UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DWIGHT WILLIAMS; ANTHONY

:

OUELLETTE; KOLEYON PHILLIPS; :

ANTHONY DIGGS; KENNETH SMITH; :

EDWARD ZAMICHIELI; LOUIS

:

EUBANKS; JAMES SAUNDERS;

:

THOMAS SCOTT; SHANNON BOLLI; :

and MARISOL LOPEZ, on behalf of

:

themselves, and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

v.

:

:

CITY OF PHILADELPHIA; LOUIS

:

GIORLA, in his official capacity as

:

Commissioner, Philadelphia Prisons,

:

:

Defendants.

:

CIVIL ACTION No. 08-_________________ CLASS ACTION

COMPLAINT Introduction 1. This is a class action for injunctive and declaratory relief for the named individual plaintiffs and the class they represent to secure relief from the pervasive and chronic unconstitutional conditions of confinement that exist and which, absent judicial intervention, will continue to persist in the Philadelphia Prison System (“PPS”). Due to severe overcrowding and the lack of adequate facilities in which to house inmates in the PPS, persons who are committed to the PPS, many of whom have only been charged with crimes and are presumed innocent, are held in dangerous, unsanitary, severely overcrowded, degrading, and cruel conditions of confinement. As of April 21, 2008, the prison population in the PPS is at an historic high of more than 9,300 inmates.

2. In Bowers v. City of Philadelphia, C.A. No. 06-3229, this Court found unconstitutional conditions of confinement in the intake areas of the PPS and in police districts. To comply with an injunction issued by the Court, the City of Philadelphia shifted the overcrowding by greatly expanding its practice of housing three inmates in cells meant to accommodate no more than two inmates and housing four inmates in “multi-purpose” rooms (collectively, “triple celling” or “triple cells”), and by increasing the population of overcrowded dormitory areas.
3. The widespread practice of triple celling and placement of inmates in overcrowded dormitories has resulted in system-wide unconstitutional conditions of confinement. And, as the prison population continues to increase, these conditions continue to deteriorate. The conditions are so harsh and degrading, and so dangerous to the health and safety of the inmates, as to constitute cruel and unusual punishment under the Eighth Amendment and a denial of liberty without due process of law under the Fourteenth Amendment.
Jurisdiction 4. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. §§ 1983 and 1988 and the Eighth and Fourteenth Amendments to the United States Constitution. The Court has supplemental jurisdiction pursuant to 28 U.S.C. §1367(a).
Parties 5. Plaintiffs Dwight Williams, Anthony Ouellette, Koleyon Phillips, Anthony Diggs, Kenneth Smith, Edward Zamichieli, Louis Eubanks, James Saunders, Thomas Scott, Shannon Bolli, and Marisol Lopez are residents of the Commonwealth of Pennsylvania and are currently confined in the PPS subject to the conditions of confinement that are alleged in this Complaint. The individual plaintiffs sue for injunctive and declaratory relief on behalf of themselves and on
2

behalf of those who currently are or will in the future be subject to these unconstitutional conditions of confinement. All inmates in the PPS are subject to the conditions of confinement alleged in this Complaint.
6. Defendant City of Philadelphia is a political subdivision of the Commonwealth of Pennsylvania and operates and funds the Philadelphia Prison System. At all relevant times, defendant City of Philadelphia has acted and will continue to act under color of state law.
7. Defendant Louis Giorla is the Commissioner of the Philadelphia Prison System and is sued in his official capacity. At all relevant times, defendant Giorla has acted and will continue to act under color of state law.
Factual Allegations A. History of Unconstitutional Conditions in the PPS
8. In two related civil rights actions, Jackson v. Hendrick, C.P. Philadelphia, February Term, 1971, No. 2437, and Harris v. City of Philadelphia, E.D. Pa., No. 82-1847, begun in 1971 and 1982, respectively, state and federal courts ordered the Philadelphia Prison System to implement a series of measures to remedy conditions of confinement that violated the United States and Pennsylvania Constitutions. According to the findings of the three-judge Jackson court, which were sustained on appeal, and the allegations of the Harris Complaint, which supported a series of court-approved consent decrees, PPS inmates, the large majority of whom were awaiting trial, were subjected to unhealthy, unsafe, and degrading conditions of confinement due, in significant part, to the fact that the resources of the PPS, including housing, security staff, medical care, food, sanitation, and programming, were insufficient and inadequate to meet the needs of the number of inmates in custody.
3

9. Between them, the Jackson and Harris courts mandated physical plant improvements, enhancements in medical care and sanitation, the construction of new jails and a courthouse to increase capacity and expedite dispositions, the adoption and implementation of physical and operational standards and policies and procedures affecting conditions of confinement, and the establishment of alternatives to incarceration, including diversion of inmates into drug treatment programs. The Harris Court also ordered a limited, charge-based moratorium on the admission of certain categories of untried persons so long as the PPS population exceeded the inmate capacity, as determined by the PPS.
10. The Harris litigation was terminated in 2000 with the entry of a final Settlement Agreement in which the City of Philadelphia agreed to fund for a period of two years the cost of independent consultants to monitor the PPS’s compliance with PPS Physical and Operational Standards and PPS Policies and Procedures governing all aspects of conditions of confinement. The City also agreed to implement specified physical improvements to the House of Correction on a prescribed schedule. At the time that the Harris litigation was terminated, the population of the PPS was approximately 7,000 inmates, and the Court’s approval of the parties’ settlement was qualified with the expression of concern that without judicial oversight, the population, which had nearly doubled over the life of the litigation, would continue to increase beyond the physical capacity of the PPS.
11. The Jackson litigation was terminated in 2001 following 30 years of court supervision that included repeated and specific findings of unconstitutional conditions, a progression of consent decrees, and the release of inmates.
12. In terminating Jackson, the City of Philadelphia agreed that upon the opening of a new Women’s Detention Facility and the Cambria Correctional Center, and as long as the
4

population did not exceed 950 women and 6,850 men (a total of 7,800), the City would hold the population in the dormitories at Detention Center (“DC”) to 192, remove all inmates from the dayrooms and annex areas at DC, eliminate all triple celling, and would house no more than four inmates per multi-occupancy room at the Curran Fromhold Correctional Facility (“CFCF”).
13. In the five years following the termination of Harris and Jackson, the population of the PPS steadily increased, and the increase in the number of inmates far exceeded the additional housing capacity provided by a new women’s facility, the Riverside Correctional Facility. B. The Overcrowding Crisis of 2006
14 By June, 2006, the population in the PPS had increased to 8,900 inmates, representing an increase of 25% from 2000. There was not a commensurate increase in physical capacity, staffing, or other resources essential to constitutional conditions of confinement.
15. To house the greatly increased population, the prison defendants instituted triple celling at CFCF, Riverside Correctional Facility, and at the House of Correction, placed excessive numbers of inmates in dormitory areas at the Detention Center, and resorted to housing inmates in common spaces and recreation areas in other facilities which were crowded well beyond their capacity.
16. Further, because the defendants did not provide a sufficient number of correctional officers and other staff, they resorted to “lock-downs” and “restricted movements” at each of the facilities on a regular basis. These practices made conditions of confinement even more intolerable, as they deprived inmates of recreation, movement, and services. At the same time, these practices increased dangers to inmates and staff, including correctional officers, due
5

to the significant increase in tension and disputes that result when inmates are deprived of movement, recreation, and exercise.
17. Even with triple celling, the overuse of dormitory space at the DC, the use of common and recreation areas, and restricted movements and lock-downs of the general population, the City was unable to provide housing for all persons committed to the prisons.
18. In 2006, as the PPS literally ran out of housing space, the PPS instituted a policy and practice (“Operation Strategic Admission” or “OSA”) of holding inmates at the intake/admissions area of the DC, the Philadelphia Industrial Correctional Center (“PICC”), and/or CFCF until a cell was available in medical quarantine or in the general population.
19. Pursuant to this official practice and policy, inmates were first held at police districts and the Police Administration Building for periods ranging up to seven days. Thereafter, they were held in the intake areas of the PPS for well beyond the 24 hours required for admission into the system. The conditions at the police districts and the intake areas were dangerous, degrading and threatening to life, safety and health, all in violation of the Eighth and Fourteenth Amendments.
20. In Bowers v. City of Philadelphia, the Court, after certifying the matter as a class action, and after a full hearing on a Motion for Preliminary Injunction, ruled that the totality of circumstances regarding the conditions in the police districts and the intake/admissions areas of the PPS were so dangerous, punitive, and severe, as to violate the Eighth and Fourteenth Amendments.
21. The Court determined that the severe overcrowding, lack of adequate hygiene supplies, and lack of bedding, denial of medical care, and unsanitary conditions of confinement
6

served no legitimate penal purpose, and ordered specific relief aimed at these constitutional violations. Thereafter, the Court extended the grant of preliminary injunctive relief.
22. The Court determined that the City’s response to the overcrowding crisis was both too little and too late and did not adequately address the constitutional violations. Opinion, 5253.
23. The Court recognized that the PPS had attempted to solve the “immediate pretrial detainee overcrowding problem with one main solution – triple-celling in the quarantine unit of CFCF intake.” Opinion, 53. The Court warned, however, that “triple-celling . . . is not tenable as a permanent cure,” Opinion, 53, and likened this approach to “a band-aid on a wound that requires surgery.” Opinion, 54. In summary, the Court ruled that the City’s failure to provide adequate housing was “shocking.” Opinion, 54. C. The Current Overcrowding Crises
24. During the hearing and post-hearing proceedings in Bowers, the City of Philadelphia presented plans and proposals that were touted as solutions to the overcrowding and related unconstitutional conditions of confinement, including a 24-Point Plan for a coordinated criminal justice system effort at establishing constitutional conditions of confinement.
25. Most of the plans and programs presented by the City have not been implemented and the City continues to manifest deliberate indifference to the myriad problems that the Bowers litigation exposed.
26. To deal with the acute problems of overcrowding, the City has expanded triple celling and increased the dormitory population and, as a result, inmates are confined in these conditions for months at a time. The number of inmates confined in triple cells substantially exceeds the number who were triple-celled at the time of the decision in Bowers. On any given
7

date, there are well over 2,000 inmates housed in triple-cells, and hundreds more in overcrowded dormitory areas.
27. To accommodate the third inmate in cells designed for two, one of the inmates is required to sleep in a plastic shell (“blue boat”) that sits on the floor.
28. To attempt to control and service this steadily expanding population, the PPS has increasingly relied on “restricted movements” and “lockdowns,” of inmates, particularly when there are insufficient numbers of correctional officers to provide adequate services, security, and safety to inmates and to the staff.
29. As a result of the overcrowding and the failure of the City to provide adequate services, supplies, and staffing at the PPS, the plaintiffs and members of the plaintiff class have been, and without judicial intervention, will be subjected to a pervasive system of unconstitutional conditions that include (a) severe overcrowding with three inmates in cells designed for no more than two inmates and in overcrowded dormitories, (b) lack of adequate sanitation and hygiene, (c) danger to the physical and mental health and safety of inmates due to lack of sufficient numbers of correctional officers, medical personnel and other staff, (d) high risks of assault and violence, (e) the spread of disease and infections, and (f) denial of programs and services.
30. The Bowers Court specifically stated that unconstitutional conditions are more likely to occur as the population and use of triple-celling expands, and the Court warned against use of triple celling as a long term solution to the overcrowding problem. Opinion, 53-54. It is now more than a year from the date of the Court’s Opinion and Order of January 25, 2007 finding serious and pervasive unconstitutional conditions in the intake areas of the PPS, and the
8

City has failed to institute remedial measures that do more than shift the locus of the inhumane conditions to the general population.
Class Action Allegations 31. Plaintiffs seek to represent, on claims for declaratory and injunctive relief, a class of all persons who have been or will in the future be held in custody in the PPS in triple cells, overcrowded dormitories, or other overcrowded housing areas, and who have been or will be subjected to the unconstitutional policies and practices alleged in this Complaint. The class is so numerous that joinder of their claims is impracticable. 32. Plaintiffs’ claims are typical of the claims of the class members, in that each member of the class has suffered the same harms as a result of the defendants’ acts and omissions. Plaintiffs will be adequate representatives of the class, in that they are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class. 33. There are questions of law and fact common to the class, specifically whether defendants’ practices and procedures, which force confinement of all members of the plaintiff class in overcrowded, unsanitary and dangerous conditions, violate the Eighth and Fourteenth Amendments to the U.S. Constitution. The policies and practices of the defendants and the resulting conditions of confinement are the same for all members of the plaintiff class. 34. The questions of fact and law that are common to the members of the class predominate over any questions affecting any individual members of the class. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 35. The defendants have acted, or refused to act, on grounds generally applicable to the class. Final injunctive and declaratory relief is appropriate with respect to all of the members of the class.
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36. This action may properly be maintained under Fed. R. Civ. P. 23(b)(2). Count I – Federal Constitutional Violations
37. Plaintiffs incorporate by reference paragraphs 1-36, as if fully set forth in this paragraph.
38. The practices, policies, acts and omissions alleged in this Complaint are in violation of the Eighth and Fourteenth Amendments to the United States Constitution in that they deprive plaintiffs and members of the plaintiff class their rights to be free from deprivations of liberty without due process of law and to be free from cruel and unusual punishment. If appropriate declaratory and injunctive relief that is necessary to correct the unconstitutional conditions of confinement is not granted, the harms suffered will be irreparable, as the unconstitutional policies, practices and conditions will continue to exist for the foreseeable future.
Count II-State Law Claims 39. Plaintiffs incorporate paragraphs 1-38 by reference as if fully set forth in this paragraph. 40. The policies, practices, and conditions alleged in this Complaint deprive plaintiffs of their rights under the Pennsylvania Constitution and the laws of the Commonwealth of Pennsylvania to be free of deprivations of liberty without due process of law, and to be free from cruel and unusual punishment.
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Relief Wherefore, plaintiffs request the following relief: 1. For the named plaintiffs and the members of the plaintiff class, a declaratory judgment that the practices, policies, and conditions alleged in this Complaint are unconstitutional; 2. For the named plaintiffs and the plaintiff class, a permanent injunction that is narrowly drawn, that extends no further than necessary to correct the unconstitutional conditions, and that is the least intrusive means necessary to correct the unconstitutional conditions such that the defendants are prohibited from confining plaintiffs in triple cells and overcrowded dormitory areas, and are required to provide constitutionally mandated sanitation and environmental protection, medical care, habitable cells, and protection from assaults or other dangers to plaintiffs’ lives and safety; 3. If the defendants do not provide the necessary and required constitutional conditions of confinement, plaintiffs request that a three-judge court be empanelled, and that reductions in population be ordered; 4. Reasonable attorney’s fees and costs; 5. All other appropriate relief.
/s/ David Rudovsky David Rudovsky I.D. No. 15168 /s/ Jonathan H. Feinberg Jonathan H. Feinberg I.D. No. 88227 Kairys, Rudovsky, Messing
& Feinberg LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400
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I.D.
/s/ Angus I.D.
Pennsylvania 718 Philadelphia, (215)

/s/ Su Ming Yeh Su Ming Yeh
No. 95111
Angus Love Love
No. 22392
Institutional Law Project Arch Street, Suite 304S
PA 19106 925-2966
/s/ David Richman David Richman I.D. No. 04179
/s/ Matthew Janssen Matthew Janssen I.D. No. 91490
Pepper Hamilton LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 (215) 981-4000
Counsel for Plaintiffs

12

 
 Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 1 of 10

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

DWIGHT WILLIAMS, et ai., Plaintiffs
v.
CITY OF PHILADELPHIA, et al., Defendants

CIVIL ACTION NO.08-CV-1979

ORDER AND NOW, this _ _ day of _ _, 2008, upon consideration of the Unopposed Motion to Intervene filed by Lynne Abraham, the District Attorney of the City and County of Philadelphia, it is hereby ORDERED that the Motion is GRANTED. Accordingly, the District Attorney is hereby permitted to intervene in this civil action.

BY THE COURT:

_ _ _ _ _ _ _ _ _ _ _ _U.S.DJ.

Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 2 of 10

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

DWIGHT WILLIAMS, et al., Plaintiffs
v.
CITY OF PHILADELPHIA, et al., Defendants

CIVIL ACTION NO.08-CV-1979

UNOPPOSED MOTION OF DISTRICT ATTORNEY LYNNE ABRAHAM TO INTERVENE PURSUANT TO THE PRISON LITIGATION REFORM ACT
TO THE HONORABLE R. BARCLAY SURRICK, JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA:
Lynne Abraham, the District Attorney of the City and County of Philadelphia, hereby moves to intervene in this civil action and asserts as follows: 1. This motion is unopposed. 2. Counsel for the Plaintiffs, Jonathan Feinberg, Esquire, has authorized the undersigned
to represent that the Plaintiffs do not oppose this intervention motion. Jeffrey Kolansky, Esquire, counsel for the City Defendants, has also authorized the undersigned to represent that the City Defendants do not oppose this intervention motion. 3. Lynne Abraham is the District Attorney of the City and County of Philadelphia. Under Pennsylvania law, she is responsible for the prosecution of persons accused of crimes committed in Philadelphia.

1

Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 3 of 10
4. Plaintiffs' Complaint raises numerous allegations about overcrowding at the Philadelphia prisons and seeks declaratory and injunctive relief that, if granted, would limit the Philadelphia prison population.
5. Intervention in this case is authorized by the Prison Litigation Reform Act, 18 U.S.C. § 3626, and Fed. R. Civ. P. 24. Plaintiffs' Complaint seeks relief that would constitute a "prisoner release order" as defined by the Prison Litigation Reform Act (PLRA). 18 U.S.C. § 3626(g). The District Attorney seeks to intervene pursuant to Rule 24, which provides for intervention "as of right" where a "statute of the United States grants an unconditional right to intervene." Fed. R. Civ. P. 24(a)(l). The PLRA grants a statutory right of intervention to a prosecutor to oppose an order that would require the release or non-admission of detainees or other prisoners subject to criminal prosecution. 18 U.S.C. § 3626(a)(3)(F).
6. Under virtually identical circumstances, this Court previously granted the District Attorney's Motion to Intervene in Bowers v. City of Philadelphia, Civil Action No, 06-CV-3229, 2006 U.S. Dist. LEXIS 64651 (E.D. Pa. Sept. 8,2006).
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Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 4 of 10
7. For the reasons set forth in the accompanying memorandum oflaw (which are incorporated herein by reference), the District Attorney respectfully requests that this Court grant the District Attorney intervention in this case. 1 Respectfully submitted,
~Uf{g
Sarah V. Hart Assistant District Attorney Priya Travassos Assistant District Attorney Counsel for Lynne Abraham Proposed Intervenor District Attorney's Office Three South Penn Square Philadelphia, PA 19107-3499 215-686-9607
Dated: May 14,2008
I In this uncontested motion to intervene, the District Attorney is not including a proposed pleading. The City's response to the complaint is due 60 days after the filing of the complaint. The parties have agreed that the District Attorney's responses to the complaint and the Plaintiffs' simultaneously filed motion for class certification shall be due on the same date as the City's filings.
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Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 5 of 10

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

DWIGHT WILLIAMS, et al., Plaintiffs
v.
CITY OF PHILADELPHIA, et al., Defendants

CIVIL ACTION NO. 08-CV-1979

DISTRICT ATTORNEY'S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION TO INTERVENE

Introduction Lynne Abraham, the District Attorney of the City and County of Philadelphia,
seeks to intervene in this civil action to oppose Plaintiffs' requests for injunctive and other relief that would, if granted, have the purpose or effect of limiting the Philadelphia prison population. Because the parties do not oppose this intervention request, the District Attorney is limiting the briefing of this issue.' Background
Lynne Abraham is the District Attorney of the City and County of Philadelphia. Under Pennsylvania law, she is responsible for the prosecution of persons accused of crimes committed in Philadelphia. See 16 Pa.C.S.A. § 1402(a).

! However, an extensive discussion of the PLRA's intervention requirements can be found in the District Attorney's previous filings with this Court in the related Bowers litigation (Civil Action No. 06-3229). (See District Attorney's Motion to Intervene & Reply to Plaintiffs' Response to the Motion to Intervene, Document Nos. 9 & 18.) The District Attorney respectfully requests the opportunity to supplement this brief if this Court deems further briefing necessary to resolve this uncontested motion.

Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 6 of 10
The named plaintiffs who filed this civil action are persons who have been, or continue to be, subject to criminal prosecutions by the Philadelphia District Attorney or are serving sentences imposed for crimes the Philadelphia District Attorney prosecuted. Plaintiffs' Complaint raises allegations relating to triple-ceIling in the Philadelphia Prison System (PPS) and purported overcrowding in PPS dormitories. The Complaint seeks declaratory and injunctive relief, a preliminary injunction, and attorneys fees. Specifically, Plaintiffs state that they may be seeking an order limiting the prison population that would require a three-judge panel pursuant to 18 U.S.C. § 3626(a)(3). (Plaintiffs' Complaint at p.ll, ~ 3.) Federal Intervention Requirements
Intervention as of Right Under Fed. R. Civ. P. 24 (a). The Rules of Civil Procedure provide for intervention "as of right" and permissive intervention. Fed. R. Civ. P. 24. The District Attorney seeks to intervene "as of right" pursuant to Rule 24(a). In applicable part, Rule 24 provides that "[u]pon timely application anyone shall be permitted to intervene in any action: (1) when a statute of the United States confers an unconditional right to intervene ...." The District Attorney's request to intervene as of right is based on a Federal statute and is timely filed.
The Federal Prison Litigation Reform Act (PLRA). The PLRA grants state and local prosecutors the right to intervene in Federal Court actions where persons subject to criminal prosecution seek an order requiring their release or non-admission to a prison. 18 U.S.c. § 3626(a)(3)(F). The PLRA broadly defines a "prisoner release order" to include orders that explicitly direct the release or nonadmission of prisoners as well as those that can indirectly lead to prison population limits or releases. See 18 U.S.C. §
2

Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 7 of 10
3626(g)(4) (defining a "prisoner release order" to include "any order, temporary restraining order or preliminary injunction that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison). The PLRA also makes clear that prosecutors have the right to intervene at all stages of this litigation, including the beginning of the litigation, when there are "proceedings related to" a prisoner release order. 18 U.S.C. § 3626 (a)(3)(F). Why Intervention is Appropriate in this Case
Here, the District Attorney is entitled to intervene because her "jurisdiction or function" includes the prosecution of persons who "may be released from" a "prison" pursuant to a "prisoner release order." See 18 U.S.C. § 3626(g)(4) (defining a "prisoner release order"). Under the plain language of the PLRA, the District Attorney is entitled to intervene where persons subject to prosecution "may be released from, or not admitted to, a prison as a result of a prisoner release order. ... " 18 U.S.C. § 3626(a)(3)(F). Thus, where, as here, the litigation may result in direct or indirect population limits, the PLRA grants intervention rights.
By using the phrase "proceedings relating to," Congress chose to grant prosecutors expansive intervention rights throughout the litigation.i The words "relating
2 The term "proceeding" is commonly understood in the legal community to include an entire lawsuit. Obale v. Attorney General of the United States, 453 F. 3d 151, 156 n.3 (3d. Cir. 2006) (interpreting the word "proceeding" according to its "ordinary meaning" as the "regular and orderly progression of a lawsuit, including all acts between the time of commencement and the entry ofjudgment"); see also 28 U.S.C. § 455 (defining "proceeding" in judicial disqualification statute to include "pretrial, trial, appellate review, or other stages of the litigation").
3

Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 8 of 10
to" are very broad.3 Courts have deemed legal issues to be "related" when they arise from a core set of facts and lack distinct legal theories. 4 Based on a common sense reading of the "deliberately expansive language chosen by Congress," this Court has previously held that the District Attorney is entitled to intervene in proceedings that "have bearing on or have some association with [a prisoner release order]." Bowers v. City of Philadelphia, Civil Action No, 06-CV-3229, 2006 U.S. Dist. LEXIS 64651, at *24-25 (E.D. Pa. Sept. 8,2006). Given the nature of Plaintiffs' Complaint, it would be extremely difficult to find any portion of this litigation not "related" to a request to release prisoners or limit the prison population.
3 The Oxford English Dictionary defines "relate" as "to establish a causal connection between" and defines "relate to" as "have reference to" and "concern." Courts frequently resort to these dictionary definitions for statutory interpretation purposes. See Shaw v. Delta Air Lines, 463 U.S. 85,96-97 (1983) (interpreting statutory language of "relates to" in accordance with a dictionary definition to mean "has a connection with or reference"); United Wire, Metal & Mach. Health & Welfare Fund v. Morristown Mem'l Hosp., 995 F.2d 1179 (3d Cir. 1995) (same). Cf. Black's Law Dictionary 1291 (7th ed. 1999) (in bankruptcy matters, a "related proceeding" is "a proceeding that involves a claim that will affect the administration ofthe debtor's estate (such as a tort action between the debtor and a third party) but that does not arise under bankruptcy law and could be adjudicated in state court"). 4 See, SUk Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (in case addressing "related" claims for civil rights attorney fee purposes, describing "unrelated claims" as "distinctly different claims for reliefthat are based on different facts and legal theories"); Lerman v. Joyce Int'l, 10 F.3d 106, 114 (3d Cir. 1993) (finding legal theories "related" where they were based on "overlapping facts"); Citizens Council of Delaware County v. Brinegar, 741 F.2d 584 (3d Cir. 1984) (finding that plaintiffs' claims were "substantially related to each other" because they relied on the essential legal theory that the defendants had violated two federal statutes).
4

Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 9 of 10

Conclusion For these reasons, the District Attorney respectfully requests that this Court grant
this uncontested motion to intervene.

Dated: May 14,2008

Respectfully submitted,
~UW Sarah V. Hart Assistant District Attorney Priya M. Travassos Assistant District Attorney Counsel for Lynne Abraham Proposed Intervenor District Attorney's Office Three South Penn Square Philadelphia, PA 19107-3499 215-686-9607

5

Case 2:08-cv-01979-RBS Document 9 Filed 05/14/08 Page 10 of 10

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

DWIGHT WILLIAMS, et al., Plaintiffs

CIVIL ACTION

v.

CITY OF PHILADELPHIA, et al., Defendants

NO.08-CV-1979

Certificate of Service

The undersigned hereby certifies that a copy of the District Attorney's Unopposed Motion to Intervene and Memorandum of Law was served by first-class mail on this date to the following counsel:

David Rudovsky, Esquire (Suite SOlS) Jonathan Feinberg, Esquire (Suite 501S) Angus Love, Esquire (Suite 304S) Su Ming Yeh, Esquire 718 Arch Street Philadelphia, PA 19106

David Richman, Esquire Matthew Janssen, Esquire 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799

Jeffrey Kolansky, Esquire Jeffrey Scott, Esquire, Richard Tuttle, Esquire Suite 1620 One South Broad Street Philadelphia, PA 19107

~u~
Sarah V. Hart Assistant District Attorney Counsel for Lynne Abraham Proposed Intervenor Counsel for City Defendants

May 14,2008

1

 
 Case 2:08-cv-01979-RBS Document 13 Filed 06/06/08 Page 1 of 2

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

DWIGHT WILLIAMS, ET AL.

:

:

v.

:

:

CITY OF PHILADELPHIA, ET AL.

:

CIVIL ACTION NO. 08-CV-1979

ORDER AND NOW, this 6th day of June, 2008, upon consideration of the Unopposed Motion of District Attorney Lynne Abraham to Intervene Pursuant to the Prison Litigation Reform Act, (Doc. No. 9), it is ORDERED that the Motion is GRANTED.1

1 District Attorney Lynne Abraham seeks to intervene pursuant to Federal Rule of Civil Procedure 24 and the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626. (Doc. No. 9 ¶ 5.) Rule 24(a)(1) provides: “On timely motion, the court must permit anyone to intervene who . . . is given an unconditional right to intervene by a federal statute . . . .” Fed. R. Civ. P. 24(a)(1) (2008). The District Attorney argues that the PLRA “grants a statutory right of intervention to a prosecutor to oppose an order that would require the release or non-admission of detainees or other prisoners subject to criminal prosecution” and that Plaintiffs’ Complaint seeks such relief. (Doc. No. 9 ¶ 5 (citing 18 U.S.C. § 3626(a)(3)(F)).) Section 3626(a)(3)(F) of the PLRA provides:
Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not admitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continuation in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any proceeding relating to such relief.
18 U.S.C. § 3626(a)(3)(F) (2000) (emphasis added).
We addressed this precise issue in Bowers v. City of Philadelphia, Civ. A. No. 06-3229, 2006 U.S. Dist. LEXIS 64651 (E.D. Pa. Sept. 8, 2006). In that case, we concluded that
[g]iven the common sense meaning of the phrase “relates to,” the legislative history indicating Congress’s intent for broad, liberal interpretation of the standing provision

Case 2:08-cv-01979-RBS Document 13 Filed 06/06/08 Page 2 of 2

IT IS SO ORDERED.

BY THE COURT:

_________________________ R. Barclay Surrick, Judge

of the PLRA, the history of prison overcrowding litigation in this City and in this District, and the serious nature of Plaintiffs’ allegations in this case, we are compelled to conclude not only that the District Attorney has a right to intervene in this matter at this stage but that such intervention is prudent. We are prepared to deal expeditiously with this case and see no reason to exclude a party at this stage of the litigation when she may very well play an active role in its resolution.
Id. at *26-27. The circumstances here are sufficiently similar to justify the same result. Accordingly, we will grant the District Attorney’s Unopposed Motion to Intervene.
2

 
 Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 1 of 27

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

: DWIGHT WILLIAMS, et al.,
Plaintiff, : vs. : THE CITY OF PHILADELPHIA, ET AL.
Defendants.

: CIVIL ACTION : : No. 08-1979
:
: : : : :

Proposed Order #1 AND NOW, this _______________ day of July, 2008, upon consideration of Defendants City of Philadelphia and Commissioner Giorla’s Motion to Dismiss pursuant to Rule 12(b)(7) of the Federal Rules of Civil Procedure and any response thereto, said motion is GRANTED. It is hereby ORDERED and DECREED that the Plaintiffs shall file and serve an Amended Complaint upon and against The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court and Jeffrey A. Beard, Ph.D., Secretary of the Commonwealth of Pennsylvania Department of Corrections seeking an injunction for prospective injunctive relief to alleviate the alleged unconstitutional conditions of confinement within the Philadelphia Prison System within 10 days of this Order. The Failure to follow this Order shall result in the dismissal of this case with prejudice, upon petition by the City of Philadelphia, Commissioner Giorla or the District Attorney.
__________________________ Surrick, J.

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 2 of 27

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

:

DWIGHT WILLIAMS, et al.,

: CIVIL ACTION

:

Plaintiff,

: No. 08-1979

:

vs.

:

:

THE CITY OF PHILADELPHIA, ET :

AL.

:

:

Defendants.

:

:

Proposed Order #2

AND NOW, this _______________ day of July, 2008, upon consideration of Defendants

City of Philadelphia and Commissioner Giorla’s Motion to Join pursuant to Rule 19 of the

Federal Rules of Civil Procedure and any response thereto, said motion is GRANTED.

It is hereby ORDERED and DECREED that the Plaintiffs shall file and serve an

Amended Complaint upon and against The Honorable C. Darnell Jones, II, President Judge of

the Court of Common Pleas of the First Judicial District of Pennsylvania, The Honorable Louis

Presenza, President Judge of the Philadelphia Municipal Court and Jeffrey A. Beard, Ph.D.,

Secretary of the Commonwealth of Pennsylvania Department of Corrections seeking an

injunction for prospective injunctive relief to alleviate the alleged unconstitutional conditions of

confinement within the Philadelphia Prison System within 10 days of this Order. The Failure to

follow this Order shall result in the dismissal of this case with prejudice, upon petition by the

City of Philadelphia, Commissioner Giorla or the District Attorney.

__________________________

Surrick, J.

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 3 of 27

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

: DWIGHT WILLIAMS, et al.,
Plaintiff, : vs. : THE CITY OF PHILADELPHIA, ET AL.
Defendants.

: CIVIL ACTION : : No. 08-1979
:
: : : : :

CITY DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(7) OR IN THE ALTERNATIVE MOTION TO JOIN UNDER RULE 19 OF THE FEDERAL RULES OF CIVIL PROCEDURE Defendants City of Philadelphia and Prison Commissioner Louis Giorla, by and through
their counsel of record, hereby file this Motion To Dismiss, or in the Alternative, Motion to Join The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court and Jeffrey A. Beard, Ph.D., the Secretary of Department of Corrections of the Commonwealth of Pennsylvania pursuant to Rule 12(b)(7).
1. The City of Philadelphia and Prison Commissioner Louis Giorla hereby incorporate by reference their memorandum of law as though fully set forth at length.
WHEREFORE, based on the foregoing reasons, the City of Philadelphia and Commissioner Giorla request this Court to dismiss this matter or order the joinder of the following individuals pursuant to Rule 19(a) of the Federal Rules of Civil Procedure:

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 4 of 27
a. Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, Court of Common Pleas of Philadelphia;
b. Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court; and
c. Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections of the Commonwealth of Pennsylvania.

Date: June 27, 2008 /s/
3389865v1

Jeffrey M. Kolansky __________________________
Jeffrey M. Kolansky
/s/ Jeffrey M. Scott __________________________
Jeffrey M. Scott Archer & Greiner One South Broad Street
Suite 1620 Philadelphia, PA 19107
215-963-3300 215-963-9999 (fax)

2

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 5 of 27

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

: DWIGHT WILLIAMS, et al.,
Plaintiff, : vs. : THE CITY OF PHILADELPHIA, ET AL.
Defendants.

: CIVIL ACTION : : No. 08-1979
:
: : : : :

MEMORANDUM OF LAW IN SUPPORT OF THE CITY DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(7) OR IN THE ALTERNATIVE MOTION TO JOIN UNDER RULE 19 OF THE FEDERAL RULES OF CIVIL PROCEDURE Defendants City of Philadelphia and Prison Commissioner Louis Giorla, by and through
their counsel of record, hereby file this Motion to Dismiss, or in the alternative, Motion to Join The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court and Jeffrey A. Beard, Ph.D., Secretary of the Commonwealth of Pennsylvania Department of Corrections pursuant to Rules 12(b)(7) and Rule 19 of the Federal Rules of Civil Procedure. INTRODUCTION
This is a class action for injunctive and declaratory relief for the named individual plaintiffs and the putative class they represent to secure relief from the alleged unconstitutional conditions of confinement that exist and which, absent judicial intervention, will

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 6 of 27
continue to persist in the Philadelphia Prison System ("PPS"). The alleged putative class consists of all persons confined to the PPS, whether pretrial detainees or convicted prisoners. In the PPS, there are persons awaiting trial, convicted persons with maximum sentences of 24 months or more, persons that violated State parole and persons confined due to writ for various reasons, including but not limited to, (a) inmates which have been sentenced to terms of incarceration in state correctional facilities who are housed in the county jail (PPS) awaiting various hearings and Court appearances; (b) inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have committed an act or acts in violation of the terms of their parole and are awaiting a hearing by that Board prior to recommitment to a state facility; (c) inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have been charged with new criminal acts and are awaiting trial on those charges; (d) inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have committed an act or acts in violation of the terms of their probation and are awaiting a hearing by the Court of Common Pleas of Philadelphia County; (e) inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have been charged with new criminal offenses and are awaiting trial on the new charge; (f) inmates with sentences that qualify them for aggregations which will result in maximum sentences of 24 months or longer, thus making the prisoners eligible for confinement in a state correctional facility.
Under State law (42 Pa.C.S. § 9762), when the maximum sentence is two years or more, but less than five years the convicted prisoner may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court.
2

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 7 of 27
When the maximum term of a sentence is less than two years, the convicted prisoner shall be committed to a county prison within the jurisdiction of the court “except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.” 42 Pa.C.S. § 9762 (2007).
The Philadelphia Court of Common Pleas and the Philadelphia Municipal Court (both part of the First Judicial District of Pennsylvania), are the only governmental bodies authorized to determine whether a convicted person is sentenced to guilt without penalty, probation, fine, partial confinement, and total confinement, 42 Pa.C.S. § 9721(a).” Neither The City of Philadelphia nor Commissioner Giorla have the authority to prevent a Philadelphia judge from imposing a sentence in county confinement, even where the maximum sentence is two years or more, but less than five years. Likewise, The Philadelphia District Attorney’s Office has no authority to impose a sentence in county confinement, even where the maximum sentence is two years or more, but less than five years. At most, the Philadelphia District Attorney’s Office can recommend state confinement.
In the County of Philadelphia, the Philadelphia Court of Common Pleas and Municipal Courts have developed a custom, policy and practice over several decades of committing convicted persons to the Philadelphia Prison System, whose level of offense makes them eligible to serve their term of confinement in one of the many State correctional institutions. Commonwealth v. Edwards, 2006 Pa.Super 225, 906 A.2d 1225, 1229 (Pa. Super. Ct. 2006)( Trial judges in this Commonwealth are granted the discretion to commit convicted criminals with maximum sentences of two years or greater to the Pennsylvania Department of
3

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 8 of 27
Corrections.)(citing Commonwealth v. Hartle, 2006 Pa.Super 45, 894 A.2d 800, 807 (Pa. Super. 2006)).
As of this filing, there are over 400 inmates in the custody of the City of Philadelphia that should be confined in a state correctional facility, based on their individual sentences. Unless the President Judges of the Philadelphia Court of Common Pleas and Municipal Court are joined as a parties, the practice of confining “state” prisoners to the alleged unconstitutional conditions of the Philadelphia Prison System, then complete relief cannot be “accorded” to the putative class members and the Defendants.
Likewise, the joinder of Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections is equally necessary to “accord” the putative class members complete relief. “[Currently], there are over four-hundred inmates [that] are serving state sentences of two to five or more years in PPS facilities. These inmates represent nearly 20% of the Prisons’ sentenced population. Neither the Prisons nor the City are reimbursed for costs associated with their care which is estimated at more than $11,000,000.00 annually. Removal of these inmates from PPS would result in a marked reduction in the Prisons budget, coupled with the availability of over four-hundred beds.” Philadelphia Prison System Strategic Plan FY09-FY13, A Report to Mayor Michael A. Nutter, April 24, 2008 at 9-10, attached hereto as Exhibit D.
The PPS, in the past, has requested that the Bureau of Prisons accept “state” prisoners in the custody of the Philadelphia Prison System because these prisoners were taking up valuable bed space needed for those that who should be committed to the PPS. The State has refused to accept its responsibility to accept and incarcerate the “state” prisoners in the Philadelphia Prison System, despite its knowledge of the alleged overcrowded conditions, at the various prison facilities in Philadelphia County. The putative class members of the instant lawsuit consist of
4

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 9 of 27
persons in custody based on local and State parole violations, new arrests (pretrial detainees) and convicted prisoners. Some of these convicted prisoners should have been committed to a State correctional facility based on their length of sentence.
If, assuming arguendo, the allegations contained in plaintiffs’ complaint are accepted as true, then these prisoners are being subjected to overcrowded and unconstitutional conditions of confinement. The rights of the putative class members cannot be fully vindicated unless the Jeffrey A. Beard is ordered to accept all “state” prisoners in the custody of the Philadelphia Prison System. Thus, the joinder of Jeffrey A. Beard to this alleged prison overcrowding case, is essential to the full adjudication of the claims and defenses raised by the parties to this litigation.
Based on these reasons and those set forth in the below argument, the City Defendants respectfully request this Court grant the instant motion and dismiss this case for failure to join necessary parties. In the alternative, the City Defendants request this Court to order the joinder of The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, Court of Common Pleas of Philadelphia; The Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court; and Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections for the Commonwealth of Pennsylvania pursuant to Rules 12(b)(7) and 19(a) of the Federal Rules of Civil Procedure. FACTS1
The Plaintiffs allege that by June, 2006, the population in the Philadelphia Prison System (PPS) had increased to 8,900 inmates, representing an increase of 25% from 2000. Plaintiffs allege that to house the greatly increased population, the prison defendants instituted triple celling at CFCF, Riverside Correctional Facility, and at the House of Correction. The plaintiffs
1 The facts are completely derived from the Plaintiffs’ Complaint. The Defendants deny these facts but for purposes of this motion will rely upon the facts as though the facts were true.
5

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 10 of 27
claim that because the defendants did not provide a sufficient number of correctional officers and other staff: they resorted to "lock-downs" and "restricted movements" at each of the facilities on a regular basis. The plaintiffs allege that these practices made the conditions of confinement even more intolerable, as they deprived inmates of recreation, movement, and services. The Defendants deny these allegations.
The Plaintiffs claim that in Bowers v. City of Philadelphia, the Court, after certifying the matter as a class action, and after a full hearing on a Motion for Preliminary Injunction, ruled that the totality of circumstances regarding the conditions in the police districts and the intake/admissions areas of the PPS were so dangerous, punitive, and severe, as to violate the Eighth and Fourteenth Amendments. (The Defendants disputed this finding and still to this day, dispute this finding).
The Plaintiffs claim that during the hearing and post-hearing proceedings in Bowers, the City of Philadelphia presented a 24-Point Plan for a coordinated criminal justice system to reduce the population at PPS. The plaintiffs now claim that most of the plans and programs presented by the City have not been implemented. The plaintiffs claim that the City continues to be deliberately indifferent to constitutional rights of those confined to the PPS. The Defendants deny these allegations.
The plaintiffs, in support of this contention, allege that the City has expanded triple ceiling and increased the dormitory population and, as a result, inmates are confined in these conditions for months at a time. The plaintiffs claim that on any given date, there are well over 2,000 inmates housed in triple-cells, and hundreds more in overcrowded dormitory areas. The plaintiffs also claim that in an attempt to control and service those confined to the PPS, the PPS relied on "restricted movements" and "lockdowns," of inmates when there are insufficient
6

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 11 of 27
numbers of correctional officers to provide adequate services, security, and safety to inmates and to the staff. The plaintiffs further claim that as a result of the overcrowding and the failure of the City to provide adequate services, supplies, and staffing at the PPS, the plaintiffs and members of the plaintiff class have been, and without judicial intervention, will be subjected to a pervasive system of unconstitutional conditions. The Defendants deny these allegations.
The plaintiffs now bring this putative class action and allege that “[t]he practices, policies, acts and omissions alleged in this Complaint are in violation of the Eighth and Fourteenth Amendments to the United States Constitution in that they deprive plaintiffs and members of the plaintiff class their rights to be free from deprivations of liberty without due process of law and to be free from cruel and unusual punishment. The plaintiffs allege that if appropriate declaratory and injunctive relief that is necessary to correct the unconstitutional conditions of confinement is not granted, the harms suffered will be irreparable, as the unconstitutional policies, practices and conditions will continue to exist for the foreseeable future.” Exhibit A at ¶38. The plaintiffs also bring a pendent state claim under the Pennsylvania Constitution and allege that “[t]he policies, practices, and conditions alleged in this Complaint deprive plaintiffs of their rights under the Pennsylvania Constitution and the laws of the Commonwealth of Pennsylvania to be free of deprivations of liberty without due process of law, and to be free from cruel and unusual punishment.” Exhibit A at ¶ 40. LEGAL ARGUMENT I. L EGAL STANDARD FOR JOINDER UNDER RULE 12(B)(7) AND RULE 19(A) OF THE
FEDERAL RULES OF CIVIL PROCEDURE Rule 12(b)(7) permits a defendant to move for dismissal of a complaint for "failure to join a party under Rule 19. Fed. R. Civ. P. 12(b)(7); Fed. R. Civ. P. 19. If a necessary party cannot be joined, the court must determine whether, "in equity and good conscience," the action
7

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 12 of 27
should proceed or be dismissed. Fed. R. Civ. P. 19(b). N. Mich. Hosps., Inc. v. Health Net Fed. Servs., LLC, 2008 U.S. Dist. LEXIS 42587 (D. Del. May 30, 2008).
Generally, a Rule 12(b)(7) motion should be granted when there is an absent party without whom complete relief will not be possible in the case or whose interest in the controversy is such that to proceed without this party might prejudice it or the parties already present in the case. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1359, at 424 (2d ed. 1990). A court ruling on a 12(b)(7) motion may consider evidence outside the pleadings. Albahary v. City of Bristol, 963 F. Supp. 150, 156 n.2 (D.Conn. 1997). The movant has the burden of showing why the absent party should be joined. Sunrise Financial, Inc. v. PaineWebber, Inc., 948 F. Supp. 1002, 1006 (D.Utah 1996); 5A Wright & Miller, Federal Practice and Procedure § 1359, at 426-27. To meet this burden, the movant may submit affidavits or other relevant evidence. Sunrise Financial, 948 F. Supp. at 1006. Rojas v. Loewen Group Int'l, 178 F.R.D. 356, 361 (D.P.R. 1998).
“As a general matter any party may move to dismiss an action under Rule 19(b). A court with proper jurisdiction may also consider sua sponte the absence of a required person and dismiss for failure to join. Republic of the Phil. v. Pimentel, 2008 U.S. LEXIS 4889, 18-19 (U.S. June 12, 2008)(citing Minnesota v. Northern Securities Co., 184 U.S. 199, 235 (1902); Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 111, 88 S. Ct. 733, 19 L. Ed. 2d 936 (1968)). Rule 19(a)(1) "stresses the desirability of joining those persons in whose absence the court would be obliged to grant partial or 'hollow' rather than complete relief to the parties before the court." General Refractories Co. v. First State Ins. Co., 500 F.3d 306, 315 (3d Cir. 2007) (quoting Fed. R. Civ. P. 19 advisory committee’s notes).
8

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 13 of 27
“When a person needed for just adjudication (as set forth in Rule 19) has not been included in an action, a party may move for dismissal under Rule 12(b)(7).” 2-12 Moore's Federal Practice - Civil § 12.35. “Unless Rule 19(a)'s threshold standard is met, the court need not consider whether dismissal under Rule 19(b) is warranted.” Associated Dry Goods Corp. v. Towers Financial Corp., 920 F.2d 1121, 1123 (2d Cir. N.Y. 1990). Federal Rule of Civil Procedure 19 provides procedure for the mandatory joinder of parties determined to be necessary or required for just adjudication of an action. Rule 19(a)(1)(A) states: “A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if in that person’s absence, the court cannot accord complete relief among existing parties.”
“Under Rule 19(a), the joinder of parties is compulsory or "necessary" if their joinder is "feasible." General Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312-313 (3d Cir. Pa. 2007). “Specifically, the rule states in material part: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Courts treat clauses (1) and (2) in the disjunctive just as the rule phrases them. See Koppers, 158 F.3d at 175 ("As Rule 19(a) is stated in the disjunctive, if either subsection is satisfied, the absent party is a
9

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 14 of 27
necessary party that should be joined if possible."). General Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312-313 (3d Cir. Pa. 2007).
“Under Rule 19(a)(1) [this Court must] ask whether complete relief may be accorded to those persons named as parties to the action in the absence of any unjoined parties. As should be apparent, we necessarily limit our Rule 19(a)(1) inquiry to whether the district court can grant complete relief to persons already named as parties to the action; what effect a decision may have on absent parties is immaterial. Id., 500 F.3d at 313 (citing Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705 (3d Cir. 1996) ("Completeness is determined on the basis of those persons who are already parties, and not as between a party and the absent person whose joinder is sought.")); Dickson v. Murphy, 202 Fed. Appx. 578, 580 (3d Cir. Pa. 2006). The issue of joinder can be complex, and determinations are case specific.” Republic of the Phil. v. Pimentel, 2008 U.S. LEXIS 4889 (U.S. June 12, 2008).2
Based on the following reasons, the joinder of The Honorable C. Darnell Jones, II, The Honorable Louis Presenza and Jeffrey A. Beard (“State Officials”) is both feasible and necessary to the adjudication and defenses of all claims raised by the existing parties.
2 It should be noted that the City Defendants will file a Third-Party Complaint against the “State Officials” in addition to filing this Motion under Rule 12(b)(7). See Tate v. v Frey, 735 F2d 986, 989 (6th Cir. 1984)(In a county prison overcrowding case, Sixth Circuit held that joinder of state corrections officials was proper under Rule 14 because the “state’s controlled intake procedure contributed to the overcrowding of the County Jail.” Court Further held that “complete relief would be elusive, if not impossible, to achieve absent joinder of the state as a third-party to this action.”). See also Ryan v. Burlington County, 860 F.2d 1199, 1208 (3d Cir. 1988)(Union County filed a third-party complaint against State Commissioner Fauver alleging that "any unconstitutionality of conditions at the Jail to overcrowding resulting from the refusal of the Commissioner to accept for custody those prisoners who had been sentenced to state prison." Union County, 713 F.2d at 987.)).
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Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 15 of 27

II. T

HE HONORABLE C. DARNELL JONES, II AND THE HONORABLE LOUIS PRESENZA MUST BE PERMITTED TO BE JOINED AS PARTIES BECAUSE COMPLETE RELIEF CANNOT BE ACCORDED AMONG THE CURRENT PARTIES

The Criminal Justice System in the County of Philadelphia is not under any control of the

City of Philadelphia. Instead “a number of different actors have legal duties with respect to the

system of criminal justice. For example, it is the duty of the state court judges to determine the

bail status of those accused, 42 Pa. Cons. Stat. Ann. § 1123 (Purdon Supp. 1986), and to set the

sentences of those convicted. 42 Pa. Cons. Stat. Ann. § 9701 et seq. (Purdon 1982 and Supp.

1986). The Mayor and City Council, moreover, have the authority to determine the size of the

police force through their control of the City Budget. 351 Pa. Admin. Code §§ 2.2-300, 4.4-101

(1986). Any action by one of actors in the system is likely to have some repercussions in terms

of the other actors' duties.” Harris v. Pernsley, 820 F.2d 592, 601-602 (3d Cir. Pa. 1987).

In the City and County of Philadelphia, the Philadelphia Court of Common Pleas and the

Philadelphia Municipal Court are the only authorized State Agencies that determine whether a

convicted person is sentenced to guilt without penalty, probation, fine, partial confinement,

and/or total confinement, 42 Pa.C.S. § 9721(a).” In making its determination of partial

confinement and/or total confinement, the Philadelphia Courts, not the City of Philadelphia, must

"consider" sentencing guidelines adopted by the Pennsylvania Commission on Sentencing.

Commonwealth v. Tuladziecki, 513 Pa. 508, 514 (Pa. 1987). It is well established that the

Sentencing Guidelines are purely advisory in nature. Commonwealth v. Yuhasz, 592 Pa. 120,

132-133 (Pa. 2007). As this Court explained in Commonwealth v. Sessoms, 516 Pa. 365, 532

A.2d 775, 780-81 (Pa. 1987), the Guidelines do not alter the legal rights or duties of the

defendant, the prosecutor or the sentencing court. The guidelines are merely one factor among

many that the court must consider in imposing a sentence. Sessoms, 532 A.2d at 781. “In

imposing a sentence, the judge is directed to give two numbers representing the minimum and

11

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 16 of 27
maximum period of incarceration.” Commonwealth v. Yuhasz, 592 Pa. 120, 131 (Pa. 2007). “In imposing a sentence of total confinement the court shall at the time of sentencing specify any maximum period up to the limit authorized by law and whether the sentence shall be commenced in a correctional institution or other appropriate institution.” Id.
Once the Philadelphia Courts determine that partial or total commitment is necessary to fulfill the mandates of the Commonwealth’s penal system, the Courts are guided by 42 Pa.C.S. § 9762, a statute that provides for location of commitment. In cases where the maximum sentence is five or more years, the convicted person is confined to the Commonwealth of Pennsylvania, Bureau of Corrections. When the maximum sentence is two years or more, but less than five years, the convicted prisoner may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court. (“State” prisoners). And, when the maximum term is less than two years, the convicted prisoner shall be committed to a county prison within the jurisdiction of the court “except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.” 42 Pa.C.S. § 9762 (2007).
In the County of Philadelphia, the Philadelphia Courts have developed a custom, policy and practice over several decades of committing convicted persons to the Philadelphia Prison System, whose level of offense makes them eligible to serve their term of confinement in one of the many State correctional institutions. Commonwealth v. Edwards, 2006 Pa.Super 225, 2006 Pa.Super 225, 906 A.2d 1225, 1229 (Pa. Super. Ct. 2006)(Trial judges in this Commonwealth are
12

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 17 of 27
granted the discretion to commit convicted criminals with maximum sentences of two years or greater to the Pennsylvania Department of Corrections.)(citing Commonwealth v. Hartle, 2006 Pa.Super 45, 894 A.2d 800, 807 (Pa. Super. 2006)).
Historically, in the County of Philadelphia, the disposition of cases and sentences within one year from date of preliminary arraignment until sentencing results in a significant number of convictions and commitments that are eligible for both county and state commitment under 42 Pa.C.S. § 9762. “Of the 12,333 defendants entering the justice process in the months of March through May, 2005, an estimated 26 percent or about 3,176, had been both convicted and sentenced by the end of one year. Of those sentenced, an estimated 42 percent—or about 11 percent of the entire defendant cohort—received sentences involving confinement beyond timeserved credit for those who had been detained.” Goldkamp Study at 77 and Figure 41, attached hereto as Exhibit C. Of the 11% or 1,357 convicted prisoners, 12% or 162 of those convicted prisoners, had a maximum sentences of 24 months of longer, making each prisoner eligible for confinement in a State correctional facility. Unfortunately, the trend of “State” prisoners serving time in the Philadelphia Prison System has almost quadrupled since March of 2005.
Currently, there are “over four-hundred inmates [that] are serving state sentences of two to five or more years in PPS facilities. These inmates represent nearly 20% of the prisons sentenced population. Neither the Prisons nor the City are reimbursed for costs associated with their care which is estimated at more than $11,000,000.00 annually. Removal of these inmates from PPS would result in a marked reduction in the Prisons budget, coupled with the availability of over four-hundred beds.” Philadelphia Prison System Strategic Plan FY09-FY13, A Report to Mayor Michael A. Nutter, April 24, 2008 at 9-10, attached hereto as Exhibit D.5 According to
5 There is pending legislation before the General Assembly regarding this cohort of convicted prisoners. Under consideration in the Pennsylvania General Assembly are House Bills No.4-7 (2007) which
13

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 18 of 27
the current available data, the number of days of commitment for all persons committed to the Philadelphia Prison System with a sentence of two years or more, but less than five years, is approximately equal to 139,672 bed days. Exhibit B.
The influx of these convicted “State” prisoners increases the Philadelphia Prison System’s daily census. Likewise, the influx of these “State” prisoners contributes to the unavailability of daily bed space to those who actually belong in a county facility, like Riverside and CFCF. The First Judicial Courts fail take into consideration the alleged overcrowded conditions of the Philadelphia Prison System. If the plaintiffs’ allegations are believed, the Judges of the Philadelphia Court of Common Pleas and the Philadelphia Municipal Court are committing the putative class members to unconstitutional conditions of confinement and the First Judicial Courts are creating the alleged unconstitutional conditions, by committing people to the PPS who shouldn't be there, and thus causing the alleged overpopulation and need to use triple celling. Exhibit A . The City of Philadelphia has no authority to block or prevent the order of commitment of a “State” prisoner and must accept the “State” prisoner, without objection, into the alleged unconstitutional conditions. Exhibit A.
As the Supreme Court of Pennsylvania recognized in Jackson v. Hendrick, 498 Pa. 270, 273 (Pa. 1982), "[t]here can be no doubt that many of the difficulties in the prisons would be alleviated were the prisons not so overcrowded…” Opinion of April 7, 1972.” Jackson v. Hendrick, 498 Pa. 270, 273 (Pa. 1982). The City of Philadelphia is without legal authority to remove these convicted “State” prisoners from its facilities to other counties or to the State Corrections Bureau. Thus, these “State” prisoners continue to be committed to allegedly unconstitutional conditions, take up necessary bed space, and use up valuable City resources. As
mandate the housing of anyone serving over a two year sentence in state facilities. Even if these bills are passed, the mandate of the current legislation would not have any real effect until three years from the date of passage.
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a result of the continued practice of the First Judicial District-committing convicted “State” prisoners to the Philadelphia Prison System, complete relief cannot be granted to the plaintiffs because the City of Philadelphia has no authority to remove these convicted “State” prisoners without court intervention. Thus, the joinder of The Honorable C. Darnell Jones, II and The Honorable Louis Presenza to this claim for prospective injunctive relief, based on alleged prison overcrowding, is essential to the full adjudication of the claims and defenses raised by the parties to this litigation.
III. J EFFREY A. BEARD, SECRETARY OF CORRECTIONS, MUST BE PERMITTED TO BE JOINED AS A PARTY BECAUSE COMPLETE RELIEF CANNOT BE ACCORDED AMONG THE CURRENT PARTIES
In Allegheny County et al. v. The Commonwealth of Pennsylvania, Bureau of Correction et al., 507 Pa. 360; 490 A.2d 402 (Pa. 1985), the Supreme Court of Pennsylvania held that it would be an arbitrary exercise of discretion for a State agency charged with responsibility for the operation and maintenance of the various State correctional facilities to deny assistance to a political subdivision where it is demonstrated that the political subdivision has not been provided adequate resources to maintain its detention facilities in accordance with constitutional standards and adequate security cannot be maintained. Moreover, where a crisis situation exists the political subdivision has a right to demand that prisoners who are committed to the custody of a State agency and temporarily placed in county facilities be transferred to appropriate State facilities in order to relieve overcrowding.
In criminal justice matters (prosecution and confinement), the Commonwealth of Pennsylvania has the responsibility and “obligation to maintain order and to preserve the safety and welfare of all citizens. That responsibility requires the governmental unit to provide adequate
15

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 20 of 27
and secure facilities for the housing of those individuals who have demonstrated by their conduct
that they pose a danger to the other members of society. The sovereign governmental power is
reposed in the state. Although it is entirely proper and indeed customary for the state to delegate
a portion of that obligation among its political subdivisions, such delegation of responsibility
does not relieve the state of its primary duty to assure the satisfactory discharge of the
obligation.” Id., 490 A.2d at 409-411 (citations omitted).
Consistent with the State’s obligation to provide for adequate housing of confined
inmates within its borders, the Secretary of Corrections is vested with the authority, pursuant to
61 P.S. § 72, to transfer inmates located in county prisons to the State correctional system. 61
P.S. §72 states:
At the request of the county correctional administrator, the Secretary of Corrections or designee is hereby authorized and empowered to transfer inmates located in county prisons to the State correctional system for such reasons and upon such terms and conditions as the secretary may determine. The secretary or designee may transfer inmates in the State correctional system to the jurisdiction of a county correctional system upon such terms and conditions that the secretary or designee and the county correctional administrator determine to be in the best interests of the Commonwealth. Inmates located in a county prison may be transferred to another county prison upon such terms and conditions as the counties may determine. The Department of Corrections and county correctional facilities may contract with the Federal Government for the housing of Federal inmates in State and county correctional facilities.6
6 The Act, before it was amended in 1992, addressed the issue of overcrowded prisons and authorized transfers of prisoners based on conditions of confinement. The statute read in part: “The Deputy Commissioner for Treatment of the Bureau of Correction in the Department of Justice is hereby authorized and empowered and, upon petition being presented to him by the board of inspectors, if there be such board, otherwise the superintendent or official in charge of any penitentiary, prison, workhouse, house of correction, or other institution for adult prisoners, located within any county, or by the county commissioners of the county in which the institution is located, setting forth that the said penitentiary, prison, workhouse, house of correction, or other institution for adult prisoners, cannot, by reason of overcrowded condition or other existing conditions, furnish proper and sufficient accommodations for the care, custody, control, and safety of the inmates thereof, and that it is requested that a certain number of inmates, set forth in such petition, should be transferred therefrom, may make an order authorizing and
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Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 21 of 27
While some discretion exists on the part of the Secretary of Corrections to accept
prisoners under 61 P.S. § 72, the Secretary of Corrections has no ability to deny the transfer of
prisoners located in the Philadelphia Prison System that meet the following five criteria:
a) Inmates which have been sentenced to terms of incarceration in state correctional facilities who are housed in the County Jail awaiting various hearings and Court appearances, i.e. awaiting Post Conviction Hearing Act hearings, awaiting appearances before the Court of Common Pleas of [Philadelphia] County as a witness in other proceedings or trial on other charges.
b) Inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have committed an act or acts in violation of the terms of their parole and are awaiting a hearing by that Board prior to recommitment to a state facility.
c) Inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have been charged with new criminal acts and are awaiting trial on those charges.
d) Inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have committed an act or acts in violation of the terms of their probation and are awaiting a hearing by the Court of Common Pleas of [Philadelphia] County.
e) Inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have been charged with new criminal offenses and are awaiting trial on the new charge.
Allegheny County et al., 490 A.2d at 411-12. Only in very limited circumstances can the
Secretary of Corrections use his discretion to deny the transfer of county prisoners to other
facilities within the Commonwealth of Pennsylvania. 42 Pa.C.S. § 9762. Id., 490 A.2d at 412.
directing the said board of inspectors, if there be such board, otherwise the superintendent or official in charge, to transfer to another prison, penitentiary, workhouse, house of correction, or other institution for adult prisoners, such person or persons whom the board of inspectors, if there be such board, otherwise the superintendent or official in charge, shall specify and designate: Provided, however, that before any transfer is made as aforesaid the court of common pleas of the county wherein any such penitentiary, prison, workhouse, house of correction, or any other institution for adult prisoners is located, shall give its consent to such transfer. “ Tyrrell v. Taylor, 394 F. Supp. 9, 13 (E.D. Pa. 1975).
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When the County administrator requests a transfer of a prisoner due to overcrowding or some other valid reason, and action in mandamus can be maintained. Id.
The City of Philadelphia and its Prison Commissioner have very valid reasons for requesting the transfer of its committed “State” prisoners to the State correctional system. “Unlike most other states where sentences of one year or more are served in state prisons, Pennsylvania allows sentences of up to two years to be served in a county facility. Judges also have the authority to stipulate those serving up to five years to serve that time in the county. [Currently], there are over four-hundred inmates [that] are serving state sentences of two to five or more years in PPS facilities. These inmates represent nearly 20% of the prisons sentenced population. Neither the Prisons nor the City are reimbursed for costs associated with their care which is estimated at more than $11,000,000.00 annually. Removal of these inmates from PPS would result in a marked reduction in the Prisons budget, coupled with the availability of over four-hundred beds.” Philadelphia Prison System Strategic Plan FY09-FY13, A Report to Mayor Michael A. Nutter, April 24, 2008 at 9-10, attached hereto as Exhibit D.
Turning to the case at hand, prior to the initiation of this lawsuit, the Philadelphia Prison Commissioner requested the Bureau of Prisons to accept “State” prisoners in the custody of the Philadelphia Prison System because these prisoners were taking up valuable bed space for those who were properly committed to Philadelphia County. The State refused to accept its responsibility and transfer the “State” prisoners from the Philadelphia Prison System, despite its knowledge of the alleged overcrowded conditions, at the various prison facilities in Philadelphia County. Instead, the City of Philadelphia was forced to enter into contracts with various correctional facilities, both in State and out-of-State, to house prisoners at no cost to the Commonwealth of Pennsylvania, but at a per diem per prisoner to be paid by the City of
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Philadelphia. Now, these contracts, specifically the contract with Passaic County, NJ, are by this Court’s Order, subject to the scrutiny of the putative class members. See Court Order dated June 6, 2008 at ¶5, attached hereto as Exhibit E.
As a result of the Commonwealth’s failure to accept its prisoners, the City of Philadelphia has needed to meet the ever-changing population by placing three (3) prisoners in a cell, in some facilities within the Philadelphia Prison System. While the City maintains that the use of “triple celling” is constitutional, the use of triple-celling has resulted in the instant lawsuit.
The putative class members of the instant lawsuit consist of persons in custody based on local and State parole violations, new arrests (pretrial detainees) and convicted prisoners. Some of these convicted prisoners should have been committed to a State correctional facility based on their length of sentence. Some of these convicted prisoners fall under categories (a) through (e) set forth above. If the allegations contained in plaintiffs’ complaint are accepted as true, then these prisoners are being subjected to overcrowded and unconstitutional conditions of confinement. The rights of the putative class members cannot be fully vindicated unless the Commonwealth of Pennsylvania, Bureau/Department of Corrections, is ordered by mandamus, to accept all “State” prisoners in the custody of the Philadelphia Prison System.7 Thus, the joinder of Jeffrey A. Beard, Secretary of Corrections, to this claim for prospective injunctive relief, based on alleged prison overcrowding, is essential to the full adjudication of the claims and defenses raised by the parties to this litigation.
7 The putative class members that are currently convicted and serving sentences in the Philadelphia Prison System enjoy no due process right to a hearing prior to an administrative transfer from one prison to another, including a transfer for security reasons. And, it be absurd if the putative class members would object to be transferred out of a facility that fails to provide constitutional conditions of confinement. See Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. Pa. 1985)(citing Montanye v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976)); Cobb v. Aytch, 643 F.2d 946 (3d Cir. 1981)(in banc).
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IV. A LL THE PREREQUISITES FOR A JOINDER UNDER RULE 19(A) HAVE BEEN SATISFIED IN THE CASE. The case at bar is a claim for prospective relief and not money damages. The Defendants
seek to join The Honorable C. Darnell Jones, II, The Honorable Louis Presenza and Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections (“State Officials”). Because this case is not a claim for money damages but a claim for prospective injunctive relief, the 11th Amendment will not bar a claim against the “State Officials”. Idaho v. Coeur D'Alene Tribe, 521 U.S. 261, 288 (U.S. 1997)(O’Connor, J, concurring)(“In Young, the Court held that a federal court has jurisdiction over a suit against a state officer to enjoin official actions that violate federal law, even if the State itself is immune from suit under the Eleventh Amendment. ); Friends & Residents of St. Thomas Twp., Inc. v. St. Thomas Dev., Inc., 176 Fed. Appx. 219, 227 (3d Cir. Pa. 2006)(The Eleventh Amendment allows suits against state officials in their official capacities where Plaintiff seeks prospective, injunctive relief for violation of federal law. Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908)); Pa. State Troopers Ass'n v. Pennsylvania, 2007 U.S. Dist. LEXIS 19539, 10-12 (M.D. Pa. 2007)(District Court permitted suit to proceed against The State Police, a Commonwealth party, because the plaintiffs sought prospective injunctive relief.).
Likewise, the “State Officials” are subject to process and their joinder will not deprive this Court of jurisdiction. Based on these reasons and those mentioned above, the Joinder of the “State Officials” under Rule 19(a) is necessary in order to accord complete relief among existing parties. In the absence of the joinder of the “State Officials” the City of Philadelphia and Commissioner Giorla will be subjected to substantial risk of incurring obligations that they have no control over, such as the prosecution, sentencing and confinement of the inmates located within the Philadelphia Prison System. The failure of this Court to order the joinder of the “State
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Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 25 of 27 Officials” will only result in partial or 'hollow' relief rather than complete relief to the parties before the court." General Refractories Co. v. First State Ins. Co., 500 F.3d 306, 315 (3d Cir. 2007) (quoting Fed. R. Civ. P. 19 advisory committee’s notes). CONCLUSION
Based on the foregoing reasons, the City of Philadelphia and Commissioner Giorla request that this Court dismiss this matter, or in the alternative, order the joinder of the following individuals pursuant to Rule 19(a) of the Federal Rules of Civil Procedure:
a. Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania;
b. Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court; and
c. Jeffrey A. Beard, Ph.D., Secretary of Corrections of the Commonwealth of Pennsylvania.
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Date: June 27, 2008 /s/

Jeffrey M. Kolansky __________________________
Jeffrey M. Kolansky
/s/ Jeffrey M. Scott __________________________
Jeffrey M. Scott Archer & Greiner One South Broad Street
Suite 1620 Philadelphia, PA 19107
215-963-3300 215-963-9999 (fax)

22

Case 2:08-cv-01979-RBS Document 15 Filed 06/27/08 Page 27 of 27

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of City Defendants Motion to Dismiss or in

the alternative Motion to Join The Honorable C. Darnell Jones, II, Honorable Louis Presenza,

and Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections pursuant to Rule 12(b)(7)

was filed on the Court’s ECF System and is available for viewing. A copy has been served upon

the following individuals via the ECF System.

DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING & FEINBERG THE CAST IRON BUILDING SUITE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 SARAH V. HART DISTRICT ATTORNEY'S OFFICE THREE SOUTH PENN SQUARE CORNER OF JUNIPER AND S. PENN PHILADELPHIA, PA 19107-3499 DAVID RICHMAN PEPPER HAMILTON LLP 3000 TWO LOGAN SQ PHILA, PA 19103-2799

Date: June 27, 2008 /s/

Jeffrey M. Kolansky __________________________
Jeffrey M. Kolansky

/s/ Jeffrey M. Scott __________________________
Jeffrey M. Scott Archer & Greiner One South Broad Street
Suite 1620 Philadelphia, PA 19107
215-963-3300 215-963-9999 (fax)

3389928v1

23

 
 Case 2:08-cv-01979-RBS Document 16 Filed 06/27/08 Page 1 of 4

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

DWIGHT WILLIAMS; ANTHONY

:

OUELLETTE; KOLEYON

:

PHILLIPS; ANTHONY DIGGS;

:

KENNETH SMITH; EDWARD

:

ZAMICHIELI; LOUIS EUBANKS;

:

JAMES SAUNDERS; THOMAS

:

SCOTT; SHANNON BOLLI; and

:

MARISOL LOPEZ, on behalf of

:

themselves, and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

vs.

:

:

CITY OF PHILADELPHIA; LOUIS

:

GIORLA, in his official capacity as

:

Commissioner, Philadelphia Prisons,

:

:

Defendants.

:

CIVIL ACTION NO. 08-1979

DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION

Defendants, City of Philadelphia and Commissioner Louis Giorla, through their

undersigned counsel, hereby move, pursuant to Fed. R. Civ. P. 65 and 28 U.S.C. § 1651, for a

preliminary injunction directed to Jeffrey C. Beard, Ph.D., Secretary, Pennsylvania Department

of Corrections; The Honorable C. Darnell Jones, II, President Judge of the First Judicial District

of Pennsylvania, Court of Common Pleas of Philadelphia; and The Honorable Louis Presenza,

President Judge of the Municipal Court of Philadelphia, compelling the following respective

official actions, to avoid irreparable injury, and in aid of this Court’s jurisdiction:

1. That the Secretary of Corrections shall accept and transfer to state custody, the

following groups of inmates confined to the Philadelphia Prison System (the “PPS”) who fall

within the following categories:

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Case 2:08-cv-01979-RBS Document 16 Filed 06/27/08 Page 2 of 4
a) Inmates who have been sentenced to terms of incarceration in state correctional facilities who are housed in the PPS awaiting various hearings and Court appearances, i.e. awaiting Post Conviction Hearing Act hearings, awaiting appearances before the Court of Common Pleas of Philadelphia County or the Municipal Court of Philadelphia, as a witness in other proceedings, or trial on other charges.
b) Inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have committed an act or acts in violation of the terms of their parole and are in the PPS awaiting a hearing by that Board prior to recommitment to a state facility.
c) Inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have been charged with new criminal acts and are in the PPS awaiting trial on those charges.
d) Inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have committed an act or acts in violation of the terms of their probation and are in the PPS awaiting a hearing by the Philadelphia Court of Common Pleas or in the Philadelphia Municipal Court.
e) Inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have been charged with new criminal offenses and are in the PPS awaiting trial on the new charge.
f) Inmates with aggregated sentences that allow confinement of a defendant in a state correctional institute where the sentences, when aggregated, exceed two years.
2

Case 2:08-cv-01979-RBS Document 16 Filed 06/27/08 Page 3 of 4

g) Inmates with sentences of confinement that exceed two years.

2. That the President Judge of the Court of Common Pleas of Philadelphia and the President Judge of the Municipal Court of Philadelphia to adopt procedures by which the judges of those courts will designate confinement in state correctional facilities to all defendants who are sentenced to more than two years, in the aggregate, for all offenses for which they are being sentenced.

Defendants incorporate herein by reference the points and authorities set forth in the accompanying Memorandum of Law in Support of Defendants’ Motion for a Preliminary Injunction.
Respectfully submitted,

June 27, 2008

s/ Jeffrey M. Kolansky
__________________________ Jeffrey M. Kolansky Jeffrey M. Scott Richard G. Tuttle ARCHER & GREINER, P.C. Suite 1600 One South Broad Street Philadelphia, PA 19107 (215) 963-3300
Counsel for Defendants City of Philadelphia and Commissioner Louis Giorla

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Case 2:08-cv-01979-RBS Document 16 Filed 06/27/08 Page 4 of 4
CERTIFICATE OF SERVICE Richard G. Tuttle, counsel for defendants City of Philadelphia and Commissioner Louis Giorla, hereby certifies that the foregoing Motion for Preliminary Injunction was served on the following, through the Court’s ECF electronic document filing and transmission service, on June 27, 2008: David Rudovsky, Esquire Jonathan H. Feinberg, Esquire Kairys, Rudovsky, Messing & Feinberg LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 Su Ming Yeh, Esquire Angus Love, Esquire Pennsylvania Institutional Law Project 718 Arch Street, Suite 304S Philadelphia, PA 19106 David Richman, Esquire Matthew Janssen, Esquire Pepper Hamilton, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103 Counsel for Plaintiffs
s/ Richard G. Tuttle ________________________________
4

Case 2:08-cv-01979-RBS Document 16-1 Filed 06/27/08 Page 1 of 26

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

DWIGHT WILLIAMS; ANTHONY

:

OUELLETTE; KOLEYON

:

PHILLIPS; ANTHONY DIGGS;

:

KENNETH SMITH; EDWARD

:

ZAMICHIELI; LOUIS EUBANKS;

:

JAMES SAUNDERS; THOMAS

:

SCOTT; SHANNON BOLLI; and

:

MARISOL LOPEZ, on behalf of

:

themselves, and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

vs.

:

:

CITY OF PHILADELPHIA; LOUIS

:

GIORLA, in his official capacity as

:

Commissioner, Philadelphia Prisons,

:

:

Defendants.

:

CIVIL ACTION NO. 08-1979

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION

Defendants, City of Philadelphia and Prison Commissioner Louis Giorla, through their undersigned counsel, submit this Memorandum of Law in Support of Defendants’ Motion for Preliminary Injunction, pursuant to Fed. R. Civ. P. 65 and 28 U.S.C. § 1651.
The City and the Commissioner (hereinafter, the “City”) seek a hearing on their application for a preliminary injunction directed to The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas of Philadelphia; The Honorable Louis Presenza, President Judge of the Municipal Court of Philadelphia; and Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections (collectively, the “State Officials”). If the evidence at hearing

Case 2:08-cv-01979-RBS Document 16-1 Filed 06/27/08 Page 2 of 26
demonstrates that the plaintiffs have a reasonable likelihood of success on the merits of their claims alleging unconstitutional conditions of confinement, the City seeks an injunction:
1. Ordering the Secretary of Corrections to accept and transfer to state custody, the following groups of inmates confined to the Philadelphia Prison System (the “PPS”) who fall within the following categories:
a) Inmates who have been sentenced to terms of incarceration in state correctional facilities who are housed in the PPS awaiting various hearings and Court appearances, i.e. awaiting Post Conviction Hearing Act hearings, awaiting appearances before the Court of Common Pleas of Philadelphia County or the Municipal Court of Philadelphia, or as a witness in other proceedings, or on trial on other charges.
b) Inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have committed an act or acts in violation of the terms of their parole and are in the PPS awaiting a hearing by that Board prior to recommitment to a state facility.
c) Inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have been charged with new criminal acts and are in the PPS awaiting trial on those charges.
d) Inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have committed an act or acts in violation of the terms of their probation and are in the PPS awaiting a hearing by the Philadelphia Court of Common Pleas or in the Philadelphia Municipal Court.
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e) Inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have been charged with new criminal offenses and are in the PPS awaiting trial on the new charge.
f) Inmates with aggregated sentences that allow confinement of a defendant in a state correctional institute where the sentences, when aggregated, exceed two years.
g) Inmates with sentences of confinement that exceed two years.
2. Ordering the President Judge of the First Judicial District of Pennsylvania and the President Judge of the Municipal Court of Philadelphia to adopt procedures by which the judges of those courts will designate confinement in state correctional facilities to all defendants who are sentenced to more than two years, in the aggregate, for all offenses for which they are being sentenced.
Procedural and Factual Background. This is a class action for injunctive and declaratory relief for the named individual
plaintiffs and the putative class they represent, to secure relief from allegedly unconstitutional conditions of confinement that exist and which, absent judicial intervention, will allegedly continue to persist in the PPS. The putative class consists of all persons confined to the PPS, whether pretrial detainees or convicted prisoners.
Allegations of the Complaint. The Plaintiffs allege that by June, 2006, the population in the Philadelphia Prison System (PPS) had increased to 8,900 inmates, representing an increase of 25% from 2000. (Complaint ¶14). Plaintiffs allege that to house the greatly increased population, the prison defendants
3

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instituted triple-celling at CFCF, Riverside Correctional Facility, and at the House of Correction. (Complaint ¶15). The plaintiffs claim that because the defendants did not provide a sufficient number of correctional officers and other staff: they resorted to "lock-downs" and "restricted movements" at each of the facilities on a regular basis. (Complaint ¶16). The plaintiffs allege that these practices made the conditions of confinement intolerable, as they allegedly deprived inmates of recreation, movement, and services. (Id.) The Defendants deny these allegations.
The Plaintiffs claim that in Bowers v. City of Philadelphia, the Court, after certifying the matter as a class action, and after a full hearing on a Motion for Preliminary Injunction, ruled that the totality of circumstances regarding the conditions in the police districts and the intake/admissions areas of the PPS were so dangerous, punitive, and severe, as to violate the Eighth and Fourteenth Amendments. (Complaint ¶20). (The Defendants disputed this preliminary finding and continue to dispute it in this case).
The Plaintiffs claim that during the hearing and post-hearing proceedings in Bowers, the City of Philadelphia presented a 24-Point Plan for a coordinated criminal justice system to reduce the population at PPS. (Complaint ¶24). The plaintiffs now claim that most of the plans and programs presented by the City have not been implemented. (Complaint ¶25). The plaintiffs allege that the City continues to be deliberately indifferent to constitutional rights of those confined to the PPS. (Complaint ¶¶25, 29). The Defendants deny these allegations.
The plaintiffs allege that the City has expanded triple-ceiling and increased the dormitory population, and that inmates are confined in these conditions for months at a time. (Complaint ¶26). The plaintiffs also claim that in an attempt to control and service those confined to the PPS, the PPS relies on "restricted movements" and "lockdowns," of inmates when there are insufficient numbers of correctional officers to provide adequate services, security, and safety to
4

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inmates and to the staff. (Complaint ¶ 28). The plaintiffs further claim that as a result of the overcrowding and the failure of the City to provide adequate services, supplies, and staffing at the PPS, the plaintiffs and members of the plaintiff class have been, and without judicial intervention, will be, subjected to a pervasive system of unconstitutional conditions. (Complaint ¶29). The Defendants deny these allegations.
The plaintiffs have brought this putative class action alleging that the practices, policies, acts and omissions alleged in the Complaint are in violation of the Eighth and Fourteenth Amendments to the United States Constitution, in that they deprive plaintiffs and members of the plaintiff class their rights to be free from deprivations of liberty without due process of law and to be free from cruel and unusual punishment. The plaintiffs seek declaratory and injunctive relief, claiming that such relief is necessary to correct the unconstitutional conditions of confinement. They claim that the harms suffered will be irreparable, if, as they allege, the unconstitutional policies, practices and conditions will continue to exist for the foreseeable future. Complaint ¶38. The plaintiffs also bring a pendent state claim under the Pennsylvania Constitution, alleging that “[t]he policies, practices, and conditions alleged in this Complaint deprive plaintiffs of their rights under the Pennsylvania Constitution and the laws of the Commonwealth of Pennsylvania to be free of deprivations of liberty without due process of law, and to be free from cruel and unusual punishment.” Complaint ¶40.
The Presence of State-Eligible Inmates Contributes to Crowding. The City offers to prove at hearing that, within the PPS, there are persons awaiting trial, convicted persons with maximum sentences of 24 months or more, persons who have violated state parole and persons confined due to writ for various reasons. Those groups, include, without limitation (a) inmates who have been sentenced to terms of incarceration in state correctional
5

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facilities but who are housed in the county jail awaiting various hearings and Court appearances; b) inmates who have been paroled from a state correctional facility by the state Board of Probation and Parole and have committed an act or acts in violation of the terms of their parole, and are awaiting a hearing by that Board prior to recommitment to a state facility; (c) inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have been charged with new criminal acts and are awaiting trial on those charges; (d) inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have committed an act or acts in violation of the terms of their probation, and are awaiting a hearing by the Court of Common Pleas of Philadelphia County; (e) inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have been charged with new criminal offenses and are awaiting trial on the new charge; and (f) inmates with sentences that qualify them for aggregations which will result in maximum sentences of 24 months or longer, thus making the prisoners eligible for confinement in a state correctional facility. (For ease of reference, such inmates will be referred to from time to time hereafter, collectively, as “state-eligible” inmates).
Under state law (42 Pa.C.S. § 9762), when the maximum sentence imposed upon a defendant is two years or more, but less than five years, the convicted prisoner may be committed to the Bureau of Corrections for confinement, or may be committed to a county prison within the jurisdiction of the court. When the maximum term of a sentence is less than two years, the convicted prisoner shall be committed to a county prison within the jurisdiction of the court “except that as facilities become available on dates and in areas designated by the
6

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Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.” 42 Pa.C.S. § 9762 (2007).
The Philadelphia Court of Common Pleas and the Philadelphia Municipal Court (both part of the First Judicial District of Pennsylvania), are the only governmental bodies authorized to determine whether a person convicted in state court in Philadelphia is sentenced to guilt without penalty, probation, fine, partial confinement, and total confinement. 42 Pa.C.S. § 9721(a). Neither The City of Philadelphia nor Commissioner Giorla has the authority to prevent a Philadelphia judge from imposing a sentence in county confinement, even where the maximum sentence is two years or more, but less than five years. Likewise, The Philadelphia District Attorney’s Office has no authority to impose a sentence in county confinement, even where the maximum sentence is two years or more, but less than five years. At most, the Philadelphia District Attorney’s Office can recommend state confinement.
In the County of Philadelphia, the Philadelphia Court of Common Pleas and Municipal Court have developed a custom, policy and practice over several decades of committing convicted persons to the Philadelphia Prison System, whose level of offense makes them eligible to serve their term of confinement in one of the many state correctional institutions. Commonwealth v. Edwards, 2006 Pa.Super 225, 906 A.2d 1225, 1229 (Pa. Super. Ct. 2006) (trial judges in the Commonwealth are granted the discretion to commit convicted criminals with maximum sentences of two years or greater to the Pennsylvania Department of Corrections, citing Commonwealth v. Hartle, 2006 Pa.Super 45, 894 A.2d 800, 807 (Pa. Super. 2006)).
As of this filing, there are over 400 inmates in the custody of the City of Philadelphia who should be confined in a state correctional facility, based on their individual sentences or terms of confinement. The evidence at hearing will show that unless the Secretary of
7

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Corrections and the President Judges of the Philadelphia Court of Common Pleas and the Philadelphia Municipal Court are enjoined from sending and/or keeping state prisoners within county confinement, the conditions of which plaintiffs complain will, as a factual matter, be difficult or impossible to change.
Evidence at hearing will show that state-eligible inmates represent nearly 20% of the Prisons’ sentenced population. Neither the Prisons nor the City are reimbursed for costs associated with their care which is estimated at more than $11,000,000.00 annually. Removal of these inmates from PPS would result in a marked reduction in the Prisons budget, coupled with the availability of over four-hundred beds. See Philadelphia Prison System Strategic Plan FY09FY13, A Report to Mayor Michael A. Nutter, April 24, 2008 at 9-10, attached as Exhibit D to the City’s Motion for Joinder Under Rule 19.
The evidence will also show that, in the past, the PPS has requested that the Bureau of Prisons accept state-eligible prisoners in the custody of the PPS because these prisoners were taking up valuable bed space needed for those that who were properly committed to Philadelphia County. The state has refused to accept its responsibility to accept and incarcerate such stateeligible prisoners in the Philadelphia Prison System, despite its knowledge of the alleged overcrowded conditions at the various prison facilities in Philadelphia County.
If the evidence at hearing shows that the plaintiffs have a reasonable likelihood of success on their claim that overcrowding is causing unconstitutional conditions of confinement, then the rights of the putative class members cannot be fully vindicated unless the State Officials are enjoined as requested herein.
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ARGUMENT A. Crowding in the PPS results in significant part from assignments of state-eligible
prisoners to county confinement. The Criminal Justice System in the County of Philadelphia is not fully under the control of the City of Philadelphia. As the Third Circuit observed in 1987 (in terms that remain true today) [A] number of different actors have legal duties with respect to the system of criminal justice. For example, it is the duty of the state court judges to determine the bail status of those accused, 42 Pa. Cons. Stat. Ann. § 1123 (Purdon Supp. 1986), and to set the sentences of those convicted. 42 Pa. Cons. Stat. Ann. § 9701 et seq. (Purdon 1982 and Supp. 1986). The Mayor and City Council, moreover, have the authority to determine the size of the police force through their control of the City Budget. 351 Pa. Admin. Code §§ 2.2-300, 4.4-101 (1986). Any action by one of actors in the system is likely to have some repercussions in terms of the other actors' duties. Harris v. Pernsley, 820 F.2d 592, 601-602 (3d Cir. Pa. 1987). The Philadelphia Court of Common Pleas and the Philadelphia Municipal Court are the only authorized state agencies that determine whether a convicted person is sentenced to guilt without penalty, probation, fine, partial confinement, and total confinement, 42 Pa.C.S. § 9721(a). “In imposing a sentence, the judge is directed to give two numbers representing the minimum and maximum period of incarceration.” Commonwealth v. Yuhasz, 592 Pa. 120, 131 (Pa. 2007). “In imposing a sentence of total confinement the court shall at the time of sentencing specify any maximum period up to the limit authorized by law and whether the sentence shall be commenced in a correctional institution or other appropriate institution.” Id. Once the Philadelphia Courts determine that partial or total commitment is necessary to fulfill the mandates of the Commonwealth’s penal system, the Courts are guided by 42 Pa.C.S. § 9762, which provides for location of commitment. In cases where the maximum sentence is five
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or more years, the convicted person is confined to the Commonwealth of Pennsylvania, Bureau of Corrections. When the maximum sentence is two years or more, but less than five years the convicted prisoner may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court. And, when the maximum term is less than two years, the convicted prisoner shall be committed to a county prison within the jurisdiction of the court “except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.” 42 Pa.C.S. § 9762 (2007)1.
In the County of Philadelphia, the Philadelphia Courts have developed a custom, policy and practice over several decades of committing convicted persons to the Philadelphia Prison System, whose levels of offense makes them eligible to serve their term of confinement in one of the many state correctional institutions. Commonwealth v. Edwards, 2006 Pa.Super 225, 906 A.2d 1225, 1229 (Pa. Super. Ct. 2006)(Trial judges in this Commonwealth are granted the discretion to commit convicted criminals with maximum sentences of two years or greater to the Pennsylvania Department of Corrections.) (citing Commonwealth v. Hartle, 2006 Pa.Super 45, 894 A.2d 800, 807 (Pa. Super. 2006)).
1 Pursuant to 61 P.S. § 636, “[e]very person who shall, after the completion of said prison, be convicted in any court of criminal jurisdiction in the city or county of Philadelphia, of any crime, the punishment of which would be imprisonment in the jail and penitentiary house of Philadelphia, for a period of time under two years, shall be sentenced by the proper court to suffer punishment in the Philadelphia county prison…” These convicted individuals have no constitutional or statutory right to serve their commitments in the County in which they were convicted and sentenced. In each of these 400 separate commitments, the Philadelphia Courts retain jurisdiction over the committed person and yield jurisdiction when the person is instead committed to the Bureau. See Commonwealth v. Mefford, 2004 PA Super 468, 863 A.2d 1206, (Pa.Super. 2004) (en banc).
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Historically, in the County of Philadelphia, the disposition of cases and sentences within one year from date of preliminary arraignment until sentencing results in a significant number of convictions and commitments that are eligible for both county and state commitment under 42 Pa.C.S. § 9762. “Of the 12,333 defendants entering the justice process in the months of March through May, 2005, an estimated 26 percent or about 3,176, had been both convicted and sentenced by the end of one year. Of those sentenced, an estimated 42 percent—or about 11 percent of the entire defendant cohort—received sentences involving confinement beyond timeserved credit for those who had been detained.” Goldkamp Study at 77 and Figure 41, attached as Exhibit C to the City’s Motion for Joinder Under Rule 19. Of the 11% or 1,357 convicted prisoners, 12% or 162 of those convicted prisoners, had a maximum sentences of 24 months of longer. Unfortunately, the trend of state-eligible prisoners serving time in the Philadelphia Prison System has accelerated since March of 2005.
As noted, there are currently “over four-hundred inmates [who] are serving state sentences of two to five or more years in PPS facilities. These inmates represent nearly 20% of the prisons sentenced population. Neither the Prisons nor the City are reimbursed for costs associated with their care which is estimated at more than $11,000,000.00 annually. Removal of these inmates from PPS would result in a marked reduction in the Prisons budget, coupled with the availability of over four-hundred beds.” Philadelphia Prison System Strategic Plan FY09FY13, A Report to Mayor Michael A. Nutter, April 24, 2008 at 9-10, attached as Exhibit D to the City’s Motion for Joinder Under Rule 19.2
2 There is pending legislation before the General Assembly regarding this cohort of convicted prisoners. Under consideration in the Pennsylvania General Assembly are House Bills No.4-7 (2007) which mandate the housing of anyone serving over a two year sentence in state facilities. Even if these bills are passed, the mandate of the current legislation would not have any real effect until three years from the date of passage.
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The influx of state-eligible prisoners increases the Philadelphia Prison System’s daily census. Likewise, the influx of state-eligible prisoners contributes to the unavailability of daily bed space to those who actually belong in a county facility, like Riverside and CFCF. The City expects that the evidence at hearing will show that the Court of Common Pleas and the Philadelphia Municipal Court have rarely taken into consideration the alleged overcrowded conditions of the Philadelphia Prison System in determining place of confinement where the defendant is eligible, alternatively, for state or county confinement. If the plaintiffs’ allegations are believed, the Judges of the Philadelphia Court of Common Pleas and the Philadelphia Municipal Court are committing the putative class members to unconstitutional conditions of confinement and are helping to create the alleged unconstitutional conditions. The courts are committing people to the PPS who should not be there, and are thus causing the alleged overpopulation and need for triple-celling. The City of Philadelphia has no authority to block or prevent the order of commitment of a state-eligible prisoner and must accept that prisoner, without objection, into the allegedly unconstitutional conditions. B. The problems, such as they are, can be ameliorated by requiring the transfer of
state-eligible inmates to state facilities. As the Supreme Court of Pennsylvania recognized in Jackson v. Hendrick, 498 Pa. 270, 273 (Pa. 1982), "[t]here can be no doubt that many of the difficulties in the prisons would be alleviated were the prisons not so overcrowded…” Crowding can be reduced, of course, through the simple expedient of transferring inmates from more-crowded facilities to less-crowded facilities. State law in Pennsylvania has long provided for transfers between state and county facilities. The Secretary of Corrections is vested with the authority, pursuant to 61 P.S. § 72, to transfer inmates located in county prisons to the State correctional system. 61 P.S. §72 states:
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At the request of the county correctional administrator, the Secretary of Corrections or designee is hereby authorized and empowered to transfer inmates located in county prisons to the State correctional system for such reasons and upon such terms and conditions as the secretary may determine. The secretary or designee may transfer inmates in the State correctional system to the jurisdiction of a county correctional system upon such terms and conditions that the secretary or designee and the county correctional administrator determine to be in the best interests of the Commonwealth. Inmates located in a county prison may be transferred to another county prison upon such terms and conditions as the counties may determine. The Department of Corrections and county correctional facilities may contract with the Federal Government for the housing of Federal inmates in State and county correctional facilities. In County of Allegheny, et al. v. The Commonwealth of Pennsylvania, Bureau of
Correction et al., 490 A.2d 402 (Pa. 1985), the Supreme Court of Pennsylvania held that it would
be an arbitrary exercise of discretion for a state agency charged with responsibility for the
operation and maintenance of the various state correctional facilities to deny assistance to a
political subdivision where it is demonstrated (i) that the political subdivision has not been
provided adequate resources to maintain its detention facilities in accordance with constitutional
standards and (ii) adequate security cannot be maintained. The court observed, “where a crisis
situation exists the political subdivision has a right to demand that prisoners who are committed
to the custody of a State agency and temporarily placed in county facilities be transferred to
appropriate State facilities in order to relieve overcrowding.” County of Allegheny, 490 A.2d at
406. The court upheld the county’s right to seek a writ of mandamus directed to state corrections
officials -- in that context, essentially an injunction -- requiring transfer of state-eligible prisoners
to appropriate state facilities.
Courts in other jurisdictions have recognized that, where local prison overcrowding can
be relieved, in whole or in part, by transfers of eligible prisoners to state facilities, an injunction
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requiring such transfers, entered by the court considering constitutional claims based upon overcrowding, is an entirely proper remedy.
In Benjamin v. Malcolm, 803 F.2d 46 (2d Cir. 1986), prisoners at Riker’s Island, New York City’s local jail, sued the City of New York alleging unconstitutional conditions of confinement due to overcrowding. The litigation lasted for years. Eventually, the district court concluded that delays in transfers of prisoners with state sentences to state custody were significantly contributing to the overcrowding. The court enjoined New York State prison authorities to accept each prisoner “who has been sentenced to a term of imprisonment in a state prison” within “48 hours after papers for transfer . . . had been completed.” 803 F.2d at 47. The Second Circuit affirmed that order, making the following observation:
[T]he State argues that it has no responsibilities, constitutional or otherwise, with respect to state-ready prisoners other than those imposed on it by New York law. This argument must be rejected, however, for the reason that the prisoners whom it refuses promptly to accept into its prisons are not those of some other state, country or planet, but its own prisoners who have been convicted by New York State courts of New York State felonies. The State cannot therefore wash its hands of its federal constitutional responsibility for the detention conditions of such prisoners because they are temporarily housed in City facilities . . . Benjamin v. Malcolm, 803 F.2d at 51 (emphasis in original). Tate v. Frey, 735 F.2d 986 (6th Cir. 1984), was a case in which inmates in the Jefferson County Jail in Louisville, Kentucky, claimed unconstitutional conditions of confinement allegedly arising out of overcrowding at that county facility. The defendant county joined corrections officials of the State of Kentucky, and sought a preliminary injunction requiring the state to accept transfers of prisoners awaiting transfer to state facilities. The district court granted that injunction, and was affirmed by the Sixth Circuit, whose opinion included pertinent observations about the reasons for joinder of state officials in these circumstances:
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A review of Kentucky state law indicates that the responsibility to provide for the confinement of convicted felons rests upon the state. Kentucky Revised Statute § 532.100 provides that convicted felons be committed to the state for incarceration. Consequently, the third party plaintiffs have properly identified a substantive basis for their claim against the state in the third-party complaint. Additionally, evidence submitted during the hearings disclosed that the state through implementation of its controlled intake procedure has refused to timely accept convicted felons as required by state law, which inaction the district court specifically determined contributed to the unconstitutional overcrowding of the Jefferson County Jail. In light of the district court's determination that the controlled intake procedure contributed to the overcrowding of the Jefferson County Jail, complete relief would be elusive, if not impossible, to achieve absent joinder of the state as a third-party to this action. Accordingly, the district court properly permitted the joinder of the state as a third party defendant pursuant to Rule 14(a), Fed. R. Civ. P.
* * * *
Having examined the record transmitted to this court on appeal it is manifest that the district court did not abuse its discretion in granting the preliminary injunction against the third party defendants [state officials]. Accordingly, the district court's grant of a preliminary injunction against the third party defendants is AFFIRMED.
Tate v. Frey, 735 F.2d at 989, 991 (footnote omitted).
The plaintiffs in this case are alleging unconstitutional overcrowding. If that
contention is supported by the evidence, and rises to the level of a likelihood of success
on the merits, it will be entirely appropriate for this Court to order state officials to accept
transfers of state-eligible prisoners to state facilities to alleviate those conditions pending
trial on the merits.
C. This Court may require the cooperation of the President Judges of the Philadelphia Courts in directing state-eligible prisoners toward state confinement.
This Court equally has discretion to require actions by the state judiciary which
would help ease overcrowding. As noted, the judges of the First Judicial District have
the ability, under state law, effectively to choose state confinement or county
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confinement for sentenced prisoners whose sentences range from two to five years. This Court has recently overseen an action, filed by the law firm now representing plaintiffs, in which the President and Administrative Judges of the Philadelphia Traffic Court were joined as defendants. In that case, the plaintiffs sought to end the allegedly unconstitutional practice of sentencing indigent “scofflaws” to confinement in the Philadelphia Prison System. See Ebony Davis v. City of Philadelphia, Philadelphia Traffic Court, Honorable Francis E. Kelly, Individually as President Judge of Philadelphia Traffic Court, Honorable Fortunato Perri, Individually as Administrative Judge of Philadelphia Traffic Court, Officers John Doe(s), and Officers Richard Roe(s), Individually as Officers of the Philadelphia Police Department, U.S. Dist. Ct., E.D. Pa., Civil Action No. 03-1400 (Complaint attached hereto as Exhibit A).
The Davis case ended in a Settlement Agreement by which procedures were established by the Traffic Court, and codified by the Pennsylvania Supreme Court in its rulemaking capacity, to protect the constitutional rights of “scofflaw” defendants. (See Motion attached hereto as Exhibit B).
In short, where the state judiciary can contribute administratively to the protection of federal constitutional rights of persons who are headed toward confinement in Pennsylvania, this Court has the undisputed right and ability to require such administrative cooperation if it is necessary to effect complete relief.
The Third Circuit has provided another concrete example of this Court’s authority to enjoin action by a state judge where necessary to protect individual federal rights. In In re Grand Jury Proceedings (Wright II), 654 F.2d 268 (3d Cir. 1981), the court upheld an order by the district court requiring a Judge of the Court of Common Pleas of
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Delaware County to participate in the review of potentially exculpatory information developed by a federal grand jury, for possible introduction in a state criminal proceeding. That cooperation was necessary to protect the federal constitutional rights of the accused in Delaware County.
Where, as here, a class of plaintiffs is alleging unconstitutional overcrowding, and if that contention is supported by the evidence to the level of a likelihood of success on the merits, it is entirely appropriate for this Court to order that state confinement be specified for state-eligible defendants, where a judge of the First Judicial District initially has a choice in the matter.
The City emphasizes that it does not seek injunctive relief which would affect any judge’s discretion in determining the length of confinement of any convicted defendant. Rather, the City’s motion is directed solely to place-of-confinement, a matter over which state court judges do not have final control in any event. See 61 P.S. § 72. The City seeks an administrative solution to the problems associated with prison crowding, and expects and intends that this Court would, in exercising its discretion in shaping the terms of an injunction, assiduously avoid, to the fullest extent feasible, any interference with powers that are solely judicial in character, i.e., powers that are not subject to supersession or modification by other actors in the correctional system. D. The Eleventh Amendment does not bar the relief sought in the instant
motion. This case involves only claims for prospective relief -- a declaratory judgment and an injunction -- and not money damages. The City’s motion is directed to three individual officials, viz., The Honorable C. Darnell Jones, II, The Honorable Louis Presenza and Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections. Because this case is not a claim for money
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damages but a claim for prospective injunctive relief, the 11th Amendment will not bar a claim against the State Officials. Idaho v. Coeur D'Alene Tribe, 521 U.S. 261, 288 (U.S. 1997)(O’Connor, J, concurring)(“In Young, the Court held that a federal court has jurisdiction over a suit against a state officer to enjoin official actions that violate federal law, even if the State itself is immune from suit under the Eleventh Amendment. ); Friends & Residents of St. Thomas Twp., Inc. v. St. Thomas Dev., Inc., 176 Fed. Appx. 219, 227 (3d Cir. Pa. 2006)(The Eleventh Amendment allows suits against state officials in their official capacities where Plaintiff seeks prospective, injunctive relief for violation of federal law. Ex Parte Young, 209 U.S. 123 (1908)); Pa. State Troopers Ass'n v. Pennsylvania, 2007 U.S. Dist. LEXIS 19539, 1012 (M.D. Pa. 2007) (District Court permitted suit to proceed against The State Police, a Commonwealth party, because the plaintiffs sought prospective injunctive relief.). E. To the extent, if at all, that the present motion is considered at a time when the State
Officials have not been fully joined as parties for all purposes, the Court may, nevertheless, issue an injunction binding upon the State Officials under the provisions of the All Writs Act, 28 U.S.C. § 1651. Federal courts have the unquestioned power, under the All Writs Act, 28 U.S.C. § 1651,3 to enter injunctive orders binding upon non-parties to the litigation, where such an order is “necessary or appropriate” to aid the federal court in the exercise of its jurisdiction. The word
3 The All Writs Act provides, in full, as follows: 1651 Writs.
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
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“necessary” in the All Writs Act is not given a narrow interpretation. Whittel v. Roche, 88 F.2d
366, 371 (9th Cir. 1937). As the Third Circuit explained
In In Re Grand Jury we explained that the term "necessary" does not have to be interpreted in a narrow or rigorous manner. In Re Grand Jury, 654 F.2d at 276. Rather, a court may avail itself of the Act and issue a writ where helpful "to achieve the ends of justice entrusted to it." Id. (quoting Adams v. United States ex rel McCann, 317 U.S. 269, 273 (1942).
Jones v. Lilly, 37 F.3d 964, 968 (3d Cir. 1994).
The Supreme Court has emphasized that an order under the All Writs Act may be
directed to a non-party where necessary or useful to effectuate the carrying out of actions
otherwise ordered or required by the federal court:
This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained: “This statute has served since its inclusion, in substance, in the original Judiciary Act as a 'legislatively approved source of procedural instruments designed to achieve "the rational ends of law."'" Harris v. Nelson, 394 U.S. 286, 299 (1969), quoting Price v. Johnston, 334 U.S. 266, 282 (1948). Indeed, "[u]nless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it." Adams v. United States ex rel. McCann, 317 U.S. 269, 273 (1942).
The Court has consistently applied the Act flexibly in conformity with these principles. Although § 262 of the Judicial Code, the predecessor to § 1651, did not expressly authorize courts, as does § 1651, to issue writs "appropriate" to the proper exercise of their jurisdiction but only "necessary" writs, Adams held that these supplemental powers are not limited to those situations where it is "necessary" to issue the writ or order "in the sense that the court could not otherwise physically discharge its appellate duties." 317 U.S. at 273. In Price v. Johnston, supra, § 262 supplied the authority for a United States Court of Appeals to issue an order commanding that a prisoner be brought before the court for the purpose of arguing his own appeal. Similarly, in order to avoid frustrating the "very purpose" of 28 U.S.C. § 2255, § 1651 furnished the District Court with authority to order that a federal prisoner be produced in court for purposes of a hearing. United States v. Hayman, 342 U.S. 205, 220-222 (1952). The question in Harris v. Nelson, supra, was whether, despite the absence of specific statutory authority, the District Court could issue a discovery order in connection with a
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habeas corpus proceeding pending before it. Eight Justices agreed that the district courts have power to require discovery when essential to render a habeas corpus proceeding effective. The Court has also held that despite the absence of express statutory authority to do so, the Federal Trade Commission may petition for, and a Court of Appeals may issue, pursuant to § 1651, an order preventing a merger pending hearings before the Commission to avoid impairing or frustrating the Court of Appeals' appellate jurisdiction. FTC v. Dean Foods Co., 384 U.S. 597 (1966).
The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, Mississippi Valley Barge Line Co. v. United States, 273 F. Supp. 1, 6 (E.D. Mo. 1967), summarily aff’d, 389 U.S. 579 (1968); Board of Educ. V. York, 429 F.2d 66 (10th Cir. 1970), cert den’d, 401 U.S. 954 (1971), and encompasses even those who have not taken any affirmative action to hinder justice. United States v. New York Tel. Co., 434 U.S. 159, 172-74 (1977).
The “writs” mentioned in the All Writs Act include injunctions. Alberta Gas Chemicals,
Inc. v. United States, 496 F. Supp. 1332, 1335 (U.S. Cust. Ct. 1980).
In a class action or putative class action, a federal court has the ability to enjoin actions
by state courts (such as the First Judicial District) which tend to frustrate or impede efficient and
comprehensive resolution of the federal case. See In re Inter-Op Hip Prosthesis Prod. Liab.
Litig., 176 F. Supp. 2d 758 (N.D. Ohio 2001) (In multidistrict litigation in which national class
had been provisionally certified and proposed class settlement was preliminarily approved,
federal court enjoined parallel state court actions under All Writs Act, since undue burden would
have been imposed on the federal defendant by forcing it to respond to discovery in state and
federal courts, funds available for plaintiffs would be depleted, and settlement might preempt
need for thousands of separate cases).
Additionally, the All Writs Act has been invoked by federal courts to direct or restrain
action by state court judges, where necessary to protect the progress of federal litigation. See In
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re Grand Jury Proceedings (Wright II), supra (held, state court judge properly ordered to participate in review of federal grand jury evidence to ensure proper application of Fed. R. Civ. P. 6(e); Cinel v Connick, 792 F. Supp. 492 (E.D. La. 1992) (state criminal court order to produce documents enjoined under All Writs Act, where production would have interfered with invasion of privacy suit pending in federal court); Valley v. Rapides Parish Sch. Bd., 646 F.2d 925 (5th Cir. 1981) (held, federal district court has authority to enjoin state court interference with desegregation plan).
Notably, a federal court need not await direct interference with one of its orders before taking appropriate action to protect its jurisdiction over a pending. An injunction may be issued pursuant to the All Writs Act to protect the orderly conduct of proceedings then under way. In re Grand Jury (Wright II), supra (order entered compelling action by state judge at time when no federal order was extant); In re Bridgestone/Firestone Tires Prods. Liab. Litig., 333 F.3d 763 (7th Cir. 2003) (where earlier determination made in respect of the rights of a putative class, federal court may enjoin state court action which impedes that result); Bryan v BellSouth Communs., Inc., 492 F.3d 231 (4th Cir. 2007) (order staying state court class action where putative class claims in same dispute had earlier been dismissed by federal court); Harris v Wells, 764 F. Supp. 743 (D.Conn. 1991) (shareholder/director is enjoined under All Writs Act from initiating action in state court to compel inspection of certain corporate documents, where state action mirrors previous discovery requests made in ongoing federal litigation, and order required to prevent interference with federal court's flexibility and authority to decide case).
Stated differently, an injunctive order under the All Writs Act to compel necessary action by state officials does not operate in the manner of a proceeding for civil contempt, where violation of a clear, pre-existing command must be shown before further action can be taken. An
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injunction under the All Writs Act may enjoin action which threatens to interfere with further consideration of the matters at issue in federal court. That is precisely the context in which the current request for injunction arises, since every admission to the PPS of a new state-eligible inmate affects discovery, the identity of persons in the class, and conditions of crowding. This Court cannot fix a problem, at the behest of the plaintiffs, if it faces the same limitations on its remedies as does the City. If neither the Court nor the City can control and regulate admissions of state-eligible inmates, the problems, such as they are, cannot be ameliorated fully, and perhaps not even in part. The City expects to demonstrate those propositions at hearing.
Finally, the City and the Commissioner assume that issuance of an injunction binding on state officials pursuant to the All Writs Act is fully subject to the constraints of the Eleventh Amendment. See Benjamin v. Malcolm, 803 F.2d at 51. For that reason, the City and the Commissioner seek only prospective injunctive relief against individual state officials on the basis of federal law. Id., citing Ex Parte Young, 209 U.S. 123 (1908). F. Standards for a Preliminary Injunction.
The Third Circuit has consistently applied a four part test for determining the appropriateness of a preliminary injunction:
To prevail on a motion for preliminary injunctive relief, the moving party must demonstrate that each of the following factors favors the requested relief: (1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest. McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir. 2007).
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Here, the application by the City will satisfy all four prongs. The City’s offer of proof for hearing is and will be:
First, the policies of the State Officials are dramatically increasing upward pressure on the prison population in the PSS. The City’s inability to move more than 400 state prisoners to state facilities, and its inability to prevent new state prisoners from arriving, has resulted in much of the triple-celling that occurs, and prolongs inmates’ stays in triple cells.
Of course, the plaintiffs complain of allegedly unconstitutional conditions caused by triple-celling. See Complaint, ¶¶ 3, 15, 23, 26, 27, 29, 30. The City should emphasize, at this point, that it does not concede that conditions of confinement within the PPS are cruel, unusual, or unconstitutional in any respect. It remains, however, that the plaintiffs so contend; and if the Court were to find that the plaintiffs are right, the City then will contend, necessarily, that the conditions are the legal responsibility of the State Officials.
McNeil, supra, requires that, to be entitled to an injunction, the City must “demonstrate” a likelihood of success on the merits. The City willingly accepts that burden in connection with its motion, in the sense that the evidence at hearing will demonstrate the existence vel non of unconstitutional conditions. The City will abide that demonstration, whichever way it turns out. However, the City, does not, and need not, contend that conditions are unconstitutional. That contention is for the plaintiffs.
As to the second and third prongs of the test, the City will suffer greater harm from the denial of an injunction than the State Officials will suffer from its granting. The population of the PPS, according to the plaintiffs’ complaint, is now 9,300 inmates (Complaint ¶1). The City will show, through information published by the Pennsylvania Department of Corrections, that the capacity of the Pennsylvania prison system, before triple-celling, is 41,608. Additionally,
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Case 2:08-cv-01979-RBS Document 16-1 Filed 06/27/08 Page 24 of 26 there are sixty or so4 county facilities other than those in Philadelphia, available to the state under 61 P.S. § 72, to which it may send state prisoners to less-crowded counties by agreement between the state and those counties.
In short, the City will show at hearing that the ability of the state system to absorb state prisoners, without undue harm or impact, is far greater than the ability of the PPS to do so.
Finally, the public interest greatly favors entry of an injunction. The presence of state prisoners has enormously complicated the City’s efforts to reduce overcrowding in the PPS for years. There is simply no good reason that state-eligible prisoners should be the problem of the City, and of the named plaintiffs, at a cost of $11,000,000 per year, when the state can, and should, step up and bear its responsibilities under the state constitution. See County of Allegheny, 490 A.2d at 406.
4 Counsel is uncertain, at this writing, whether some smaller counties may share facilities, so the number is presented as an estimate. A firmer figure will be available at hearing.
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CONCLUSION. For the foregoing reasons, movants, the City of Philadelphia and Commissioner Louis Giorla, respectfully request a hearing on their Motion for Preliminary Injunction, with appropriate relief in accordance with the evidence presented and facts found.
Respectfully submitted,

June 27, 2008

s/ Jeffrey M. Kolansky
___________________________ Jeffrey M. Kolansky Jeffrey M. Scott Richard G. Tuttle ARCHER & GREINER, P.C. Suite 1600, One South Broad Street Philadelphia, PA 19107 (215) 963-3300
Counsel for Defendants City of Philadelphia and Prisons Commissioner Louis Giorla

25

Case 2:08-cv-01979-RBS Document 16-1 Filed 06/27/08 Page 26 of 26
CERTIFICATE OF SERVICE Richard G. Tuttle, counsel for defendants City of Philadelphia and Commissioner Louis Giorla, hereby certifies that the foregoing Memorandum of Law in Support of Motion for Preliminary Injunction, with Exhibits, was served on the following, through the Court’s ECF electronic document filing and transmission service, on June 27, 2008: David Rudovsky, Esquire Jonathan H. Feinberg, Esquire Kairys, Rudovsky, Messing & Feinberg LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 Su Ming Yeh, Esquire Angus Love, Esquire Pennsylvania Institutional Law Project 718 Arch Street, Suite 304S Philadelphia, PA 19106 David Richman, Esquire Matthew Janssen, Esquire Pepper Hamilton, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103 Counsel for Plaintiffs
s/ Richard G. Tuttle ________________________________
26

 
 Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 1 of 28

~S 44 (Rev. 12/07)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law except as provided by local rules ofcourt. This form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use of the Clerk ofCourt for the purpose ofmitiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM .)

I. (a) PLAINTIFFS DWIGHT WILLIAMS, et al

DEFENDANTS
THE CITY OF PHILADELPHIA, et al

(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorney's (Finn Name, Address, and Telephone Number) PLEASE SEE ATTACHED

County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION Of THE LAND INVOLVED.
Attorneys (If Known)
PLEASE SEE ATTACHED

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

a I U.S . Government
Plaintiff

J!II 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL P ARTIES(Place an "X" in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

Citizen ofThis State

PTF DEF

a a I

I Inco'l'orated or Principal Place

PTF DEF
a 4 a4

of Busincss In This State

a 2 U.S. Government
Defendant

a 4 Diversity
(Indicate Citizenship of Parties in Item III)

Citizen ofAnother State
Citizen or Subject of a Forei Coun

a a 2

2 Inco'l'orated and Principal Place

of Business In Another State

a 3 a 3 Foreign Nation

a 5 a5 a 6 a6

IV NATURE OF SUIT (Place an "X" in One Box OnM

i. . :'.."(;:ON'fRAGr<c· 'y

,,,;.;\, ···lllillili~"'":;"'\;(\"'·''''TC RTS:;;(:'<t·:>?·· 'c',Yi'-';- ~:::·~·..~..ti;'. '';'. FORFElTllRFJPENALTY" ,,,'P·'·.'%)'·liANKRUPTCY.

<. l'i!-, ···.6OTHER' S1 ATUTES'" .. .,

a 110 Insurance

PERSONAL INJURY

a PERSONAL INJURY

610 Agriculture

a 422 Appeal 28 USC 158

a

a 120 Marine

a 310 Ai'l'lane

a a 362 Personal Injury -

620 Other Food & Drug

a 423 Withdrawal

a

a 130 Miller Act

a 315 Airplane Product

a Med. Malpractice

625 Drug Related Seizure

28 USC 157

a

o 140 Negotiable Instrument

Liability

a 365 Personal Injury -

of Property 21 USC 881

0

o a 150 Recovery ofOve'l'ayment 320 Assault, Libel &

o Product Liability

630 Liquor Laws

'. ;.R1GHTS ;·: 0

& Enforcement ofJudgment

Slander

a o 368 Asbestos Personal

640 R.R. & Truck

o 820 Copyrights

0

o 151 Medicare Act

a 330 Federal Employers'

Injury Product

o 650 Airline Regs.

o 830Patent

o 152 Recovery ofDefaulted

Liability

Liability

o 660 Occupational

o 840 Trademark

a

Srudent Loans

0 340 Marine

PERSONAL PROPERTY

SafetylHealth

a

(Exc!. Veterans)

a 345 Marine Product

0 370 Other Fraud

0690 Other

a

o 153 Recovery of Ove'l'ayment

Liability

a 371 Truth in Lending

.~\]:. "0.' ·:fl·, ROR / y :'.... ·.·

a

of Veteran 's Benefits

a 350 Motor Vehicle

0 380 Other Personal

a 710 Fair Labor Standards

o 861 HlA (1395ft)

a 160 Stockholders' Suits

a 355 Motor Vehicle

Property Damage

Act

o 862 Black Lung (923)

0

a 190 Other Contract

Product Liability

a o o 385 Property Damage

720 LaborlMgmt. Relations

863 D1WCIDIWW (405(g»

a a 195 Contract Product Liability 360 Other Personal

Product Liability

o o 730 LaborlMgmt.Reporting

864 SSID Title XVI

0

a 196 Franchise

Injury

& Disclosure Act

o 865 RSI (405(g))

0

o I '. '.: "REAVPROPERTY '; ,' ·,,<,';CIVIL.mGHTS ....... ;pmSONERPETITIONS'" 740 Railway Labor Act

tii'FEDERMi'rAX .S1JITSxLL 0

o 210 Land Condemnation

a 441 Voting

a a 0 510 Motions to Vacate

790 Other Labor Litigation

870 Taxes (U.S. Plaintiff

0

o 220 foreclosure

0 442 Employment

Sentence

o 791 EmpJ. Ret. Inc.

or Defendant)

0

o 230 Rent Lease & Ejecbnent 0 443 Housing!

Habeas Corpus:

Security Act

o 871 IRS-Third Party

a

o 240 Torts to Land

Accommodations

0 530 General

26 USC 7609

o 245 Tort Product Liability

0 444 Welfare

0 535 Death Penalty

:.::..~ : IMMIGRATION

a

a a 290 All Other Real Property 0 445 Amer. wlDisabilities - 0 540 Mandamus & Other 462 Naruralization Application

Employment

0 550 Civil Rights

a 463 Habeas CO'l'US -

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/
Exchange 875 Customer Challenge
12 USC 3410 890 Other StaMory Actions 891 Agriculrural Acts 892 Economic Stabilization Act 893 Environmental Matters
894 Energy Allocation Act 895 Freedom of Infonnation
Act 900Appeal of Fee Detennination
Under Equal Access to Justice

0 446 Amer. wlDisabilities - 0 555 Prison Condition
Other IX 440 Other Civil Rights

Alien Detainee
a 465 Other Immigration
Actions

0 950 Constirutionality of State StaMes

V. ORIGIN
~ I Original
Proceeding

(Place an ")(" in One Box Only)

o 2 Removed from

0 3 Remanded from

State Court

Appellate Court

o 4 Reinstated or 0 Reopened

5 Transferred from
asnotChIer district

0 6 Multidistrict
Litigation

C~2t'a .'$~G~i§ilfY§lJ under which you are filing (Do not cite jurisdictional statutes unless diversity):

Appeal to District

o 7

Judge from Magistrate

Jud ment

VI. CAUSE OF ACTION I-:B::-r':"'ie-;:'f"':'de-s-cr':"'ip~ti-on=-of::-c-a-us-e-:- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Glass action tor injunctive and declaratory reliet

VII. REQUESTED IN

o CHECK IF THIS IS A CLASS ACTION

DEMAND $

a CHECK YES only if deman in complaint:

COMPLAINT:

UNDER F.R.CP. 23

JURY DEMAND:

0 No

VIII. RELATED CASE(S)

IF ANY

(See instructions):

JUDGE

DOCKET NUMBER rtf) --~t<j'"f,-:-Fa'l------

DATE
06/27/2008

FOR OFFICE USE ONLY

RECEIPT #------- AMOUNT -----------

MAG. JUDGE -------------

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 2 of 28

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

APPENDIX I

CASE~GEMENTTRACKDE&GNATIONFORM

DWIGHT WILLIAMS, et al

CIVIL ACTION

v.
THE CITY OF PHILADELPHIA, et al :

NO. 08-1979

In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for plaintiff shall complete a case Management Track Designation Form in all civil cases at the time of filing the complaint and serve a copy on all defendants. (See § 1:03 ofthe plan set forth on the reverse side of this form.) In the event that a defendant does not agree with the plaintiff regarding said designation, that defendant shall, with its first appearance, submit to the clerk of court and serve on the plaintiff and all other parties, a case management track designation form specifying the track to which that defendant believes the case should be assigned.

SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS:

(a) Habeas Corpus - Cases brought under 28 V.S.c. §2241 through §2255.

( )

(b) Social Security - Cases requesting review of a decision of the Secretary of Health

and Human Services denying plaintiff Social Security Benefits

( )

(c) Arbitration - Cases required to be designated for arbitration under Local Civil Rule 53.2. ( )

(d) Asbestos - Cases involving claims for personal injury or property damage from

exposure to asbestos.

( )

(e) Special Management - Cases that do not fall into tracks (a) through (d) that are commonly referred to as complex and that need special or intense management by the court. (See reverse side ofthis form for a detailed explanation of special management cases.)
(f) Standard Management - Cases that do not fall into anyone of the other tracks.

( )/ (/)

June 27, 2008 Date
215-279-9693 Telephone

Jeffrey M. Scott Attorney-at-law
215-963-9999 FAX Number

City of Philadelphia and Louis Giorla, Commissioner Phila~~ff~isons
jscott@archerlaw.com E-Mail Address

(Civ. (60) 10/01

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 3 of 28
PLAINTIFFS DWIGHT WILLIAMS ANTHONY QUELETTE KOLEYON PHILLIPS ANTHONY DIGGS KENNETH SMITH EDWARD ZAMICHIELI LOUIS EUBANKS JAMES SAUNDERS THOMAS SCOTT SHANNON BOLLI MARISOL LOPEZ
REPRESENTED BY: Angus R. Love Institutional Law Project 718 Arch Street, Suite 304S Philadelphia PA 19106 alove@pailp.org
David Richman Pepper Hamilton LLP 3000 Two Logan Square 18th Arch Street Philadelphia PA 19103-2799 215-981-4412 f-215-981-4750
David Rudovsky Kairys Rudovsky Messing & Feinberg Suite 501 South, 718 Arch Street Philadelphia PA 19106 215-925-4400 f-215-925-5365 drudovsky@krlawphila.com
Jonathan H. Feinberg Kairys Rudovsky Messing & Feinberg Suite 501 South, 718 Arch Street Philadelphia PA 19106 215-925-4400 f-215-925-5365 jfeiuherg@krlawphila com
Matthew D. Janssen Pepper Hamilton LLP

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 4 of 28
3000 Two Logan Square 18th & Arch Streets Philadelphia PA 19109-2799 jansenm@pepperlaw.com
Su MingYeh PA Institutional Law Project 718 Arch Street Suite 304 South Philadelphia PA 19106 215-925-2966 f-215-925-5337 smyeh@pailp.org
INTERVENOR PLAINTIFF Lynne Abraham, The District Attorney of the City of Philadelphia
Represented by Prya M. Travassos Philadelphia District Attorney's Office 3 South Penn Square Philadelphia PA 19107 215-686-5755 f-215-686-9929 Priya.Travassos@phila.gov
Sarah V. Hart District Attorney Office 215-686-9607 sarah.hart@phila.gov
DEFENDANTS City of Philadelphia Louis Giorla, Commissioner Philadelphia Prisons
Represented by Jeffrey M. Kolanksy Archer & Greiner One South Broad Street, Suite 1600 Philadelphia PA 1907 215-963-3300 f-215-963-9999
jkolanksy@arcbedaw com
Jeffrey M. Scott Archer & Greiner

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 5 of 28
One South Broad Street, Suite 1600 Philadelphia PA 1907 jscott@archerlaw.com 215-963-3300 f-215-963-9999
THIRD PARTY PLAINTIFFS City of Philadelphia Louis Giorla, Commissioner Philadelphia Prisons
Represented by Jeffrey M. Kolanksy Archer & Greiner One South Broad Street, Suite 1600 Philadelphia PA 1907 215-963-3300 f-215-963-9999 jkolanksy@archerlaw.com
Jeffrey M. Scott Archer & Greiner One South Broad Street, Suite 1600 Philadelphia PA 1907 jscott@archerlaw.com 215-963-3300 f-215-963-9999
THIRD PARTY DEFENDANTS Honorable C. Darnell Jones, II, President Judge of The First Judicial District of PA
Honorable Luois Presenza, President Judge of The Philadelphia Municipal Court
Jeffrey A. Beard, Ph.D, Secretary of Department of Corrections
Represented by: Unknown

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 6 of 28

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

DWIGHT WILLIAMS, et aI., Plaintiff,
vs. THE CITY OF PHILADELPHIA, ET AL.
Defendants.

CIVIL ACTION No. 08-1979

DEFENDANTS CITY OF PHILADELPHIA AND PHILADELPHIA PRISON COMMISSIONER LOUIS GIORLA THIRD-PARTY COMPLAINT AGAINST THE HONORABLE C. DARNELL JONES, II, PRESIDENT JUDGE OF THE COURT OF
COMMON PLEAS, FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, THE HONORABLE LOUIS PRESENZA, PRESIDENT JUDGE OF THE PHILADELPHIA MUNICIPAL COURT AND JEFFREY A. BEARD, PH.D., THE SECRETARY OF THE
PENNSYLVANIA DEPARTMENT OF CORRECTIONS
Defendants City of Philadelphia and Philadelphia Prison Commissioner Louis Giorla, by and through their counsel, hereby file this Third-Party Complaint against The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court and Jeffrey A. Beard, Ph.D., the Secretary of Department of Corrections. The following is averred:
JURISDICTION
1. Jurisdiction is conferred upon this Court under 28 U.S.C. Section 1331 and 28 U.S.C. Section 1367.
STATEMENT OF FACTS
2. The Municipal Defendants hereby incorporate by reference the allegations contained in plaintiff s complaint, all of which allegations are denied, as though fully set

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 7 of 28
forth at length. A copy of the Complaint is attached hereto as Exhibit "A."
3. This is a class action for injunctive and declaratory relief for the named individual plaintiffs and the putative class they represent to secure relief from the alleged unconstitutional conditions of confinement that allegedly exist in the Philadelphia Prison System ("PPS ").
4. The alleged putative class consists of all persons confined to the PPS, whether pretrial detainees or convicted prisoners.
5. In the PPS, there are persons awaiting trial, convicted persons with maximum sentences of 24 months or more, persons that violated State parole and persons confined due to writ for various reasons, including but not limited to, (a) inmates who have been sentenced to terms of incarceration in state correctional facilities who are housed in the county jail (PPS) awaiting various hearings and Court appearances; (b) inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have committed an act or acts in violation of the terms of their parole and are awaiting a hearing by that Board prior to recommitment to a state facility; (c) inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have been charged with new criminal acts and are awaiting trial on those charges; (d) inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have committed an act or acts in violation of the terms of their probation and are awaiting a hearing by the Court of Common Pleas of Philadelphia County; (e) inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have been charged with new criminal offenses and are awaiting trial on the new charge; (f) inmates with sentences that qualify them for aggregations which will result in maximum sentences of 24 months or longer, thus making the prisoners eligible for confinement in a state correctional facility.
6. Under State law (42 Pa.C.S. § 9762), when the maximum sentence is two years or more, but less than five years the convicted prisoner may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court.
7. When the maximum term of a sentence is less than two years, the convicted prisoner shall be committed to a county prison within the jurisdiction of the court "except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement." 42 Pa.C.S. § 9762 (2007).
8. The Philadelphia Court of Common Pleas and the Philadelphia Municipal Court (both part of the First Judicial District of Pennsylvania), are the only governmental bodies authorized to determine whether a convicted person is sentenced to guilt without penalty, probation, fine, partial confinement, and total confinement, 42 Pa.C.S. § 9721(a).
2

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 8 of 28
9. The City of Philadelphia and Commissioner Giorla have no authority to prevent a Philadelphia judge from imposing a sentence in county confinement, even where the maximum sentence is two years or more, but less than five years.
10. Likewise, the Philadelphia District Attorney's Office has no authority to impose a sentence in county confinement, even where the maximum sentence is two years or more, but less than five years. At most, the Philadelphia District Attorney's Office can recommend state confinement.
11. In the County of Philadelphia, the Philadelphia Court of Common Pleas and Municipal Courts have developed a custom, policy and practice over several decades of committing convicted persons to the Philadelphia Prison System, whose level of offense makes them eligible to serve their term of confinement in one of the many State correctional institutions.
12. As of this filing, there are over 400 inmates in the custody of the City of Philadelphia that should be confined in a state correctional facility, based on their individual sentences.
13. These inmates represent nearly 20% of the Prisons' sentenced population.
14. Neither the Prisons nor the City are reimbursed for costs associated with their care which is estimated at more than $11,000,000.00 annually.
15. Removal of these inmates from PPS would result in a marked reduction in the Prisons budget, coupled with the availability of over four-hundred beds and reduction in the overall Philadelphia prison population.
16. Pursuant to 61 P.S. § 72, the Secretary of Corrections or designee is authorized and empowered to transfer inmates located in county prisons to the State correctional system for such reasons and upon such terms and conditions as the secretary may determine. The secretary or designee may transfer inmates in the State correctional system to the jurisdiction of a county correctional system upon such terms and conditions that the secretary or designee and the county correctional administrator determine to be in the best interests of the Commonwealth. Inmates located in a county prison may be transferred to another county prison upon such terms and conditions as the counties may determine. The Department of Corrections and county correctional facilities may contract with the Federal Government for the housing of Federal inmates in State and county correctional facilities.
17. Prior to the initiation of this lawsuit, the City of Philadelphia, through its Prison Commissioner, requested Jeffrey A. Beard, the Secretary of the Bureau of Correctjons for the Commonwealth of Pennsylvanja, to transfer a sufficient number of prisoners from Philadelphia County to alleviate the alleged overcrowding in the City of Philadelphia Prison.
3

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 9 of 28
18. Secretary Beard refused to accept the transfers as requested.
19. The failure of Jeffrey A. Beard to approve the transfer of these prisoners has caused and contributed to the increase in prison population and the use of triple celling in the Philadelphia Prison System.
20. If, assuming arguendo, the allegations contained in plaintiffs' complaint are accepted as true, then these prisoners are being subjected to overcrowded and unconstitutional conditions of confinement.
COUNT I-PROSPECTIVE INJUNCTIVE RELIEF THE CITY OF PHILADELPHIA AND PRISON COMMISSIONER LOUIS
GIORLA V.THE HONORABLE C. DARNELL JONES, II, PRESIDENT JUDGE OF THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, THE HONORABLE LOUIS PRESENZA, PRESIDENT JUDGE OF THE
PHILADELPHIA MUNICIPAL COURT
21. The City of Philadelphia and Prison Commissioner Louis Giorla hereby incorporate by reference the allegations set forth in paragraphs 1-20 as though fully set forth at length.
22. In the County of Philadelphia, the Philadelphia Court of Common Pleas and Municipal Courts have developed a custom, policy and practice over several decades of committing convicted persons to the Philadelphia Prison System, whose level of offense makes them eligible to serve their term of confinement in one of the many State correctional institutions.
23. An order of confinement by the Philadelphia Court of Common Pleas and Municipal Courts to the Philadelphia County with a maximum sentence of two but less than five years ("State prisoners") has caused the prison population in the Philadelphia Prison System to dramatically increase, resulting in prison overcrowding.
24. Historically, in the County of Philadelphia, the disposition of cases and sentences within one year from date of preliminary arraignment until sentencing results in a significant number of convictions and commitments that are eligible for both county and state commitment under 42 Pa.C.S. § 9762.
25. Of the 12,333 defendants entering the justice process in the months of March through May, 2005, an estimated 26 percent or about 3,176, had been both convicted and sentenced by the end of one year. Of those sentenced, an estimated 42 percent---or about 11 percent of the entire defendant cohort-received sentences involving confinement beyond time-served credit for those who had been detained.
26. Of the 11 % or 1,357 convicted prisoners, 12% or 162 of those convicted prisoners, had a maximum sentences of 24 months of longer.
4

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 10 of 28
27. The continued custom, policy and practice of the judges ofthe Philadelphia Court of Common Pleas and Philadelphia Court Municipal Courts of committing "State" prisoners to the Philadelphia Prison System has almost quadrupled since March of2005.
28. As of this filing, there are over 400 inmates in the custody of the City of Philadelphia that should be confined in a state correctional facility, based on their individual sentences.
29. If, assuming arguendo, the allegations contained in plaintiffs' original complaint are accepted as true, then these prisoners are being subjected to overcrowded and unconstitutional conditions of confinement by the continued custom, policy and practice of the judges of the Philadelphia Court of Common Pleas and Philadelphia Court Municipal Courts of committing "State" prisoners to the Philadelphia Prison System.
30. The City of Philadelphia and Commissioner Giorla have no authority to prevent a Philadelphia judge from imposing a sentence in county confinement, even where the maximum sentence is two years or more, but less than five years.
31. The actions of the Philadelphia Court of Common Pleas and Philadelphia Court Municipal Courts of committing "State" prisoners to the Philadelphia Prison System is a direct cause of the allegations of alleged unconstitutional conditions of confinement.
32. The Honorable C. Darnell Jones, II and The Honorable Louis Presenza have direct knowledge that the City of Philadelphia was sued for unconstitutional conditions of confinement at the Philadelphia Prison System in Bowers v. City ofPhiladelphia.
33. The Honorable C. Darnell Jones, II and The Honorable Louis Presenza have direct knowledge that the Philadelphia Prison System was and is using triple-celling to house its inmates due to the increase in prison population, allegedly subjecting the prisoners to unconstitutional conditions of confinement.
34. Despite their knowledge, it is believed that the Honorable C. Darnell Jones, II and The Honorable Louis Presenza failed to take reasonable measures to assure that those persons eligible for commitment to a state correctional facility were in fact committed to a state correctional facility.
35. If, assuming arguendo, the allegations contained in plaintiffs' original complaint are accepted as true, then these prisoners are being subjected to overcrowded and unconstitutional conditions of confinement by the continued custom, policy and practice of the judges of the Philadelphia Court of Common Pleas and Philadelphia Court Municipal Courts of committing "State" prisoners to the Philadelphia Prison System.
WHEREFORE, the City of Philadelphia and Prison Commissioner Louis Giorla respectfully request that this Court order the following classes of prisoners to be transferred and confined to a state correctional facility forthwith:
5

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 11 of 28
(a) inmates who have been sentenced to terms of incarceration in state correctional facilities who are housed in the county jail (PPS) awaiting various hearings and Court appearances;
(b) inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have committed an act or acts in violation of the terms of their parole and are awaiting a hearing by that Board prior to recommitment to a state facility;
(c) inmates who have been paroled from a state correctional facility by the Board of Probation and Parole and have been charged with new criminal acts and are awaiting trial on those charges;
(d) inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have committed an act or acts in violation of the terms of their probation and are awaiting a hearing by the Court of Common Pleas of Philadelphia County;
(e) inmates who have been convicted of criminal offenses and placed on probation under the supervision of the Board of Probation and Parole and have been charged with new criminal offenses and are awaiting trial on the new charge;
(f) inmates with sentences that qualify them for aggregations which will result in maximum sentences of24 months or longer, thus making the prisoners eligible for confinement in a state correctional facility.
B. Reasonable attorney's fees and costs;
C. All other appropriate relief.
COUNT 11- PROSPECTIVE INJUNCTIVE RELIEF THE CITY OF PHILADELPHIA AND PRISON COMMISSIONER LOUIS
GIORLA V. JEFFREY A. BEARD, PH.D., THE SECRETARY OF DEPARTMENT OF CORRECTIONS
36. The City of Philadelphia and Prison Commissioner Louis Giorla hereby incorporate by reference the allegations set forth in paragraphs 1-35 as though fully set forth at length.
37. As of this filing. there are oyer 400 inmates jn the custody of the City of Philadelphia that should be confined in a state correctional facility, based on their individual sentences.
6

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 12 of 28
38. These inmates represent nearly 20% of the Prisons' sentenced population.
39. Neither the Prisons nor the City are reimbursed for costs associated with their care which is estimated at more than $11,000,000.00 annually.
40. Removal ofthese inmates from PPS would result in a marked reduction in the Prisons budget, coupled with the availability of over four-hundred beds and reduction in the overall Philadelphia prison population.
41. Pursuant to 61 P.S. § 72, the Secretary of Corrections or designee is hereby authorized and empowered to transfer inmates located in county prisons to the State correctional system for such reasons and upon such terms and conditions as the secretary may determine. The secretary or designee may transfer inmates in the State correctional system to the jurisdiction of a county correctional system upon such terms and conditions that the secretary or designee and the county correctional administrator determine to be in the best interests of the Commonwealth. Inmates located in a county prison may be transferred to another county prison upon such terms and conditions as the counties may determine. The Department of Corrections and county correctional facilities may contract with the Federal Government for the housing of Federal inmates in State and county correctional facilities.
42. Prior to the initiation of this lawsuit, the City of Philadelphia, through its Prison Commissioner, requested Jeffrey A. Beard, the Secretary of the Bureau of Corrections for the Commonwealth of Pennsylvania, to transfer a sufficient number prisoners from Philadelphia County to alleviate the alleged overcrowding in the City of Philadelphia Prison.
43. Secretary Beard refused to accept the transfers as requested.
44. The failure of Jeffrey A. Beard to approve the transfer of these prisoners has caused and contributed to the increase in prison population and the use of triple ceIling in the Philadelphia Prison System and was an abuse of his discretion.
45. If, assuming arguendo, the allegations contained in plaintiffs' complaint are accepted as true, then these prisoners are being subjected to overcrowded and unconstitutional conditions of confinement, and the failure of Jeffrey A. Beard to honor the request of the Philadelphia Prison Commissioner is a cause of the alleged unconstitutional conditions of confinement within the Philadelphia Prison System.
WHEREFORE, the City of Philadelphia and Prison Commissioner Louis Giorla respectfully request that this Court to Order Jeffrey A. Beard, the Secretary ofthe Bureau of Corrections for the Commonwealth of Pennsylvania to transfer prisoners located in the Philadelphia Prison System to the State correctional system.
7

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 13 of 28
COUNT III-CLAIM FOR FEES AND COSTS UNDER FEDERAL COMMON LAW AND UNDER 42 U.S.c. § 1988 THE CITY OF PHILADELPHIA AND PRISON COMMISSIONER LOUIS GIORLA V. THE HONORABLE C. DARNELL JONES, II, PRESIDENT JUDGE OF THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, THE HONORABLE LOUIS PRESENZA, PRESIDENT JUDGE OF THE PHILADELPHIA MUNICIPAL COURT AND JEFFREY A. BEARD, PH.D., THE SECRETARY OF DEPARTMENT OF CORRECTIONS 46. The City of Philadelphia and Prison Commissioner Louis Giorla hereby incorporate by reference the allegations set forth in paragraphs 1-45 as though fully set forth at length. 47. Ifthe plaintiffs are deemed prevailing parties, the plaintiffs may be able to recover counsel fees under 42 U.S.c. § 1988. 48. The City of Philadelphia and Prison Commissioner allege that the Third-Party Defendants are legally responsible for the alleged overcrowding conditions of the Philadelphia Prison System. 49. As a result ofthe Third-Party's actions, the City of Philadelphia is entitled to recover its counsel fees and costs that are attributable to the Third-Party's Actions which caused the alleged overcrowding and alleged unconstitutional conditions of confinement under federal common law and under 42 U.S.C. § 1988.
WHEREFORE, the City of Philadelphia and Prison Commissioner Louis Giorla respectfully request this Court to Order the Third-Party Defendants to pay the costs and counsel fees ofthe Third-Party Plaintiffs pursuant to federal common law and under 42 U.S.C. § 1988.
8

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 14 of 28

Date: June 27, 2008

/s/ Jeffrey M. Kolansky
Jeffrey M. Kolansky
/s/ Jeffrey M. Scott
Jeffrey M. Scott Archer & Greiner One South Broad Street
Suite 1620 Philadelphia, PA 19107
215-963-3300 215-963-9999 (fax)

9

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 15 of 28

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of City Defendants Third Party Complaint

Against The Honorable C. Darnell Jones, II, Honorable Louis Presenza, and Jeffrey A. Beard,

Ph.D., Secretary of Department of Corrections was delevered to the Clerk of Court and sent via

email to all parties listed below and will be available for viewing on the ECF System.

DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING & FEINBERG THE CAST IRON BUILDING SUITE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 SARAH V. HART DISTRICT ATTORNEY'S OFFICE THREE SOUTH PENN SQUARE CORNER OF JUNIPER AND S. PENN PHILADELPHIA, PA 19107-3499 DAVID RICHMAN PEPPER HAMILTON LLP 3000 TWO LOGAN SQ PHILA, PA 19103-2799

Date: June 27,2008

/s/ Jeffrey M. Kolansky

Jeffrey M. Kolansky

/s/ Jeffrey M. Scott

Jeffrey M. Scott Archer & Greiner One South Broad Street
Suite 1620 Philadelphia, PA 19107
215-963-3300 215-963-9999 (fax)

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Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 16 of 28
EXHIBIT A

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 17 of 28

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DWIGHT WILLIAMS; ANTHONY OUELLETTE; KOLEYON PHILLIPS; ANTHONY DIGGS; KENNETH SMITH; EDWARD ZAMICHIELI; LOUIS EUBANKS; JAMES SAUNDERS; THOMAS SCOTT; SHANNON BOLLI; and MARISOL LOPEZ, on behalf of themselves, and all others similarly situated,

CIVIL ACTION No. 08-- - - - - - CLASS ACTION

Plaintiffs,

v.

CITY OF PHILADELPHIA; LOUIS GIORLA, in his official capacity as Commissioner, Philadelphia Prisons,

Defendants.

COMPLAINT Introduction 1. This is a class action for injunctive and declaratory relief for the named individual plaintiffs and the class they represent to secure relief from the pervasive and chronic unconstitutional conditions of confinement that exist and which, absent judicial intervention, will continue to persist in the Philadelphia Prison System ("PPS"). Due to severe overcrowding and the lack of adequate facilities in which to house inmates in the PPS, persons who are committed to the PPS, many of whom have only been charged with crimes and are presumed innocent, are held in dangerous, unsanitary, severely overcrowded, degrading, and cruel conditions of confinement. As of April 21, 2008, the prison population in the PPS is at an historic high of more than 9,300 inmates.

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 18 of 28

2. In Bowers v. City ofPhiladelphia, C.A. No. 06-3229, this Court found

unconstitutional conditions of confinement in the intake areas ofthe PPS and in police districts.

To comply with an injunction issued by the Court, the City of Philadelphia shifted the

overcrowding by greatly expanding its practice of housing three inmates in cells meant to

accommodate no more than two inmates and housing four inmates in "multi-purpose" rooms

(collectively, "triple ceIling" or "triple cells"), and by increasing the population of overcrowded

dormitory areas.

3. The widespread practice of triple ceIling and placement of inmates in

overcrowded dormitories has resulted in system-wide unconstitutional conditions of

confinement. And, as the prison population continues to increase, these conditions continue to

deteriorate. The conditions are so harsh and degrading, and so dangerous to the health and safety

of the inmates, as to constitute cruel and unusual punishment under the Eighth Amendment and a

denial of liberty without due process of law under the Fourteenth Amendment.

Jurisdiction

4. This Court has jurisdiction pursuant to 28 U.S.c. §§ 1331 and 1343,42 U.S.c. §§

1983 and 1988 and the Eighth and Fourteenth Amendments to the United States Constitution.

The Court has supplemental jurisdiction pursuant to 28 U.S.C. §1367(a).

Parties

5.

Plaintiffs Dwight Williams, Anthony Ouellette, Koleyon Phillips, Anthony Diggs,

Kenneth Smith, Edward Zamichieli, Louis Eubanks, James Saunders, Thomas Scott, Shannon

Bolli, and Marisol Lopez are residents of the Commonwealth of Pennsylvania and are currently

confined in the PPS subject to the conditions of confinement that are alleged in this Complaint.

The individual plaintiffs sue for injunctive and declaratory relief on behalf of themselves and on

2

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 19 of 28
behalf ofthose who currently are or will in the future be subject to these unconstitutional conditions of confinement. All inmates in the PPS are subject to the conditions of confinement alleged in this Complaint.
6. Defendant City of Philadelphia is a political subdivision of the Commonwealth of Pennsylvania and operates and funds the Philadelphia Prison System. At all relevant times, defendant City of Philadelphia has acted and will continue to act under color of state law.
7. Defendant Louis Giorla is the Commissioner of the Philadelphia Prison System and is sued in his official capacity. At all relevant times, defendant Giorla has acted and will continue to act under color of state law.
Factual Allegations A. History of Unconstitutional Conditions in the PPS
8. In two related civil rights actions, Jackson v. Hendrick, c.P. Philadelphia, February Term, 1971, No. 2437, and Harris v. City ofPhiladelphia, E.D. Pa., No. 82-1847, begun in 1971 and 1982, respectively, state and federal courts ordered the Philadelphia Prison System to implement a series of measures to remedy conditions of confinement that violated the United States and Pennsylvania Constitutions. According to the findings of the three-judge Jackson court, which were sustained on appeal, and the allegations ofthe Harris Complaint, which supported a series of court-approved consent decrees, PPS inmates, the large majority of whom were awaiting trial, were subjected to unhealthy, unsafe, and degrading conditions of confinement due, in significant part, to the fact that the resources of the PPS, including housing, security staff, medical care, food, sanitation, and programming, were insufficient and inadequate to meet the needs of the number of inmates in custody.
3

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9. Between them, the Jackson and Harris courts mandated physical plant improvements, enhancements in medical care and sanitation, the construction of new jails and a courthouse to increase capacity and expedite dispositions, the adoption and implementation of physical and operational standards and policies and procedures affecting conditions of confinement, and the establishment of alternatives to incarceration, including diversion of inmates into drug treatment programs. The Harris Court also ordered a limited, charge-based moratorium on the admission of certain categories of untried persons so long as the PPS population exceeded the inmate capacity, as determined by the PPS.
10. The Harris litigation was terminated in 2000 with the entry of a final Settlement Agreement in which the City of Philadelphia agreed to fund for a period of two years the cost of independent consultants to monitor the PPS's compliance with PPS Physical and Operational Standards and PPS Policies and Procedures governing all aspects of conditions of confinement. The City also agreed to implement specified physical improvements to the House of Correction on a prescribed schedule. At the time that the Harris litigation was terminated, the population of the PPS was approximately 7,000 inmates, and the Court's approval of the parties' settlement was qualified with the expression of concern that without judicial oversight, the population, which had nearly doubled over the life of the litigation, would continue to increase beyond the physical capacity of the PPS.
11. The Jackson litigation was terminated in 2001 following 30 years of court supervision that included repeated and specific findings of unconstitutional conditions, a progression of consent decrees, and the release of inmates.
12. In terminating Jackson, the City of Philadelphia agreed that upon the opening of a new Women's Detention Facility and the Cambria Correctional Center, and as long as the
4

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 21 of 28
population did not exceed 950 women and 6,850 men (a total of 7,800), the City would hold the population in the dormitories at Detention Center ("DC") to 192, remove all inmates from the dayrooms and annex areas at DC, eliminate all triple celling, and would house no more than four inmates per multi-occupancy room at the Curran Fromhold Correctional Facility ("CFCF").
13. In the five years following the termination of Harris and Jackson, the population of the PPS steadily increased, and the increase in the number of inmates far exceeded the additional housing capacity provided by a new women's facility, the Riverside Correctional Facility. B. The Overcrowding Crisis of 2006
14 By June, 2006, the population in the PPS had increased to 8,900 inmates, representing an increase of25% from 2000. There was not a commensurate increase in physical capacity, staffing, or other resources essential to constitutional conditions of confinement.
15. To house the greatly increased population, the prison defendants instituted triple ceIling at CFCF, Riverside Correctional Facility, and at the House of Correction, placed excessive numbers of inmates in dormitory areas at the Detention Center, and resorted to housing inmates in common spaces and recreation areas in other facilities which were crowded well beyond their capacity.
16. Further, because the defendants did not provide a sufficient number of correctional officers and other staff, they resorted to "lock-downs" and "restricted movements" at each of the facilities on a regular basis. These practices made conditions of confinement even more intolerable, as they deprived inmates of recreation, movement, and services. At the same time, these practices increased dangers to inmates and staff, including correctional officers, due
5

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 22 of 28
to the significant increase in tension and disputes that result when inmates are deprived of movement, recreation, and exercise.
17. Even with triple ceIling, the overuse of dormitory space at the DC, the use of common and recreation areas, and restricted movements and lock-downs of the general population, the City was unable to provide housing for all persons committed to the prisons.
18. In 2006, as the PPS literally ran out of housing space, the PPS instituted a policy and practice ("Operation Strategic Admission" or "OSA") of holding inmates at the intake/admissions area ofthe DC, the Philadelphia Industrial Correctional Center ("PICC"), and/or CFCF until a cell was available in medical quarantine or in the general population.
19. Pursuant to this official practice and policy, inmates were first held at police districts and the Police Administration Building for periods ranging up to seven days. Thereafter, they were held in the intake areas of the PPS for well beyond the 24 hours required for admission into the system. The conditions at the police districts and the intake areas were dangerous, degrading and threatening to life, safety and health, all in violation ofthe Eighth and Fourteenth Amendments.
20. In Bowers v. City ofPhiladelphia, the Court, after certifYing the matter as a class action, and after a full hearing on a Motion for Preliminary Injunction, ruled that the totality of circumstances regarding the conditions in the police districts and the intake/admissions areas of the PPS were so dangerous, punitive, and severe, as to violate the Eighth and Fourteenth Amendments.
21. The Court determined that the severe overcrowding, lack of adequate hygiene supplies, and lack of bedding, denial of medical care, and unsanitary conditions of confinement
6

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 23 of 28
served no legitimate penal purpose, and ordered specific relief aimed at these constitutional violations. Thereafter, the Court extended the grant of preliminary injunctive relief.
22. The Court determined that the City's response to the overcrowding crisis was both too little and too late and did not adequately address the constitutional violations. Opinion, 5253.
23. The Court recognized that the PPS had attempted to solve the "immediate pretrial detainee overcrowding problem with one main solution - triple-ceiling in the quarantine unit of CFCF intake." Opinion, 53. The Court warned, however, that "triple-ceiling ... is not tenable as a permanent cure," Opinion, 53, and likened this approach to "a band-aid on a wound that requires surgery." Opinion,54. In summary, the Court ruled that the City's failure to provide adequate housing was "shocking." Opinion, 54. C. The Current Overcrowding Crises
24. During the hearing and post-hearing proceedings in Bowers, the City of Philadelphia presented plans and proposals that were touted as solutions to the overcrowding and related unconstitutional conditions of confinement, including a 24-Point Plan for a coordinated criminal justice system effort at establishing constitutional conditions of confinement.
25. Most of the plans and programs presented by the City have not been implemented and the City continues to manifest deliberate indifference to the myriad problems that the Bowers litigation exposed.
26. To deal with the acute problems of overcrowding, the City has expanded triple celling and increased the dormitory population and, as a result, inmates are confined in these conditions for months at a time. The number of inmates confined in triple cells substantially exceeds the number who were triple-celled at the time of the decision in Bowers. On any given
7

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 24 of 28
date, there are well over 2,000 inmates housed in triple-cells, and hundreds more in overcrowded dormitory areas.
27. To accommodate the third inmate in cells designed for two, one ofthe inmates is required to sleep in a plastic shell ("blue boat") that sits on the floor.
28. To attempt to control and service this steadily expanding population, the PPS has increasingly relied on "restricted movements" and "lockdowns," of inmates, particularly when there are insufficient numbers of correctional officers to provide adequate services, security, and safety to inmates and to the staff.
29. As a result of the overcrowding and the failure ofthe City to provide adequate services, supplies, and staffing at the PPS, the plaintiffs and members of the plaintiff class have been, and without judicial intervention, will be subjected to a pervasive system of unconstitutional conditions that include (a) severe overcrowding with three inmates in cells designed for no more than two inmates and in overcrowded dormitories, (b) lack of adequate sanitation and hygiene, (c) danger to the physical and mental health and safety of inmates due to lack of sufficient numbers of correctional officers, medical personnel and other staff, (d) high risks of assault and violence, (e) the spread of disease and infections, and (f) denial of programs and services.
30. The Bowers Court specifically stated that unconstitutional conditions are more likely to occur as the population and use oftriple-celling expands, and the Court warned against use of triple ceIling as a long term solution to the overcrowding problem. Opinion, 53-54. It is now more than a year from the date of the Court's Opinion and Order of January 25, 2007 finding serious and pervasive unconstitutional conditions in the intake areas of the PPS, and the
8

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 25 of 28
City has failed to institute remedial measures that do more than shift the locus of the inhumane conditions to the general population.
Class Action Allegations 31. Plaintiffs seek to represent, on claims for declaratory and injunctive relief, a class of all persons who have been or will in the future be held in custody in the PPS in triple cells, overcrowded dormitories, or other overcrowded housing areas, and who have been or will be subjected to the unconstitutional policies and practices alleged in this Complaint. The class is so numerous that joinder of their claims is impracticable. 32. Plaintiffs' claims are typical of the claims of the class members, in that each member of the class has suffered the same harms as a result ofthe defendants' acts and omissions. Plaintiffs will be adequate representatives of the class, in that they are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class. 33. There are questions oflaw and fact common to the class, specifically whether defendants' practices and procedures, which force confinement of all members of the plaintiff class in overcrowded, unsanitary and dangerous conditions, violate the Eighth and Fourteenth Amendments to the U.S. Constitution. The policies and practices of the defendants and the resulting conditions of confinement are the same for all members ofthe plaintiff class. 34. The questions of fact and law that are common to the members ofthe class predominate over any questions affecting any individual members of the class. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 35. The defendants have acted, or refused to act, on grounds generally applicable to the class. Final injunctive and declaratory relief is appropriate with respect to all of the members of the class.
9

Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 26 of 28
36. This action may properly be maintained under Fed. R. Civ. P. 23(b)(2). Count I - Federal Constitutional Violations
37. Plaintiffs incorporate by reference paragraphs 1-36, as if fully set forth in this paragraph.
38. The practices, policies, acts and omissions alleged in this Complaint are in violation of the Eighth and Fourteenth Amendments to the United States Constitution in that they deprive plaintiffs and members of the plaintiff class their rights to be free from deprivations of liberty without due process of law and to be free from cruel and unusual punishment. If appropriate declaratory and injunctive relief that is necessary to correct the unconstitutional conditions of confinement is not granted, the harms suffered will be irreparable, as the unconstitutional policies, practices and conditions will continue to exist for the foreseeable future.
Count II-State Law Claims 39. Plaintiffs incorporate paragraphs 1-38 by reference as if fully set forth in this paragraph. 40. The policies, practices, and conditions alleged in this Complaint deprive plaintiffs of their rights under the Pennsylvania Constitution and the laws of the Commonwealth of Pennsylvania to be free of deprivations of liberty without due process of law, and to be free from cruel and unusual punishment.
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Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 27 of 28
Relief Wherefore, plaintiffs request the following relief: 1. For the named plaintiffs and the members of the plaintiff class, a declaratory judgment that the practices, policies, and conditions alleged in this Complaint are unconstitutional; 2. For the named plaintiffs and the plaintiff class, a permanent injunction that is narrowly drawn, that extends no further than necessary to correct the unconstitutional conditions, and that is the least intrusive means necessary to correct the unconstitutional conditions such that the defendants are prohibited from confining plaintiffs in triple cells and overcrowded dormitory areas, and are required to provide constitutionally mandated sanitation and environmental protection, medical care, habitable cells, and protection from assaults or other dangers to plaintiffs' lives and safety; 3. If the defendants do not provide the necessary and required constitutional conditions of confinement, plaintiffs request that a three-judge court be empanelled, and that reductions in population be ordered; 4. Reasonable attorney's fees and costs; 5. All other appropriate relief.
/s/ David Rudovsky David Rudovsky J.D. No. 15168 /s/ Jonathan H. Feinberg Jonathan H. Feinberg J.D. No. 88227 Kairys, Rudovsky, Messing
& Feinberg LLP 718 Arch Street, Suite SOlS Philadelphia, PA 19106 (215) 925-4400
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Case 2:08-cv-01979-RBS Document 17 Filed 06/27/08 Page 28 of 28
/s/ Su Ming Yeh Su Ming Yeh I.D. No. 95111 /s/ Angus Love Angus Love I.D. No. 22392 Pennsylvania Institutional Law Project 718 Arch Street, Suite 304S Philadelphia, PA 19106 (215) 925-2966
/s/ David Richman David Richman I.D. No. 04179 /s/ Matthew Janssen Matthew Janssen I.D. No. 91490 Pepper Hamilton LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 (215) 981-4000 Counsel for Plaintiffs
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DWIGHT WILLIAMS, ET AL.,

:

:

PLAINTIFFS,

:

:

v.

:

:

CITY OF PHILADELPHIA, ET AL.,

:

:

DEFENDANTS

:

____________________________________

CITY OF PHILADELPHIA, ET AL.,

:

:

THIRD-PARTY PLAINTIFFS, :

:

v.

:

:

JEFFREY A. BEARD, ET AL.

:

:

THIRD-PARTY DEFENDANTS :

CIVIL ACTION NO. 08-1979

SURRICK, J.

JULY 27 , 2010

MEMORANDUM

This is a putative class action brought by inmates in the Philadelphia Prison System

(“PPS”) seeking equitable relief and alleging unconstitutional conditions of confinement under

the Eighth and Fourteenth Amendments. Plaintiffs commenced the action on April 28, 2008,

complaining of overcrowding and triple-celling in the county-operated PPS. Plaintiffs named the

City and its Commissioner of Corrections as defendants. On June 27, 2008, the City of

Philadelphia and its Commissioner of Corrections (collectively, “Third-Party Plaintiffs”) filed a

third-party complaint against Jeffrey A. Beard, Secretary of the Pennsylvania Department of

Corrections (“Secretary”), and against the Honorable C. Darnell Jones, II, and Louis Presenza,

President Judges of the Philadelphia County Court of Common Pleas and Municipal Court, respectively (“President Judges”).1 (Doc. No. 17.) At the same time, Third-Party Plaintiffs filed a Motion for Preliminary Injunction (Doc. No. 16) and a Motion to Dismiss for Failure to Join, or alternatively, a Motion to Join the Secretary and the President Judges (Doc. No. 15). Plaintiffs did not name the Secretary or the President Judges as defendants. In fact, Plaintiffs oppose Third-Party Plaintiffs’ attempt to join the Secretary and the President Judges to the action (collectively, “Third-Party Defendants”).
Presently before the Court are the Motion to Dismiss Defendants Third-Party Complaint Filed on Behalf of Third Party Defendants, the Honorable C. Darnell Jones, II and the Honorable Louis Presenza (Doc. No. 29) and Third Party Defendant Beard’s Motion to Dismiss the Third Party Complaint of the City of Philadelphia and Louis Giorla (Doc. No. 31). For the following reasons, the Third-Party Defendants’ motions will be granted. I. BACKGROUND
Plaintiffs have sued the City of Philadelphia and its Commissioner of Corrections seeking equitable relief from overcrowding in the City’s prisons. This is not the first time inmates in Philadelphia’s prisons have brought suit against the City alleging constitutional violations. State and federal courts have been dealing with this problem for almost forty years. See, e.g., Jackson v. Hendrick, 764 A.2d 1139, 1141 (Pa. Commw. Ct. 2001) (discussing “tangled history” of Philadelphia prison litigation dating back to 1971); Harris v. City of Philadelphia, No. 82-1847,
1 The President Judge of the Philadelphia County Court of Common Pleas is now the Honorable Pamela P. Dembe and the President Judge of the Municipal Court is now the Honorable Marsha H. Neifield. The Secretary of the Pennsylvania Department of Corrections is still Jeffery A. Beard, Ph.D. The Court recently approved the parties’ stipulation to substitute Judge Dembe for Judge Jones and Judge Neifield for Judge Presenza. (Doc. Nos. 68, 69.)
2

2000 WL 1239948, at *1 (E.D. Pa. Aug. 30, 2000) (Shapiro, J.) (discussing Philadelphia prison litigation history). In Bowers v. City of Philadelphia, No. 06-3229, 2007 WL 219651, at *34 (E.D. Pa. Jan. 25, 2007), this Court found that conditions in existence in the summer of 2006 in the intake unit of the PPS, the Police Administration Building’s detention unit, and the Police District holding cells violated the Fourteenth Amendment. We cited a variety of offending conditions ranging from unsanitary and unavailable toilet facilities to the failure to provide beds resulting in inmates sleeping on concrete floors. The conditions were primarily caused by severe overcrowding. See id. at *23. In Bowers, we did not decide whether triple-celling violated the due process rights of pretrial detainees. Id. at *26. In the present case, Plaintiffs allege that triple-celling is rampant in the City’s prison and that the practice violates their constitutional rights under the Eighth and Fourteenth Amendments.
To understand Third-Party Plaintiffs’ theory against the Third-Party Defendants, it is necessary to understand the relationship between the City’s prison system and the Commonwealth of Pennsylvania’s prison system. The City manages a prison system and supervises its operations pursuant to the City’s Home Rule Charter.2 See 351 Pa. Code § 5.5700(c) (2010). The City exercises this supervisory authority through the Philadelphia Department of Public Welfare (“City Welfare Department”) and PPS. See id.; see also Exec. Order 05-88 (Apr. 6, 1988) (W. Wilson Goode, Mayor) (establishing the PPS). The City Welfare Department is charged with, among other things, setting inmate capacity at the City’s
2 Under Pennsylvania law, cities such as Philadelphia have the authority to establish charters for their governments that empower them to exercise the authority of local selfgovernment. See 53 Pa. Cons. Stat. Ann. § 13131 (1998) (providing that when a city, like Philadelphia, adopts a home rule charter, that city shall “have complete powers of legislation and administration in relation to its municipal functions”).
3

correctional institutions. See 351 Pa. Code § 5.5-700(c) (providing that the City Welfare Department “shall determine the capacity of City institutions and determine and designate the type of persons and the proportion of each type to be received therein”); see also Harris v. Pernsley, 820 F.2d 592, 598 (3d Cir. 1987) (“The Philadelphia Home Rule Charter vests the Philadelphia Department of Public Welfare with the responsibility of supervising the Philadelphia prison, including the power to set the capacity of the institutions.” (internal citations omitted)). The City Welfare Department is also charged with recommending to the PPS’s Board of Trustees “standards and methods helpful in the government and administration of [the PPS] and for the betterment of the condition of [its] inhabitants.” See 351 Pa. Code § 5.5700(c) (2010). The PPS Board of Trustees in turn manages and controls the City’s prisons. See id. § 5.5-701. Ultimately the Mayor, as the City’s chief executive officer, and the City Council have the authority to determine the inmate capacity of the PPS through their control of the City’s budget. See id. § 4.4-100 (designating the Mayor as the City’s chief executive officer); id. § 2.20-300 (requiring the Mayor and the City Council to adopt the City’s annual operating budget).
The Commonwealth of Pennsylvania operates its own prison system. Cf. 71 Pa. Stat. § 310-1 (2010) (establishing the Department of Corrections as an administrative department). The Governor of Pennsylvania appoints a Secretary of Corrections to manage the Commonwealth’s prison system. See id. §§ 66, 67.1(d). The Secretary is responsible for the administration, management, and supervision of the Commonwealth’s twenty-six state correctional institutions. See id. § 310-1. Among other things, the Secretary is given discretionary authority “to transfer inmates located in county prisons to the State correctional system for such reasons and upon such terms and conditions as the secretary may determine.” 61
4

Pa. Cons. Stat. Ann. § 1151 (2009) (replacing 61 Pa. Stat. § 72 (repealed), effective October 13, 2009); see also 2009 Pa. Legis. Serv. Act 2009-33 (S.B. 112).
An inmate sentenced under Pennsylvania law is confined either in a county prison or in one of the state correctional institutions operated by the Commonwealth. Where an inmate is confined depends on the length of the inmate’s sentence and the discretion of the sentencing judge. See 42 Pa. Cons. Stat. Ann. § 9762 (2007). Pursuant to the statute, inmates with sentences of five years or more must be confined in a state correctional institution, and sentencing judges may not confine them in a county prison. Id. Inmates with sentences of at least two years, but less than five years, may be confined in either a state correctional institution or a county prison at the discretion of the sentencing judge. Id. Inmates with sentences of less than two years must be confined in the county prison—here, the PPS—unless the Governor issues a proclamation that state facilities are available. Id.
The Pennsylvania legislature recently amended the statute to remove the sentencing judges’ discretion with regard to confinement of inmates with sentences of at least two years, but less than five years, in the state correctional institution. See 2008 Pa. Legis. Serv. 2008-81 (H.B. No. 4), amending 42 Pa. Cons. Stat. Ann. § 9762, enacted September 25, 2008. Specifically, the amendment, which took effect sixty days after its enactment, provides that beginning three years after its enactment inmates with “maximum terms of two years or more but less than five years
be committed to the Department of Corrections for confinement,” unless a number of shall requirements are met. Id. § 7 (emphasis added). Until this subsection is effective in November 2011, sentencing judges in the Philadelphia court system retain their discretion over where to confine inmates with sentences of at least two years, but less than five years. See 42 Pa. Cons.
5

Stat. Ann. § 9762. This discretion rests exclusively with the sentencing judge.3 See id. The amendment does not affect the Secretary’s discretion “to transfer inmates located in county prisons to the State correctional system for such reasons and upon such terms and conditions as the secretary may determine.” See 61 Pa. Cons. Stat. Ann. § 1151 (2009). Neither the current statute nor the amended statute vests sentencing discretion in the President Judges of the Philadelphia court system. The President Judges serve as “the executive and administrative head of the court.” 42 Pa. Cons. Stat. Ann. § 325(e) (2007). The role of the President Judges is to “supervise the judicial business of the court, promulgate all administrative rules and regulations, make all judicial assignments, and assign and reassign among the personnel of the court available chambers and other physical facilities.” Id.
The gravamen of Third-Party Plaintiffs’ third-party complaint is the allegation that the Secretary’s failure to accept discretionary transfer of inmates confined to the PPS at less-crowded state correctional institutions, and the President Judges’ failure to ensure that sentencing judges confined persons with sentences of at least two years, but less than five years, in state correctional institutions, has contributed to the alleged overcrowding and triple-celling at the PPS.4 Third-Party Plaintiffs contend that these allegations give rise to a contribution claim under 42 U.S.C. § 1983, which grounds their third-party complaint on federal common law. Third-
3 Section 9762(f) of the Amended Statute also provides for the aggregation of sentences, and section 9762(h) provides that the sentencing judge can change “the place of confinement between State and county facilities to the extent that the judge would have such discretion at the time of imposition of sentence . . . .” These provisions were effective in November 2008, sixty days after the enactment of the Amendment. 42 Pa. Cons. Stat. Ann. § 9762.
4 Plaintiffs point out that some of the subject inmates may have been sentenced pursuant to negotiated pleas wherein the place of confinement was part of the plea agreement.
6

Party Plaintiffs also contend that joinder of the Secretary and the President Judges is necessary to accord Plaintiffs full relief. Third-Party Defendants respond that Third-Party Plaintiffs fail to state a claim against the Secretary and the President Judges on which to ground joinder or the third-party complaint. Third-Party Defendants also respond that even if Third-Party Plaintiffs could state a claim for contribution, the Eleventh Amendment provides immunity to the ThirdParty Defendants as state actors. II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In Iqbal, the Supreme Court set forth a two-part analysis that district courts must conduct when reviewing a complaint challenged under Rule 12(b)(6). See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (describing Iqbal’s two-step inquiry). The district court must first separate “the factual and legal elements of a claim,” accepting all of the complaint’s well-pleaded facts as true but rejecting legal conclusions. Id. at 210 (citing Iqbal, 129 S. Ct. at 1949); see also Iqbal, 129 S. Ct. at 194950 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice [to state a claim].”). Under this analysis, well-pleaded factual allegations are to be given a presumption of veracity. Iqbal, 129 S. Ct. at 1950. The district court must then “determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d at 211 (quoting Iqbal, 129 S. Ct.
7

at 1950). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. Id. By contrast, a complaint that demonstrates entitlement to relief through well-pleaded facts will survive a motion to dismiss. See id. Given the nature of the two-part analysis, “‘[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” See McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1950). Dismissal under Rule 12(b)(6) is proper when a doctrine of immunity, such as the Eleventh Amendment, bars the suit. See Reames v. Oklahoma, 411 F.3d 1164, 1168 (10th Cir. 2005) (affirming district court’s grant of motion to dismiss action against state officials where immunity under the Eleventh Amendment barred the claim); Anderson v. Williamson, 100 F.3d 956 (Table), 1996 WL 640464, at *1 (6th Cir. Nov. 5, 1996) (holding same). III. ANALYSIS
A. Eleventh Amendment The doctrine of sovereign immunity is a major limitation on the judicial power of federal courts. Sovereign immunity in the federal courts is based on the Eleventh Amendment, which provides that “[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.” U.S. Const. amend. XI. “That amendment has been interpreted to make states generally immune from suit by private parties in federal court.” MCI Telecom. Corp. v. Bell Atlantic - Pa., 271 F.3d 491, 502 (3d Cir. 2001) (citations omitted). The amendment also makes states generally immune from “suit brought by a citizen of a state against his own state,” O’Hara v. Ind. Univ. of Pa., 171 F. Supp. 2d 490, 495
8

(W.D. Pa. 2001) (citing Hans v. Louisiana, 134 U.S. 1, 13-16 (1890)), including suits brought against state agencies and departments, MCI Telecom., 271 F.3d at 502 (citing Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000) (en banc)). In addition, the amendment has been interpreted to make states generally immune from suits brought by political subdivisions. See, e.g., County of Monroe v. State of Florida, 678 F.2d 1124, 1130-31 (2d Cir. 1982) (holding that a county in New York was a “citizen” of New York for Eleventh Amendment purposes in suit against Florida because political subdivisions are “citizens” of their respective states); Byram River v. Village of Port Chester, 394 F. Supp. 618, 624-25 (S.D.N.Y. 1975) (holding that a Connecticut municipality was a “citizen of another state” for Eleventh Amendment purposes in suit against New York).
The Eleventh Amendment generally does not bar suits against counties, municipalities, and political subdivisions of a state. Febres v. Camden Bd. of Educ., 445 F.3d 227, 229 (3d Cir. 2006) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). However, the amendment bars such suits when there is so much state involvement in the actions that the relief, in essence, runs against the state. For example, in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 123-24 (1979), the Supreme Court held that the Eleventh Amendment barred relief against the county as well as against state officers, since “funding for the county mental retardation programs comes almost entirely from the State[,] the costs of the Masters have been borne by the State[, and legislation] contemplates that the state and county officials will cooperate in operating the mental retardation programs.” Id. at 124. The state’s funding of the county program and cooperation were therefore sufficient to create an Eleventh Amendment bar to suits against the county. See id.
The Eleventh Amendment permits federal courts to entertain suits against states under
9

certain exceptions. First, suit is permitted where a state has waived its immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). Second, suit is permitted where Congress validly abrogates sovereign immunity through its enforcement powers pursuant to the Fourteenth Amendment. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 57-73 (1996). Third, suit is permitted where the plaintiff sues state officials in their official capacities seeking only prospective injunctive relief. See Ex Parte Young, 209 U.S. 123, 159-60 (1908) (holding that the Eleventh Amendment did not prohibit a federal court from enjoining a state attorney general from enforcing an unconstitutional state law); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997) (reaffirming that prospective relief may be sought against a state official in federal court).
“The theory behind Ex Parte Young is that a suit to halt the enforcement of a state law in conflict with the federal constitution is an action against the individual officer charged with that enforcement and ceases to be an action against the state to which sovereign immunity extends . . . .” MCI Telecom., 271 F.3d at 502 (citing Ex Parte Young, 209 U.S. at 159-60). Thus, “the officer is stripped of his official or representative character and becomes subject to the consequences of his individual conduct.” Id.; see also Pennhurst, 465 U.S. at 103 (stating that, under the theory of Ex Parte Young, an action for prospective relief against the state officer was not an action against the state because the allegation of a violation of federal law would strip the officer of his official authority). “The Ex Parte Young doctrine applies both to violations of the United States Constitution and to violations of federal statutes.” MCI Telecom., 271 F.3d at 502 (citing Balgowan v. New Jersey, 115 F.3d 214, 218 (3d Cir. 1997)).
The purpose of Eleventh Amendment immunity is to protect state treasuries and maintain
10

the dignity due sovereign entities. See Hess v. Port Auth. Trans-Hudson, Corp., 513 U.S. 30, 47, 52 (1994) (identifying the protection of state treasuries and the states’ dignity as sovereigns as the Eleventh Amendment’s “twin reasons for being”); Kitchen v. Upshaw, 286 F.3d 179, 184 (4th Cir. 2002) (noting same). The type of relief sought, whether prospective injunctive relief or retroactive monetary relief, does not affect whether the Eleventh Amendment bars the suit. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996) (“[W]e have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment.”). The Eleventh Amendment serves to avoid “the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,” not simply to “preven[t] federal-court judgments that must be paid out of a State’s treasury.” Id. (internal citations omitted). As Justice Marshall noted, “[b]ecause of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate in a case such as this.” Employees v. Mo. Pub. Health & Welfare Dep’t, 411 U.S. 279, 294 (1973) (Marshall, J., concurring in result).
B. Application of Eleventh Amendment In this case, Third-Party Plaintiffs seek injunctive relief against Third-Party Defendants. However, as agents of the Commonwealth, Third-Party Defendants enjoy sovereign immunity under the Eleventh Amendment. See Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (noting that “the Commonwealth of Pennsylvania’s Department of Corrections is a part of the executive department of the Commonwealth [and] shares in the Commonwealth’s Eleventh Amendment immunity [from damages]” (citations omitted)); Handy v. Goode, No. 91-7767,
11

1992 WL 189446, at *1 (E.D. Pa. July 28, 1992) (noting that “[t]he Philadelphia Court of Common Pleas is a state agency and is therefore immune from damage liability pursuant to the Eleventh Amendment”). The Eleventh Amendment bars suits against state agencies brought by political subdivisions like the City, since political subdivisions are “citizens” of their respective states, O’Hara, 171 F. Supp. 2d at 495, and states are generally immune from “suits brought by citizens against their own states,” Monroe, 678 F.2d at 1130-31; see also Munoz v. City of Philadelphia, 537 F. Supp. 2d 749, 750 (E.D. Pa. 2008); Petsinger v. Pa. Dep’t of Transp., 211 F. Supp. 2d 610, 612 (E.D. Pa. 2002) (“[T]he Supreme Court ‘has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.’”) (quoting Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)). Third-Party Plaintiff’s claims do not fit into any recognized exception to the Eleventh Amendment’s bar of suits against states. Third-Party Plaintiffs do not contend, nor could they, that the Commonwealth has waived its immunity. The Commonwealth has clearly reserved its power to invoke sovereign immunity. 42 Pa. Cons. Stat. Ann. § 8521(b) (2007). Likewise, Third-Party Plaintiffs do not and could not contend that by enacting § 1983, Congress validly abrogated the Commonwealth’s sovereign immunity. See Quern v. Jordan, 440 U.S. 332, 345 (1979) (“[Section] 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States.”); see also O’Hara, 171 F. Supp. 2d at 495 (“The Commonwealth of Pennsylvania has not waived its immunity in § 1983 civil rights cases and Congress did not abrogate state immunity in general in enacting civil rights legislation,
12

including § 1983.”)
Instead, Third-Party Plaintiffs contend that they are suing Third-Party Defendants as state
officials in their official capacities seeking only prospective injunctive relief. They argue that
this allows them to proceed under the exception to Eleventh Amendment immunity announced in
Ex Parte Young. As mentioned above, the basis for this exception is that an action challenging
the constitutionality of a state official’s conduct is not one against the state since an official who
acts repugnant to the Constitution is “stripped of his official or representative character and is
subjected in his person to the consequences of his official conduct.” Ex Parte Young, 209 U.S. at
160. For this reason, the Eleventh Amendment does not bar a claim for prospective injunctive
relief against a state official to enforce the Constitution.
Third-Party Plaintiffs base their claim not on state law, which the Supreme Court
prohibited in Pennhurst, 465 U.S. at 109-10, but rather on a purported federal common law right
to contribution under § 1983. Whether § 1983 supports the contribution claim that Third-Party
Plaintiffs assert against Third-Party Defendants is open to question.5 However, the Supreme
5 District courts in the Third Circuit have “recognize[d] a right to contribution in § 1983 cases as a matter of federal common law.” Klaitz v. New Jersey, No. 04-0529, 2006 WL 1843115, at *6 (D.N.J. June 30, 2006) (citing Miller v. Apt. & Homes of N.J., Inc., 646 F.2d 101 (3d Cir. 1981)); Miller, 646 F.2d at 106-10 (recognizing right of contribution in a civil rights action brought pursuant to § 1982); see also Alexander v. Hargrove, No. 93-5510, 1994 WL 444728, at *3-4 (E.D. Pa. Aug. 6, 1994) (Yohn, J.) (relying upon Miller and finding a federal right to contribution for a claim brought under § 1983); Fishman v. DeMeo, 604 F. Supp. 873, 875-77 (E.D. Pa. 1985) (Pollak, J.) (finding that even though Miller’s pronouncement that a federal right to contribution exists for a § 1982 claim was dicta, the district court was still compelled to follow Miller and find a federal right to contribution for claims under § 1983)). However, courts outside the Third Circuit have refused to recognize a right to contribution in § 1983 cases. See, e.g., Allen v. City of Los Angeles, 92 F.3d 842, 846 n.1 (9th Cir. 1996) (“There is no federal right to indemnification provided in 42 U.S.C. § 1983.”); Harris v. Angelina County, 31 F.3d 331, 338 n.9 (5th Cir. 1994) (finding no claim for contribution in § 1983 cases, especially when the claim for contribution is sought from the state’s own political subdivision,
13

Court has concluded “that in enacting § 1983, Congress did not intend to override wellestablished immunities or defenses under the common law.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989). Thus, regardless of whether § 1983 provides a right of contribution, the statute contains no “unequivocal expression of congressional intent” extending that right to contribution claims against the state by a political subdivision like the City of Philadelphia.
In applying the Ex Parte Young exception, the Supreme Court cautioned that “the need to promote the supremacy of federal law must be accommodated to the constitutional immunity of the States.” Ex Parte Young, 465 U.S. at 105. The Court found it “difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Id. In Harris v. Angelina County, 31 F.3d 331, 339-40 (5th Cir. 1994), the Fifth Circuit employed this reasoning to conclude that a county could not bring a § 1983 contribution claim against the State of Texas in a prison overcrowding case. Like the instant case, Harris was a § 1983 prison overcrowding case where the county, a political subdivision, sought equitable and monetary contribution from its state. In reaching its conclusion, the Fifth Circuit observed that “we can think of few greater intrusions on state sovereignty than requiring a state to respond, in federal court, to a claim of contribution brought by one of its own [cities].” Id. at 340. We agree. Requiring Third-Party Defendants to respond, in federal court, to a claim of contribution brought by Third-Party Plaintiffs intrudes on the
i.e., county seeking contribution from state); Hayden v. Hevesi, No. 05-0294E, 2007 WL 496369, at *4 (W.D.N.Y. Feb. 12, 2007) (holding that “there is also no statutory basis found in § 1983 for a right of contribution and the Court will not construe one”); Mason v. City of New York, 949 F. Supp. 1068, 1079 (S.D.N.Y. 1996) (noting that although “courts have struggled with [the right to contribution under § 1983] and have reached different conclusions, the Court determines that there is no right to contribution under § 1983” (internal citations omitted)).
14

Commonwealth’s sovereignty. See id. at 339-40; see also Stanley v. Darlington Cnty. Sch. Dist.,
84 F.3d 707, 716 (4th Cir. 1996) (“While the Fourteenth Amendment empowers federal courts to
address a state’s [constitutional] violations, it does not provide any basis for a contribution claim
by a political subdivision against the state that created it.”); Kelley v. Metro. Cty. Bd. of Educ.,
836 F.2d 986, 988 (6th Cir. 1987) (“Federal courts may not be called upon, in the first instance,
to adjudicate what is essentially an internal dispute between two local government entities, one of
which is asserting unconstitutional conduct on the part of the other.” (internal citation omitted)).
In addition, we will not extend the Ex Parte Young exception to remove Eleventh
Amendment immunity from a state actor whose conduct merely contributes, in some way, to
unconstitutional conduct by a political subdivision. To lose the cloak of immunity, a state
official must do more than contribute to an unconstitutional violation that a political subdivision
of the state has brought about. The state official must act repugnant to the Constitution; only
then is the official “stripped of his official or representative character . . . .” See Ex Parte Young,
209 U.S. at 159-60. We are satisfied that a state actor who fails to undertake a discretionary act,
thereby contributing, in some way, to a political subdivision’s constitutional violation, cannot be
stripped of immunity and subject to suit.6 Moreover, with regard to the President Judges in this
6 Eleventh Amendment immunity is proper for the additional reason that the circumstances of this case present issues of state law and the Commonwealth’s internal affairs. The Commonwealth vested the City of Philadelphia with a home rule charter to provide for its self-governance, which the Commonwealth may modify or withdraw. See City of Trenton v. New Jersey, 262 U.S. 182, 186 (1923) (“The State . . . at its pleasure may modify or withdraw all [of a municipality’s] powers. . . . All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme . . . .” (quoting Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907))). It is within this context that Third-Party Plaintiffs seek an equitable right of contribution against the Commonwealth for alleged unconstitutional conditions in the City’s prison system. In Stanley, the Fourth Circuit held that “no federal court had jurisdiction to involve itself further in the
15

case, it is the sentencing judges who confine inmates in the PPS, not the President Judges. We
fail to see how the President Judges’ conduct here could be repugnant to the Constitution and
stripped of its official character when the President Judges were not the judges with the authority
to confine the inmates who are allegedly being subjected to the unconstitutional conditions at the
PPS.
To overcome the Eleventh Amendment barrier, Third-Party Plaintiffs rely on a prison
overcrowding case from the Sixth Circuit. In Tate v. Frey, 735 F.2d 986 (6th Cir. 1984) (per
curiam), county prison officials sought to implead state corrections officials as third-party
defendants to enjoin them from refusing to accept inmates in the county prison for transfer to the
state prison. Kentucky law mandated that the state—not the county—confine felons. Id. at 989
(citing Ky. Rev. Stat. Ann. § 532.100(1)). The law provided, in pertinent part, that courts “‘shall
commit the defendant to the custody of the bureau of corrections’” when the defendant is
sentenced to more than one year of imprisonment. Id. (quoting Ky. Rev. Stat. Ann. § 532.100(1)
(emphasis added by the Sixth Circuit)). In an unrelated case, the state had entered into a consent
decree to alleviate overcrowding in its prisons. See id. at 988 & n.1. In order to comply with the
consent decree, the state, notwithstanding its obligation to timely accept convicted felons,
“refused to accept custody of convicted felons awaiting transfer from local jails until it had bed
internal affairs of state government and apportion the costs of providing the ordered relief among the state’s departments and political subdivisions,” where interested persons had sued the school district and obtained complete relief from racially discriminatory segregation. Stanley, 84 F.3d at 716-17. Like the plaintiffs in Stanley, who obtained complete relief from the school district, Plaintiffs here can obtain complete relief from the City, which operates the PPS and controls the purse used to fund inmate capacity. It is not the province of this Court to involve itself in the Commonwealth’s affairs by apportioning the burden of resolving the unconstitutional conditions in PPS between the City and the Commonwealth, if, in fact, unconstitutional conditions are found to exist. See id.
16

space available at state penal facilities.” Id. at 988 n.1. The district court determined that the state’s “controlled intake procedure contributed to the overcrowding” of the county’s jail and that “complete relief would be elusive, if not impossible, to achieve absent joinder of the state as a third-party to [the] action.” Id. at 989. On appeal, the Sixth Circuit observed that “[i]n operation, the controlled intake policy merely transferred the overcrowding of state penal facilities to the county prison systems.” Id. at 988 n.1. The Sixth Circuit affirmed the district court’s grant of impleader of state officials because “the responsibility to provide for the confinement of convicted felons rest[ed] upon the state,” which provided “a substantive basis for [the county’s] claim against the state in the third-party complaint.” Id. at 989.
The district court in Tate “premised the grant of the preliminary injunction upon constitutional grounds and not state law.” See Tate, 735 F.2d at 990. In the instant case, ThirdParty Plaintiffs also premise their proposed relief upon constitutional grounds and not Pennsylvania law. We note, however, that the Sixth Circuit required “a substantive basis” for the third-party plaintiffs’ impleader claim. The Pennsylvania statute at issue here places discretion in the hands of the Secretary and sentencing judges.7 The statute does not require the Secretary to accept the inmates, like the Kentucky statute required the state to do in Tate. Nor does the Pennsylvania statute require sentencing judges to confine inmates in state correctional institutions. See 61 Pa. Cons. Stat. Ann. § 1151 (permitting the Secretary to accept certain stateeligible county inmates “upon such terms and conditions as the secretary may determine”); 42 Pa. Cons. Stat. Ann. § 9762 (providing that inmates sentenced for “two years or more but less than
7 We note that the legislature’s recent amendment, which goes into effect in 2011, removes this discretion.
17

five years may be committed to the Bureau of Corrections for confinement or may be committed
to a county prison”) (emphasis added). In other words, the Commonwealth has no obligation to
receive the prisoners at issue here. There is thus no substantive basis for Third-Party Plaintiffs’
claim against Third-Party Defendants in the same way that there was a substantive basis for the
county officials’ claim against the state officials in Tate.8
Our application of Tate is consistent with the Supreme Court’s decision in Pennhurst,
where the Court explained that it is “clear that suit may not be predicated on violations of state
statutes that command purely discretionary duties.” 465 U.S. at 109-10. While Third-Party
Plaintiffs predicate their suit on a right to contribution under § 1983, such a right—if it exists—is
inextricably linked to Pennsylvania statutes. Those statutes command the “purely discretionary
duties” of confining inmates in state or county prisons. Clearly Third-Party Plaintiffs’ suit is
predicated, at least in part, on “violations of state statutes that command purely discretionary
duties.” See id. Third-Party Plaintiffs would have us order state officials to carry out their
discretionary duties under the state statutes in a particular way. The Supreme Court has
cautioned against “instruct[ing] state officials on how to conform their conduct to state law.” We
8 The Second Circuit considered facts similar to Tate in Benjamin v. Malcolm, 803 F.2d 46 (2d Cir. 1986). Although the Benjamin court affirmed the district court’s joinder of state officials by county officials in a prison overcrowding context, joinder of the state officials “was essential for an effective remedy.” Moreover, like the Kentucky state law in Tate, the New York state law in Benjamin required the state to take the city inmates. See id. at 54. Here, joinder is not essential for an effective remedy. The City funds and operates the PPS pursuant to its home rule authority. The City has the power to take a variety of actions to relieve overcrowding. Our obligation to fashion the least intrusive remedy that will still be effective does not allow us to fashion relief contrary to the Eleventh Amendment, where, as here, a political subdivision sues a state for contribution under § 1983 and the political subdivision is able to accord the plaintiffs full relief. See Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 149 (3d Cir. 1977) (“[F]ederal equitable relief must be carefully tailored to be no more intrusive than is necessary.”).
18

decline to do so here. Ex Parte Young, 465 U.S. at 105.
Because the Eleventh Amendment bars suit against Third-Party Defendants under the
circumstances present in this case, we will dismiss the action against them for lack of subject
matter jurisdiction.9
C. Third-Party Plaintiffs’ Motion for Preliminary Injunction and Motion to Join or Dismiss
Third-Party Plaintiffs have also filed a Motion to Dismiss for Failure to Join or
Alternatively Motion to Join (Doc. No. 15) and a Motion for Preliminary Injunction (Doc. No.
16). Having concluded that the Eleventh Amendment bars a contribution claim under § 1983 by
Third-Party Plaintiffs against Third-Party Defendants in federal court, we will dismiss as moot
the Third-Party Plaintiffs’ Motion for Preliminary Injunction and Motion to Join the Secretary
and President Judges.
IV. CONCLUSION
We are satisfied that the Eleventh Amendment bars the contribution claim the City of
Philadelphia seeks to assert under § 1983 against the Secretary and President Judges, agents of
9 We decline to exercise our residual jurisdictional authority under the All Writs Act, 28 U.S.C. § 1651(a), which authorizes federal courts in exceptional circumstances to issue such orders to persons “who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.” United States v. N.Y. Tel. Co., 434 U.S. 159, 174 (1977) (citations omitted). We find that the circumstances here are not exceptional. Moreover, “the All Writs Act . . . cannot be used to circumvent or supersede the constitutional limitations of the Eleventh Amendment.” In re Baldwin United Corp., 770 F.2d 328, 340 (2d Cir. 1985) (citing Missouri v. Fiske, 290 U.S. 18, 28 (1933) (the purpose of protecting federal jurisdiction does not remove a case from the reach of the Eleventh Amendment); Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1355 (10th Cir. 1972) (the All Writs Act provides ancillary jurisdiction only when a court’s jurisdiction is otherwise proper)).
19

the Commonwealth of Pennsylvania. Accordingly, we will grant Third-Party Defendants’ Motion to Dismiss the Third Party Complaint and deny Third-Party Plaintiffs’ Motion to Dismiss for Failure to Join or alternatively Motion to Join, and Motion for Preliminary Injunction.
An appropriate Order follows. BY THE COURT:
R. Barclay Surrick, Judge

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

DWIGHT WILLIAMS, ET AL.,

:

:

PLAINTIFFS,

:

:

v.

:

:

CITY OF PHILADELPHIA, ET AL.,

:

:

DEFENDANTS

:

____________________________________

CIVIL ACTION NO. 08-1979

CITY OF PHILADELPHIA, ET AL.,

:

:

THIRD-PARTY PLAINTIFFS, :

:

v.

:

:

JEFFREY A. BEARD, ET AL.

:

:

THIRD-PARTY DEFENDANTS :

ORDER

AND NOW, this 27th day of July, 2010, upon consideration of the Motion to Dismiss

Defendants Third-Party Complaint Filed on Behalf of Third Party Defendants, the Honorable C.

Darnell Jones, II and the Honorable Louis Presenza (Doc. No. 29) and Third Party Defendant

Beard’s Motion to Dismiss the Third Party Complaint of the City of Philadelphia and Louis

Giorla (Doc. No. 31), and all papers submitted in support thereof and in opposition thereto, it is

ORDERED as follows:

1. The Motion to Dismiss Defendants Third-Party Complaint Filed on Behalf of

Third Party Defendants, the Honorable C. Darnell Jones, II and the Honorable

Louis Presenza (Doc. No. 29) is GRANTED;1 2. Third Party Defendant Beard’s Motion to Dismiss the Third Party Complaint of
the City of Philadelphia and Louis Giorla (Doc. No. 31) is GRANTED; 3. Defendants City of Philadelphia and Philadelphia Prison Commissioner Louis
Giorla Third-Party Complaint Against the Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, the Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court and Jeffery A. Beard, Ph.D., The Secretary of the Pennsylvania Department of Corrections (Doc. No. 17) is DISMISSED with prejudice. 4. Defendants’ Motion to Dismiss for Failure to Join or alternatively Motion to Join (Doc. No. 15) is DISMISSED as MOOT. 5. Defendants’ Motion for Preliminary Injunction (Doc. No. 16) is DISMISSED as MOOT.
IT IS SO ORDERED. BY THE COURT:
_________________________ R. Barclay Surrick, Judge
1 On July 16, 2010, we approved to the parties’ stipulation to substitute the presentlyserving President Judges for the originally-named President Judges. (Doc. No. 69.) Our decision to grant the President Judges’ Motion applies to all parties that have been named as President Judges in this action.
2

 
 Case 2:08-cv-01979-RBS Document 80 Filed 10/08/10 Page 1 of 3

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

DWIGHT WILLIAMS, ET AL.

:

:

:

v.

:

:

:

CITY OF PHILADELPHIA, ET AL.

:

CIVIL ACTION NO. 08-CV-1979

ORDER
AND NOW, this 8th day of October, 2010, upon consideration of Plaintiffs’ Motion for Class Certification (ECF No. 2), and all papers submitted in support thereof and in opposition thereto, it is ORDERED that Plaintiffs’ Motion is GRANTED. This action is hereby certified as a class action for purposes of injunctive and declaratory relief pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), on behalf of the following class:
All persons who are or will in the future be confined in the Philadelphia Prison System, and who are or will in the future be subjected to the conditions of confinement, including triple celling, or placement in dormitories, without minimally adequate security, services or programs as set forth in plaintiffs’ Complaint. It is further ORDERED that plaintiffs Dwight Williams, Anthony Ouellette, Koleyon Phillips, Anthony Diggs, Kenneth Smith, Edward Zamichieli, Louis Eubanks, James Saunders, Thomas Scott, Shannon Bolli, and Marisol Lopez are hereby designated as the representatives of the class. David Rudovsky and the law firm of Kairys, Rudovsky, Messing & Feinberg LLP; Angus R. Love and the Institutional Law Project; Robert W. Meek and the Disabilities Law Project; and

Case 2:08-cv-01979-RBS Document 80 Filed 10/08/10 Page 2 of 3 David Richman and the law firm of Pepper Hamilton LLP shall serve as class counsel.
IT IS SO ORDERED. BY THE COURT: R. Barclay Surrick U.S. District Court Judge
2

Case 2:08-cv-01979-RBS Document 80 Filed 10/08/10 Page 3 of 3 3

 
 Case 2:08-cv-01979-RBS Document 86 Filed 04/29/11 Page 1 of 2

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

DWIGHT WILLIAMS, ET AL. v.
CITY OF PHILADELPHIA, ET AL.

:

:

:

CIVIL ACTION NO. 08-CV-1979

:

:

O R D E R AND NOW, this 29th day of April , 2011, it appearing that by Order dated

October 8, 2010, this matter was certified as a Class Action pursuant to Federal Rules of Civil

Procedure 23(a) and 23(b)(2), and it appearing that the parties have entered into a Settlement

Agreement, and it further appearing that pursuant to Federal Rule of Civil Procedure 23(e) this

Court is required to give notice to the members of the class of this proposed settlement and to

approve the settlement after hearing, it is ORDERED as follows:

1. The Settlement Agreement which is attached hereto as Exhibit A is preliminarily

APPROVED.

2. A Hearing on the Fairness of the Settlement Agreement is scheduled for June 15,

2011, at 10:00 a.m. in Courtroom 8A, United States Courthouse, 601 Market

Street, Philadelphia, Pennsylvania.

3. On or before May 10, 2011, Counsel for Plaintiffs shall give notice to all named

Plaintiffs in the form attached hereto and numbered Exhibit B.

4. On or before May 10, 2011, City Defendants shall publish notice of the hearing in

the Philadelphia Inquirer and the Philadelphia Daily News. On or before May 10,

2011 City Defendants shall also post the Notice of Class Action Settlement

(Exhibit B) in every housing unit and in every law library in the Philadelphia

Case 2:08-cv-01979-RBS Document 86 Filed 04/29/11 Page 2 of 2

Prison System. Proof of publication shall be submitted at the hearing on June 15,

2011.

5. On or before May 10, 2011, Counsel for Plaintiffs shall send a copy of this Order

with Exhibits to Counsel in the Consolidated Prison Overcrowding Actions as

follows:

Gerald J. Williams, Esquire Williams Cuker & Berezofsky 1515 Market Street, Suite 1300 Philadelphia, PA 19102

Stephen B. Siegrist, Esquire Murphy & O’Connor 15th Street & JFK Boulevard Philadelphia, PA 19102

Mark Maguire, Esquire Philadelphia Office of City Solicitor 1515 Arch Street Philadelphia, PA 19102

Joseph Goldberg, Esquire Wendi Barish, Esquire Weber, Gallagher, Simpson,
Stapleton, Fires & Newby, LLP 200 Market Street, 13th Floor Philadelphia, PA 19103

6. Objections to or comments regarding the Settlement Agreement will be

considered by the Court at the Fairness Hearing on June 15, 2011, if submitted to

Counsel in writing on or before June 1, 2011. The objections or comments should

be sent to Class Counsel and Counsel for Defendants as follows:

Class Counsel

Counsel for Defendants

David Rudovsky, Esquire Kairys, Rudovsky, Messing &
Feinberg, LLP 718 Arch Street, Suite 5015 Philadelphia, PA 19106

Jeffrey M. Scott, Esquire Archer & Greiner 1650 Market Street Philadelphia, PA 19103

IT IS SO ORDERED.

BY THE COURT:

/s/ R. BARCLAY SURRICK, J.

 
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11

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

DWIGHT WILLIAMS, ET AL.

:

:

v.

:

:

CITY OF PHILADELPHIA, ET AL.

:

CIVIL ACTION NO. 08-1979

ORDER AND NOW, this 5th day of August, 2011, upon consideration of the Settlement Agreement entered into by Plaintiffs and Defendants, and it appearing that the said Agreement is fair, reasonable, and adequate, it is ORDERED that the Settlement Agreement is APPROVED. AND IT IS SO ORDERED.
BY THE COURT:

/s/ R. Barclay Surrick U.S. District Judge

 
 Case 2:08-cv-01979-RBS Document 99 Filed 12/03/12 Page 1 of 2

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

DWIGHT WILLIAMS et al.,

:

:

Plaintiffs

:

v.

:

:

:

:

CITY OF PHILADELPHIA et al.

:

:

Defendants

:

CIVIL ACTION NO. 08-1979 CLASS ACTION

SCHEDULING ORDER AND NOW, this 3rd day of December , 2012, after a Status Conference with counsel, it is ORDERED as follows: 1. This matter is reinstated pursuant to Paragraph II(A) of the Settlement Agreement approved by the Court on August 5, 2011. 2. The parties may immediately proceed with discovery and all discovery shall be completed by May 31, 2013. 3. The parties shall agree upon terms and conditions for tours and inspections of PPS facilities by Plaintiffs’ experts and all such tours and inspections shall be completed by June 29, 2013. If the parties cannot agree as to the terms and conditions for expert inspections, the Court shall order appropriate terms and conditions. 4. Plaintiffs shall submit expert reports to the Defendants by July 29, 2013 and defendants shall submit their expert reports to Plaintiffs by August, 31, 2013. 5. Motions for summary judgment shall be filed by September 30, 2013; responses to any motions for summary judgment shall be filed by October 31, 2013; replies to the

Case 2:08-cv-01979-RBS Document 99 Filed 12/03/12 Page 2 of 2
responses shall be filed by November 14, 2013. 6. Any motions for leave to join other parties shall be filed by December 12, 2012. 7. Thereafter the Court will schedule a conference with counsel to determine the scope of a
pretrial order and scheduling for trial. IT IS SO ORDERED.
BY THE COURT:
_________________________ R. Barclay Surrick, Judge

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

DWIGHT WILLIAMS, ET AL.,

:

:

v.

:

:

CITY OF PHILADELPHIA, ET AL.,

:

CIVIL ACTION NO. 08-1979

SURRICK, J.

OCTOBER 22 , 2014

MEMORANDUM

Presently before the Court is non-party Corizon Health, Inc.’s Request to not produce

patient mental health records requested by Plaintiffs (ECF No. 117). For the following reasons,

Corizon’s Request will be denied.

I. BACKGROUND This is a putative class action brought by inmates in the Philadelphia Prison System

(“PPS”) seeking equitable relief and alleging unconstitutional conditions of confinement under

the Eighth and Fourteenth Amendments. Plaintiffs commenced the action on April 28, 2008, on

behalf of themselves and those similarly situated. (Compl., ECF No. 1.) Plaintiffs complain of

overcrowding and triple-celling in the county-operated PPS. (Id. ¶ 3.) In particular, Plaintiffs

allege that the City of Philadelphia’s (“City”) policies and practices led to the deprivation of

necessary medical and mental health care for PPS inmates. (Id. ¶ 29.)

On October 8, 2010, the Court certified the case as a class action, defining the relevant

class as:

All persons who are or will i n t he future be confined i n t he P hiladelphia P rison System, a nd w ho a re o r w ill i n t he f uture be subjected t o t he c onditions of confinement, i ncluding t riple c elling, or pl acement i n dor mitories, without minimally a dequate s ecurity, s ervices o r p rograms as s et forth in p laintiffs’ Complaint.

(Oct. 8, 2010 Order, ECF No. 80.) Plaintiffs’ current counsel was appointed to serve as class counsel. On August 8, 2011, after the inmate population in the PPS significantly decreased, the Court approved a settlement agreement between the parties that would preserve the status quo and provide for monitoring of the situation by Plaintiffs’ counsel over the coming years. (Aug. 8, 2011 Mem. Op. 2-3, ECF No. 93.) In the fall of 2012, Plaintiffs exercised their right under the settlement agreement to reopen the case due to a rising inmate population in the PPS.
After the case was reopened, the parties entered into extensive discovery. In April 2013, the parties arranged a tour of the PPS facilities for Plaintiffs’ expert witnesses. (Pls.’ Ltr. Br. 2, ECF No. 118.) Following the tour, Plaintiffs’ counsel served supplemental discovery requests on the City, seeking documents related to medical and mental health care in the PPS facilities. The City sought to obtain the requested information from Corizon Health, Inc. (“Corizon”), the contracted provider of medical services in the PPS. Corizon was concerned that the disclosure of the requested documents would implicate issues under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996), and the Mental Health Procedures Act (“MHPA”), 50 Pa. Stat. Ann. §§ 7101 et seq. To relieve Corizon’s concerns, all involved counsel entered into a negotiated Protective Order that was approved by the Court and entered on August 27, 2013. (2013 Protective Order, ECF No. 108.) The 2013 Protective Order specifically provided that the requested materials would be used only for purposes of the instant litigation and would be destroyed or returned to Corizon at the conclusion of the litigation. (Id.) In addition, Corizon was permitted to redact mental health records protected under the MHPA and was required to produce actual medical charts of plaintiff class members only if the plaintiff class member signed a HIPAA compliant release. (Id.) Corizon then produced information in accordance with the Protective Order. (Pls.’ Ltr. Br. 3.)
2

Plaintiffs’ expert witnesses reviewed the information provided by Corizon and determined that a broader scope of materials was needed to complete their assessment of the adequacy of care provided to PPS inmates. (Pls.’ Ltr. Br. 3.) On December 12, 2013, Plaintiffs’ counsel served the City with twelve additional requests for production. (Id. at Ex. A.) The information requested includes logs of mental health requests for all PPS sites in September 2013, with inmate names, PPS numbers, and dates of requests. (Id. at Ex. A Request 12.) In addition, the requests could require the production of actual medical charts of various inmates, including mental health records. (Id. at Ex. A Request 7.) The City agreed to provide the requested materials subject to the entry of an additional protective order. The parties negotiated and drafted a new protective order (“2014 Protective Order”). (Corizon Ltr. Br. Ex. A, ECF No. 117.) Corizon was not involved in the negotiations. (Id. at 2.)
The current dispute arose when Counsel for Corizon declined to sign the 2014 Protective Order. According to Corizon, even a court order that limits the use of the requested materials to litigation purposes, and requires the destruction or return of materials at the conclusion of the litigation, does not satisfy the MHPA’s confidentiality provisions. On March 18, 2014, the Court held a telephone conference with the parties to discuss the issue. (ECF No. 115.) After hearing the parties’ positions, the Court ordered the parties to submit briefs outlining the legal authority supporting their positions. (ECF No. 116.)
On March 27, 2014, Corizon submitted a Letter Brief in support of its position that the new protective order did not provide sufficient protection to allow disclosure of certain requested information under the MHPA. (Corizon Ltr. Br.) Plaintiffs submitted a Letter Brief in Opposition on April 7, 2014. (Pls.’ Ltr. Br.) On April 10, 2014, Corizon responded (ECF No. 119), and Plaintiffs replied (Pls.’ Reply, ECF No. 120). Plaintiffs contend that Corizon’s
3

objections will prevent it from receiving documents responsive to seven of the twelve requests
for production from December 2014. (Pls.’ Reply 1-2.)1
II. LEGAL STANDARD
HIPAA contains federal regulations that limit when a patient’s medical information can
be produced without the patient authorization. 45 C.F.R. § 164.512.2 In addition, Pennsylvania
law—specifically the MHPA—further limits when a patient’s mental health medical records can
be disclosed or produced without patient consent. 50 Pa. Con. Stat. Ann. § 7111. “The purpose
of the MHPA is to further the policy of the Commonwealth of Pennsylvania ‘to seek to assure
the availability of adequate treatment to persons who are mentally ill.’” Hahnemann Univ. Hosp.
v. Edgar, 74 F.3d 456, 463 (3d Cir. 1996) (quoting 50 Pa. Con. Stat. Ann. § 7102).
1 Plaintiffs specifically state that Corizon is withholding information responsive to the following requests:
(3) Pharmacy printouts of patients on asthma/COPD, diabetes, hypertension, HIV, anticoagulation, seizure, and cancer medications for September 1 through November 30, 2013. (4) Specialty Appointment Tracking log for the period of April 1, 2013 to October 31, 2013 by housing location. (5) Infirmary tracking logs from April 1, 2013 to October 31, 2013. (6) Tracking logs or list of patients sent to the emergency department/hospitalized from April 1, 2013 through December 1, 2013. (7) Entire patient health records for all inmates who died while in custody from January 2012 to December 1, 2013. (11) A current caseload list of all inmates on the male and female transitional units and acute care units. (12) The log for mental health requests for services for all sites for the month of September, 2013. (Pls.’ Reply 1-2.) 2 The parties do not dispute that the information requested by Plaintiffs is protected health information subject to HIPAA protection, and that the 2014 Protective Order meets the requirements of 45 C.F.R. § 164.512(e), allowing for the disclosure of medical information without patient consent. (Pls.’ Ltr. Br. 1 n.1; Corizon Ltr. Br.)
4

III. DISCUSSION The circumstances under which Plaintiffs’ counsel seeks confidential information of
former and current PPS inmates are unique. Plaintiffs’ counsel seeks this information for the sole purpose of determining whether the PPS has been violating the constitutional rights of the inmates by not providing adequate mental health treatment. Unlike much of the case law regarding the discoverability of a nonparty’s confidential health information, the information at issue here is not sought by an adversary to be used against the individual who underwent mental health treatment. Nor is the information sought in an attempt to hold PPS liable for assaults by the inmates. Plaintiffs’ counsel seeks this information to protect the rights of the inmates, on whose behalf counsel has brought this case. Even in the case of former inmates who no longer fall within the class definition, there is a commonality of interests between them, present PPS inmates, and Plaintiffs’ counsel. This is a unique circumstance where it is clearly desirable that the confidential information be disclosed.
From the numerous opinions that we have already issued in this case, it is evident that the constitutional violations at issue here have been litigated for years. This case has been ongoing since 2008, and the Complaint cites to a number of earlier cases where the PPS conditions of confinement were found to be in violation of inmates’ constitutional rights. (Compl. ¶¶ 8-13.) The cases in this court dealing with the conditions at PPS date all the way back to the 1970s and 1980s. (Id. ¶ 8.) Plaintiffs’ counsel needs the requested information to properly protect the Plaintiff class and to attempt to uncover and remedy alleged constitutional violations by the PPS that have been ongoing for years. The information is clearly relevant and discoverable under
5

Federal Rule of Civil Procedure 26. In these unique circumstances, justice requires that we order the production of this information, subject to the 2014 Protective Order.3
We reach this conclusion not only in the interests of justice, but also because it is federal
law and procedure—specifically, HIPAA, the Federal Rules of Civil Procedure, and the Federal
Rules of Evidence—that control this federal-question litigation. Corizon contends that the
MHPA and Mental Health Manual control the parties’ ability to release certain medical records
to Plaintiffs’ counsel. (Corizon Ltr. Br. 4-5.) Our survey of the case law, statutory scheme, and
regulations reveals that Corizon is wrong.
Federal Rule of Civil Procedure 26(b)(1) permits a party to “obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b)(1); see also Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000) (“As an initial matter . . . all
relevant material is discoverable unless an applicable evidentiary privilege is asserted.”).
Corizon does not contend that the requested records are irrelevant; accordingly, its objection
must find its basis in a privilege. Fed. R. Civ. P. 26(b)(1).
In federal court, the Federal Rules of Evidence dictate whether state or federal privilege
law applies. Rule 501 states:
The c ommon l aw—as in terpreted b y U nited S tates c ourts in th e light o f reason and experience—governs a claim of privilege unless any of the following provides otherwise:
• the United States Constitution;
3 We note that, in a similar class action case, which alleged systematic violations of inmates’ Constitutional rights based on confinement conditions in another Pennsylvania prison, the plaintiffs sought production of medical, dental, and mental health records of inmates from a non-party. Inmates of Northumberland Cnty. Prison v. Reish, No. 08-cv-345 (M.D. Pa. Apr. 24, 2009) (stipulated protective order). In that case, the parties agreed to a stipulated protective order to regulate the production, maintenance, use, and disposal of the records. Id. at 1-2. No party objected to producing the records under the MHPA.
6

• a federal statute; or • rules prescribed by the Supreme Court. But in a civil c ase, s tate la w governs p rivilege r egarding a claim o r defense for which state law supplies the rule of decision. Fed. R. Evid. 501. Where, as here, the case involves questions of both federal and state law, “the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule.” Wm. T. Thompson Co. v. Gen. Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982). Because federal law supplies the rule of decision in this case, the only bases for Corizon to withhold relevant material are the federal common law of privilege, the U.S. Constitution, federal statute (in this case, HIPAA), or rules prescribed by the Supreme Court. Fed. R. Evid. 501. This was the approach taken by the Third Circuit Court of Appeals in Pearson, a Section 1983 action in which the plaintiff sought to compel discovery of a foster child’s records, including confidential information and mental-health records. In Pearson, the defendants resisted discovery on the basis of three Pennsylvania statutes containing confidentiality provisions that the defendants argued protected the foster child’s files: the Child Protective Services Law, 23 Pa. Cons. Stat. §§ 6301 et seq.; the Juvenile Act, 42 Pa. Cons. Stat. §§ 6501 et seq.; and the MHPA. Pearson, 211 F.3d at 62-63. Based on the foster child’s written waiver of the statutory protections found in Pennsylvania law, the district court fashioned a protective order granting the plaintiff access to the foster child’s files. On appeal by the defendants,4 the Third Circuit took the district court to task for relying on the Pennsylvania state statutes in fashioning its protective order:
4 The Court of Appeals found the district court’s order to be immediately appealable under the collateral-order doctrine. Pearson, 211 F.3d at 64-65.
7

The District Court . . . fashioned an order that compelled discovery of all material sought except to the extent that such material contained information the release of which w ould vi olate t he r ights of t hird pa rties pr otected b y t he P ennsylvania statutes, as those statutes were interpreted by the District Court.
Because, h owever, d iscovery disputes i n f ederal courts a re governed b y federal law, es pecially t he Federal R ules o f C ivil P rocedure an d t he Federal R ules o f Evidence, the state statutory confidentiality provisions that have been invoked by appellants—and on the basis of which the District Court fashioned its order—do not directly govern the present dispute. Only to the extent that federal law ma y recognize the force of those provisions are they relevant here. The ultimate issue is whether the discovery sought is permitted as a matter of federal law.
Pearson, 211 F.3d at 61. We likewise conclude that, consistent with Pearson, it is federal law—
specifically, HIPAA and federal privilege law—that governs the instant dispute, and not the
MHPA.
Corizon argues that where state law related to the privacy of individually identifiable
health information is more stringent than HIPAA, it is the state law that controls. (Corizon’s Ltr.
Br. 4-5.) Section 264(c)(2) of HIPAA states that a regulation promulgated by HHS “shall not
supersede a contrary provision of State law, if the provision of State law imposes requirements,
standards, or implementation specifications that are more stringent than the requirements,
standards, or implementation specifications imposed under the regulation.” Pub. L. No. 104-191,
§ 264(c)(2). Similarly, HHS’s implementing regulations state that:
A s tandard, r equirement, or i mplementation s pecification a dopted und er t his subchapter that is contrary to a provision of State law preempts the provision of State l aw [unless] . . . [t]he pr ovision of S tate l aw r elates t o t he p rivacy of individually identifiable health information and is more stringent than a standard, requirement, or implementation specification adopted under [HIPAA].
45 C.F.R. § 160.203. Corizon understands this to mean that the MHPA, which has stricter
confidentiality provisions than HIPAA, is incorporated into federal law for purposes of this
discovery dispute. (Corizon’s Ltr. Br. 5.) We disagree.
8

Though the Third Circuit has not directly addressed this issue, a majority of courts have
concluded that HIPAA does not incorporate state statutes with stricter confidentiality provisions
for the purpose of litigation in federal court when jurisdiction is based on a federal question.
This was the conclusion of Judge Posner in the Seventh Circuit, who wrote that “the HIPAA
regulations do not impose state evidentiary privileges on suits to enforce federal law.” Nw.
Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 925 (7th Cir. 2004). The court reasoned that “[t]he
enforcement of federal law might be hamstrung if state-law privileges more stringent than any
federal privilege regarding medical records were applicable to all federal cases. . . . [W]e think it
improbable that HHS intended to open such a can of worms when it set forth a procedure for
disclosure of medical records in litigation.” Id.; see also id. at 933 (“I agree with the court that
HIPAA does not adopt state privilege law in a federal question suit brought in federal court, but
rather Rule 501 of the Federal Rules of Evidence governs the evidentiary privileges applicable in
such suits.”) (Manion, J., concurring in part and dissenting in part). A similar case in which the
government was seeking access to patient records arose in the Southern District of New York.
The district court reached the same conclusion as the Seventh Circuit, reasoning that:
[t]here is a difference . . . between a federal law that does not preempt a state law and a f ederal law that incorporates a state rule of law. The latter gives the state law t he force of f ederal law and m akes i t bi nding where i t would not ot herwise be; the former merely allows the state law to continue to operate in its sphere of influence, u naffected b y t he f ederal s tatute. The n egative l anguage i n s ection 264(c)(2) doe s not e quate t o t he pos itive pow er t o c reate bi nding l aw i n t he federal domain—here, a case arising under federal law brought in federal court.
Nat’l Abortion Fed’n v. Ashcroft, No. 03-8695, 2004 WL 555701, at *4 (S.D.N.Y. Mar. 19,
2004). Other courts have also concluded that Section 264(c)(2) does not incorporate state
confidentiality statutes into federal-question cases in federal court. See, e.g., In re Grand Jury
Proceedings, 450 F. Supp. 2d 115, 119 (D. Me. 2006) (finding more stringent state law did not 9

apply in motion to quash subpoena for medical records); Kalinoski v. Evans, 377 F. Supp. 2d 136, 140-41 (D.D.C. 2005) (“This Court agrees with the reasoning of the Seventh Circuit and the other cases that have reached the same conclusion. The Supremacy Clause of the United States Constitution (as well as Federal Rule of Evidence 501) prevent a State from directing a federal court with regard to the evidence it may order produced in the adjudication of a federal claim.”). Cf. Pal v. N.Y. Univ., No. 06-5892, 2007 WL 1522618, at *3 (S.D.N.Y. May 22, 2007) (applying New York medical-records confidentiality law in action based solely on diversity jurisdiction).
We agree with the reasoning in these cases. In addition, and to the extent that Corizon asks us to do so, we follow Pearson’s lead in declining to recognize the confidentiality provisions of the MHPA as part of the federal common law of privilege.5 See Pearson, 211 F.3d at 72. Within the confines of an appropriate protective order, we will order the production of the requested material subject to the limitations found in Rule 26 and Federal Rule of Evidence 501, including the psychotherapist-patient privilege. See Jaffee v. Redmond, 518 U.S. 1, 16 (1996). Furthermore, considering the nature and purpose of this inquiry, and because Plaintiffs’ counsel seeks this information for the benefit of the current and former inmates whose privacy is at issue here, and because the MHPA does not control the outcome of this discovery dispute, we will not require the parties to undertake the burdensome task of providing notice to all of the individuals whose information is produced.
5 We recognize that the party whose records were sought in Pearson had signed a waiver agreeing to the records’ release, which therefore would have required the Court of Appeals to adopt a privilege that “maintain[ed] its protection despite the express waiver of the primary holder of interests in confidentiality.” 211 F.3d at 72. Nevertheless, the considerations that counseled against the creation of such a privilege in Pearson apply with even greater force here, as the holders of the confidentiality interests would almost certainly benefit from Plaintiffs’ counsel’s access to their confidential information.
10

IV. CONCLUSION For the foregoing reasons, Defendants’ Request that it not be ordered to produce patient
mental health records requested by Plaintiffs will be denied. Counsel shall submit an appropriate Protective Order.
BY THE COURT: _________________________ R. BARCLAY SURRICK, J.
11

 
 Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 1 of 15

TED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DWIGHT WILLIAMS et al., Plaintiffs,
v.
CITY OF PHILADELPHIA et al.,

CIVIL ACTION No. 08-cv-1979 CLASS ACTION

Defendants.

~ lit!IBJER

/t: AND NOW, this

day of~ 2016, it appearing that by Order dated October

8, 2010, this matter was certified as a Class Action pursuant to Federal Rules of Civil Procedure

23(a) and 23(b)(2), and it appearing that the parties have entered into a Settlement Agreement,

and it further appearing that pursuant to Federal Rule of Civil Procedure 23(e) this Court is

required to give notice to the members ofthe class of this proposed settlement and to approve the

settlement after hearing, it is ORDERED as follows:

1. The Settlement Agreement which is attached hereto is preliminarily APPROVED.

2. A Hearing on the Fairness of the Settlement Agreement is scheduled for

May 5, 2016 , at '3: 00 p .m., :courtroom 8A, United States Courthouse, 601

Market Street, Philadelphia, Pennsylvania.

3. On or before March 20, 2016, City Defendants shall post the Notice of Class

Action Settlement (Exhibit B) in every housing unit and in every law library in

the Philadelphia Prison System.

4. Objections to or comments regarding the Settlement Agreement will be

Considered by the Court at the Fairness Hearing, if submitted

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 2 of 15

to Counsel in writing on or before April 20, 2016. The objections or comments should be sent to Class Counsel and Counsel for Defendants as follows:

Class Counsel
David Rudovsky, Esq. Kairys, Rudovsky, Messing & Feinberg, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106

Counsel for Defendants
Craig M. Straw, Chief Deputy City Solicitor
Law Department 1515 Arch Street Philadelphia, PA 19102

IT IS SO ORDERED.

2

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 3 of 15

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DWIGHT WILLIAMS et al., Plaintiffs,
v. CITY OF PHILADELPHIA et al.,

CIVIL ACTION No. 08-cv-1979 CLASS ACTION

Defendants.

SETTLEMENT AGREEMENT
I. Introduction At the time that the captioned lawsuit was filed, there were more than 9300 inmates in the
PPS, and ofthese over 2500 were triple celled at Curran-Fromhold Correctional Facility
("CFCF"), House of Corrections ("HOC"), and Riverside Correctional Facility ("'RCF"). In
addition, it was alleged that there was serious overcrowding in the dormitory areas ofthe
Detention Center ("DC") and that inmates subjected to triple celling did not receive essential
services and programs due to the overcrowded conditions and the wide use of lockdowns and
restricted movements. The defendants have denied that the alleged conditions exist at PPS.
Further, the defendants deny that the any ofthe alleged conditions violate the constitutional
rights of the inmates.
Following denial of motions to dismiss the Complaint, this Court certified the matter as a
class action with the following definition ofthe class and claims:
All persons who are or will in the future be confined in the Philadelphia Prison System, and who are or will in the future be subjected to the conditions of confinement, including triple celling, or placement in dormitories, without minimally adequate security, services or programs as set forth in plaintiffs' Complaint.
3

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 4 of 15
In 2011, the population had been reduced to approximately 7,600 with an "in-house" population of approximately 7,200. Triple celling number had been reduced to approximately 1,300 inmates. There has been no triple celling at RCF since April, 2009. Lockdowns and restricted movement had been reduced, thereby providing inmates with greater access to programs and services within PPS. Under these circumstances, the parties entered into a Settlement Agreement under which the Complaint was dismissed without prejudice to refiling if the population and triple celling substantially increased. Soon thereafter, however, there was a substantial increase in the population (to approximately 9000 inmates) and the Court granted plaintiffs' motion to reinstate the claims in the Complaint. Since the reinstatement of the Complaint, the parties have engaged in extensive discovery, expert tours and trial preparation.
In the past eight months, there has been another significant reduction in the population and triple celling at PPS. As of January 12, 2016 the population was 7550; the in-house population was 7128; and there were 1380 inmates triple celled at CFCF and HOC. No women have been triple celled at Riverview for the past months. These reductions have resulted from • fewer admissions to PPS, expansion ofthe "Video Crash Court" program which accelerates the disposition ofminor cases (and related probation and parole detainers), consolidation of probation and parole hearings to expedite resolution of detainers, special release hearings at which bail orders are reviewed and reduced, a number of "diversion" programs whereby persons charged or subject to charges for minor crimes are either not arrested or, if arrested, are diverted into programs without prosecution, specialized courts (including Mental Health Court, Veteran's Court, Dawn's Court (prostitution cases), and Drug Court); video extradition hearings, and increased use of house arrest and GPS monitoring.
4

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 5 of 15
Of equal significance, two new major initiatives provide grounds for anticipating additional substantial reductions in the PPS population. First, the City of Philadelphia is among five cities that have qualified to submit a proposal to the MacArthur Foundation for funding for a project designed to reduce jail population by approximately 30% over a two to three year period. The City's proposal has been joined by the First Judicial District, the District Attorney of Philadelphia, and the Defender Association of Philadelphia and will include reforms to the bail system (with alternatives to cash bail), release on electronic monitoring of a larger number of pre-trial inmates, expansion of diversion programs, facilitation of early parole petitions, and expedited case management. A decision by the MacArthur Foundation on funding the City's grant proposal is expected in early 2016. Second, Mayor James F. Kenney is supportive of the MacArthur initiatives and proposals. Implementation of the measures identified in the MacArthur grant proposal and embraced by the City Administration could result in significant further reductions in the population of PPS, corollary reductions in the incidence of triple-celling of inmates, and the possible decommissioning ofthe House of Correction as a facility for housing inmates. In light of these developments, current status of case, and ongoing reforms in the system, the parties have entered into this private Settlement Agreement.
5

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 6 of 15
II. Terms of the Settlement Agreement A. Jurisdiction and Authority of the Court This Court has jurisdiction of this matter pursuant to 42 U.S.C. §1983, 42 U.S.C. §1997e,
et seq. ("PLRA"), and the Eighth and Fourteenth Amendments to the United States Constitution. Under 18 U.S.C. §3626(c)(2)(A), the parties may enter into a private settlement agreement. Upon the approval of this Settlement Agreement, the captioned matter will be dismissed without prejudice. Plaintiffs reserve the right to seek reinstatement of these proceedings on good cause shown during the pendency of the Settlement Agreement. Barring reinstatement, this case shall be dismissed with prejudice when this Settlement Agreement expires.
B. Programs, Policies and Procedures Designed to Reduce Population at PPS 1. The defendants will continue to make reasonable efforts to implement and operate the programs, policies and procedures listed in Section I, supra, that are designed to reduce the population at the PPS. The City is not responsible for the termination or changes in existing programs that are not within the control of the City. 2. The City will make reasonable efforts to implement a plan for a reduction of the PPS population, regardless of the outcome of the MacArthur grant process. 3. The defendants will continue to make reasonable efforts to minimize the use of lockdowns and restricted movement and to provide inmates with medical services, mental health services, dental services, social services, legal visits, and exercise, during restrictive movement or lockdown periods so long as the activity does not present a security risk to the inmate, other inmates or correctional staff.
6

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 7 of 15
4. The defendants will continue to make reasonable efforts to ensure that inmates in triple cells are provided with clean cells, adequate bedding, and access to adequate showers and toilets.
5. The defendants will continue to make reasonable efforts to identify inmates who are Seriously Mentally Ill ("SMI"). The defendants will make reasonable efforts to limit the use of triple celling for SMI inmates who exhibit behavior that poses a risk to themselves or others.
C. Monitoring Provisions The defendants agree to provide the following information and data to plaintiffs' counsel on a monthly basis for a period of 12 months from the date of the Court's approval of this Settlement Agreement: 1. The PPS CORESTAR reports. 2. PPS population records. 3. Triple cell reports. 4. Pennsylvania Department of Correction inspection reports. 5. Mental health and medical consultant reports. 6. At a reasonable time prior to the expiration of the monitoring period set forth in Section II C, plaintiffs shall be allowed an inspection/tour ofCFCF, HOC, DC and/or Riverside facilities if the population of PPS is then significantly higher than the population at the time of the Court approval of this Settlement Agreement. D. No Admission of Liability Nothing contained in this Settlement Agreement shall be construed as an admission of any party or the liability of the defendants.
7

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 8 of 15
E. Disposition of the Action Within five days of the execution of this Agreement, the parties shall submit a joint motion to the Court to dismiss the case without prejudice with the express understanding that this case shall be dismissed with prejudice when this Settlement Agreement expires. III. Fees and Costs Plaintiffs agree not to file a Motion for any attorney's fees or costs incurred prior to Court approval of this Settlement Agreement. The City agrees to reimburse plaintiffs for fees and costs in an agreed upon amount. IV. Benefit and Burden This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, representatives, successors and assigns. V. Amendments This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by all of the parties affected thereby. VI. Severability If for any reason any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall be construed, performed or enforced as if the invalidated or unenforceable provision had not been included in the text ofthe Agreement. VII. Drafting The drafting and negotiation ofthis Agreement have been participated in by each ofthe parties, and for all purposes, this Agreement shall therefore be deemed to have been drafted jointly by each of the parties.
8

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 9 of 15
VIII. Entire Agreement All Agreements, covenants, representatives and warranties, express or implied, oral or
written, of the parties hereto concerning the subject matter hereof are contained herein. No other agreements, covenants or representations or warranties, express or implied, oral or written have been made by any party hereto to any other party concerning the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, covenants, representations or warranties concerning the subject matter hereof are merged herein. This is an integrated agreement. IX. Expiration
Subject to Plaintiffs' right to reinstate the action during the pendency ofthe Settlement Agreement, this Agreement and all provisions herein shall expire 12 months from the date of the Court's approval ofthis Settlement Agreement, and the case shall be dismissed with prejudice. In the event Plaintiffs are permitted to reinstate the action, this Settlement Agreement shall have no further force or effect. X. Non-Waiver of Claims and Defenses
A. The plaintiffs and the defendants agree that by entering into this Agreement, the plaintiffs do not waive their rights to pursue individual claims under federal or state law.
B. The plaintiffs and the defendants agree that by entering into this Agreement, defendants do not waive their right to raise any defense(s) in any case brought by the individually named plaintiffs for damages or for any further application by the class for prospective relief.
9

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 10 of 15

David Rudovsky, Es . Jonathan H. Feinber , Esq. 718 Arch Street Philadelphia Pa. 191 215-925-4400

For Defendants:
S.aedro~te, tolicitor
City of Philadelphia Law Department 1515 Arch Street, 17th Floor Philadelphia, PA 19102 215-683-5003

Davi Richman, Esq. Pepper Hamilton, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799
(215)4~~~~

Disability Riglits Network of Pennsylvania 1315 Walnut Street, Suite 400 Philadelphia, PA 19107 (215) 238-8070
10

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 11 of 15 EXHIBIT A
11

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 12 of 15
Williams, et al. v. City ofPhiladelphia, et al., Civil Action No. 08-cv-1979 United States District Court for the Eastern District of Pennsylvania Pending before the Honorable R. Barclay Surrick
NOTICE OF CLASS ACTION SETTLEMENT This notice sets for the basic terms of the settlement reached in the above-referenced class action regarding conditions of confinement at the Philadelphia Prison System ("PPS") and advises class members of their procedural rights relating to the settlement.
Case Background On April, 28, 2008, several PPS inmates residing in various PPS facilities filed this class action lawsuit against the City of Philadelphia and the Commissioner of the PPS (collectively, "Defendants") alleging that as a result of overcrowding, conditions of confinement in the PPS violated inmates' constitutional rights and entitled inmates to injunctive and declaratory relief. Prior to class certification, plaintiffs alleged that the Defendants used triple-celling at CurranFromhold Correctional Facility ("CFCF"), the House of Correction ("HOC") and Riverside Correctional Facility ("RCF"). The Plaintiffs also alleged that Detention Center's dormitories were overcrowded. The suit did not seek money damages. On October 8, 2010, the Court certified the following class of plaintiffs:
All persons who are or will in the future be confined in the Philadelphia Prison System, and who are or will in the future be Subjected to the conditions of confinement, including triple celling, or placement in dormitories, without minimally adequate security, services or programs as set forth in plaintiffs' Complaint. At the time of class certification, triple-celling of inmates existed in the Curran-Fromhold Correctional Facility ("CFCF"). At the time of class certification, triple-celling of inmates did not
12

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 13 of 15
exist at HOC and RCF. At the time of class certification, Plaintiffs alleged that the Detention Center's dormitories were overcrowded.
This notice is not intended to be, and should not be construed as, an expression of any opinion by the Court with respect to the truth of the allegations in the litigation or the merits of the claims or defenses asserted. This notice is sent to advise you of the pendency of this action and proposed settlement and of your rights with respect to this action.
The Settlement Agreement The Settlement Agreement, which is on file and available for inspection at all PPS law libraries, recognizes that Defendants, in concert with the Philadelphia Court of Common Pleas and other government agencies, have adopted a series of programs, policies, and procedures aimed at reducing the population in all PPS facilities. Those measures have had the effect of significantly reducing the overall population of the PPS; reducing the use of triple-celling; and reducing the number of inmates housed in the Detention Center. Under the terms of the Settlement Agreement, Defendants have agreed to make reasonable efforts to implement and operate the various programs, policies, and procedures that have reduced but not eliminated the use of triple-celling and the alleged overcrowding at the Detention Center. The Settlement further provides that for a one-year period following Court approval of the Settlement Agreement, Defendants will provide attorneys who represent the Plaintiff class with data regarding PPS facilities and access to same so that they can continue to monitor the conditions of confinement with the PPS. During the one-year monitoring period, Plaintiffs will have the right to reinstate their claims for injunctive and declaratory relief. Barring reinstatement, this case will be dismissed with prejudice upon conclusion of the one-year monitoring period.
13

Case 2:08-cv-01979-RBS Document 141 Filed 03/16/16 Page 14 of 15

Statement of Poetntial Outcome of Case Class Counsel recognizes that there was a substantial risk if the case were to be tried, of an unfavorable outcome, providing less or no relief to the class. The proposed Settlement Agreement provides substantial relief and avoids the risk, of an unfavorable outcome, providing less or no relief to the class. The Defendants denied that the conditions of confinement at the PPS violated the inmates' constitutional rights. The Defendants denied that the inmates were entitled to injunctive and declaratory relief.
Notice of Fairness Hearing As inmates, you are members of the Plaintiff class. The Court will consider any objections or comments you may have regarding the Settlement Agreement provided they are received before April 20, 2016. Your objections or comments should be sent to class counsel and to counsel for Defendants, as follows:

Class Counsel

Counsel for Defendants

David Rudovsky, Esq. Kairys, Rudovsky, Messing & Feinberg, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106

Craig M. Straw, Chief Deputy City Solicitor
Law Department 1515 Arch Street Philadelphia, PA 19102

A hearing will be held on at which the Court will consider the fairness of the Settlement

Agreement and decide whether to approve it. Your objections will only be considered in writing.

14

C**a*s**e**2**:0**8**-c**v-C0O1M9M.79JO-URRNBASL- **D**o**c*u**m**e**n*t**1*4**1DATFEilMeAdR0-136-2/10166/1**6*** PTIaMgE e151:550 o**f*1**5***

MODE = MEMORY TRANSMISSION

START=MAR-16 15:42 END=MAR-16 15:50

FILE N0.=017

STN NO. COMM. ABBR NO.

STATION NAME/TEL NO. PAGES DURATION

001

OK

Iii

002

OK

Iii

003

OK

Iii

2159255365 2156835397 2156865725

015/015 00:02:00 015/015 00:02:20 015/015 00:01:53

************************************ -

-JUDGE R. BARCLAY SURRICK -

- ***** -

- *********

Chum/JC'rso/ R. BARCLAYSURRICK U1litl!d Slnte.r DixtriN J11dg~

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
&514 UNITED STATES COURTl/OUSE INDEPENDENCE MALL WEST SIXTH AND MA/I.KET STREF.1'S
PH/U.DfilPHIA, PENNSYLV,IN/A /9/IJ6-/N/

March 16, 2016

To: Jonathan IL F~inberg, Esquire David Rudovsky, Esquire Kairys Rudovsky Messing & Feinberg The Cast Iron Building Suite 501 South 718 Arch Street Philadelphia, Pa 19106 Fax: 215-925-5365

Craig Straw, Esquire
Chief Deputy, City Solicitor Sozi. Pedro TuJante, Esquire CITY OF PIIlLADELPIIlA LAW DEPARTMENT One Parkway Building, 141h Floor 1515 Arch Street Philadelphia, Pennsylvania19102 Email: craig.straw@phila.gov Fax: 215-683-5397

Bryan C. Hughes, ADA

PHILADELPHIA DISTRICT ATIORNEY'S OFFICE

Three South Penn Square

Philadelphia, Penn5ylvania 19107

,._:

Email: bryan.hughes@phila.gov

Fax: 215-686-5725

Re: Williams, et. al. v. City ofPhiladelphia, et. al., 08-cv-1979

Memo: Order of the Court to follow. Via Fax: Fifteen (15) pages transmitted to include this cover page.

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

DWIGHT WILLIAMS, ET AL.

:

:

v.

:

:

CITY OF PHILADELPHIA, ET AL.

:

CIVIL ACTION NO. 08-1979

MEMORANDUM

SURRICK, J.

JUNE 13, 2016

Presently before the Court is the parties’ joint request for approval of their Settlement

Agreement. For the following reasons, the Settlement Agreement will be approved.

I. BACKGROUND

On April 28, 2008, Plaintiffs filed the instant class action against the City of Philadelphia

and others (collectively, the “City Defendants”) seeking injunctive and declaratory relief under

Fed. R. Civ. P. 23(b)(2). The Complaint alleges that the Philadelphia Prison System (“PPS”) is

subjecting inmates to “dangerous, unsanitary, severely overcrowded, degrading, and cruel

conditions of confinement.” (Compl. ¶ 1, ECF No. 1.) Specifically, it alleges that the PPS’s

practice of housing three inmates in cells designed to hold only two—referred to as “triple-

celling”—violates the Eighth and Fourteenth Amendments of the United States Constitution.

(Id. ¶ 3.) On October 8, 2010, the Court certified the case as a class action, defining the relevant

class as:

All persons who are or will in the future be confined in the Philadelphia Prison System, and who are or will in the future be subjected to the conditions of confinement, including triple celling, or placement in dormitories, without minimally adequate security, services or programs as set forth in plaintiffs’ Complaint.

(Oct. 8, 2010 Order, ECF No. 80.)

When the Complaint was filed, the inmate population in the PPS was at a historic high of over 9,300 inmates. (Compl. ¶ 1.) Over 2,500 inmates were housed in triple cells. (Settlement Agreement 1.) In 2011, the population had been reduced to approximately 7,600 with an “inhouse” population of approximately 7,200. (Id. at 2.) Triple-celling had been reduced, and there was no additional triple-celling at one of the prisons—Riverside Correctional Facility (“RCF”). (Id.) On August 8, 2011, after the inmate population in the PPS significantly decreased, the Court approved a settlement agreement (the “2011 Settlement Agreement”) between the parties that would preserve the status quo and provide for monitoring of the situation by Plaintiffs’ counsel over the coming years. (Aug. 8, 2011 Mem. Op. 2-3, ECF No. 93.) In the fall of 2012, Plaintiffs exercised their right under the 2011 Settlement Agreement to reopen the case due to a rising inmate population in the PPS. (See ECF No. 99.)
Since the reinstatement of the Complaint, the parties have engaged in extensive discovery. (Settlement Agreement 2.) Over the past eight months, the prison population has again reduced significantly. (Id.) As of January 12, 2016, the population was reduced to 7,550, and the in-house population was reduced to 7,128. There were 1,380 inmates triple celled at the Curran-Fromhold Correctional Facility (“CFCF”) and House of Corrections (“HOC”). According to the Settlement Agreement, these reductions were the result of:
fewer admissions to PPS, expansion of the “Video Crash Court” program which accelerates the disposition of minor cases (and related probation and parole detainers), consolidation of probation and parole hearings to expedite resolution of detainers, special release hearings at which bail orders are reviewed and reduced, a number of “diversion” programs whereby persons charged or subject to charges for minor crimes are either not arrested or, if arrested, are diverted into programs without prosecution, specialized courts (including Mental Health Court, Veteran’s Court, Dawn’s Court (prostitution cases), and Drug Court); video extradition hearings, and increased use of house arrest and GPS Monitoring.
2

(Settlement Agreement 2.) As of the time of the fairness hearing, the population of inmates in the PPS had been in the 7,400 to 7,500 range, and remained fairly constant (i.e., there were no spikes) over the prior six weeks. (May 5, 2016 Hr’g Tr. 6 (on file with Court).)
The parties anticipate further decrease in PPS population in the next couple of years as a result of the City of Philadelphia’s receipt of the MacArthur Foundation funding grant. The MacArthur grant, which was awarded in April of 2016, will fund a project aimed at reducing jail population by approximately 30% over a two-to-three year period. (Settlement Agreement 3.) This initiative marks the first time that the City’s criminal justice system partners—the Defender Association of Philadelphia, the Philadelphia District Attorney’s Office, the First Judicial District of Pennsylvania, the Managing Director’s Office, the Philadelphia Police Department, and the Philadelphia Prison System—have engaged in sustained cooperation around the common goal of reducing the PPS population. (Phila.’s Appl. for Implementation Funding 14 (on file with Court).) Moreover, measures identified in the MacArthur grant proposal have the support of Philadelphia’s Mayor. Some of the measures funded by the grant include developing and implementing pre-arrest diversion programs for low-risk offenders, reducing cash bail amounts and increasing utilization of community-based alternatives to cash bail, providing continuity of services coordination for individuals with mental illness, and implementing administrative programs to help expedite plea offers and parole petition review. (Id. at 4-7.) The parties believe that the MacArthur grant initiatives, together with the City Administration’s backing of these initiatives, will result in significant population reductions at PPS facilities, and potentially a de-commissioning of one facility. (May 5, 2016 Hr’g Tr. 6.) A reduction of the prison population by 30% could bring an end to the practice of triple-celling.
3

In early 2016, the parties entered into settlement negotiations. On March 16, 2016, we granted preliminary approval of the proposed Settlement Agreement and scheduled a fairness hearing for May 5, 2016. (Mar. 16, 2016 Order, ECF No. 141.) Our Order also directed that the City Defendants post the Notice of Class Action Settlement in every housing unit and in every law library in the PPS. (Id.) The Notice of Settlement was forwarded to all PPS Wardens, and was posted in all PPS housing units and law libraries. (Vrato Decl.; ECF No. 142.) Approximately 18 inmates housed in the PPS filed objections to the proposed settlement.
The fairness hearing was held on May 5, 2016. (May 5, 2016 Hr’g Tr.) At the hearing, the parties agreed that the Settlement Agreement was fair and reasonable. The Court raised a concern with one aspect of the Agreement, namely that it provided a one-year period during which Plaintiffs may reinstate the Complaint. (Id. at 7.) The Court suggested that a two-year period would be more appropriate, particularly in light of the fact that it will take many months to see any results from implementation of the MacArthur grant initiatives. (Id.) Counsel for the City of Philadelphia responded that the additional time for monitoring proposed by the Court is not necessary, but ultimately agreed to extend the time period to two years. (Id. at 16.) The parties submitted a revised Settlement Agreement to the Court reflecting this change.
Taking into consideration the reduction in the inmate population at the PPS, this Settlement Agreement essentially preserves the status quo and provides for monitoring of the situation by Plaintiffs’ counsel for the next two years. (Settlement Agreement 4-6.) The City Defendants agree to continue making reasonable efforts to implement and operate programs, policies, and procedures designed to reduce the population at the PPS. These initiatives include expansion of the Video Crash Court program, consolidation of probation and parole hearings, implementing special release hearings, specialized courts, video extradition hearings, and
4

increasing the use of house arrest and GPS monitoring. (Settlement Agreement 1, 4.) In addition, the City Defendants agree to continue making reasonable efforts (1) to minimize the use of lockdowns and restricted movements and provide inmates with medical, legal, and social services during any lockdown or restrictive movement periods; (2) to ensure that any inmates in triple cells are provided clean cells, adequate bedding, and access to adequate showers and toilets; and (3) to identify inmates who are Seriously Mentally Ill (“SMI”) and limit the use of triple-celling for SMI inmates. (Id. at 4-5.) Finally, the City Defendants agree to provide Plaintiffs’ counsel with information regarding the prison population, triple-celling, and other relevant matters on a monthly basis for a 24-month period beginning on the date that the Settlement Agreement is approved. (Id. at 5.) Plaintiffs’ counsel will also have the right to inspect any of the PPS facilities if the population is “significantly higher” than the population at the time the Court approves the Settlement Agreement. (Id.) II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 23(e), the “claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval.” Final approval of a class-action settlement requires a finding by the Court that the settlement is fair, reasonable, and adequate. Ehrheart v. Verizon Wireless, 609 F.3d 590, 592 (3d Cir. 2010).
In Girsh v. Jepson, the Third Circuit articulated nine factors for district courts to consider in deciding whether a class-action settlement is fair, reasonable, and adequate:
(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible
5

recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
521 F.2d 153, 157 (3d Cir. 1975) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463
(2d Cir. 1974) (alterations omitted)).1 We must make findings regarding the Girsh factors where
appropriate. In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 350 (3d Cir. 2010). However, we
cannot “substitute the parties’ assurances or conclusory statements for [our own] independent
analysis of the settlement terms.” Id. at 350-51.
II. ANALYSIS2
A. The Complexity, Expense and Likely Duration of the Litigation
This litigation has been ongoing for over eight years. In fact, litigation against the City of
Philadelphia concerning unconstitutional conditions present at the PPS has an even longer
1 Subsequently, the Third Circuit advised that in light of the “sea-change in the nature of class actions,” it may be useful for courts to consider the following factors in addition to the Girsh factors:
the maturity of the underlying substantive issues, as measured by experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; the existence and probable outcome of claims by other classes and subclasses; the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved—or likely to be achieved—for other claimants; whether class or subclass members are accorded the right to opt out of the settlement; whether any provisions for attorneys’ fees are reasonable; and whether the procedure for processing individual claims under the settlement is fair and reasonable.
In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 323 (3d Cir. 1998). However, because this is a Rule 23(b)(2) class action seeking injunctive relief only, the Prudential factors do not apply. We will limit our discussion to the Girsh factors.
2 Since this is a Rule 23(b)(2) class action for injunctive relief, not all the Girsh factors apply. We need not consider the ability of Defendants to withstand a greater judgment, the range of reasonableness of the settlement fund in light of the best possible recovery, and the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. See Serventi v. Bucks Technical High Sch., 225 F.R.D. 159, 167 (E.D. Pa. 2004) (noting that certain factors do not apply where class does not seek monetary damages).
6

history. From as early as 1971, state and federal courts in Pennsylvania have been grappling with constitutional claims by PPS prisoners related to their conditions of confinement. See, e.g., Jackson v. Hendrick, 764 A.2d 1139, 1141 (Pa. Commw. Ct. 2000) (describing the “tangled [30year] history” of a state class action suit filed by prisoners in PPS regarding conditions of confinement); Harris v. City of Philadelphia, No. 82-1847, 2000 U.S. Dist. LEXIS 12579 (E.D. Pa. Aug. 30, 2000) (approving settlement agreement in 18-year federal class action by PPS inmates concerning overcrowding conditions at PPS); Bowers v. City of Philadelphia, No. 063229, 2007 U.S. Dist. LEXIS 5804 (E.D. Pa. Jan. 25, 2007) (granting plaintiffs’ request for declaratory and injunctive relief in suit against City of Philadelphia regarding conditions of confinement, including triple-celling). We believe that settlement of the case before us will for the first time put an end to this protracted history of litigation involving the conditions at PPS.
The parties have already engaged in significant discovery, and would require additional discovery in the event the case went to trial. The trial itself would be costly and complex as much of the evidence will be expert testimony. The first factor weighs in favor of the proposed Settlement Agreement.
B. The Reaction of the Class to the Settlement As we noted above, the Notice of Class Action Settlement was forwarded to all PPS Wardens, and was posted in all PPS housing units and law libraries. Of the nearly 7,400 to 7,500 inmates at PPS, only 18 submitted objections to the proposed settlement. The objections, for the most part, relate to the prison’s use of triple-celling, and the conditions associated with overpopulation. None of the objections relate specifically to the terms set forth in the Settlement Agreement. At the fairness hearing, Plaintiffs’ counsel indicated that he reviewed the objections carefully, and that he was still convinced, given the fairly small number of objections as
7

compared to the population at PPS, that the Settlement Agreement is appropriate. We agree that the relative number of objections compared to the population of inmates at PPS militates in favor of approving the Settlement Agreement. See In re Cendant Corp. Litig., 264 F.3d 201, 235 (3d Cir. 2001) (“The vast disparity between the number of potential class members who received notice of the Settlement and the number of objectors creates a strong presumption that this factor weighs in favor of the Settlement.”). We also believe that the objections—which relate predominantly to the conditions associated with triple-celling—will largely be resolved by the measures and initiatives outlined in the Settlement Agreement and the MacArthur grant. This factor also weighs in favor of approving the Settlement Agreement.
C. The Stage of the Proceedings and the Amount of Discovery Completed “This factor captures the degree of case development that class counsel have accomplished prior to settlement. Through this lens, courts can determine whether counsel had adequate appreciation of the merits of the case before negotiating.” In re Cendant, 264 F.3d at 235 (citation and internal quotation marks omitted). At the time the 2011 Settlement Agreement was approved, the Court noted that the parties had already completed a significant amount of discovery. See Williams v. City of Philadelphia, No. 08-1979, 2011 U.S. Dist. LEXIS 87467, at *10 (E.D. Pa. Aug. 5, 2011). After Plaintiffs exercised their right under the 2011 Settlement Agreement to reopen the case, the parties entered into additional extensive discovery. See Williams v. City of Philadelphia, No. 081979, 2014 U.S. Dist. LEXIS 150474, at *3-4 (E.D. Pa. Oct. 22, 2014) (discussing discovery efforts by the parties after the case reopened). Discovery measures taken by the parties included coordinating tours of the PPS facilities for Plaintiffs’ expert witnesses, and supplemental document requests related to medical and mental health care at PPS. See id. at *4-5. On October
8

22, 2014, and November 4, 2014, we entered Orders, together with supporting Memoranda, directing that additional discovery be provided by Corizon Health, Inc., the contracted provider of medical services in the PPS. (ECF Nos. 125, 126, 128, 129.) Based on the considerable amount of discovery already completed in this case, we are satisfied that Plaintiffs’ counsel adequately evaluated the merits of the constitutional claims before engaging in settlement negotiations. This factor also weighs in favor of approving the proposed settlement.
D. The Risks of Establishing Liability and Damages The fourth and fifth Girsh factors assess the “possible risks of litigation in order to balance the likelihood of success and the potential damage award if the case were taken to trial against the benefits of an immediate settlement.” Prudential, 148 F.3d at 319. In our Memorandum approving the 2011 Settlement Agreement, we observed that: If one were to look at the 40-year history of prison litigation involving conditions in the PPS, one could conclude that Plaintiffs face no risk in establishing liability. Consistently over the years, both state and federal courts have taken the City Defendants to task for conditions in the PPS that were caused by overcrowding and that failed to pass constitutional muster. Williams, 2011 U.S. Dist. LEXIS 87467, at *10-11. Consistent with this observation, we concluded in a separate 2007 case involving PPS, that the conditions at PPS related to overcrowding were unconstitutional. See Bowers v. City of Philadelphia, No. 06-3229, 2007 U.S. Dist. LEXIS 5804 (E.D. Pa. Jan. 25, 2007). However, as noted above, since the case was reopened in 2012, the City has implemented measures that have proved successful in reducing the prison population at PPS and addressing issues associated with overcrowding. In addition, the law surrounding the constitutionality of triple-celling is unclear. In 2008, the Third Circuit concluded that triple-celling alone is not, by itself, unconstitutional. See Hubbard v. Taylor, 538 F.3d 229, 235 (3d Cir. 2008). The court considered the plaintiffs’
9

specific grievances as part of the “totality of the circumstances within the institution.” Id. In our 2011 Memorandum approving the 2011 Settlement Agreement, we observed that although federal courts are “split on the issue of whether requiring an inmate to sleep on a mattress on the floor violates the Constitution . . . [t]he majority has concluded that it does not.” Williams, 2011 U.S. Dist. LEXIS 87467, at *12 n.2 (citing cases). Based on this precedent—which we note has not changed significantly since our 2011 Memorandum—we recognized that “[a]ttempting to establish that triple-celling at the PPS is unconstitutional under the present circumstances and under Hubbard is not without risk.” Id. at 12. The same conclusion holds true today. We must reiterate, however, that “we do not endorse triple-celling as a long-term solution to the prison overcrowding problem.” Id. (confirming our observation in Bowers that “even if triple-celling is permissible as a short-term emergency solution, it is not tenable as a permanent cure”).) This factor weighs in favor of approving the proposed settlement.
Moreover, the risks associated with establishing damages also weigh in favor of approving the Settlement Agreement. Although this action seeks injunctive relief only, and not damages, “the risks inherent in seeking injunctive relief are always significant.” Id. at *14 (citing Inmates of Northumberland Cnty. Prison v. Reish, No. 08-0345, 2011 U.S. Dist. LEXIS 46600, at *9 (M.D. Pa. Apr. 29, 2011)).
E. The risks of Maintaining the Class through the Trial We see no particular risk of modification or decertification of the class during or prior to trial. This factor weighs against approving the settlement. IV. CONCLUSION After consideration of the Girsh factors, in light of the progress made to date in addressing the overcrowding at the PPS, and considering the changes that have been made and
10

will in the future be made as a result of the MacArthur Foundation grant, we are satisfied that the proposed settlement is fair, reasonable, and adequate. Accordingly, the joint request for approval of the Settlement Agreement will be granted.
An appropriate Order follows. BY THE COURT: ______________________________ R. BARCLAY SURRICK, J.
11

 
 Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 1 of 23
CLOSED,SPECIAL
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:08−cv−01979−RBS

WILLIAMS et al v. CITY OF PHLADELPHIA et al Assigned to: HONORABLE R. BARCLAY SURRICK related Case: 2:09−cv−03914−NS Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/28/2008 Date Terminated: 08/08/2011 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

DWIGHT WILLIAMS

represented by ANGUS R. LOVE PA INSTITUTIONAL LAW PROJECT 718 ARCH ST., STE 304S PHILADELPHIA, PA 19106 215−925−2966 Email: alove@pailp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN PEPPER HAMILTON LLP 3000 TWO LOGAN SQ 18TH & ARCH STREETS PHILADELPHIA, PA 19103−2799 215−981−4412 Fax: 215−981−4750 Email: richmand@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING FEINBERG & LIN, LLP THE CAST IRON BLDG STE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215−925−4400 Fax: 215−925−5365 Email: drudovsky@krlawphila.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG KAIRYS RUDOVSKY MESSING FEINBERG & LIN LLP THE CAST IRON BLDG STE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215−925−4400 Fax: 215−925−5365 Email: jfeinberg@krlawphila.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW D. JANSSEN PEPPER HAMILTON LLP 3000 TWO LOGAN SQ 18TH & ARCH STS PHILADELPHIA, PA 19103−2799

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 2 of 23

215−981−4527 Email: janssenm@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH PA Institutional Law Project 718 Arch Street, Suite 304S Philadelphia, PA 19106 215−925−2966 Fax: 215−925−5337 Email: smyeh@pailp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT W. MEEK DISABILITIES LAW PROJECT 1315 WALNUT STREET SUITE 500 PHILADELPHIA, PA 19107 215−238−8070 Fax: 215−772−3126 Email: rmeek@drnpa.org ATTORNEY TO BE NOTICED

Plaintiff ANTHONY OUELLETTE

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff KOLEYON PHILLIPS

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 3 of 23

ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ANTHONY DIGGS

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT W. MEEK (See above for address)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 4 of 23

ATTORNEY TO BE NOTICED

Plaintiff KENNETH SMITH

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff EDWARD ZAMICHIELI

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 5 of 23

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

ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LOUIS EUBANKS

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JAMES SAUNDERS

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 6 of 23

MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff THOMAS SCOTT

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SHANNON BOLLI

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 7 of 23

Plaintiff
MARISOL LOPEZ ON BEHALF OF THEMSELVES, AND ALL OTHERS SIMILARLY SITUATED

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED
represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RICHMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW D. JANSSEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT W. MEEK (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
DISTRICT ATTORNEY R. SETH WILLIAMS also known as LYNNE ABRAHAM

represented by ANNE B. TAYLOR United States Attorney's Office 401 Market Street 4th Floor PO Box 2098 Camden, NJ 08101

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 8 of 23
856−757−5031 Email: anne.taylor@usdoj.gov TERMINATED: 10/27/2014 LEAD ATTORNEY
ELIZABETH J. RUBIN OFFICE OF DISTRICT ATTORNEY 3 SOUTH PENN SQUARE PHILADELPHIA, PA 19107 215−686−8787 Email: bj.graham−rubin@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRAD P. BENDER PHILADELPHIA DISTRICT ATTORNEY'S OFFICE THREE SOUTH PENN SQUARE PHILADELPHIA, PA 19107 215−686−5775 Fax: 215−851−8383 Email: brad.bender@phila.gov TERMINATED: 01/06/2014
BRYAN C. HUGHES PHILADELPHIA DISTRICT ATTORNEY'S OFFICE CIVIL LITIGATION, 13TH FLOOR THREE SOUTH PENN SQUARE PHILADELPHIA, PA 19107 215−686−5775 Email: bryan.hughes@phila.gov ATTORNEY TO BE NOTICED
PRIYA M. TRAVASSOS PHILADELPHIA DISTRICT ATTORNEY'S OFFICE 3 SOUTH PENN SQUARE PHILADELPHIA, PA 19107 215−686−5755 Fax: 215−686−5725 Email: Priya.Travassos@phila.gov ATTORNEY TO BE NOTICED
SARAH V. HART PHILADELPHIA DISTRICT ATTORNEY'S OFFICE THREE SOUTH PENN SQUARE PHILADELPHIA, PA 19107−3499 215−686−9607 Fax: 215−686−9937 Email: sarah.hart@phila.gov TERMINATED: 12/05/2012
TODD M. MOSSER THE LAW OFFICE OF TODD M MOSSER, PLLC 211 NORTH 13TH STREET SUITE 801 PHILADELPHIA, PA 19107 215−567−1220 Email: todd@mosserlegal.com TERMINATED: 11/20/2012

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 9 of 23

V. Defendant CITY OF PHLADELPHIA
Defendant LOUIS GIORLA IN HIS OFFICIAL CAPACITY AS COMMISSIONER, PHILADELPHIA PRISONS

represented by CRAIG M. STRAW CITY OF PHILADELPHIA LAW DEPARTMENT 1515 ARCH STREET 14TH FLOOR PHILA, PA 19102 215−683−5442 Email: craig.straw@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
JEFFREY M. KOLANSKY ARCHER & GREINER Three Logan Square 1717 Arch Street, Suite 3500 PHILADELPHIA, PA 19103−7393 215−963−3300 Email: jkolansky@archerlaw.com TERMINATED: 02/12/2016 LEAD ATTORNEY
JEFFREY M. SCOTT ARCHER & GREINER, P.C. Three Logan Square 1717 Arch Street, Suite 3500 PHILADELPHIA, PA 19103 215−963−3300 Fax: 215−963−9999 Email: jscott@archerlaw.com TERMINATED: 02/12/2016 LEAD ATTORNEY
MARK MAGUIRE PHILADELPHIA OFFICE OF CITY SOLICITOR 1515 ARCH STREET PHILADELPHIA, PA 19102 215−683−5439 Email: mark.maguire@phila.gov ATTORNEY TO BE NOTICED
RICHARD G. TUTTLE Law Offices of Henry Ian Pass 3 Bala Plaza East Suite 700A Bala Cynwyd, PA 19004−3492 610−660−8001 Fax: 610−660−8004 Email: rtuttle@hipesq.com ATTORNEY TO BE NOTICED
represented by CRAIG M. STRAW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JEFFREY M. KOLANSKY (See above for address) TERMINATED: 02/12/2016

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 10 of 23
LEAD ATTORNEY
JEFFREY M. SCOTT (See above for address) TERMINATED: 02/12/2016 LEAD ATTORNEY

V. Movant CORIZON HEALTH, INC.
ThirdParty Plaintiff CITY OF PHLADELPHIA TERMINATED: 07/27/2010
ThirdParty Plaintiff LOUIS GIORLA IN HIS OFFICIAL CAPACITY AS COMMISSIONER, PHILADELPHIA PRISONS TERMINATED: 07/27/2010

represented by STEPHEN E. SIEGRIST O'CONNOR KIMBALL, LLP 15TH ST & JOHN F. KENNEDY BLVD SUITE 1100 PHILADELPHIA, PA 19102 215−564−0400 Email: SSiegrist@okllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JEFFREY M. KOLANSKY (See above for address) TERMINATED: 07/27/2010 LEAD ATTORNEY
JEFFREY M. SCOTT (See above for address) TERMINATED: 07/27/2010 LEAD ATTORNEY
MARK MAGUIRE (See above for address) TERMINATED: 07/27/2010
RICHARD G. TUTTLE (See above for address) TERMINATED: 07/27/2010
represented by JEFFREY M. KOLANSKY (See above for address) TERMINATED: 07/27/2010 LEAD ATTORNEY
JEFFREY M. SCOTT (See above for address) TERMINATED: 07/27/2010 LEAD ATTORNEY

V.
ThirdParty Defendant
THE HONORABLE PAMELA PRYOR DEMBE PRESIDENT JUDGE OF THE COURT OF COMMON PLEAS, FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TERMINATED: 07/27/2010 also known as C. DARNELL JONES, II

represented by A. TAYLOR WILLIAMS ADMINISTRATIVE OFFICE OF PA COURTS 1515 MARKET ST STE 1414 PHILADELPHIA, PA 19102 215−560−6300 Fax: 215−560−6315

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 11 of 23

TERMINATED: 07/27/2010

Email: legaldepartment@pacourts.us TERMINATED: 07/27/2010 LEAD ATTORNEY

ThirdParty Defendant
THE HONORABLE MARSHA H. NEIFIELD PRESIDENT JUDGE OF THE PHILADELPHIA MUNICIPAL COURT TERMINATED: 07/27/2010 also known as LOUIS PRESENZA TERMINATED: 07/27/2010

represented by A. TAYLOR WILLIAMS (See above for address) TERMINATED: 07/27/2010 LEAD ATTORNEY

ThirdParty Defendant
PH.D. JEFFREY A. BEARD THE SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS TERMINATED: 07/27/2010

represented by BARRY N. KRAMER PA OFFICE OF ATTY GENERAL 21 SOUTH 12TH STREET THIRD FLOOR PHILADELPHIA, PA 19107 215−560−1581 Fax: 717−772−4526 Email: bkramer@attorneygeneral.gov TERMINATED: 07/27/2010

Date Filed 04/28/2008
04/28/2008 04/28/2008
05/05/2008
05/07/2008 05/08/2008
05/12/2008

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 947848.), filed by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE.(ks, ) (ks, ). (Entered: 04/28/2008)
Summons Issued as to CITY OF PHLADELPHIA. Forwarded To: Counsel on 4/28/08 (ks, ) (Entered: 04/28/2008)
2 MOTION For Class Certification filed by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE.Memorandum of Law, Certificate of Service.(ks, ) (Entered: 04/28/2008)
3 WAIVER OF SERVICE Returned Executed by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE. CITY OF PHLADELPHIA waiver sent on 4/28/2008, answer due 6/27/2008; LOUIS GIORLA waiver sent on 4/28/2008, answer due 6/27/2008. (FEINBERG, JONATHAN) (Entered: 05/05/2008)
4 NOTICE of Appearance by JEFFREY M. SCOTT on behalf of CITY OF PHLADELPHIA, LOUIS GIORLA with Certificate of Service(SCOTT, JEFFREY) (Entered: 05/07/2008)
5 STIPULATION AND ORDER THAT DEFTS WILL FILE A RESPONSIVE PLEADING AND/OR MOTION TO PLFF'S MOTION FOR CLASS CERTIFICATION AND PLFF'S COMPLAINT ON JUNE 27, 2008. SIGNED BY HONORABLE R. BARCLAY SURRICK. 5/8/08 ENTERED AND COPIES E−MAILED, AND FAXED BY CHAMBERS.(sc, ) (Entered: 05/08/2008)
6 NOTICE of Appearance by JEFFREY M. KOLANSKY on behalf of CITY OF PHLADELPHIA, LOUIS GIORLA with Certificate of Service(KOLANSKY, JEFFREY) (Entered: 05/12/2008)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 12 of 23

05/14/2008 05/14/2008 05/14/2008 06/02/2008 06/03/2008 06/06/2008
06/06/2008
06/26/2008 06/27/2008
06/27/2008 06/27/2008 06/27/2008 07/08/2008 07/16/2008

7 NOTICE of Appearance by SARAH V. HART on behalf of LYNNE ABRAHAM with CERTIFICATE OF SERVICE.(ah) (Entered: 05/14/2008)
8 NOTICE of Appearance by PRIYA M. TRAVASSOS on behalf of LYNNE ABRAHAM with CERTIFICATE OF SERVICE.(ah) (Entered: 05/14/2008)
9 UNOPPOSED MOTION OF DISTRICT ATTORNEY LYNNE ABRAHAM TO INTERVENE PURSUANT TO THE PRISON LITIGATION REFORM ACT FILED BY LYNNE ABRAHAM. MEMORANDUM AND CERTIFICATE OF SERVICE.(ah) (Entered: 05/14/2008)
10 ORDER THAT A STATUS CONFERENCE IS SET FOR 6/3/2008 AT 11:00 AM IN JUDGE'S CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK.SIGNED BY HONORABLE R. BARCLAY SURRICK ON 6/2/08. 6/3/08 ENTERED AND COPIES FAXED AND E−MAILED.(ah) (Entered: 06/03/2008)
11 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK: Status Conference held on 6/3/08. (ah) (Entered: 06/04/2008)
12 SCHEDULING ORDER THAT A HEARING ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION IS SCHEDULED FOR 9/24/2008 AT 11:00 AM IN COURTROOM 8A BEFORE HONORABLE R. BARCLAY SURRICK. DISCOVERY ON ISSUES RELATED TO CLASS CERTIFICATION SHALL BE COMPLETED WITHIN NINETY DAYS OF THE DATE HEREOF AND RESPONSES TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION SHALL BE FILED NO MORE THAN FIFTEEN DAYS AFTER COMPLETION OF DISCOVERY.SIGNED BY HONORABLE R. BARCLAY SURRICK ON 6/6/08. 6/9/08 ENTERED AND COPIES E−MAILED AND FAXED.(ah) (Entered: 06/09/2008)
13 ORDER THAT THE UNOPPOSED MOTION OF DISTRICT ATTORNEY LYNNE ABRAHAM TO INTERVENE PURSUANT TO THE PRISON LITIGATION REFORM ACT IS GRANTED.SIGNED BY HONORABLE R. BARCLAY SURRICK ON 6/6/08.6/9/08 ENTERED AND COPIES E−MAILED AND FAXED.(ah) (Entered: 06/09/2008)
14 ANSWER to 1 Complaint, and Affirmative Defenses by LYNNE ABRAHAM, Certificate of Service. (HART, SARAH) Modified on 6/27/2008 (nd). (Entered: 06/26/2008)
15 MOTION to Dismiss , or in the alternative, Motion to Join The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia Municipal Court and Jeffrey A. Beard, Ph.D., the Secretary of Department of Corrections of the Commonwealth of Pennsylvania pursuant filed by CITY OF PHLADELPHIA, LOUIS GIORLA.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(SCOTT, JEFFREY) (Entered: 06/27/2008)
16 MOTION for Preliminary Injunction filed by CITY OF PHLADELPHIA.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum of Law, # 2 Exhibit Exh A, # 3 Exhibit Exh B)(TUTTLE, RICHARD) (Entered: 06/27/2008)
17 THIRD PARTY COMPLAINT against C. DARNELL JONES, II, LOUIS PRESENZA, JEFFREY A. BEARD, filed by CITY OF PHLADELPHIA and LOUIS GIORLA. CERTIFICATE OF SERVICE.(ah) (Entered: 06/30/2008)
3 Third Party Summonses Issued as to C. DARNELL JONES, II, LOUIS PRESENZA, JEFFREY A. BEARD. Forwarded To: Counsel on 7/2/08. (ah) (Entered: 07/02/2008)
18 AFFIDAVIT of Service by David Rosenweig re: served Third Party Summons & Complaint upon Judge C. Darnell Jones, II and Judge Louis J. Presenza by Personal Service on 07/08/08. (ah) (Entered: 07/09/2008)
19 AFFIDAVIT of Service by Robert A. Dash re: served Third Party Summons & Complaint upon Jeffrey A. Beard by Personal Service on 7/11/08. (ah) (Entered: 07/17/2008)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 13 of 23

07/17/2008 07/17/2008 07/18/2008
07/18/2008 07/18/2008 07/18/2008 07/18/2008 07/21/2008
07/28/2008 07/28/2008 07/28/2008
07/31/2008 07/31/2008

20 NOTICE of Appearance by BARRY N. KRAMER on behalf of JEFFREY A. BEARD with Cert of Service(KRAMER, BARRY) (Entered: 07/17/2008)
21 STIPULATION for Extension of Time by LYNNE ABRAHAM. (HART, SARAH) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 7/18/2008 (nd). (Entered: 07/17/2008)
22 RESPONSE in Opposition re 15 MOTION to Dismiss , or in the alternative, Motion to Join The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia M filed by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE, Certificate of Service. (FEINBERG, JONATHAN) Modified on 7/21/2008 (nd). (Entered: 07/18/2008)
23 CERTIFICATE OF SERVICE by CITY OF PHLADELPHIA Motion to Dismiss Pursuant to Rule 12(b) (7) in the Alternative Motion to Join Under Rule 19 of The Federal Rules of Civil Procedure served July 11, 2008 on Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections (SCOTT, JEFFREY) (Entered: 07/18/2008)
24 CERTIFICATE OF SERVICE by CITY OF PHLADELPHIA Defendants' Motion for Preliminary Injunction served July 11, 2008 on Jeffrey A. Beard, Ph.D., Secretary of Department of Corrections (SCOTT, JEFFREY) (Entered: 07/18/2008)
25 CERTIFICATE OF SERVICE by CITY OF PHLADELPHIA Defendants' Motion to Dismiss Pursuant to Rule 12(b)(7) in the Alternative Motion to Join Under Rule 19 of the Federal Rules of Civil Procedure served July 8, 2008 on Honorable C. Darnell Jones, II and Honorable Louis J. Presenza (SCOTT, JEFFREY) (Entered: 07/18/2008)
26 CERTIFICATE OF SERVICE by CITY OF PHLADELPHIA Defendants' Motion for Preliminary Injunction served July 8, 2008 on Honorable C. Darnell Jones, II and Honorable Louis J. Presenza (SCOTT, JEFFREY) (Entered: 07/18/2008)
27 STIPULATION AND ORDER THAT THE DISTRICT ATTORNEY'S RESPONSES TO THE CITY DEFENDANTS' MOTION TO DISMISS, DEFENDANTS' MOTION FOR A PRELIMINARY INJUNCTION, AND DEFENDANTS CITY OF PHILADELPHIA AND PHILADELPHIA PRISON COMMISSIONER LOUIS GIORLA THIRD PARTY COMPLAINT MUST BE FILED BY 7/31/08.SIGNED BY HONORABLE R. BARCLAY SURRICK ON 7/21/08. 7/22/08 ENTERED AND COPIES E−MAILED AND FAXED.(ah) (Entered: 07/22/2008)
28 NOTICE of Appearance by A. TAYLOR WILLIAMS on behalf of C. DARNELL JONES, II, LOUIS PRESENZA with Certificate of Service(WILLIAMS, A.) (Entered: 07/28/2008)
29 MOTION to Dismiss Third−Party Complaint filed by C. DARNELL JONES, II, LOUIS PRESENZA.Memorandum of Law in Support thereof and Certificate of Service. (Attachments: # 1 Text of Proposed Order)(WILLIAMS, A.) (Entered: 07/28/2008)
30 REPLY to Response to Motion re 15 MOTION to Dismiss , or in the alternative, Motion to Join The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia M filed by CITY OF PHLADELPHIA, LOUIS GIORLA, CERTIFICATE OF SERVICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(SCOTT, JEFFREY) Modified on 7/30/2008 (afm, ). (Entered: 07/28/2008)
31 MOTION to Dismiss Third Party Complaint filed by JEFFREY A. BEARD.Memorandum, Cert of Service.(KRAMER, BARRY) (Entered: 07/31/2008)
32 RESPONSE in Opposition re 16 MOTION for Preliminary Injunction, 15 MOTION to Dismiss , or in the alternative, Motion to Join The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia M filed by JEFFREY A. BEARD. (KRAMER, BARRY) (Entered: 07/31/2008)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 14 of 23

07/31/2008 08/07/2008 08/11/2008 08/21/2008 08/25/2008 08/25/2008 08/25/2008 08/26/2008
09/03/2008
09/03/2008 09/22/2008 09/22/2008 09/22/2008

33 RESPONSE to Motion re 16 MOTION for Preliminary Injunction filed by LYNNE ABRAHAM with Certificate of Service. (HART, SARAH) Modified on 8/4/2008 (le, ). (Entered: 07/31/2008)
34 RESPONSE in Opposition re 16 MOTION for Preliminary Injunction filed by C. DARNELL JONES, II, LOUIS PRESENZA, Certificate of Service. (WILLIAMS, A.) Modified on 8/11/2008 (nd). (Entered: 08/07/2008)
35 RESPONSE in Opposition re 31 MOTION to Dismiss Third Party Complaint, 29 MOTION to Dismiss Third−Party Complaint filed by CITY OF PHLADELPHIA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(TUTTLE, RICHARD) (Entered: 08/11/2008)
36 RESPONSE in Support re 16 MOTION for Preliminary Injunction, 31 MOTION to Dismiss Third Party Complaint filed by JEFFREY A. BEARD with Certificate of Service. (KRAMER, BARRY) Modified on 8/22/2008 (le, ). (Entered: 08/21/2008)
37 REPLY to Response to Motion re 29 MOTION to Dismiss Third−Party Complaint filed by C. DARNELL JONES, II, LOUIS PRESENZA. (Attachments: # 1 Exhibit A)(WILLIAMS, A.) (Entered: 08/25/2008)
38 RESPONSE in Opposition re 31 MOTION to Dismiss Third Party Complaint Sur−Reply filed by CITY OF PHLADELPHIA. (TUTTLE, RICHARD) (Entered: 08/25/2008)
39 MOTION for Extension of Time to Complete Discovery and Depose Incarcerated Plaintiffs filed by LYNNE ABRAHAM.Certificate of Service.(HART, SARAH) (Entered: 08/25/2008)
40 ORDER THAT THE UNOPPOSED MOTION FOR LEAVE OF COURT TO DEPOSE INCARCERATED NAMED PLAINTIFFS AND TO EXTEND CLASS CERTIFICATION DEPOSITIONS IS GRANTED. THE DISTRICT ATTORNEY IS HEREBY PERMITTED TO COMPLETE THE CLASS CERTIFICATION DEPOSITIONS OF THE NAMED PLAINTIFFS BY 9/15/08, THEREBY EXTENDING THE 9/04/08 DEADLINE PREVIOUSLY IMPOSED BY THIS COURT. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 8/26/08. 8/27/08 ENTERED AND COPIES E−MAILED AND FAXED.(ah) (Entered: 08/27/2008)
41 NOTICE of Appearance by ROBERT W. MEEK on behalf of KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE with Certificate of Service(MEEK, ROBERT) (Entered: 09/03/2008)
42 NOTICE of Appearance by TODD M. MOSSER on behalf of LYNNE ABRAHAM with cert of service(MOSSER, TODD) (Entered: 09/03/2008)
43 NOTICE of Appearance by MARK MAGUIRE on behalf of CITY OF PHLADELPHIA (MAGUIRE, MARK) (Entered: 09/22/2008)
44 RESPONSE in Opposition re 2 MOTION to Certify Class MEMORANDUM OF LAW filed by CITY OF PHLADELPHIA, LOUIS GIORLA. (Attachments: # 1 Text of Proposed Order ORDER, # 2 Supplement CERTIFICATE OF SRVICE)(KOLANSKY, JEFFREY) (Entered: 09/22/2008)
45 RESPONSE in Opposition re 2 MOTION to Certify Class (due to size limitations, 1st of 2 parts) filed by LYNNE ABRAHAM. (Attachments: # 1 Appendix Appendix A, # 2 Supplement EXHIBIT LIST, # 3 Exhibit Exhibit A−1, # 4 Exhibit Exhibit A−2, # 5 Exhibit Ex A−3, # 6 Exhibit Ex A−4, # 7 Exhibit Ex A−5, # 8 Exhibit Ex A−6, # 9 Exhibit Ex A−7, # 10 Exhibit Ex A−8, # 11 Exhibit Ex A−9, # 12 Exhibit Ex A−10, # 13 Exhibit Ex A−11, # 14 Exhibit Ex B, # 15 Exhibit Ex C, # 16 Exhibit Ex D−1, # 17 Exhibit Ex D−2, # 18 Exhibit Ex E−1, # 19 Exhibit Ex E−2, # 20 Exhibit Ex F−1, # 21 Exhibit Ex F−2, # 22 Exhibit Ex G−1, # 23 Exhibit Ex G−2, # 24 Exhibit Ex G−3, # 25 Exhibit Ex G−4, # 26 Exhibit Ex G−5, # 27 Exhibit Ex H−1, # 28 Exhibit Ex H−2, # 29 Exhibit Ex H−3 Part I, # 30 Exhibit Ex H−3 Part II, # 31 Exhibit Ex I−1, # 32 Exhibit Ex I−2, # 33 Exhibit Ex J−1, # 34 Exhibit Ex J−2, # 35 Exhibit Ex K−1, # 36 Exhibit Ex K−2, # 37 Exhibit Ex L−1, # 38 Exhibit Ex L−2)(HART, SARAH)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 15 of 23

09/23/2008
09/23/2008 09/23/2008 09/26/2008 10/03/2008 10/06/2008 10/14/2008 02/20/2009 03/11/2009 04/14/2009

(Entered: 09/22/2008)
46 EXHIBIT LIST re 2 MOTION to Certify Class (due to size limitations, 2nd of 2 parts) filed by LYNNE ABRAHAM. (Attachments: # 1 Exhibit D−3 Part I, # 2 Errata D−3 Part II, # 3 Exhibit E−3, # 4 Exhibit I−3, # 5 Exhibit J−3, # 6 Exhibit K−3 Part I, # 7 Exhibit K−3 Part II, # 8 Exhibit L−3, # 9 Exhibit M−1, # 10 Exhibit M−2, # 11 Exhibit M−3, # 12 Exhibit N−1, # 13 Exhibit N−2, # 14 Exhibit N−3 Part I, # 15 Exhibit N−3 Part II, # 16 Exhibit O)(HART, SARAH) Modified on 9/24/2008 (afm, ). (Entered: 09/23/2008)
47 EXHIBIT A to MEMORANDUM OF LAW OF THE CITY DEFENDANTS IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by CITY OF PHLADELPHIA, LOUIS GIORLA.. (KOLANSKY, JEFFREY) (Entered: 09/23/2008)
48 Supplemental Memorandum of Law of the City Defendants in Support of Their Opposition to Plaintiffs' Motion for Class Certification, Adopting Certain Arguments Presented by the District Attorney of Philadelphia in Her Response in Opposition to Plaintiffs' Motion for Class Certification by CITY OF PHLADELPHIA, LOUIS GIORLA, CERTIFICATE OF SERVICE. (KOLANSKY, JEFFREY) Modified on 9/24/2008 (afm, ). (Entered: 09/23/2008)
49 ORDER THAT PLAINTIFFS SHALL HAVE UNTIL 10/14/2008 TO FILE A REPLY TO DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 9/26/08. 9/29/08 ENTERED AND COPIES E−MAILED AND FAXED.(ah) (Entered: 09/29/2008)
50 SUPPLEMENTAL RESPONSE to Motion re 16 MOTION for Preliminary Injunction District Attorney's Supplemental Response to City Defendants' Motion for Preliminary Injunction filed by LYNNE ABRAHAM, Certificate of Servic. (HART, SARAH) Modified on 10/6/2008 (nd). (Entered: 10/03/2008)
51 RESPONSE in Support re 16 MOTION for Preliminary Injunction, 31 MOTION to Dismiss Third Party Complaint, 15 MOTION to Dismiss , or in the alternative, Motion to Join The Honorable C. Darnell Jones, II, President Judge of the Court of Common Pleas, First Judicial District of Pennsylvania, The Honorable Louis Presenza, President Judge of the Philadelphia M filed by JEFFREY A. BEARD. (Attachments: # 1 Exhibit)(KRAMER, BARRY) (Entered: 10/06/2008)
52 REPLY to Response to Motion re 2 MOTION to Certify Class filed by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE. (Attachments: # 1 Exhibit Exhibit List, # 2 Exhibit Exhibits 1−8, # 3 Exhibit Exhibits 9−20)(FEINBERG, JONATHAN) (Entered: 10/14/2008)
53 MOTION to Compel filed by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE.Certificate of Counsel, Memorandum,Certificate of Service,. (Attachments: # 1 Exhibits A−G)(RICHMAN, DAVID) (Entered: 02/20/2009)
54 RESPONSE in Opposition re 53 MOTION to Compel filed by LYNNE ABRAHAM. (Attachments: # 1 Exhibit A−C, # 2 Exhibit D−F)(HART, SARAH) (Entered: 03/11/2009)
55 RESPONSE in Support re 53 MOTION to Compel /Plaintiffs' Reply Brief in Further Support of Motion to Compel Interrogatory Responses and Privilege Log from Intervenor District Attorney. Certificate of Service. filed by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE. (Attachments: # 1 Exhibit A)(JANSSEN, MATTHEW) (Entered: 04/14/2009)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 16 of 23

05/20/2009 06/03/2009
06/03/2009
07/30/2009 04/27/2010 05/04/2010 05/10/2010 05/10/2010 05/13/2010 05/18/2010 06/23/2010
06/23/2010 07/15/2010

56 MOTION for Protective Order filed by LYNNE ABRAHAM.Memorandum, Certificate of Counsel, Certificate of Service. (Attachments: # 1 Exhibit A − C, # 2 Exhibit D − H)(HART, SARAH) (Entered: 05/20/2009)
57 Memorandum in Opposition re 56 MOTION for Protective Order with Exhibits 1, 2 and Certificate of Service. filed by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE. (JANSSEN, MATTHEW) (Entered: 06/03/2009)
58 NOTICE by KOLEYON PHILLIPS, DWIGHT WILLIAMS, ANTHONY DIGGS, KENNETH SMITH, EDWARD ZAMICHIELI, LOUIS EUBANKS, JAMES SAUNDERS, THOMAS SCOTT, SHANNON BOLLI, MARISOL LOPEZ, ANTHONY OUELLETTE re 2 MOTION to Certify Class Letter to the Court regarding recent relevant authority (Attachments: # 1 Exhibit Colon v. Passaic County et al.)(FEINBERG, JONATHAN) (Entered: 06/03/2009)
59 REPLY to Response to Motion re 56 MOTION for Protective Order Motion to File Reply Brief in Support of Motion for Protective Order filed by LYNNE ABRAHAM. (Attachments: # 1 Appendix A Part 1, # 2 Appendix A Part 2, # 3 Appendix A Part 3, # 4 Appendix A Part 4, # 5 Appendix A Part 5, # 6 Appendix A Part 6, # 7 Appendix B)(HART, SARAH) (Entered: 07/30/2009)
60 ORDER THAT A STATUS CONFERENCE IS SCHEDULED FOR 5/3/2010 02:00 PM IN COURTROOM 10−A BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 4/27/2010. 4/28/2010 ENTERED AND COPIES MAILED, E−MAILED AND FAXED BY CHAMBERS.(kk, ) (Entered: 04/28/2010)
61 Minute Entry for proceedings held before HONORABLE NORMA L. SHAPIRO: Status Conference held on 5/3/2010. Court Reporter: MARK RAFFERTY. (sg, ) (Entered: 05/05/2010)
62 Memorandum re 2 MOTION to Certify Class (by letter to the Court) filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (FEINBERG, JONATHAN) (Entered: 05/10/2010)
63 LETTER RESPONSE to Motion re 2 MOTION to Certify Class filed by CITY OF PHLADELPHIA, LOUIS GIORLA. (SCOTT, JEFFREY) Modified on 5/11/2010 (nd, ). (Entered: 05/10/2010)
64 RESPONSE in Opposition re 2 MOTION to Certify Class Supplemental Response filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 05/13/2010)
65 Memorandum (by letter to the Court) in further support re 2 MOTION to Certify Class filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (FEINBERG, JONATHAN) (Entered: 05/18/2010)
66 TRANSCRIPT of held on 5/3/2010, before Judge R. BARCLAY SURRICK. Court Reporter/Transcriber MARK RAFFERTY. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/12/2010. Redacted Transcript Deadline set for 7/21/2010. Release of Transcript Restriction set for 9/20/2010. (sg, ) (Entered: 06/24/2010)
67 Notice of Filing of Official Transcript with Certificate of Service re 66 Transcript − PDF, 6/24/2010 Entered and Copies Emailed. (sg, ) (Entered: 06/24/2010)
68 STIPULATION for Substitution of Officeholders by LYNNE ABRAHAM. (HART, SARAH) (Entered: 07/15/2010)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 17 of 23

07/16/2010
07/27/2010
07/27/2010
08/02/2010 08/17/2010 08/19/2010 08/24/2010 09/03/2010 09/12/2010 09/14/2010 10/08/2010

69 STIPULATION AND ORDER THAT WITHOUT PREJUDICE TO THE PARTIES POSITIONS, THE FOLLOWING SUBSTITUTUIONS IN THIS CASE CAPTIONS ARE BEING MADE TO RELECT CHANGES IN OFFICEHOLDERS SINCE THE START OF THIS LITIGATION; THE HONORABLE R. SETH WILLIAMS, DISTRICT ATTORNEY, FOR THE HONORABLE LYNNE ABRAHAM. THE HONORABLE MARSHA H, NEIFIELD FOR THE HONORABLE LOUIS PRESENZA. THE HONORABLE PAMELA PRYOR DEMBE, FOR THE HONORABLE C. DARNELL JONES, II. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 7/16/2010. 7/19/2010 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 07/19/2010)
70 MEMORANDUM AND/OR OPINION THAT WE WILL GRANT THIRD−PARTY DEFENDANTS' MOTION TO DISMISS THE THIRD PARTY COMPLAINT AND DENY THIRD−PARTY PLAINTIFFS' MOTION TO DISMISS FOR FAILURE TO JOIN OR ALTERNATIVELY MOTION TO JOIN, AND MOTION FOR PRELIMINARY INJUNCTION. AN APPROPRIATE ORDER FOLLOWS. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 7/27/2010. 7/28/2010 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 07/28/2010)
71 ORDER THAT THE MOTION TO DISMISS DEFENDANTS THIRD−PARTY COMPLAINT FILED ON BEHALF OF THIRD PARTY DEFENDANTS IS GRANTED. THIRD PARTY DEFENDANT BEARD'S MOTION TO DISMISS THE THIRD PARTY COMPLAINT OF THEI CITY OF PHILADELPHIA AND LOUIS GIORLA IS GRANTED. DEFENDANTS CITY OF PHILADELPHIA AND PHILADELPHIA PRISON COMMISSIONER LOUIS GIORLA THIRD−PARTY COMPLAINT IS DISMISSED WITH PREJUDICE. DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO JOIN OR ALTERNATIVELY MOTION TO JOIN IS DISMISSED AS MOOT. DEFENDANTS' MOTION FOR PRELIMINARY INJUNCTION IS DISMISSED AS MOOT. IT IS SO ORDERED. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 7/27/2010. 7/28/2010 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 07/28/2010)
72 RESPONSE in Opposition re 2 MOTION to Certify Class filed by R. SETH WILLIAMS. (HART, SARAH) (Entered: 08/02/2010)
73 ORDER THAT A STATUS CONFERENCE IS SET FOR 8/19/2010 04:00 PM IN JUDGE CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 8/17/2010. 8/18/2010 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 08/18/2010)
74 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK: Status Conference held on 8/19/2010. (sg, ) (Entered: 08/20/2010)
75 ANSWER to 1 Complaint, by CITY OF PHLADELPHIA, LOUIS GIORLA with Affirmative Defenses, Certificate of Service. (SCOTT, JEFFREY) Modified on 8/25/2010 (nd). (Entered: 08/24/2010)
76 RESPONSE in Opposition re 2 MOTION to Certify Class District Attorney and City Defendants' Joint Supplemental Reponse in Opposition to Plaintiffs' Motion for Class Certification filed by R. SETH WILLIAMS. (Attachments: # 1 Affidavit Denise Spadaccini)(HART, SARAH) (Entered: 09/03/2010)
77 RESPONSE in Support re 2 MOTION to Certify Class filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (FEINBERG, JONATHAN) (Entered: 09/12/2010)
78 First Amended ANSWER to Complaint by CITY OF PHLADELPHIA, LOUIS GIORLA.(SCOTT, JEFFREY) (Entered: 09/14/2010)
79 MEMORANDUM SIGNED BY HONORABLE R. BARCLAY SURRICK ON 10/8/2010. 10/12/2010 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(jcab) (Entered: 10/12/2010)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 18 of 23

10/08/2010
10/08/2010 11/24/2010 11/30/2010 12/01/2010
04/15/2011 04/29/2011
04/29/2011 05/18/2011 05/18/2011 06/16/2011 08/05/2011
08/05/2011

80 ORDER THAT PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (ECF. NO. 2 ) IS GRANTED. THIS ACTION IS HEREBY CERTIFIED AS A CLASS ACTION FOR PURPOSES OF INJUNCTIVE AND DECLARATORY RELIEF, ETC. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 10/8/2010. 10/12/2010 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(jcab) (Entered: 10/12/2010)
81 ORDER THAT PLAINTIFF'S MOTION TO COMPEL 53 AND MOTION OF DISTRICT ATTORNEY LYNNE ABRAHAM FOR PROTECTIVE ORDER 56 ARE DISMISSED WITHOUT PREJUDICE. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 10/8/2010.10/12/2010 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(jcab) (Entered: 10/12/2010)
82 ORDER THAT A STATUS CONFERENCE IS SET FOR 11/30/2010 03:00 PM IN JUDGE CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 11/24/2010. 11/24/2010 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 11/24/2010)
83 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK: Status Conference held on 11/30/2010. (jmf, ) (Entered: 12/01/2010)
84 SCHEDULING ORDER: FINAL PRETRIAL CONFERENCE SET FOR 4/15/2011 02:00 PM IN JUDGE CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK. DISCOVERY DUE BY 3/2/2011. DISPOSITIVE MOTIONS DUE BY 3/14/2011. TRIAL DATE SET FOR 4/25/2011 09:30 AM IN COURTROOM BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/1/2010. 12/1/2010 ENTERED AND COPIES E−MAILED.(sg, ) (Entered: 12/01/2010)
85 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK: Status Conference held on 4/15/2011. (sg, ) (Entered: 04/18/2011)
86 ORDER THAT THE SETTLEMENT AGREEMENT, (SEE DOC. NO. 87), IS PRELIMINARILY APPROVED. A HEARING ON THE FAIRNESS OF THE SETTLEMENT AGREEMENT IS SCHEDULED FOR 6/15/2011, AT 10:00 AM, IN COURTROOM 8A, BEFORE HONORABLE R. BARCLAY SURRICK. FURTHER DEADLINES AND INSTRUCTIONS ARE AS OUTLINED HEREIN. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 4/29/2011. 5/2/2011 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(amas) (Entered: 05/02/2011)
87 SETTLEMENT AGREEMENT by SHANNON BOLLI, CITY OF PHLADELPHIA, ANTHONY DIGGS, LOUIS EUBANKS, LOUIS GIORLA, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (amas) (Entered: 05/02/2011)
88 NOTICE by CITY OF PHLADELPHIA, LOUIS GIORLA Proof of Publication (SCOTT, JEFFREY) (Entered: 05/18/2011)
89 NOTICE by CITY OF PHLADELPHIA, LOUIS GIORLA Notice of Publication (Corrected) (SCOTT, JEFFREY) (Entered: 05/18/2011)
90 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK: Settlement Conference held on 6/15/2011. Court Reporter: FINNEY. (sg, ) (Entered: 06/16/2011)
91 TRANSCRIPT of Hearing held on 6/15/2011, before Judge R. Barclay Surrick. Court Reporter/Transcriber Mike Finney/Paula Curran. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 8/23/2011. Redacted Transcript Deadline set for 9/2/2011. Release of Transcript Restriction set for 10/31/2011. (stwe, ) (Entered: 08/05/2011)
92 Notice of Filing of Official Transcript with Certificate of Service re 91 Transcript − PDF, 8/5/2011 Entered and Copies Emailed. (stwe, ) (Entered: 08/05/2011)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 19 of 23

08/08/2011 08/08/2011
11/16/2012 11/16/2012 11/20/2012 11/29/2012 12/03/2012 12/05/2012 12/13/2012
03/04/2013
03/21/2013
03/21/2013

93 MEMORANDUM AND/OR OPINIONSIGNED BY HONORABLE R. BARCLAY SURRICK ON 8/5/11. 8/8/11 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 08/08/2011)
94 ORDER THAT UPON CONSIDERATION OF THE SETTLEMENT AGREEMENT ENTERED INTO BY PLAINTIFFS AND DEFENDANTS, AND IT APPEARING THAT THE SAID AGREEMENT IS FAIR, REASONABLE, AND ADEQUATE, IT IS ORDERED THAT THE SETTLEMENT AGREEMENT IS APPROVED. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 8/5/11. 8/8/11 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(ti, ) (Entered: 08/08/2011)
95 NOTICE of Appearance by BRAD P. BENDER on behalf of R. SETH WILLIAMS, with Notice of Withdrawal of Appearance and Certificate of Service.(BENDER, BRAD) (INCORRECT PDF; ATTY HAS RE−FILED AT PAPER #97) Modified on 11/20/2012 (md). Modified on 11/26/2012 (md). (Entered: 11/16/2012)
96 ORDERED THAT A STATUS CONFERENCE SET FOR 11/28/2012 04:30 PM IN JUDGE CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 11/16/2012. 11/19/2012 ENTERED AND COPIES E−MAILED. FAXED BY CHAMBERS.(sg, ) (Entered: 11/19/2012)
97 NOTICE of Appearance by BRAD P. BENDER on behalf of R. SETH WILLIAMS, NOTICE of Withdrawal of Appearance by TODD MOSSER. Certificate of Service. (BENDER, BRAD) Modified on 11/21/2012 (lisad, ). (Entered: 11/20/2012)
98 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK: Status Conference held on 11/28/2012. (kp, ) (Entered: 11/29/2012)
99 SCHEDULING ORDER: DISCOVERY DUE BY 5/31/2013. ANY MOTIONS FOR LEAVE TO JOIN OTHER PARTIES ARE DUE BY 12/12/2012. MOTION FOR SUMMARY JUDGMENT DUE BY 9/30/2013. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/3/2012. 12/4/2012 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 12/04/2012)
100 NOTICE of Withdrawal of Appearance by SARAH V. HART on behalf of R. SETH WILLIAMS. Certificate of Service. (HART, SARAH) Modified on 12/6/2012 (lisad, ). (Entered: 12/05/2012)
101 SCHEDULING ORDER, IT IS ORDERED THAT PARAGRAPH 6 OF THE SCHEDULING ORDER DATED 12/3/2012 IS AMENDED TO PROVIDE THAT "ANY MOTION FOR LEAVE TO JOIN OTHER PARTIES SHALL BE FILED BY 1/11/2013". IN ALL OTHER RESPECTS THE SCHEUDLING ORDER SHALL REMAIN THE SAME. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/11/2012. 12/13/2012 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 12/13/2012)
102 MOTION for Discovery /Motion to Establish Terms and Conditions for Expert Inspections filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI.Memorandum of Law in Support, Certificate of Counsel, Declaration, and Certificate of Service.(JANSSEN, MATTHEW) (Entered: 03/04/2013)
103 STIPULATION re 102 MOTION for Discovery /Motion to Establish Terms and Conditions for Expert Inspections by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (RICHMAN, DAVID) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 3/22/2013 (nd, ). (Entered: 03/21/2013)
104 PRAECIPE to Withdraw 102 MOTION for Discovery /Motion to Establish Terms and Conditions for Expert Inspections filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI..(RICHMAN, DAVID) Modified on

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 20 of 23

03/25/2013 03/27/2013 06/03/2013
08/27/2013 11/04/2013 01/06/2014 01/08/2014 01/09/2014 01/10/2014
03/14/2014 03/18/2014 03/18/2014
03/27/2014
04/07/2014

3/22/2013 (nd, ). (Entered: 03/21/2013)
105 STIPULATION AND ORDER GOVERNING EXPERT INSPECTION PROCEDURES AS OUTLINED HEREIN. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/25/2013. 3/26/2013 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 03/26/2013)
106 NOTICE of Appearance by ELIZABETH J. RUBIN on behalf of R. SETH WILLIAMS (RUBIN, ELIZABETH) (Entered: 03/27/2013)
107 ORDERED THAT THE TIMELINES IN THE COURT'S 12/3/2012 SCHEDULING ORDER ARE AMENDED AS FOLLOWS: DISCOVERY DUE BY 10/31/2013. MOTION FOR SUMMARY JUDGMENT DUE BY 3/31/2014. ETC.. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 5/31/2013. 6/4/2013 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 06/04/2013)
108 PROTECTIVE ORDER ENTERED AS OUTLINED HEREIN. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 8/26/2013. 8/27/2013 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 08/27/2013)
109 ORDERED THAT ALL DEADLINES IN THE SCHEDULING ORDER DATED 5/31/2013 ARE EXTENDED FOR A PERIOD OF 90 DAYS. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 11/1/2013. 11/4/2013 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 11/04/2013)
110 NOTICE of Appearance of ANNE TAYLOR on behalf of R. SETH WILLIAMS, with Certificate of Service; Withdrawal of BRAD BENDER. (BENDER, BRAD) Modified on 1/7/2014 (md). (Entered: 01/06/2014)
111 ORDERED THAT A TELEPHONE CONFERENCE SET FOR 1/9/2014 04:00 PM BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 1/7/2014. 1/8/2014 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 01/08/2014)
112 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK: Telephone Conference held on 1/9/2014 (sg, ) (Entered: 01/10/2014)
113 FIFTH AMENDED SCHEDULING ORDER THAT ALL FACT DISCOVERY SHALL BE COMPLETED BY 3/31/2014. MOTION FOR SUMMARY JUDGMENT SHALL BE FILED BY 8/28/2014, ETC. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 1/10/14. 1/10/14 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(ti, ) (Entered: 01/10/2014)
114 ORDERED THAT A TELEPHONE CONFERENCE IS SET FOR 3/18/2014 01:30 PM BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/14/2014. 3/17/2014 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 03/17/2014)
115 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK: Telephone Conference held on 3/18/2014 (sg, ) (Entered: 03/19/2014)
116 ORDERED THAT WITHIN 10 DAYS OF THE DATE HEREOF CORIZON HEALTH, INC., SHALL SUBMIT A MEMORANDUM AS OUTLINED HEREIN. ETC.. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/18/2014. 3/19/2014 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 03/19/2014)
117 Brief and Statement on Issue of Mental Health Record Confidentiality filed by CORIZON HEALTH, INC., Certificate of Service. (Attachments: # 1 Certificate of Service, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H)(SIEGRIST, STEPHEN) Modified on 3/27/2014 (sg, ). Modified on 3/28/2014 (md). (Entered: 03/27/2014)
118 Memorandum Letter Brief in Opposition to Brief of Non−Party Corizon Health, Inc. re 117 Plaintiff's Brief and Statement of Issues in Support of Request for Review on Issue of Mental Health Record Confidentiality filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 21 of 23

04/10/2014
04/10/2014 04/17/2014 05/12/2014 05/22/2014
07/30/2014
10/22/2014 10/22/2014
10/27/2014 11/04/2014 11/04/2014

SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (Attachments: # 1 Exhibits A−C)(FEINBERG, JONATHAN) (Entered: 04/07/2014)
119 Memorandum re 117 Plaintiff's Brief and Statement of Issues in Support of Request for Review on Issue of Mental Health Record Confidentiality Supplemental Letter Brief filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (FEINBERG, JONATHAN) (Entered: 04/10/2014)
120 REPLY to Response to Motion re 117 Plaintiff's Brief and Statement of Issues in Support of Request for Review on Issue of Mental Health Record Confidentiality Reply to Plaintiffs Counsels April 10, 2014 Letter filed by CORIZON HEALTH, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(SIEGRIST, STEPHEN) (Entered: 04/10/2014)
121 LETTER REQUEST of parties to brief a new dispute regarding a different category of documents request (This is a joint request) by CORIZON HEALTH, INC. (SIEGRIST, STEPHEN) Modified on 4/18/2014 (md). (Entered: 04/17/2014)
122 Corizon's Letter Brief on Peer Review privilege filed by CORIZON HEALTH, INC..Corizon's Brief.(SIEGRIST, STEPHEN) Modified on 5/12/2014 (afm, ). (Entered: 05/12/2014)
123 Letter Memorandum in Opposition to 122 Corizon's Letter Brief on Peer Review privilege, filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (FEINBERG, JONATHAN) Modified on 5/23/2014 (md). (Entered: 05/22/2014)
124 LETTER WITH SUPPLEMENTAL AUTHORIY re 117 Plaintiff's Brief and Statement of Issues in Support of Request for Review on Issue of Mental Health Record Confidentiality, 122 Plaintiff's Brief and Statement of Issues in Support of Request for Review Corizon's Brief on Peer Review privilege Plaintiffs' Letter with Supplemental Authority filed by SHANNON BOLLI, ANTHONY DIGGS, LOUIS EUBANKS, MARISOL LOPEZ, ANTHONY OUELLETTE, KOLEYON PHILLIPS, JAMES SAUNDERS, THOMAS SCOTT, KENNETH SMITH, DWIGHT WILLIAMS, EDWARD ZAMICHIELI. (FEINBERG, JONATHAN) Modified on 7/31/2014 (afm, ). (Entered: 07/30/2014)
125 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 10/22/2014. 10/23/2014 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 10/23/2014)
126 ORDER THAT DEFENDANTS REQUEST THAT IT NOT BE ORDERED TO PRODEUCE PATIENT MENTAL HEALTH RECORDS, REQUESTED BY PLAINTIFFS WILL BE DENIED. COUNSEL SHALL SUBMIT AN APPROPRIATE PROTECTIVE ORDER. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 10/22/2014. 10/23/2014 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 10/23/2014)
127 NOTICE of Withdrawal of Appearance by ANNE B. TAYLOR on behalf of R. SETH WILLIAMS(TAYLOR, ANNE) (Entered: 10/27/2014)
128 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 11/4/2014. 11/5/2014 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 11/05/2014)
129 ORDERED THAT FOR THE FORGOING REASONS, CORIZON'S REQUEST THAT IT NOT BE ORDERED TO PRODUCE THE MORTALITY AND SENTINEL−EVENT REVIEWS REQUESTED BY PLAINTIFFS WILL BE DENIED. COUNSEL SHALL SUBMIT AN APPROPRIATE PROTECTIVE ORDER. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 11/4/2014. 11/5/2014 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 11/05/2014)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 22 of 23

12/01/2014 03/06/2015 03/13/2015 03/20/2015
02/10/2016 02/11/2016
02/12/2016 02/12/2016 02/23/2016 02/24/2016
03/03/2016 03/16/2016
05/03/2016 05/06/2016 06/13/2016 06/13/2016

130 PROTECTIVE ORDER ENTERED AS OUTLINED HEREIN. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/1/2014. 12/2/2014 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 12/02/2014)
131 ORDER THAT A TELEPHONE STATUS CONFERENCE IS SET FOR 3/13/2015 11:30 AM BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/6/2015. 3/9/2015 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 03/09/2015)
132 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK Telephone Conference held on 3/13/2015 (sg, ) (Entered: 03/13/2015)
133 SIXTH AMENDED SCHEDULING ORDER THAT ALL FACT DISCOVERY IS DUE BY 6/30/2015. MOTIONS FOR SUMMARY JUDGMENT DUE BY 2/15/2016.. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/20/2015. 3/23/2015 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(kp, ) (Entered: 03/23/2015)
134 NOTICE of Appearance by CRAIG M. STRAW on behalf of CITY OF PHLADELPHIA, LOUIS GIORLA with Certificate of Service(STRAW, CRAIG) (Entered: 02/10/2016)
137 ORDER THAT A STATUS CONFERENCE SET FOR 2/24/2016 11:00 AM IN JUDGE CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 2/11/2016. 2/12/2016 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 02/12/2016)
135 NOTICE of Withdrawal of Appearance by JEFFREY M. SCOTT on behalf of CITY OF PHLADELPHIA, LOUIS GIORLA(SCOTT, JEFFREY) (Entered: 02/12/2016)
136 NOTICE of Withdrawal of Appearance by JEFFREY M. KOLANSKY on behalf of CITY OF PHLADELPHIA, LOUIS GIORLA(KOLANSKY, JEFFREY) (Entered: 02/12/2016)
138 NOTICE of Appearance by BRYAN C. HUGHES on behalf of R. SETH WILLIAMS (HUGHES, BRYAN) (Entered: 02/23/2016)
139 ORDER THAT THE STATUS CONFERENCE SET FOR 2/24/2016 HAS BEEN RESCHEDULED FOR 3/3/2016 11:00 AM IN JUDGE CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 2/24/2016. 2/25/2016 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 02/25/2016)
140 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICK Status Conference held on 3/3/2016. (sg, ) (Entered: 03/04/2016)
141 ORDER THAT THE SETTLEMENT AGREEMENT WHICH IS ATTACHED HERETO IS PRELIMINARILY APPROVED. A HEARING ON THE FAIRNESS OF THE SETTLEMENT AGREEMENT IS SET FOR 5/5/2016 03:00 PM IN COURTROOM 8A BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/16/2016. 3/17/2016 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 03/17/2016)
142 Declaration of Notice of Settlement by CITY OF PHLADELPHIA. (STRAW, CRAIG) (Entered: 05/03/2016)
143 Minute Entry for proceedings held before HONORABLE R. BARCLAY SURRICKin Courtroom 8A FAIRNESS HEARING held on 5/5/2016. Court Reporter: ESR. (sg, ) (Entered: 05/06/2016)
144 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 6/13/2016. 6/14/2016 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 06/14/2016)
145 ORDER THAT THE SETTLEMENT AGREEMENT IS APPROVED. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 6/13/2016. 6/14/2016 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sg, ) (Entered: 06/14/2016)

Case: 2:08-cv-1979 As of: 11/05/2017 02:40 PM EST 23 of 23
07/12/2016 146 TRANSCRIPT of Proceedings held on 5/5/16 before Judge SURRICK. Court Reporter: ESR. DOMAIN TRANSCRIPTION SERVICE (jl, ) (Entered: 07/12/2016)