Jason Seeba (MacMain, David) (Entered: 06/08/2018)
122 NOTICE of Appearance by Matthew J. Connell on behalf of Jason Seeba (Connell, Matthew) (Entered: 06/08/2018)
123 MOTION for Extension of Time to Complete Discovery and Postpone the Deposition of Defendant, Lieutenant Jason Seeba by Jason Seeba. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(MacMain, David) (Entered: 06/08/2018)
124 ORDER granting 123 Motion for Extension of Time to Complete Discovery. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Susan E. Schwab on 6/8/2018 (ktt) (Entered: 06/08/2018)
125 REPLY BRIEF re 108 MOTION to Compel Discovery filed by Sebastian Richardson. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4, # 5 Exhibit(s) 5, # 6 Exhibit(s) 6, # 7 Exhibit(s) 7)(Yeh, Su Ming) (Entered: 06/11/2018)
126 ORDER − IT IS HEREBY ORDERED that all discovery disputes in the above−captioned case are referred to Chief Magistrate Judge Susan E. Schwab for

Case: 3:11-cv-2266 As of: 11/18/2018 02:12 PM EST 15 of 15

06/14/2018 08/13/2018 08/20/2018
10/01/2018 10/03/2018
11/09/2018

resolution. Signed by Honorable Matthew W. Brann on 6/14/2018. (jr) (Entered: 06/14/2018)
127 ORDER granting in part and denying in part 108 Motion to Compel Discovery. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Susan E. Schwab on 6/14/2018 (ktt) (Entered: 06/14/2018)
129 Letter from Defendants requesting 45 day extension of time. (ktt) (Entered: 08/20/2018)
130 ORDER − IT IS ORDERED that the defendants' request for an extension of the discovery deadline is GRANTED, and the discovery deadline is extended until October 1, 2018. Signed by Magistrate Judge Susan E. Schwab on 8/20/2018. (ktt) (Entered: 08/20/2018)
131 Letter from Defendants requesting 45 day extension of time . (Butler, Michael) (Entered: 10/01/2018)
132 ORDER − IT IS ORDERED that the defendants' request for an extension of the discovery deadline is GRANTED, and the discovery deadline is extended until November 1, 2018. Signed by Magistrate Judge Susan E. Schwab on 10/3/2018. (ktt) (Entered: 10/03/2018)
133 ORDER − IT IS ORDERED that a conference to discuss the status of discovery is scheduled for November 19, 2018, at 2:00 p.m. The conference will be by telephone. Counsel for the plaintiff shall initiate the call. Signed by Magistrate Judge Susan E. Schwab on November 9, 2018. (kjn) (Entered: 11/09/2018)