U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:19-cv-01075-ERK-PK

Scott et al v. Quay Assigned to: Judge Edward R. Korman Referred to: Magistrate Judge Peggy Kuo related Cases: 1:19-cv-02568-ERK-PK
1:19-cv-02135-MKB-PK 1:19-cv-02134-MKB-PK 1:19-cv-05039-ERK-PK Cause: 28:1391 Personal Injury

Date Filed: 02/22/2019 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff David Scott

represented by Alexander A. Reinert Alex Reinert c/o Benjamin N. Cardozo School of Law 55 Fifth Avenue New York, NY 10003 646-592-6543 Email: areinert@yu.edu ATTORNEY TO BE NOTICED

Betsy R. Ginsberg Benjamin N. Cardozo School 55 5th Avenue Eleventh Floor New York, NY 10003 (212)790-0871 Fax: (212)790-0256 Email: betsy.ginsberg@yu.edu ATTORNEY TO BE NOTICED

O. Andrew F. Wilson Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue at Rockefeller Plaza 10th Floor New York, NY 10020 212-763-5000 Email: awilson@ecbawm.com ATTORNEY TO BE NOTICED

Plaintiff Jeremy Cerda
Plaintiff

Scout Katovich Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue Ste 10th Floor New York New York, NY 10020 212-763-5000 Email: skatovich@ecbalaw.com ATTORNEY TO BE NOTICED
Katherine Ruth Rosenfeld Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212-763-5000 Email: krosenfeld@ecbawm.com ATTORNEY TO BE NOTICED
represented by Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED
Betsy R. Ginsberg (See above for address) ATTORNEY TO BE NOTICED
O. Andrew F. Wilson (See above for address) ATTORNEY TO BE NOTICED
Scout Katovich (See above for address) ATTORNEY TO BE NOTICED
Katherine Ruth Rosenfeld (See above for address) ATTORNEY TO BE NOTICED

Osman Ak
Plaintiff Merudh Patel
Plaintiff Larry Williams
Plaintiff Gregory Hardy

represented by Betsy R. Ginsberg (See above for address) ATTORNEY TO BE NOTICED
Scout Katovich (See above for address) ATTORNEY TO BE NOTICED
Katherine Ruth Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Betsy R. Ginsberg (See above for address) ATTORNEY TO BE NOTICED
Scout Katovich (See above for address) ATTORNEY TO BE NOTICED
Katherine Ruth Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Scout Katovich (See above for address) ATTORNEY TO BE NOTICED
Katherine Ruth Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Betsy R. Ginsberg (See above for address) ATTORNEY TO BE NOTICED
Scout Katovich (See above for address) ATTORNEY TO BE NOTICED
Katherine Ruth Rosenfeld

V.
Defendant
Warden Herman E. Quay Warden Herman E. Quay TERMINATED: 11/15/2019

(See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Anne Mahoney United States Attorneys Office Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201-1820 (718)254-6026 Fax: (718)254-6081 Email: Kathleen.Mahoney@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth D. Eichenholtz United States Attorneys Office 271 Cadman Plaza East Brooklyn, NY 11201 718-254-7036 Fax: 718-254-6081 Email: seth.eichenholtz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean P. Greene United States Attorney's Office, EDNY 271 Cadman Plaza East 7th Floor Brooklyn, NY 11201 718-254-6484 Fax: 718-254-7483 Email: sean.greene@usdoj.gov ATTORNEY TO BE NOTICED
Shana C. Priore DOJ-USAO 271-A Cadman Plaza East Ste 7117 Brooklyn, NY 11201 718-254-6008

Defendant Former Warden Herman E. Quay
Defendant Facilities Manager John Maffeo Facilities Manager John Maffeo

Email: shana.c.priore@usdoj.gov ATTORNEY TO BE NOTICED
represented by Kathleen Anne Mahoney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth D. Eichenholtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paulina Stamatelos DOJ-USAO 271A Cadman Plaza East Brooklyn, NY 11201 718-254-6198 Email: Pauline.Stamatelos@usdoj.gov ATTORNEY TO BE NOTICED
Sean P. Greene (See above for address) ATTORNEY TO BE NOTICED
Shana C. Priore (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Anne Mahoney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth D. Eichenholtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paulina Stamatelos (See above for address) ATTORNEY TO BE NOTICED

Defendant The United States of America

Sean P. Greene (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Anne Mahoney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean P. Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth D. Eichenholtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paulina Stamatelos (See above for address) ATTORNEY TO BE NOTICED
Shana C. Priore (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/22/2019
02/22/2019

# Docket Text
1 COMPLAINT against Herman E. Quay filing fee $ 400, receipt number ANYEDC-11224177 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by David Scott, Jeremy Cerda. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons Defendant Warden Herman E. Quay, # 3 Supplement - Related Case Statement) (Rosenfeld, Katherine) (Entered: 02/22/2019)
Case Assigned to Judge Margo K. Brodie and Magistrate Judge Lois Bloom. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) (Entered: 02/22/2019)

02/22/2019
02/22/2019 02/22/2019

2 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085. pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) (Entered: 02/22/2019)
3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) (Entered: 02/22/2019)
4 Notice of Related Case (Davis, Kimberly) (Entered: 02/22/2019)

02/22/2019 02/22/2019 03/05/2019
04/11/2019 04/22/2019

5 Summons Issued as to Herman E. Quay. (Davis, Kimberly) (Entered: 02/22/2019)
6 NOTICE of Appearance by O. Andrew F. Wilson on behalf of Jeremy Cerda, David Scott (aty to be noticed) (Wilson, O. Andrew) (Entered: 02/22/2019)
ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Steven M. Gold for all further proceedings. Magistrate Judge Lois Bloom no longer assigned to case Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Ordered by Chief Judge Dora Lizette Irizarry on 3/5/2019. (Bowens, Priscilla) (Entered: 03/05/2019)
7 Third Party Motion filed by Olena Kalichenko and Antoanita Iotova to join the claim as class members. (Attachments: # 1 Mailing Envelope) (Piper, Francine) (Entered: 04/12/2019)
8 SUMMONS Returned Executed by David Scott, Jeremy Cerda. Herman E. Quay served on 4/15/2019, answer due 5/6/2019. (Rosenfeld, Katherine) (Entered: 04/22/2019)

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07/19/2019 07/19/2019 07/23/2019 07/23/2019 07/24/2019 07/26/2019 07/30/2019

STATUS REPORT ORDER: Counsel shall file a letter reporting on how he intends to proceed with the case by May 30, 2019. Ordered by Magistrate Judge Steven M. Gold on 5/23/2019. (Gillespie, Saudia) (Entered: 05/23/2019)
9 Mail receipt (Wilson, O. Andrew) (Entered: 05/29/2019)
10 Letter to Magistrate Judge Steven M. Gold In Response to the Court's May 23, 2019 Order by Jeremy Cerda, David Scott (Rosenfeld, Katherine) (Entered: 05/30/2019)
11 SCHEDULING ORDER: An in-person initial conference will be held at 2:30 p.m. on September 13, 2019 before the undersigned in Courtroom 13-D South. Counsel for all parties must attend. Counsel for plaintiff are directed to immediately confirm this conference date and time with defendant's counsel. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. Ordered by Magistrate Judge Steven M. Gold on 5/31/2019. (Attachments: # 1 Chamber's Individual Rules) (Gillespie, Saudia) (Entered: 05/31/2019)
12 NOTICE of Appearance by Betsy R. Ginsberg on behalf of Jeremy Cerda (aty to be noticed) (Ginsberg, Betsy) (Entered: 07/19/2019)
13 NOTICE of Appearance by Alexander A. Reinert on behalf of Jeremy Cerda (aty to be noticed) (Reinert, Alexander) (Entered: 07/19/2019)
14 MOTION for pre motion conference in connection with defendant's anticipated motion to dismiss by Herman E. Quay. (Eichenholtz, Seth) (Entered: 07/23/2019)
ORDER re 14 MOTION for pre motion conference. Plaintiffs shall respond to defendant's 14 motion for pre-motion conference on or before July 31, 2019. Ordered by Judge Margo K. Brodie on 7/23/2019. (Morel, Christopher) (Entered: 07/23/2019)
15 NOTICE of Appearance by Sean P. Greene on behalf of Herman E. Quay (aty to be noticed) (Greene, Sean) (Entered: 07/24/2019)
16 Letter TO CLERK OF COURT, DOUGLAS C. PALMER; RE: REQUEST FOR PRO SE CASES TO BE DESIGNATED AS RELATED by Jeremy Cerda, David Scott (Rosenfeld, Katherine) (Entered: 07/26/2019)
17 Letter responding to and opposing in part plaintiffs' July 26 letter request to deem six other cases related to this matter by Herman E. Quay (Eichenholtz, Seth) (Entered: 07/30/2019)

07/31/2019 07/31/2019 08/01/2019
08/06/2019 08/08/2019 08/08/2019
09/05/2019 09/09/2019 09/09/2019

18 Letter To: JUDGE BRODIE Re: OPPOSITION TO DEFENDANT QUAY'S REQUEST FOR A PRE-MOTION CONFERENCE TO DISMISS THE COMPLAINT. [ECF NO.14] by Jeremy Cerda, David Scott (Rosenfeld, Katherine) (Entered: 07/31/2019)
19 Letter TO: JUDGE BRODIE RE: OPPOSITION TO DEFENDANT QUAY'S REQUEST FOR A PRE-MOTION CONFERENCE TO DISMISS THE COMPLAINT. [ECF NO.14] *CORRECTED* by Jeremy Cerda, David Scott (Rosenfeld, Katherine) (Entered: 07/31/2019)
ORDER granting in part and denying in part 14 Motion for Pre Motion Conference. The Court denies defendants' request for a premotion conference. The parties shall confer and agree to a schedule pursuant to which plaintiffs will file an amended complaint and defendants, to the extent they still seek to move to dismiss the amended complaint, would move to dismiss. Ordered by Judge Margo K. Brodie on 8/1/2019. (Morel, Christopher) (Entered: 08/01/2019)
20 NOTICE of Appearance by Alexander A. Reinert on behalf of David Scott (aty to be noticed) (Reinert, Alexander) (Entered: 08/06/2019)
21 Letter TO JUDGE BRODIE re: JOINT PROPOSED SCHEDULE by Jeremy Cerda, David Scott (Rosenfeld, Katherine) (Entered: 08/08/2019)
ORDER re 21 Letter. The Court adopts the parties' proposed briefing schedule: plaintiffs shall file their amended complaint on or before November 15, 2019; defendants motion to dismiss, if any, shall be served on or before December 16, 2019; plaintiffs' opposition shall be served on or before January 24, 2020; and defendants' reply, if any, shall be filed on or before February 12, 2020. Ordered by Judge Margo K. Brodie on 8/8/2019. (Morel, Christopher) (Entered: 08/08/2019)
22 MOTION to Adjourn Conference from September 13 until a date after November 15, plaintiffs' deadline to amend the complaint by Herman E. Quay. (Eichenholtz, Seth) (Entered: 09/05/2019)
23 RESPONSE in Opposition re 22 MOTION to Adjourn Conference from September 13 until a date after November 15, plaintiffs' deadline to amend the complaint filed by Jeremy Cerda, David Scott. (Rosenfeld, Katherine) (Entered: 09/09/2019)
ORDER: Denying 22 Motion to Adjourn Conference. The in-person initial conference previously set for September 13, 2019 at 2:30

09/12/2019 09/12/2019 09/16/2019
10/17/2019
11/04/2019

p.m. will proceed as scheduled. Ordered by Magistrate Judge Steven M. Gold on 9/9/2019. (Gillespie, Saudia) (Entered: 09/09/2019)
24 Letter Advising Court that Defendant Intends to Seek a Stay of Discovery at the Initial Conference by Herman E. Quay (Greene, Sean) (Entered: 09/12/2019)
25 Letter to Douglas C. Palmer, Clerk of the Court, to Inquire as to the Status of Plaintiffs' Request for Pro Se Cases to be Designated as Related by Jeremy Cerda, David Scott (Rosenfeld, Katherine) (Entered: 09/12/2019)
26 Minute Entry: Initial Conference Hearing held on 9/13/2019 before Magistrate Judge Steven M. Gold. Rosenfeld, Reinert and others for plaintiffs, Eichenholtz and Greene for defendant. For the reasons stated on the record, defendant will not be required to respond to discovery demands until after plaintiffs' anticipated amended complaint is filed and a schedule is set at an initial conference. THE COURT WILL HOLD AN INITIAL CONFERENCE AT 4:00 PM ON NOVEMBER 25, 2019. Counsel shall submit a letter, jointly if feasible, identifying any matters in dispute they intend to raise at the conference by November 20, 2019. (FTR Log #2:35-3:19.) (Gillespie, Saudia) (Main Document 26 replaced on 9/16/2019) (Gillespie, Saudia). Modified on 9/17/2019 (Hong, Loan). (Entered: 09/16/2019)
27 TRANSCRIPT of Proceedings held on September 13, 2019, before Judge Gold. Court Reporter/Transcriber TypeWrite Word Processing Service, Telephone number 518-581-8973. Email address: transcripts@typewp.com. 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.File redaction request using event "Redaction Request - Transcript" located under "Other Filings Other Documents". Redaction Request due 11/7/2019. Redacted Transcript Deadline set for 11/18/2019. Release of Transcript Restriction set for 1/15/2020. (Hong, Loan) (Entered: 10/17/2019)
SCHEDULING ORDER: Due to a scheduling conflict, the initial conference previously scheduled for November 25, 2019 is adjourned to November 26, 2019 at 11:30 a.m. in Courtroom 13D South before the undersigned. Counsel for all parties must attend. Counsel for plaintiffs is directed to immediately confirm this conference date and time with defendant's counsel. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. Ordered by Magistrate Judge Steven M. Gold on 11/4/2019. (Gillespie, Saudia) (Entered: 11/04/2019)

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11/15/2019 11/15/2019 11/15/2019 11/18/2019 11/20/2019 11/21/2019
11/22/2019
11/22/2019

28 NOTICE of Appearance by Scout Katovich on behalf of Jeremy Cerda, David Scott (aty to be noticed) (Katovich, Scout) (Entered: 11/05/2019)
29 AMENDED COMPLAINT against Former Warden Herman E. Quay, John Maffeo, The United States of America, filed by David Scott, Jeremy Cerda, Osman Ak, Merudh Patel, Larry Williams, Gregory Hardy. (Rosenfeld, Katherine) Modified on 11/18/2019 to correct Defendants name (Piper, Francine). (Entered: 11/15/2019)
30 Proposed Summons. Re 29 Amended Complaint by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Rosenfeld, Katherine) (Entered: 11/15/2019)
31 Proposed Summons. Re 29 Amended Complaint by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Rosenfeld, Katherine) (Entered: 11/15/2019)
32 Proposed Summons. Re 29 Amended Complaint by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Rosenfeld, Katherine) (Entered: 11/15/2019)
33 Summons Issued as to John Maffeo, Herman E. Quay, The United States of America, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Former Warden Summons, # 2 Facilities Manager Summons) (Piper, Francine) (Entered: 11/18/2019)
34 Letter Joint Status Letter by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Katovich, Scout) (Entered: 11/20/2019)
35 Letter advising the Court that at the upcoming status conference, defendants intend to seek a 45 day extension of their time to file a motion to dismiss (which plaintiffs do not oppose) and a continued stay of discovery (which plaintiffs do oppose), along with the reasons for both requests by Herman E. Quay, The United States of America (Eichenholtz, Seth) (Entered: 11/21/2019)
36 NOTICE by Osman Ak, Gregory Hardy, Merudh Patel, Larry Williams Law Student Appearance Forms (Attachments: # 1 Law Student Appearance Forms for Alexander Hunter, # 2 Law Student Appearance Forms for Gabriella Javaheri) (Ginsberg, Betsy) (Entered: 11/22/2019)
37 SUMMONS Returned Executed by Larry Williams, Jeremy Cerda, Osman Ak, Merudh Patel, David Scott, Gregory Hardy. John Maffeo

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12/04/2019 12/04/2019 12/05/2019

served on 11/21/2019, answer due 12/12/2019. (Rosenfeld, Katherine) (Entered: 11/22/2019)
39 Letter in response to Defendants' Nov. 21 Request for Stay of Discovery by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Ginsberg, Betsy) (Entered: 11/25/2019)
40 ORDER re 36 Notice(Other), filed by Osman Ak, Merudh Patel, Larry Williams, Gregory Hardy. The law student appearance applications are approved. Ordered by Magistrate Judge Steven M. Gold on 11/26/2019. (Gold, Steven) (Entered: 11/26/2019)
41 Minute Entry: Initial Conference Hearing held on 11/26/2019 before Magistrate Judge Steven M. Gold. Ginsberg, Katovich, Wilson, and Hunter (law student) for plaintiffs; Eichenholtz and Greene for defendants. Defendants' application to defer discovery until after their anticipated motion to dismiss is decided, or at a minimum briefed, is denied. That said, counsel for both sides expect that they will work together cooperatively and accommodate reasonable requests for extensions of time. Rule 26(a)(1) disclosures will be made by December 9, and interrogatories and document demands may be served by December 20, 2019. Counsel for plaintiffs will submit a letter identifying other pending cases that might arguably be related to this one and the status of each. THE COURT WILL HOLD A FURTHER CONFERENCE AT 10:00 AM ON FEBRUARY 13, 2020. If counsel anticipate raising substantive disputes, they shall identify them in letters filed by February 7, with responses due by February 11, 2020. (FTR Log #11:30-11:59.) (Gillespie, Saudia) (Entered: 11/27/2019)
42 SUMMONS Returned Executed by Larry Williams, Jeremy Cerda, Osman Ak, Merudh Patel, David Scott, Gregory Hardy. The United States of America served on 11/22/2019, answer due 1/21/2020. (Attachments: # 1 Exhibit A - Affidavit of Service, # 2 Exhibit B Certified Mail and Return Receipt) (Rosenfeld, Katherine) (Entered: 12/04/2019)
43 Consent MOTION for Extension of Time to File Defendants' Anticipated Motion to Dismiss the Amended Complaint by Herman E. Quay, The United States of America. (Greene, Sean) (Entered: 12/04/2019)
ORDER: Granting 43 Motion for Extension of Time to File. The time for defendants to serve their anticipated motion to dismiss is extended to January 30, 2020. Ordered by Magistrate Judge Steven M. Gold on 12/5/2019. (Gillespie, Saudia) (Entered: 12/05/2019)

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44 NOTICE of Appearance by Shana C. Priore on behalf of Herman E. Quay, Herman E. Quay, The United States of America (aty to be noticed) (Priore, Shana) (Entered: 12/05/2019)
45 Letter Regarding Status of Related Cases by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Ginsberg, Betsy) (Entered: 12/10/2019)
46 Consent MOTION for Extension of Time to File Defendants' Motion to Dismiss the Amended Complaint by John Maffeo, Herman E. Quay, Herman E. Quay, The United States of America. (Greene, Sean) (Entered: 01/23/2020)
47 Supplemental MOTION for Extension of Time to File Defendants' Motion to Dismiss the Amended Complaint and for Approval of the Proposed Amended Briefing Schedule (Supplementing Dkt. No. 46) by Herman E. Quay, Herman E. Quay, The United States of America. (Greene, Sean) (Entered: 01/23/2020)
ORDER: Terminating 46 Motion for Extension of Time to File. Granting 47 Supplemental Motion for Extension of Time to File. Defendant shall file their motion to dismiss by February 13, 2020, plaintiff shall file their reply by March 31, 2020, defendants shall file their reply by April 21, 2020. Ordered by Magistrate Judge Steven M. Gold on 1/24/2020. (Gillespie, Saudia) (Entered: 01/24/2020)
STATUS REPORT ORDER: Counsel shall submit a letter by January 31, 2020, indicating whether they seek to proceed with the conference on February 13, 2020 and, if so, the matter they intend to raise at that time. Ordered by Magistrate Judge Steven M. Gold on 1/24/2020. (Gillespie, Saudia) (Entered: 01/24/2020)
48 STATUS REPORT and request to adjourn the February 13 status conference by Herman E. Quay, The United States of America (Eichenholtz, Seth) Modified to add motion on 1/31/2020 (Gillespie, Saudia). (Entered: 01/30/2020)
ORDER: Granting 48 Status Report/Motion to Adjourn Conference. The status conference previously scheduled for February 13, 2020 is adjourned to March 9, 2020 at 10:00 a.m. in Courtroom 13D South before the undersigned. If counsel anticipate raising substantive disputes, they shall identify them in letters filed by March 3, 2020, with responses due by March 6, 2020. Ordered by Magistrate Judge Steven M. Gold on 1/31/2020. (Gillespie, Saudia) (Entered: 01/31/2020)

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49 MOTION for Leave to File Excess Pages in Connection with Defendants' Memorandum of Law in Support of Their Anticipated Motion to Dismiss by John Maffeo, Herman E. Quay, The United States of America. (Greene, Sean) (Entered: 02/05/2020)
ORDER granting 49 Motion for Leave to File Excess Pages. The Court grants defendants leave to file excess pages. Defendants' memorandum shall not exceed thirty-three (33) pages in length. Ordered by Judge Margo K. Brodie on 2/6/2020. (Johnson, Alexsis) (Entered: 02/06/2020)
50 Letter to Plaintiffs Enclosing Defendants' Motion to Dismiss the Amended Complaint by John Maffeo, Herman E. Quay, The United States of America (Greene, Sean) (Entered: 02/13/2020)
51 TRANSCRIPT of Proceedings held on November 26, 2019, before Judge Gold. Court Transcriber: Transcription Plus II, Inc.. Email address: laferrara44@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings Other Documents". Redaction Request due 3/24/2020. Redacted Transcript Deadline set for 4/3/2020. Release of Transcript Restriction set for 6/1/2020. (Rocco, Christine) (Entered: 03/03/2020)
52 Letter Pre-Conference Letter Identifying Substantive Disputes by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Attachments: # 1 Exhibit A - OIG Report) (Katovich, Scout) (Entered: 03/03/2020)
53 Letter responding to plaintiffs' March 3 letter setting forth issues to be addressed at the March 9 status conference by John Maffeo, Herman E. Quay, The United States of America (Eichenholtz, Seth) (Entered: 03/06/2020)
Minute Entry: Status Conference held on 3/9/2020 before Magistrate Judge Steven M. Gold. Katherine Rosenfeld and Scout Katovich of Emery, Celli, Brinckerhoff & Abady, LLP, Betsy Ginsberg and law students Alexander Hunter and Gabriella Javaheri of Benjamin N. Cardozo School appearing on behalf of plaintiffs in Scott et al v. Quay, 19-cv-01075; pro se plaintiff did not appear in Saeed v. Quay, 19-cv-02134; pro se plaintiff Roberto Alicea appearing by telephone in Alicea v. Quay et al., 19-cv-02135; Amy Beth Marion appearing on behalf of plaintiff in ONeal et al v. United States of America et al., 19-CV-5039. Seth D. Eichenholtz, Sean Greene, and Shana Priore

03/12/2020

appearing on behalf of the Government; Holly Pratesi, BOP agency counsel, appearing with defendants.In ONeal v. United States, plaintiff may file an amended complaint by Friday, March 13, 2020 to clarify which claims are brought under the FTCA. By that same date, counsel shall submit a proposed schedule for submission of defendants anticipated premotion conference application seeking leave to move to dismiss.In Scott et al v. Quay, various discovery matters were addressed. The parties are directed to use their best efforts to resolve the remaining discovery matters in dispute and to inform the Court by Friday, March 13, 2020 whether they seek an additional conference on March 18, 2020 at 10:30 a.m. to resolve any disputes that remain outstanding. In addition,
(1)Defendants shall disclose staffing level information for the blackout time period at issue. Once plaintiffs execute a confidentiality agreement, defendants shall disclose rosters of employees with responsibility for custody within one week and remaining staffing information within three weeks.
(2) Regarding communications by BOP employees during the blackout period at issue, the parties will confer on search terms to narrow the scope of the disclosures demanded by plaintiffs. Defendants represent that emails are archived for 7 years and thus, if the need arises at a later stage of the case, a second search may be conducted fairly easily.
(3) Defendants shall determine which detainees who were at MDC and subjected to the conditions of confinement at issue at any point during the relevant blackout period are currently in federal and provide plaintiffs a list of those inmates names and register numbers. Defendants shall submit a letter informing plaintiffs how long it will take to produce that information by Friday, March 13, 2020. Defendants shall also inform plaintiffs of the nature of the recordkeeping of addresses of detainees who have since been released from federal custody.
(4) Defendants shall produce documents relied upon in producing the OIG report and the BOP report. Defendants may provide a privilege log to the extent they withhold those documents on privilege grounds.
(FTR Log #1:18-10:34.) (Gillespie, Saudia) (Entered: 03/09/2020)
54 Consent MOTION for Extension of Time to File report to Court on outstanding discovery disputes and for defendants to respond to plaintiffs regarding certain discovery issues by John Maffeo, Herman

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E. Quay, The United States of America. (Eichenholtz, Seth) (Entered: 03/12/2020)
ORDER: Granting 54 Motion for Extension of Time to File. The time for defendants to submit a letter providing plaintiffs with information regarding the custody status of inmates at MDC, discovery issues, and for the parties to report any remaining disputes is extended to March 27, 2020. The status conference previously scheduled for March 18, 2020 is adjourned to April 14, 2020 at 2:30 p.m. in Courtroom 13D South before the undersigned. Counsel for all parties must attend. Counsel for plaintiffs are directed to immediately confirm this conference date and time with defendants' counsel. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. Ordered by Magistrate Judge Steven M. Gold on 3/13/2020. (Gillespie, Saudia) (Entered: 03/13/2020)
55 TRANSCRIPT of Proceedings held on March 9, 2020, before Judge Gold. Court Reporter/Transcriber Transcriptions Plus II, Inc.. Email address: laferrara44@gmail.com. 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.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 4/10/2020. Redacted Transcript Deadline set for 4/20/2020. Release of Transcript Restriction set for 6/18/2020. (Hong, Loan) (Entered: 03/20/2020)
56 MOTION for Extension of Time to File Opposition to Defs' Motion to Dismiss and Request to File Brief of Equal Number of Pages to Defendants, MOTION for Extension of Time to File Response/Reply
as to 50 Letter by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott. (Ginsberg, Betsy) (Entered: 03/23/2020)
57 Second MOTION for Extension of Time to Complete Discovery regarding certain discovery issues by John Maffeo, Herman E. Quay, The United States of America. (Eichenholtz, Seth) (Entered: 03/25/2020)
ORDER granting 56 Motion for Extension of Time to File to April 14, 2020; granting 56 Motion for Extension of Time to File Response/Reply to May 5, 2020. Ordered by Magistrate Judge Steven M. Gold on 3/25/2020. (Gold, Steven) (Entered: 03/25/2020)

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ORDER granting 57 Motion for Extension of Time to Complete Discovery Discovery due by 4/10/2020.Ordered by Magistrate Judge Steven M. Gold on 3/25/2020. (Gold, Steven) (Entered: 03/25/2020)
58 NOTICE of Appearance by Kathleen Anne Mahoney on behalf of All Defendants (aty to be noticed) (Mahoney, Kathleen) (Entered: 04/07/2020)
RE-SCHEDULING ORDER: The in-person status conference previously scheduled for April 14, 2020 at 2:30 p.m. is CONVERTED to a TELEPHONIC-STATUS CONFERENCE. Each party is directed to call the following conference number: 877-336-1839, and use access code 3482793. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. Ordered by Magistrate Judge Steven M. Gold on 4/10/2020. (Gillespie, Saudia) (Entered: 04/10/2020)
59 STATUS REPORT regarding the status of discovery by John Maffeo, Herman E. Quay, The United States of America (Priore, Shana) (Entered: 04/10/2020)
60 Letter to Defendants Enclosing Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss the Amended Complaint by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Katovich, Scout) (Entered: 04/14/2020)
61 In 19cv1075, Katovich, Rosenfeld, Wilson, Hunter and Reinert for plaintiffs; Eichenholtz, Mahoney, Greene and Priore, with Nash, for defendants. In 19cv2134, Priore for defendants. In 19cv2135, Greene for defendants. In 19cv5039, Kelton for plaintiffs and Priore for defendants. Mr. Alicea, plaintiff in 19cv2135, will submit his opposition to defendants' motion to dismiss no later than 30 days after the motion to dismiss in 19cv1075 is filed. The parties in 19cv1075 report that they have agreed to the terms of a protective order. Defendants in that matter will respond to plaintiffs' proposed ESI search terms by April 16, 2020. Counsel in 19cv5039 expect to agree that, once plaintiffs serve demands and agree to a protective order, discovery similar to that which is expected to be provided by defendants in 19cv1075 will be produced by defendants in 19cv5039. THE COURT WILL HOLD A FURTHER TELEPHONE CONFERENCE AT 2:00 PM ON MAY 26, 2020. Counsel will submit a letter reporting on the parties progress in discovery and identifying any disputes they expect to raise at the conference by May

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21, 2020. (FTR Log #2:30-3:00.) (Gillespie, Saudia) (Entered: 04/14/2020)
62 Letter to Honorable Steven M. Gold enclosing proposed Stipulation and Order for the Protection of Materials and Information by The United States of America (Attachments: # 1 Proposed Order) (Mahoney, Kathleen) Modified to add motion on 4/15/2020 (Gillespie, Saudia). (Entered: 04/15/2020)
ORDER: 62 Motion for Protective Order is hereby approved and entered as an Order of the Court. Ordered by Magistrate Judge Steven M. Gold on 4/15/2020. (Gillespie, Saudia) (Entered: 04/15/2020)
63 Letter MOTION for Leave to File Excess Pages in Connection with Defendants' Reply Memorandum of Law by John Maffeo, Herman E. Quay, The United States of America. (Greene, Sean) (Entered: 04/29/2020)
64 Consent MOTION for Extension of Time to File Defendants' Reply Memorandum of Law by John Maffeo, Herman E. Quay, The United States of America. (Greene, Sean) (Entered: 04/29/2020)
ORDER: Granting 64 Motion for Extension of Time to File. The time to serve defendants' reply memorandum of law in further support of their motion to dismiss the Amended Complaint is extended to May 12, 2020. Ordered by Magistrate Judge Steven M. Gold on 4/29/2020. (Gillespie, Saudia) (Entered: 04/29/2020)
ORDER granting 63 Motion for Leave to File Excess Pages. The Court grants defendants' application for leave to file excess pages. Defendants' reply brief shall not exceed twenty (20) pages in length. Ordered by Judge Margo K. Brodie on 5/5/2020. (Johnson, Alexsis) (Entered: 05/05/2020)
65 MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction by John Maffeo, Herman E. Quay, The United States of America. (Attachments: # 1 Declaration of Seth D. Eichenholtz in support of the motion, with exhibits) (Eichenholtz, Seth) (Entered: 05/08/2020)
66 MEMORANDUM in Support re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by John Maffeo, Herman E. Quay, The United States of America. (Eichenholtz, Seth) (Entered: 05/08/2020)
67 REPLY in Support re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by John

05/08/2020 05/08/2020 05/21/2020 05/21/2020 05/26/2020 05/26/2020
06/05/2020

Maffeo, Herman E. Quay, The United States of America. (Eichenholtz, Seth) (Entered: 05/08/2020)
68 Letter advising the Court that Defendants' motion to dismiss is now fully briefed, that defendants have filed their motion papers, and that defendants respectfully request to be excused from the requirement to produce courtesy copies in light of the current limitations by John Maffeo, Herman E. Quay, The United States of America (Eichenholtz, Seth) (Entered: 05/08/2020)
69 MEMORANDUM in Opposition re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams. (Rosenfeld, Katherine) (Entered: 05/08/2020)
70 Letter to Honorable Steven M. Gold on behalf of Defendants reporting on status of discovery by The United States of America (Mahoney, Kathleen) (Entered: 05/21/2020)
71 Letter re Status of Discovery by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Katovich, Scout) (Entered: 05/21/2020)
72 Letter to Honorable Steven M. Gold regarding disputes identifed in Plaintiffs' letter dated 5/21/20 by The United States of America (Mahoney, Kathleen) (Entered: 05/26/2020)
73 Minute Entry: Telephone Conference held on 5/26/2020 before Magistrate Judge Steven M. Gold. Katovich, Rosenfeld, Ginsberg, and Reinert for plaintiffs; Eichenholtz, Mahoney, Greene and Priore, with Nash, for defendants, in 19cv1075. Marion for plaintiff in 19cv5039, Priore for defendants. Court reporter Michele Lucchese. Various discovery rulings concerning the scope of ESI discovery to be produced by defendants were made on the record of today's proceeding. By June 5, 2020, defendants shall provide (1) a proposed schedule for producing the ESI discussed today and a proposed date for a further conference, and (2) a letter informing plaintiffs of the nature of the record-keeping maintained by defendants of addresses of detainees who have been released from BOP custody during the relevant period of time. (Court Reporter Michele Lucchese.) (Gillespie, Saudia) (Entered: 05/27/2020)
74 Letter to Honorable Steven M. Gold by The United States of America (Mahoney, Kathleen) Modified to add motion on 6/8/2020 (Gillespie, Saudia). (Entered: 06/05/2020)

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09/02/2020

ORDER REFERRING MOTION: 65 MOTION to Dismiss. The Court respectfully refers defendants' motion to dismiss to Magistrate Judge Steven M. Gold for a report and recommendation. Ordered by Judge Margo K. Brodie on 6/6/2020. (Williams, Tenisha) (Entered: 06/06/2020)
ORDER: Granting 74 Motion for Extension of Time to File. Defendants shall file a letter proposing a date for the next conference by July 2, 2020. Ordered by Magistrate Judge Steven M. Gold on 6/8/2020. (Gillespie, Saudia) (Entered: 06/08/2020)
75 Letter MOTION for Extension of Time to File until 7/17/12, a proposed ESI production schedule; on consent by The United States of America. (Mahoney, Kathleen) (Entered: 07/02/2020)
ORDER: Granting 75 Motion for Extension of Time to File. The time for defendants to file a letter proposing a date for the next conference is extended to July 17, 2020. Ordered by Magistrate Judge Steven M. Gold on 7/2/2020. (Gillespie, Saudia) (Entered: 07/02/2020)
76 Letter MOTION for Extension of Time to File status report/update regarding proposed schedule for ESI production by The United States of America. (Mahoney, Kathleen) (Entered: 07/17/2020)
ORDER: Granting 76 Motion for Extension of Time to File. The time for defendants to file a letter proposing a date for the next conference is extended to July 31, 2020. Ordered by Magistrate Judge Steven M. Gold on 7/21/2020. (Gillespie, Saudia) (Entered: 07/21/2020)
77 Letter to Honorable Steven M. Gold regarding proposed date for next status conference and ESI production by The United States of America (Mahoney, Kathleen) (Entered: 07/31/2020)
SCHEDULING ORDER: A telephone conference will be held at 2:30 p.m. on September 22, 2020 before the undersigned. Counsel for all parties must participate. Each party is directed to call the following conference number: 877-336-1839 and use access code 3482793. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. The time for defendants to submit a letter reporting on the status of the new ESI searches and the parties' progress in negotiating the ESI production is extended to September 2, 2020. Ordered by Magistrate Judge Steven M. Gold on 8/3/2020. (Gillespie, Saudia) (Entered: 08/03/2020)
78 Letter to Honorable Steven M. Gold reporting on status of the ESI searches by The United States of America (Mahoney, Kathleen) (Entered: 09/02/2020)

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STATUS REPORT ORDER: Counsel shall file an updated letter reporting on the status of ESI production by October 1, 2020. Additionally, counsel are to submit a joint letter by September 15, 2020 that either identifies the issues to be raised at the conference set for September 22, 2020 or asks that the conference be adjourned and suggests a new date. Ordered by Magistrate Judge Steven M. Gold on 9/3/2020. (Gillespie, Saudia) Modified to add deadline on 9/3/2020 (Gillespie, Saudia). (Entered: 09/03/2020)
79 Letter re Discovery Status by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Katovich, Scout) (Entered: 09/15/2020)
80 Minute Entry: Telephone Conference held on 9/22/2020 before Magistrate Judge Steven M. Gold. Katovich, Rosenfeld, Ginsberg, and Reinert; Eichenholtz, Greene-Delgado and Mahoney, with Nesh. The parties will submit a stipulation by October 1, 2020 governing the production of the address information discussed on the record today. By October 8, 2020, defendants will produce the address information subject to the stipulation, and will produce unredacted versions of the after-action reports for in camera review. The in camera submission may be supported. (FTR Log #2:30-3:07.) (Gillespie, Saudia) (Entered: 09/22/2020)
81 STATUS REPORT Letter regarding ESI searches by The United States of America (Mahoney, Kathleen) (Entered: 10/01/2020)
82 Letter to Honorable Steven M. Gold enclosing proposed Stipulation and Order for the Protection of Materials and Informatiuon Concerning Individuals Who Are No Longer in the Custody of the Federal Bureau of Prisons by The United States of America (Attachments: # 1 Proposed Order) (Mahoney, Kathleen) (Entered: 10/01/2020)
83 ORDER: Dkt. [82-1] Proposed Protective Order is hereby approved and entered as an Order of the Court. Ordered by Magistrate Judge Steven M. Gold on 10/2/2020. (Gillespie, Saudia) (Entered: 10/02/2020)
84 Letter MOTION for Extension of Time to File In Camera Submission by John Maffeo, Herman E. Quay, The United States of America. (Greene, Sean) (Entered: 10/05/2020)
ORDER: Granting 84 Motion for Extension of Time to File. The time for defendants to file the in camera submission is extended to October 22, 2020. Ordered by Magistrate Judge Steven M. Gold on 10/5/2020. (Gillespie, Saudia) (Entered: 10/05/2020)

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85 Letter to Honorable Steven M. Gold as requested during September 22, 2020 conference regarding MDC contingency plans by The United States of America (Mahoney, Kathleen) (Entered: 10/08/2020)
SCHEDULING ORDER: A Video-Oral Argument re 65 Motion to Dismiss will be held October 21, 2020 at 4:00 p.m. before the undersigned. The Cisco Meeting Space information will be e-mailed to counsel. No application needs to be installed to make use of the software. To access this conference telephonically, please dial (571) 353-2300 and use access code 193459535. If any party has difficulty accessing the conference, please contact Saudia Gillespie at 718-6132560. Ordered by Magistrate Judge Steven M. Gold on 10/14/2020. (Gillespie, Saudia) (Entered: 10/14/2020)
87 Minute Entry: Oral Argument held on 10/21/2020 before Magistrate Judge Steven M. Gold. Reinert and Katovich for plaintiffs, Eichenholtz and Greene-Delgado for defendants. Oral argument held on defendants' motion to dismiss, Dkt. 65. Decision reserved. The parties shall submit letters providing citations to cases cited during the argument but not in their memoranda of law. (Gillespie, Saudia) (Entered: 10/22/2020)
86 Letter to Judge Gold providing full citations to certain cases referenced during oral argument regarding defendants' motion to dismiss by John Maffeo, Herman E. Quay, The United States of America (Eichenholtz, Seth) (Entered: 10/22/2020)
89 Letter in Support of Defendants' Privilege Assertion with Respect to Limited Portions of the BOP After Action Report and Enclosing Declaration of Richard Hollingsworth by John Maffeo, Herman E. Quay, The United States of America (Attachments: # 1 Declaration of Richard Hollingsworth) (Greene, Sean) (Entered: 10/22/2020)
90 Letter to Judge Gold providing citations to cases addressed at oral argument but not in briefing by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Ginsberg, Betsy) (Entered: 10/22/2020)
91 TRANSCRIPT of Proceedings held on October 21, 2020, before Judge Gold. (Pages 1-40) Court Transcriber: Transcriptions Plus II, Inc.. Email address: laferrara44@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 11/13/2020. Redacted Transcript Deadline set for 11/23/2020. Release

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11/16/2020

of Transcript Restriction set for 1/21/2021. (Attachments: # 1 pages 41-79) (Hong, Loan) (Entered: 10/23/2020)
92 Letter Response to Defendants' Letter [Dkt 89] Asserting Privilege re After-Action Report by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Katovich, Scout) (Entered: 10/26/2020)
93 Letter MOTION to Produce ESI Discovery by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams. (Katovich, Scout) (Entered: 11/13/2020)
94 ORDER re 79 - 88 - 89 - 92 : For the reasons set forth in the attached Order, defendants shall produce to plaintiffs a copy of the After Action Report with only the recommendations on pages 28-29 redacted. The Report shall be produced within one week of any Order denying, in whole or in part, defendants' pending motion to dismiss. So Ordered by Magistrate Judge Steven M. Gold on 11/16/2020. (Hazelwood, John) (Entered: 11/16/2020)
95 REPORT AND RECOMMENDATIONS re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Herman E. Quay, The United States of America, John Maffeo: For the reasons stated in the attached Report, I respectfully recommend that the motion to dismiss be granted with respect to the Bivens claims asserted against defendants Quay and Maffeo and denied with respect to the FTCA claim brought by plaintiffs Scott and Cerda against the United States.
Any objections to the recommendations made in this Report must be made within three weeks after filing of this Report and Recommendation and, in any event, on or before December 7, 2020. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive the right to appeal the District Court's order. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (discussing waiver under the former ten-day limit).
Ordered by Magistrate Judge Steven M. Gold on 11/16/2020. (Clancy, Emma) (Entered: 11/16/2020)
96 REPLY to Response to Motion re 93 Letter MOTION to Produce ESI Discovery filed by John Maffeo, Herman E. Quay, The United States of America. (Eichenholtz, Seth) (Entered: 11/16/2020)

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ORDER denying 93 Motion to Produce without prejudice to renew because defendants' response, Dkt. 96, indicates that the parties agree on the November 20, 2020 date for the defendants to produce a count of responsive items and defendants anticipate discussing a deadline for production with plaintiffs and submitting a proposal by December 4, 2020. Ordered by Magistrate Judge Steven M. Gold on 11/16/2020. (Gold, Steven) (Entered: 11/16/2020)
97 Letter MOTION to Adjourn Conference on December 3, 2020 by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams. (Katovich, Scout) (Entered: 11/20/2020)
ORDER: Granting 97 Motion to Adjourn Conference. The telephonicstatus conference previously scheduled for December 3, 2020 is adjourned to December 17, 2020 at 4:00 p.m. Each party is directed to call the following conference number: 877-336-1839 and use access code 3482793. Adjournment requests will not be considered unless made in accordance with this Court's Individual Rules. Ordered by Magistrate Judge Steven M. Gold on 11/20/2020. (Gillespie, Saudia) (Entered: 11/20/2020)
98 Letter to Honorable Steven M. Gold setting forth Defendants' proposed schedule for ESI production by The United States of America (Mahoney, Kathleen) (Entered: 12/04/2020)
99 OBJECTION to 95 Report and Recommendations only as to the portion pertaining to Federal Tort Claims Act claims filed by The United States of America. (Eichenholtz, Seth) (Entered: 12/07/2020)
100 Letter the Court excuse defendant from delivering a courtesy copy of its memorandum to chambers in light of limitations caused by the ongoing public health emergency by The United States of America (Eichenholtz, Seth) (Entered: 12/07/2020)
101 OBJECTION to 95 Report and Recommendations filed by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams. (Katovich, Scout) (Entered: 12/07/2020)
102 Letter Joint Letter to Judge Gold re Updates and Disputes for December 17, 2020 Status Conference by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Katovich, Scout) (Entered: 12/07/2020)
ORDER re 100 Letter Request. The Court grants defendant's request to be excused from delivering a courtesy copy of its memorandum to

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chambers. Ordered by Judge Margo K. Brodie on 12/7/2020. (Ajagu, Vanessa) (Entered: 12/07/2020)
103 Letter to Judge Gold re Addresses of Additional Putative Class Members Released from BOP Custody by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Attachments: # 1 Proposed Order Order for the Production of Information Concerning Individuals No Longer in the Custody of the Federal Bureau of Prisons) (Katovich, Scout) (Entered: 12/09/2020)
104 Letter [CORRECTED] Letter to Judge Gold re Addresses of Additional Putative Class Members Released from BOP Custody by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Attachments: # 1 Proposed Order Order for the Production of Information Concerning Individuals No Longer in the Custody of the Federal Bureau of Prisons) (Katovich, Scout) (Entered: 12/09/2020)
105 ORDER: The proposed order filed as attachment # 1 is hereby approved and entered as an Order of the Court. Ordered by Magistrate Judge Steven M. Gold on 12/9/2020. (Gillespie,
Saudia) VACATED pursuant to 107 Order of Judge Gold. This entry has been modified on December 11, 2020 to indicate order 105 has been vacated. Modified on 12/11/2020 (Piper, Francine). (Entered: 12/09/2020)
106 MOTION to Vacate 105 Order and replace with the proposed order at Docket No. 104-1 by John Maffeo, Herman E. Quay, The United States of America. (Eichenholtz, Seth) (Entered: 12/10/2020)
107 ORDER: Granting 106 Motion to Vacate. Order filed as Dkt. 105 is hereby vacated. See attached Order approving proposed Order for the Production of Information Concerning Individuals No Longer in the Custody of the Federal Bureau of Prisons as Dkt. 104 . Ordered by Magistrate Judge Steven M. Gold on 12/10/2020. (Gillespie, Saudia) (Entered: 12/10/2020)
108 Mail Returned as Undeliverable, "Return to Sender, Not Deliverable As Addressed, Unable to Forward." Minute Entry dated 5/26/2020 previously sent to Mohomed Saeed. (Galeano, Sonia) (Entered: 12/11/2020)
109 Letter MOTION to Appear by Telephone - Request permission for Sonya Levitova, a Legal Fellow working at this firm for one year, to participate in a speaking role at the telephonic status conference scheduled for this Thursday, December 17, 2020 by Osman Ak,

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Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams. (Rosenfeld, Katherine) (Entered: 12/15/2020)
ORDER: Granting 109 Motion to Appear by Telephone. Ordered by Magistrate Judge Steven M. Gold on 12/16/2020. (Gillespie, Saudia) (Entered: 12/16/2020)
110 Consent MOTION for Extension of Time to File Response/Reply as to 99 Objection to Report and Recommendations, 101 Objection to Report and Recommendations until January 4, 2021 by John Maffeo, Herman E. Quay, The United States of America. (Eichenholtz, Seth) (Entered: 12/17/2020)
111 Minute Entry: Status Conference held on 12/17/2020 before Magistrate Judge Steven M. Gold. Katovich and Levitova for plaintiffs, with Rosenfeld, Reinert, Ginsberg; Eichenholtz and Mahoney and Priore and Greene-Delgado for defendants. Discovery rulings on the records. With respect to production of ESI, plaintiffs will identify a sequence of custodians for production by December 30, and defendants will produce responsive ESI on a rolling, weekly basis in equal installments such that all responsive ESI is produced by April 1, 2021. With respect to the after-action report, plaintiffs' application to accelerate production of the report to a date earlier than one week after any decision denying defendants pending motion to dismiss is denied. (FTR Log #4:00-4:34.) (Gillespie, Saudia) (Entered: 12/18/2020)
ORDER granting 110 Motion for Extension of Time to File Response/Reply. The Court grants the parties' motion for extension of time to file a response/reply. The parties shall file their response/reply on or before January 4, 2021. Ordered by Judge Margo K. Brodie on 12/18/2020. (Ajagu, Vanessa) (Entered: 12/18/2020)
112 TRANSCRIPT of Proceedings held on December 17, 2020, before Judge Gold. Court Reporter/Transcriber Fiore Reporting and Transcription Service, Inc., Telephone number 203-929-9992. Email address: cmfiore@sbcglobal.net. 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.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 1/18/2021. Redacted Transcript Deadline set for 1/28/2021. Release of Transcript Restriction set for 3/29/2021. (Hong, Loan) (Entered: 12/28/2020)

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113 MEMORANDUM in Opposition re 99 Objection to Report and Recommendations - Plaintiffs' Response to Defendant United States' Objections to Report and Recommendations filed by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams. (Rosenfeld, Katherine) (Entered: 01/04/2021)
114 MEMORANDUM in Opposition re 101 Objection to Report and Recommendations filed by John Maffeo, Herman E. Quay, The United States of America. (Greene, Sean) (Entered: 01/04/2021)
Case Reassigned to Magistrate Judge Peggy Kuo. Magistrate Judge Steven M. Gold no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Gillespie, Saudia) (Entered: 01/08/2021)
115 Consent MOTION to Amend/Correct/Supplement 111 Status Conference,,, to modify the ESI production schedule to allow productions every other week, to be completed by April 22, 2021 by John Maffeo, Herman E. Quay, The United States of America. (Eichenholtz, Seth) (Entered: 01/21/2021)
ORDER granting 115 Motion to Amend/Correct/Supplement. Defendants are directed to produce responsive ESI every other week in equal installments such that all responsive ESI is produced by April 22, 2021. Ordered by Magistrate Judge Peggy Kuo on 1/22/2021. (O'Neil-Berven, Ryan) (Entered: 01/22/2021)
116 Letter MOTION to Adjourn Conference by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams. (Katovich, Scout) (Entered: 02/09/2021)
ORDER granting 116 Motion to Adjourn Conference. The Telephone Status Conference previously scheduled before Judge Gold is adjourned to March 29, 2021 at 10:00 a.m. before Magistrate Judge Peggy Kuo. The parties are directed to call toll free (877) 3361274 and input the Access Code 1453850 at the time of the Conference. No additional security code is needed. Once all parties are on the line, the call will be connected. (The parties are reminded that, pursuant to Local Civil Rule 1.8, they may not independently record any court proceedings. A transcript of the proceedings may be ordered from the Clerk's Office.) Ordered by Magistrate Judge Peggy Kuo on 2/10/2021. (O'Neil-Berven, Ryan) (Entered: 02/10/2021)

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117 Letter Re: Briefing Schedule for Plaintiffs' Rule 23 Motion for Class Certification by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Ginsberg, Betsy) (Entered: 02/10/2021)
ORDER re 117 Plaintiffs' Letter Proposing Briefing Schedule for Rule 23 Motion for Class Certification. The Court adopts Plaintiffs' proposed briefing schedule for their motion for class certification in part and denies it in part. Plaintiffs shall serve their motion on or before February 17, 2021; Defendants shall serve their opposition on or before April 30, 2021; and Plaintiffs shall serve their reply, if any, on or before May 31, 2021. Ordered by Chief Judge Margo K. Brodie on 2/11/2021. (Ajagu, Vanessa) (Entered: 02/11/2021)
ORDER REASSIGNING CASE. Case reassigned to Judge Edward R. Korman for all further proceedings. Chief Judge Margo K. Brodie no longer assigned to case Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Ordered by Chief Judge Margo K. Brodie on 2/16/2021. (Bowens, Priscilla) (Entered: 02/16/2021)
118 Letter to Defendants Enclosing Plaintiffs' Motion for Class Certification by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Katovich, Scout) (Entered: 02/17/2021)
ORDER: I assume familiarity with the facts as laid out in 95 , the Report and Recommendation (R&R) filed by Magistrate Judge Steven M. Gold on November 16, 2020, which recommends that 65 defendants' motion to dismiss be granted with respect to the Bivens claims asserted against defendants Quay and Maffeo and denied with respect to the Federal Tort Claims Act claim brought by plaintiffs Scott and Cerda against the United States. Plaintiffs and defendants timely filed objections to the R&R. See 99 , 101 . Applying de novo review, 28 U.S.C. § 636(b)(1), I adopt Judge Gold's R&R in its entirety. Defendants' motion to dismiss is granted in part and denied in part. Ordered by Judge Edward R. Korman on 3/22/2021. (Adams, Casey) Modified on 3/22/2021 to correct typo(Magnas, Talia). (Entered: 03/22/2021)
I am considering consolidating this case with related matters Haskins v. US BOP, No. 19-cv-2568, and O'Neal v. United States, No. 19-cv5039, with which it shares common questions of law and fact. See Fed. R. Civ. P. 42. Any party opposing consolidation is

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ordered to show cause why the actions should not be consolidated by April 2, 2021. Ordered by Judge Edward R. Korman on 3/22/2021. (Adams, Casey) (Entered: 03/22/2021)
On consent of the parties in this case, as well as in 19cv5039 and 19cv2568, Status Conference set for 4/7/2021 @ 02:00 PM before Judge Edward R. Korman. The conference will be held via telephone. Please dial the toll free number 888-273-3658 and enter access code 9473181. Ordered by Judge Edward R. Korman on 3/23/2021. (Magnas, Talia) (Entered: 03/23/2021)
119 Letter Providing Joint Status Update in Advance of March 29 Status Conference by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott (Ginsberg, Betsy) (Entered: 03/24/2021)
SCHEDULING ORDER: Due to the Court's unavailability, the Telephone Status Conference previously scheduled for March 29, 2021 is adjourned to March 31, 2021 at 10:00 a.m. before Magistrate Judge Peggy Kuo. The parties are directed to call toll free (877) 3361274 and input the Access Code 1453850 at the time of the Conference. No additional security code is needed. Once all parties are on the line, the call will be connected. (The parties are reminded that, pursuant to Local Civil Rule 1.8, they may not independently record any court proceedings. A transcript of the proceedings may be ordered from the Clerks Office.) Ordered by Magistrate Judge Peggy Kuo on 3/25/2021. (O'Neil-Berven, Ryan) (Entered: 03/25/2021)
On consent of the parties in this case, as well as in 19cv5039 and 19cv2568, the Status Conference via telephone is rescheduled for 4/2/2021 @ 02:00 PM before Judge Edward R. Korman. Please dial the toll free number 888-273-3658 and enter access code 9473181. Ordered by Judge Edward R. Korman on 3/26/2021. (Magnas, Talia) (Entered: 03/26/2021)
ORDER: The briefing schedule for plaintiffs' motion for class certification will be modified in the interest of ensuring this case proceeds expeditiously. Plaintiffs served a copy of their motion on defendants on February 17, 2021. Defendants shall serve their opposition on or before April 15, 2021; and plaintiffs shall serve their reply, if any, on or before April 30, 2021. Ordered by Judge Edward R. Korman on 3/29/2021. (Adams, Casey) (Entered: 03/29/2021)
120 Letter Request that the Court Permit Sonya Levitova to Participate in the March 31, 2021 Telephonic Status Conference by Osman Ak, Jeremy Cerda, Gregory Hardy, Merudh Patel, David Scott, Larry Williams (Katovich, Scout) Modified on 3/30/2021 to reflect this is a motion to appear (O'Neil-Berven, Ryan). (Entered: 03/29/2021)

03/30/2021 03/30/2021 03/31/2021
04/02/2021

121 NOTICE of Appearance by Paulina Stamatelos on behalf of John Maffeo, Herman E. Quay, The United States of America (aty to be noticed) (Stamatelos, Paulina) (Entered: 03/30/2021)
ORDER granting 120 Motion to Appear. Ms. Levitova is permitted to participate in a speaking role at the telephone Status Conference scheduled for March 31, 2021. Ordered by Magistrate Judge Peggy Kuo on 3/30/2021. (O'Neil-Berven, Ryan) (Entered: 03/30/2021)
MINUTE ORDER: Telephone Status Conference held on March 31, 2021 before Magistrate Judge Peggy Kuo. Attorneys Scout Katovich, Betsy Ginsberg, and Alexander Reinert appeared on behalf of Plaintiffs. Non-admitted legal fellow Sonya Levitova also appeared on behalf of Plaintiffs with the Court's permission. Assistant United States Attorneys Kathleen Mahoney, Sean Green, and Paulina Stamatelos appeared on behalf of Defendants.
The parties were heard on the status of ongoing discovery. The parties agreed to continue discussions concerning the production of Electronically Stored Information. Plaintiffs are directed to send a letter to Defendants' counsel as soon as possible clarifying which of the discovery requests first propounded in December 2019 remain relevant in light of the partial grant of the Motion to Dismiss. (See Order dated March 22, 2021.) Defendants are directed to send a letter to Plaintiff's counsel regarding production of information from BOP "email resource boxes," and text and phone logs, by April 15, 2021. The parties are directed to meet and confer by April 23, 2021 and to file a new joint proposed discovery plan based on these discussions by April 28, 2021. The parties may raise any discovery disputes in that letter consistent with Magistrate Judge Kuo's individual rules. Ordered by Magistrate Judge Peggy Kuo on March 31, 2021. (FTR Log 10:04-10:32. (Jochnowitz, David) (Entered: 04/01/2021)
ORDER *** In the interest of expediting this case, the discovery schedule is modified as follows: the Scott plaintiffs will send a letter by April 6 advising defendants of their outstanding discovery requests and proposing a schedule for the completion of all remaining discovery. The Scott parties shall confer on those requests and proposals by April 15. By April 23, the Scott parties shall send me a joint letter with proposed dates for the completion of discovery and advising me of any disagreements they may have about the timing or scope of discovery.
Defendants' deadline to serve their opposition to class certification is extended until April 22. Plaintiffs shall have until May 6 to serve

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04/06/2021

their reply and file the bundle.
The parties in Scott, O'Neal, and Haskins having voiced no objection, these cases are hereby consolidated. Ordered by Judge Edward R. Korman on 4/2/2021 (Rosh, Samuel). (Entered: 04/02/2021)
Case Consolidated. (Tavarez, Jennifer) (Entered: 04/06/2021)
123 Minute Entry for proceedings held before Judge Edward R. Korman:Status Conference held on 4/2/2021 via Teleconference. The Court directs the parties to move discovery forward since it has been dragging along for no reason. Discovery issues heard, see order dated 4/2/2021 for new deadlines.No objections to consolidating the Scott, ONeal and Haskins cases. Plaintiff Terrance Haskins PRO SE was not present in today's teleconference despite efforts to reach him at his last known address via mail. (FTR Log #Hong.) Associated Cases: 1:19cv-01075-ERK-PK, 1:19-cv-02568-ERK-PK, 1:19-cv-05039-ERKPK (Tavarez, Jennifer) (Entered: 04/06/2021)
122 TRANSCRIPT of Proceedings held on April 2, 2021, before Judge Korman. Court Transcriber: Transcription Plus II, Inc. Email address: laferrara44@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 4/27/2021. Redacted Transcript Deadline set for 5/7/2021. Release of Transcript Restriction set for 7/5/2021. (Rocco, Christine) (Entered: 04/06/2021)

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2.10

 
 Case 1:19-cv-01075-MKB-SMG Document 1 Filed 02/22/19 Page 1 of 32 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
DAVID SCOTT and JEREMY CERDA,
individually and on behalf of all others similarly situated,
Plaintiffs,
-against-
WARDEN HERMAN E. QUAY,
Defendant.

No. 19 Civ. 1075
CLASS ACTION COMPLAINT AND JURY DEMAND

David Scott and Jeremy Cerda, on behalf of themselves and others similarly situated, and by and through their attorneys, Emery Celli Brinckerhoff & Abady LLP, allege as follows for their complaint:
PRELIMINARY STATEMENT 1. Wardens must provide the people in their jails with a minimal civilized measure of life’s necessities—adequate safety, food, warmth, exercise, hygiene, and medical care. These are some of the most basic conditions of confinement the Constitution requires. These standards define a civilized society. While jails need not be comfortable, they must provide decent, humane conditions for the people who live there. 2. This case concerns a humanitarian crisis that unfolded in Brooklyn’s federal jail, the Metropolitan Detention Center (“MDC”), during the bitterly cold week of January 27, 2019 to February 3, 2019. The crisis is remarkable both because of how obvious it was in the making and how little was done about it once it happened. The general failings of MDC’s infrastructure and management were widespread and obvious for years before; problems with the heating and electrical systems in particular were erupting throughout January 2019. And when the expected
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happened, MDC’s Warden, Defendant Herman Quay, engaged in a shocking dereliction of his obligation to provide these most basic minimal living standards to more than a thousand people in his care and custody.
3. Following an electrical fire, the West Building of the MDC was without normal electricity beginning on January 27, 2019. In the seven-day period that followed, the men detained in the MDC West Building, the majority of whom were in custody awaiting their trials, were subjected to inhumane conditions that posed unreasonable and substantial risks to their health and safety.
4. For more than a week, MDC’s cells remained dark and cold. People were confined in near pitch-black darkness. People sat shivering in their beds, huddled under blankets with little or no heat in the cells.
5. The lack of light and heat was compounded by an array of other of brutal conditions. People were confined to their cells continuously for days. Hot showers and hot water were suspended or severely limited. Cells with toilets that were not functioning were filled with the smell of decaying feces. People continued to live in their soiled clothing and bedsheets without any laundry. Requests for medical and psychiatric care were ignored. People had no access to regular or hot food. Communication with the outside world—whether by email, phone or visits from lawyers or family—ceased. People struggled to maintain their sanity in a void of information about when the blackout would end. And of course, jail employees were forced to work under these impossible circumstances.
6. These horrifying conditions, independently and through their mutually reinforcing effects, produced a serious deprivation of basic human needs for the people confined in MDC.
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7. Warden Quay knew about the problems with MDC’s infrastructure well before this particular crisis and he knew about the crisis when it happened. He was aware of the appalling conditions at MDC in real time, as each hour of the crisis unfolded, yet he failed to make reasonable efforts to remedy those conditions. He acted with a complete disregard for the humanity of the people who were being held in the jail, and for the people who were working in the jail. He did not provide people with additional blankets or clothing. He did not seek assistance from Con Edison or FEMA in obtaining backup power sources. He did not take any measures to protect the sick, the elderly or the disabled, who were most immediately vulnerable to harm. Instead, Warden Quay locked the more than one thousand people in the jail in their cells, and he left them to freeze in short-sleeved, cotton jumpsuits, in the dark as a polar vortex blasted New York City.
8. Mr. Scott and Mr. Cerda, two former MDC detainees, bring this action for damages on behalf of themselves and all other people subjected to these conditions to redress Defendant’s violation of their rights under the Fifth and Eighth Amendments of the Constitution of the United States pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
PARTIES 9. Plaintiff DAVID SCOTT is a citizen of the United States and a 60-year-old man who resides in Queens County, New York. At all times relevant to this Complaint, Mr. Scott was in the custody of the Federal Bureau of Prisons (“BOP”) at the Metropolitan Detention Center located in Brooklyn, New York. Mr. Scott was released from MDC, and BOP custody, on February 20, 2019. 10. Plaintiff JEREMY CERDA is a citizen of the United States and a 25-year-old man who resides in Queens County, New York. At all times relevant to this Complaint, Mr.
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Cerda was in the custody of the BOP at the Metropolitan Detention Center located in Brooklyn, New York. Mr. Cerda was released from MDC, and BOP custody, on February 5, 2019.
11. Mr. Scott and Mr. Cerda sue for compensatory and punitive damages on behalf of themselves and all other members of the Plaintiff class who are similarly situated.
12. Defendant HERMAN E. QUAY, Warden of MDC, was at all times relevant to this Complaint acting within the scope and course of his employment with the BOP. As Warden of MDC, Defendant Quay is responsible for and oversees all day-to-day activity at MDC. He is responsible for all aspects of the operation and function of MDC. His responsibilities include ensuring the safety of all in the institution and ensuring the orderly running of the institution. Approximately 1,600 men live in MDC’s West Building. Defendant Quay knew that power and heat problems were foreseeable at MDC, he was personally aware of the conditions described below at all times relevant to the Complaint, and he failed to take adequate steps to prevent these conditions or alleviate them when they occurred. He is sued in his individual capacity.
JURISDICTION AND VENUE 13. This action arises under the Fifth and Eighth Amendment to the United States Constitution. 14. This Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. § 1331. 15. Venue in this case is based upon 28 U.S.C. § 1391(b)(2). The Eastern District of New York is the proper venue because it is the judicial district wherein a substantial part of the events and omissions giving rise to this action occurred.
STATEMENT OF FACTS 16. From January 27, 2019 to February 3, 2019, MDC was plunged into darkness and cold (“the Conditions Crisis”). David Scott, Jeremy Cerda, and more than a thousand other class members at MDC were subjected to unconstitutional and inhumane conditions. Warden Quay
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was warned of systemic problems at MDC before the Conditions Crisis, he had notice of these horrific conditions during the crisis, and he failed to remedy them.
I. Warden Quay’s Knowledge of MDC’s Longstanding Infrastructure Failures 17. Warden Quay knew what was coming: MDC’s problems were widespread and
well known. Former MDC Warden Cameron Lindsay has said that over the last ten years, “the M.D.C. was one of the most troubled, if not the most troubled, facility in the Bureau of Prisons.” In a hearing after the crisis, Judge Nicholas Garaufis remarked that the jail’s physical state had been deteriorating for years.
18. Among many issues plaguing the jail for years, including the flagging physical plant and mismanagement, MDC has long suffered from inadequate heat and a failing infrastructure. People detained at MDC have long complained about the cold temperatures at the jail.
19. In addition to the general concern about MDC’s infrastructure, Warden Quay was aware of specific warning signs concerning the jail’s electricity and heat during the weeks leading up to the Conditions Crisis. He also was aware that the MDC’s power and heat problems had serious spillover effects on critical aspects of jail functioning such as attorney visitation.
20. On information and belief, there were three blackouts in January 2019 before the Conditions Crisis during which MDC lost power for a day or more.
21. For example, on January 4, 2019, MDC management and staff informed Warden Quay that the West Building had experienced a partial power outage and was operating on emergency lighting in numerous areas. The facilities staff informed him that the power outage likely would not be repaired until the next day.
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22. Warden Quay would later state under oath that he knew a power outage of this scale significantly impacts the safe and orderly operation of the institution. For example, he understood that the emergency lighting in the West visiting room was “intermittent, dim, and could result in certain areas of near total darkness.” Warden Quay cancelled attorney visits until the electricity could be restored.
23. MDC did not remedy the January 4 blackout until the evening of January 5, 2019. Attorney visits were not reinstated until January 6, 2019.
24. In addition to electrical issues, John Maffeo, MDC’s facility manager, has testified that MDC suffered heating issues beginning in and around the week of January 13-20, 2019.
25. On information and belief, Maffeo refused to let electricians into the related area, handled it personally, and refused to let anyone else assist him.
26. Union President Anthony Sanon, the chief of the correction officers’ union, stated that he “reported to his superiors in mid-January” that, as a result of “problems with cold,” “corrections officers were wearing scarves, coats and hats on duty.”
27. Multiple detainees have reported that MDC was without heat in some areas from January 19, 2019 onward.
28. Warden Quay and his staff assured Sanon they would monitor the heat. Sanon later described the Warden’s response to the crisis as superficial: “They were trying to sugarcoat it.”
29. By the third week in January, the heating issues persisted. Hai June Bencebi, another MDC employee, said it became “extremely cold” at MDC around January 19, 2019.
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30. The problems with MDC’s heating and electricity came to a head on Sunday, January 27, 2019.
31. Con Edison would later attribute the power outage on January 27, 2019 to the failure to remedy preexisting problems at the jail. Instead of fixing the problem, MDC had put more demands for more power on a weaker system.
II. The Conditions Crisis: Sunday, January 27, 2019 to Sunday, February 3, 2019 32. At midday on January 27, 2019, MDC experienced a partial power outage when
an electrical panel caught fire in the jail’s control room. 33. After the electrical panel failed, the jail lost electricity and switched to emergency
power for the operation of the jail’s emergency functions. 34. As corrections officers acknowledged, the blackout created a dangerous situation
inside the MDC. 35. In addition to losing light—while New York City was gripped in what
meteorologists were calling the “Polar Vortex,” record-breaking cold for the winter —MDC had little or no heat in the cells of the housing units.
III. The Unconstitutional and Inhumane Conditions of Confinement Experienced by Named Plaintiff David Scott During the Conditions Crisis
36. On Sunday, January 27, 2019, Mr. Scott was in the recreation area at MDC when the lights suddenly went out. Mr. Scott was caught off-guard by the electricity failure. Jail staff ordered that everyone immediately lock-in to their cells.
37. David Scott is 60 years old. He was born in 1959 and raised in Queens, New York.
38. Mr. Scott has worked for the past several years as a call center operator, assisting people calling to schedule rides for the Access-A-Ride program.
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39. Mr. Scott had first arrived at MDC on January 10, 2019 to await his trial. 40. After his admission, Mr. Scott spent approximately one week in the Intake Unit, Unit 41. He was then transferred to Unit 61, where he remained until his release from MDC on February 20, 2019. 41. On January 27, 2019, he was ordered into his cell in the midst of the power outage. 42. The next day, Monday, January 28, 2019, it became noticeably colder in the already-cold unit. Mr. Scott had no heat in his cell. The air vents in Mr. Scott’s cell were blowing cold air. 43. Some MDC staff on the unit wore coats, hats and extra layers over their uniforms. 44. Mr. Scott’s clothes consisted of one cotton short-sleeved jumpsuit, undershirts, underwear, and socks. He had no long-sleeved shirt or warm layers. 45. Mr. Scott was never offered or provided additional clothing or blankets. 46. Mr. Scott had only two thin blankets that he was given when he arrived at MDC. 47. Mr. Scott wrapped himself in a blanket, but the frigid temperatures made it impossible to stay warm. 48. Beginning on January 27, 2019, Mr. Scott was locked in his cell for 24 hours a day for several days. Eventually, he was permitted to leave his cell for brief periods of time, but he spent most of his time during the Conditions Crisis locked alone in his freezing cell. 49. Because there was no light in the cell, Mr. Scott could not read. He ate meals in the dark and could not see his own food.
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50. Mr. Scott had no access to email, phone calls, or television during the Conditions Crisis, other than the brief periods when he was permitted out of his cell and the Federal Defender phone line was available.
51. One officer told Mr. Scott that it could take several weeks or a month for power to come back on.
52. Mr. Scott received meals later than the normal mealtimes and the food was often cold. Mr. Scott was constantly hungry throughout the Conditions Crisis.
53. He was unable to purchase food or clothing from the Commissary during the Conditions Crisis.
54. Mr. Scott spent most of the week lying under his covers huddling to stay warm. On occasion he would try to do push-ups to stay warm.
55. Mr. Scott had no access to hot water during the Conditions Crisis. He cleaned himself in his cell sink and took two cold showers.
56. Mr. Scott wore the same clothes for a week and rotated amongst three pairs of underwear.
57. Mr. Scott could not communicate with his family or girlfriend during the Conditions Crisis. When his girlfriend attempted to visit him on January 28, 2019, MDC staff turned her away and told her that visiting was suspended due to the blackout.
58. Mr. Scott was not able to receive counsel visits during the Conditions Crisis. 59. The living environment on Unit 61 was loud and hostile. People were banging on their cells in frustration that MDC staff had locked the unit into their cells and that no information was being provided to them about anything.
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60. On several occasions, MDC officers arrived on the unit in a show of force, wearing full riot gear, including helmets and weapons, and ordered the unit to lock-in.
61. Mr. Scott learned that one detainee on the unit had suffered a seizure but had received no medical care even when the emergency button in his cell was pushed.
62. Mr. Scott observed that there seemed to be little staff on the unit and it often felt abandoned. This was terrifying to Mr. Scott because of the prospect that he would be locked in his cell without help nearby in the event of a further emergency.
63. Without legal or social visits, phone calls, commissary access, and locked alone in his cell with no foreseeable end to the situation, Mr. Scott felt isolated and afraid.
64. Mr. Scott felt claustrophobic in his cell. He tried to keep his mind occupied by thinking about his family, including his parents who both passed away in 2018.
65. Before the blackout, Mr. Scott was scheduled to receive an x-ray for numbness in his hands. He also had developed a skin fungus which required topical treatments, and he was taking antibiotics to treat an abscess under his armpit.
66. Mr. Scott requested medical care relating to these conditions on several occasions during the Conditions Crisis, but his requests were ignored.
67. Later in the week, Mr. Scott saw the protestors outside the jail protesting the conditions, on his behalf. He realized that the world had not forgotten about him and the other detainees. He was moved by the fact that the outside world was paying attention and cared.
68. On Friday, February 1, 2019, Mr. Scott appeared in this Court with his lawyer, Ashley Burrell from the Federal Defenders Office.
69. Mr. Scott’s lawyer reported to the Court that conditions were dire at MDC, specifically reporting that Mr. Scott had been without heat or electricity since January 27, 2019,
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that he had not received necessary medical care, and that he had been sitting in the dark in his cell for days in the brutal cold. She expressed concern to the Court about the impact of these conditions on Mr. Scott given his age.
70. In response, the Court directed on February 1, 2019 that Mr. Scott receive medical attention to address his requests for renewed antibiotics for the abscess, and x-rays and medical attention to diagnose the numbness in his left arm and hand.
71. On February 4, 2019, Mr. Scott finally was seen by a Nurse Practitioner at MDC in response to the Court’s Order.
72. On Saturday, February 2, 2019, Mr. Scott was locked in his cell all day. “Lunch” was served at 5:30pm.
73. On Sunday, February 3, 2019, power was restored to Mr. Scott’s cell. Mr. Scott’s unit was then locked-in to their cells for the evening without explanation.
74. Mr. Scott was released from custody on bail on February 20, 2019. IV. The Unconstitutional and Inhumane Conditions of Confinement Experienced by
Named Plaintiff Jeremy Cerda During the Conditions Crisis 75. On Sunday, January 27, 2019, Mr. Cerda woke up and discovered the lights were out in his cell in the West Building of MDC. In some common areas, there were a few lights, but the cells themselves were completely unlit. 76. Jeremy Cerda is 25 years old. He was born in 1993 in Queens, New York. He lives with his mother and his younger sister. 77. Mr. Cerda grew up in Queens and has a GED. He has worked at different jobs, including retail and as a delivery driver. He has a two-year-old daughter. 78. Mr. Cerda suffers from major depression and anxiety.
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79. On January 25, 2019, Mr. Cerda returned to Court to address a potential violation of the terms of a bond. The Court ordered that Mr. Cerda be remanded from the courthouse directly to MDC for his failure to obtain employment, a condition of his bond.
80. On the afternoon of January 25, 2019, Mr. Cerda was placed in the intake unit (Unit 41) at MDC. He remained on Unit 41 during his entire confinement at MDC.
81. Prior to his admission to MDC, on Friday, January 25, 2019, Mr. Cerda had been incarcerated on one prior occasion, for approximately one week at MDC in 2015.
82. Two days after he was admitted to MDC, the lights went out. In the following seven days, Mr. Cerda received some natural light in his cell in the daytime, but in the evening and night, his cell was pitch black.
83. At the start of the Conditions Crisis, Mr. Cerda began to feel extremely cold. There was little or no heat in the cell. The cell was freezing due to the sub-zero temperatures outside.
84. On Sunday, January 27, 2019, the high temperature outside was 45 degrees Fahrenheit; the low was 28 degrees.
85. Mr. Cerda’s cellmate attempted to cover the air vent of the cell with paper to keep heat in the cell.
86. At the time, Mr. Cerda only had a cotton short-sleeved t-shirt, a cotton shortsleeved jumpsuit, socks, and slide-on shoes. He had four blankets and no sheets: two thinner blankets that were used as bottom sheets to cover the bare mattress (no sheets had been provided to him by MDC) and two blankets to cover himself with.
87. Mr. Cerda could not purchase any warm clothes or thermals because the commissary was not open.
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88. From Monday January 28 to Thursday January 31, the daily high temperatures outside were 39, 43, 35, and 17 degrees, respectively. The daily low temperatures were 23, 23, 7, and 3 degrees.
89. Mr. Cerda received no clean clothes or bedding during the Conditions Crisis. 90. To try to stay warm, Mr. Cerda wrapped himself in the two blankets and spent his time either sleeping or lying in bed. 91. Mr. Cerda received no explanation for the failure of the heat and electricity. Correction officers told people on his unit that they did not know when either the heat or light would be back on, and that the outage could last as long as a month. 92. Beginning on Sunday, January 27, 2019, and for approximately seven days, Mr. Cerda was locked in his cell for extended periods. On a few occasions during the next week, Mr. Cerda was allowed out of his cell to sit in a common area for a short period of time. 93. The only contact that Mr. Cerda had with jail staff was when a guard came to give Mr. Cerda his meals. 94. Mr. Cerda ate most of his meals in the cell during this seven-day period, often in the dark so that he was not able to see what he was eating. 95. The meals were served at random and unpredictable times, and often came hours after they were supposed to—breakfast, for example, was served in the afternoon one day. 96. The water that came out of the tap in Mr. Cerda’s cell was brown and discolored. Mr. Cerda had to drink the cell water and was not given any other drinking water. 97. The toilet in Mr. Cerda’s cell was not functioning properly and could only be flushed intermittently.
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98. Other than serving meals and doing the count, Mr. Cerda did not see any jail staff. No one ever came to his cell to check on him.
99. During the Conditions Crisis, Warden Quay walked through the unit with a group of other people. The Unit was still on lockdown, but people were released from their cells during the Warden’s tour. Some people were wrapped in blankets as they stood outside their cells during the Warden’s tour. The cells were freezing cold and without light.
100. Late in the week, Mr. Cerda saw people protesting in the parking lot outside the jail. Mr. Cerda was happy to see the protestors because he thought that no one on the outside knew what was happening.
101. Mr. Cerda did not have any heat at all in his cell for approximately five days. 102. Mr. Cerda was not permitted or able to communicate with his lawyer or family members between January 27 and February 3. He had no access to phone calls or mail, or to email via the CorrLinks system. Mr. Cerda’s mother and lawyer were not able to visit him. 103. On one occasion between January 27 and February 3, Mr. Cerda attempted to contact his lawyer on the Federal Defender’s dedicated phone, but he could not reach her because she does not work for the Federal Defenders. 104. Mr. Cerda was only permitted to take two showers between January 27 and February 3, both of which were cold. 105. Mr. Cerda was disturbed by the constant noise and banging on the unit between January 27 and February 3. Other people on the unit were screaming and crying. People were begging the guards to let them out of the lockdown. Some were fainting and experiencing medical problems.
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106. On or about February 1, 2019, Mr. Cerda began to think about hurting himself. He could no longer tolerate being locked in the cell for 24 hours a day. He had no idea when the blackout conditions would end. He could not contact anyone and felt scared and alone. Mr. Cerda was worried about his safety.
107. Although Mr. Cerda needed help, he did not receive nor was he offered any mental health treatment at any point between January 27 and February 3.
108. On that Friday, February 1, 2019, the high was 22 degrees and the low was 11 degrees.
109. Mr. Cerda did not receive a physical or mental health screening in connection with his admission to MDC until Friday, February 1, 2019. At that time, he reported to the medical staff that he suffered from depression and anxiety.
110. On Saturday and Sunday, February 2 and February 3, the high temperature outside was 34 degrees and 53 degrees, respectively. The lows were 16 and 33 degrees.
111. At Mr. Cerda’s next hearing, on February 5, 2019, upon hearing of the conditions at MDC, the Court stated: “no one deserves to live in these conditions, if even half of what has been represented on the record is accurate.”
V. The Common Unconstitutional and Inhumane Conditions of Confinement at MDC Experienced by the Putative Class Members During the Conditions Crisis
112. MDC’s West Building has the capacity to house approximately 1,600 people. 113. Media reports, accounts from people in the jail, and publicly-filed documents show that the horrific conditions during the Conditions Crisis were pervasive across the West Building and posed a serious threat to health and safety. 114. During the Conditions Crisis, class members experienced a number of common conditions of confinement at the MDC West Building.
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A. No Light in the Jail’s Cells 115. When MDC lost power, the jail was forced to use generator power. But there was
no electricity in the cells. Cells had no light and were pitch black by the late afternoon as the only light came from small, obscured cell windows. And even when the sun was up, some cells were completely dark. Common areas such as corridors were irregularly and dimly lighted.
116. Multiple people have reported the same pervasively dark conditions. 117. For example, it was so dark that one person was unable to read his Bible in his cell. Another person, who took many different medications, said that it was too dark to see which pill was which and he was afraid to take the wrong medication or quantity. B. No Heat in the Jail’s Cells 118. During the coldest week of the winter, MDC did not provide heat to the people confined in the West Building. People were not provided with additional blankets or with warm clothes. Frost covered cell windows. People reported suffering from congestion, sore throats, and other medical conditions because of the frigid temperatures. 119. Multiple people have reported on the same, freezing conditions. For example:
a. One person stated it was so cold in his cell that the water in his drinking cup froze over.
b. Even with the weak light coming in through his cell window, another person could see his own breath.
c. Some people layered themselves with all of the clothing they had in their cells and wrapped towels around their heads and faces to try to stay warm.
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d. One person found it too cold and uncomfortable to sleep, even with all his clothes on (including two pairs of socks), two blankets, and a book blocking cold air from the vents in his cell.
e. Another person reported that he saw correction officers bundled up in jackets, hoodies, and hats, but that he didn’t have anything to bundle up with. He tried to stay warm by walking around his cell and wrapping his blanket around himself.
f. Another person knew that at one point his cell was 30 to 40 degrees because a correction officer entered his cell, then read and announced the temperature.
g. Several people told their attorneys that a correction officer entered their unit with a hand-held thermometer that read 34 degrees.
h. On January 31, another person awoke to find a layer of ice (approximately ⅛” to ¼” thick) on the inside of his cell window.
C. Other Related Inhumane and Unconstitutional Conditions 120. The loss of light and heat were compounded by a cascade of related deteriorations
in the conditions of confinement during the Conditions Crisis. 121. These related conditions included: complete and near-complete lockdown in cells,
limited medical care, infrequent showers and limited hot water, no exercise, no clean laundry, no commissary, no hot meals, no access to counsel, no email, and no family visits.
i. Lockdown in Cells 122. People were locked in their cells for most of the day and night for the majority of the Conditions Crisis. People were not allowed to leave their cells for any reason, such as to make phone calls, visit the law library, exercise, or eat meals.
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ii. No Medical Care 123. People did not have access to medical staff even for serious medical conditions. They could not fill or refill medical prescriptions or request medical care because the medical computer system was not functioning. People who requested medical care verbally were ignored. People were denied medical appointments and treatment for new and ongoing conditions. People who pressed the emergency buttons in their cells were ignored. 124. Examples of the common experience of lack of medical care include:
a. A person with obstructive sleep apnea was unable to plug in his Continuous Positive Airway Pressure (“CPAP”) machine for seven days, making it hard to sleep and causing anxiety. He believed he was one of eight people at MDC with this issue.
b. Another person, who suffers from chronic asthma, required daily use of his oxygen mask and inhaler. Throughout his detention, he was denied his oxygen mask and had to rely on the two inhalers in his possession when he was arrested. During the Conditions Crisis, the cold, stagnant air caused him serious breathing problems, including coughing and wheezing fits. He felt like he was repeatedly on the verge of an asthma attack and needed to use his inhaler multiple times a day (though it is not intended to be used that frequently). The repeated use of his inhaler then caused chest pains and lightheadedness. He feared that he would faint, and in the darkness of MDC, staff would not be able to see his collapse.
c. A person who takes two anti-seizure pills a day was down to his last three pills on February 1. He was told that the jail could not provide him with a refill because the electronic system that was needed to do so was down.
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d. Another person with glaucoma had high pressure in his eyes and was seeing flashes, an indication that he needed to go to the hospital immediately. His pleas were ignored. He also had bandages for a gunshot wound that had been unchanged for weeks, and his wound was oozing pus.
e. Two people suffered seizures during the Conditions Crisis and pressed the emergency button for help, but no one came to aid them.
f. A person pressed the emergency call button on the morning of February 2, and a correction officer simply reset the button without checking on him. The person pressed the button again and was eventually told—much later—that “no medical services are available now.”
g. A person with high blood pressure requested medical attention and that his medication be refilled at least three times. He ran out of his medication on January 28 and it was not refilled until February 5.
iii. Limited Showers and Hot Water 125. People were not permitted to shower regularly and there was no or limited hot water. 126. Multiple people reported the same conditions:
a. One person said there was “no hot water at all” and he did not shower at all during the Conditions Crisis because “I wasn’t going to take a shower in frozen water. It was already cold in the cell.”
b. One person reported that he had “to stink because the shower was freezing cold.” c. One person stated that he had gone without a hot shower from January 26 to
January 31.
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d. People complained that the tap water in their cells was cold and brackish. The brown, cloudy water from the tap was not drinkable.
e. Another person stated, “the (cold) running water that they do have started running red and brown.”
f. A person reported “[l]ittle or no hot water in showers or cells” and the water that was in the cells was “non-potable,” “brown,” and “sewage-type.”
iv. No Clean Laundry 127. People were not provided with clean clothes or clean bedding. Examples of this common experience include:
a. People stated that they had not received clean underwear or socks for a week. b. A person had water leaking from the ceiling of his cell onto his bed. His sheets
were soaking wet and had not been changed in a week. c. One person with an ulcerative colitis flare was forced to sleep on sheets covered
in his own blood. d. Another person with colitis developed a bleeding rash, and when he showed a
correction officer his dirty underwear to receive a new pair, the officer told him, “It’s above my pay grade.” v. No Commissary 128. People could not access the commissary, which was closed because of the limited electricity. 129. Examples of this common experience include: i. People reported to the Federal Defenders that the commissary was closed and they were therefore unable to buy extra sweatshirts, thermals, or blankets.
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j. Other people had run out of soap and toothpaste but were unable to buy them from the commissary.
vi. No Regularly Scheduled, Warm, or Edible Meals 130. People received cold or tepid meals, at irregular times, often hours later than the normal times, and were often hungry. Sometimes food was restricted to one meal a day. When food did arrive, it was often in inedible condition, having been kept out for many hours before it was served due to the full lockdown. Bagged lunches, such as a bologna sandwich and canned food, were handed out instead of meals. 131. Examples of loss of regular, hot meals include:
a. On February 2, one person reported that he did not receive breakfast, received lunch at 4:30 p.m. (the first meal of the day), and received dinner at 8:30 p.m. At approximately 10:20 a.m. that morning, when another person asked a correction officer when they would receive breakfast, he was told “I don’t need to explain anything” and “You’ll be fed when you’re fed.”
b. Another person reported irregular meals: breakfast (supposed to be at 6:30 a.m.) was served at 10:00 a.m., lunch (supposed to be at 11:00 a.m.) was served at 5:00 p.m., and dinner was served at 7:30 p.m. and was cold. They were given the same meals for lunch and dinner.
c. Another person reported that his unit did not receive hot meals during the blackout and instead had bag lunches with bologna or cheese sandwiches.
d. One person who kept kosher only received canned sardines to eat. e. Another person reported that the food was “undercooked and cold” two days in a
row, giving him a bad stomach ache.
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f. The people on one unit reported to their attorney on January 31 (Thursday) that they hadn’t received warm food since the previous Sunday.
vii. No Access to Counsel 132. People could not contact their lawyers through the normal channels of email (CorrLinks), phone, or mail. Attorney visitation was cancelled. The only functioning phone line was a dedicated line to the Federal Defenders office, which received numerous calls from scared and frantic people during the brief periods they were allowed out of their cells. 133. Examples of this common experience include:
a. On January 29, one person tried to acquire the form to request a legal telephone call but was told by correction officers that he would have to wait until Monday (six days later).
b. Several people had sentencing hearings scheduled the following week and had been unable to speak with their lawyers.
viii. No Family Communication 134. Social visits with family members were suspended. 135. For example, one person’s family members were “the only people that ma[de him] feel comfortable” in jail, and he would “go about [his] day by talking to them.” He found it stressful not to be able to contact them. 136. Another person with diabetes and mental health issues was unable to contact his fiancée during the Conditions Crisis. When their correspondence stopped, she feared he had been sent to the hospital or died. 137. The above commonly brutal conditions, individually and through their mutually reinforcing effects, posed serious harm to the health and safety of all people who were housed at
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MDC’s West Building during the Conditions Crisis. VI. Warden Quay Was Personally Involved in Creating and Maintaining the Unconstitutional Conditions of Confinement 138. The chaos and misery of the Conditions Crisis was entirely foreseeable. 139. The jail’s deteriorating infrastructure was a matter of widespread public
knowledge. Warden Quay knew that a power outage was possible at any time. 140. Warden Quay was aware of repeated problems with heat and light at MDC earlier
in January 2019 leading up to the Conditions Crisis. 141. There were ongoing staffing shortages in the facility. 142. Warden Quay knew of the power outage on January 27. He has averred that “after
learning of the fire that occurred in the MDC on January 27, 2019, my staff reported to me regarding the impact to the institution. By late that same day, I learned that the fire had destroyed the ‘Priority 3’ power distribution equipment, one of three power distribution systems in the West Building. I was informed by staff that, for the time being, repairs were more feasible and quicker than replacement, and that the repairs would likely take at least a week.”
143. Throughout the Conditions Crisis, Warden Quay has averred, he “continued to assess the operational and security challenges presented by the facility issues on a day-by-day basis.”
144. Warden Quay also testified: “I was informed, for instance, that only essential systems, such as security equipment, fire equipment, health equipment, electrical doors, and emergency lighting systems had power.”
145. In the face of a crippling crisis at MDC, and knowing that the situation could not be remedied for at least a week, Warden Quay failed to take any steps to maintain basic living standards for the people in his charge.
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146. Warden Quay left more than a thousand men isolated in dark and freezing conditions for nearly a week, with limited access to medical care and hot food and water, without attorney or family visitation, and cut off from access to the CorrLinks telephone and email systems.
147. Warden Quay’s failings were legion: a. Warden Quay did not activate MDC’s emergency plan. Every detention facility has an emergency plan to deal with exigencies, including problems with heating and lighting. “City Councilman Jumaane Williams said there seemed to be no emergency plan [at MDC] and ‘no plan to create a plan’ when he and other legislators met prison officials last week.” On information and belief, Warden Quay was directly asked by the correction officers’ Union to activate the MDC Emergency Plan and he refused to do so. Warden Quay did not establish an emergency command center. b. Warden Quay’s response to the crisis was to order people to be confined to their cold, dark cells. c. Warden Quay did not move people with sleep apnea who had prescribed CPAP machines for respiratory support to a part of the facility where the electricity was working (e.g., the medical offices or the East Building), or to another BOP facility with working electricity. For seven days, these men slept without sufficient oxygen. When later asked why he had not done anything to provide a substitute for this critical medical support, Warden Quay claimed that “no one raised the question.”
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d. Warden Quay did not take steps toward swift resolution of the electrical problems. For example, on Friday February 1, Rep. Jerrold Nadler announced that he had learned “that contracted electricians had already left, and that power was unlikely to be restored over the weekend.”
e. Warden Quay did not undertake the most basic steps to ameliorate the harm from the Conditions Crisis: i. He did not distribute more blankets, bedding, or warm clothes; ii. He did not obtain temporary supplies to provide electricity and heat, such as emergency generators or portable space heaters for the housing units, but he did obtain such generators and space heaters for certain staff areas; iii. He did not make provisions for people with serious physical or mental illnesses, the elderly, or people with disabilities; iv. He did not provide flashlights or batteries; v. He did not distribute toiletries and wipes; vi. He did not assign mental health staff to the units for rounds; vii. He did not instruct the medical staff to go to the units for rounds; viii. He did not ask medical staff to affirmatively look up which prescriptions needed to be filled and make sure people received required psychiatric and other medications; ix. He did not arrange for legal calls for people with upcoming hearings, trials, or sentencings; x. He did not provide extra food or bottled water;
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xi. He did not implement a partial or complete evacuation when it became known early in the week that heat and power could not be restored in a reasonable amount of time;
xii. He did not transfer people into the empty, more functional jail next door at the East Facility.
148. Warden Quay’s failings also forced many MDC staff to work in the same freezing, dark, and dangerous conditions.
149. Warden Quay rejected an offer by New York City to supply emergency generators and emergency blankets. Mayor Bill de Blasio issued a statement on Twitter that the City would send trucks with blankets, hand warmers, and generators “whether they like it or not.”
150. Warden Quay systematically and deliberately ignored, or failed to take reasonable measures to address, the visibly deplorable and unconstitutional conditions at MDC during the Conditions Crisis.
VII. Warden Quay Makes False and Inaccurate Statements About the Crisis 151. In addition to his failures to prevent or ameliorate the crisis, Warden Quay
prolonged the Conditions Crisis by engaging in deliberate efforts to avoid public scrutiny by misstating facts concerning the severity and nature of the conditions at MDC.
152. Inexplicably, Warden Quay falsely reported that: a. “inmates have not been confined to their cells”; b. that “heat is in the high 60s and low 70s”; c. the prisoners were still allowed leisure/recreational activities;
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d. the heat has never been impacted and is monitored regularly due to the cold weather;
e. the hot water has not been impacted as it is on the same system as the heat; f. there are no problems with meals, people are still receiving hot meals; g. there is no problem with medical treatment; medications are still delivered twice
daily; h. the only issue related to medication is that the computers are not working so
prisoners cannot request medication through the computers; and i. medical treatment still can be requested through the units and also during the
twice daily medical runs. 153. The Warden’s spokesperson falsely wrote in an email that the power failure had “minimally impacted” the jail’s housing units: “All housing units have functional lighting . . . [h]eat and hot water has not been impacted. Likewise, inmate meals are not impacted; inmates are receiving regularly scheduled hot meals each day.” 154. On Wednesday, February 6, the Department of Justice announced that it would investigate the blackout. 155. After touring MDC with the Warden on February 2, 2019, Representative Jerrold Nadler, a New York Democrat who heads the House Judiciary Committee, criticized the Warden for “an absolute lack of urgency or caring.”
CLASS ACTION ALLEGATIONS 156. Plaintiffs bring this action under Rule 23(b)(3) of the Federal Rules of Civil Procedure on their own behalf and on behalf of a class of all persons similarly situated. 157. Plaintiffs seek to represent a certified Plaintiff class consisting of all persons incarcerated at MDC’s West Building during the Conditions Crisis (“the Class”).
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158. The members of the Class are too numerous to be joined in one action, and their joinder is impracticable. Upon information and belief, the class exceeds 1,000 individuals.
159. Common questions of law and fact exist as to all Class members and predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Complaint violate the United States Constitution; (2) what measures Defendant took in response to the Conditions Crisis; (3) whether Defendant followed the emergency plan during the Conditions Crisis; (4) whether Defendant’s practices during the Conditions Crisis exposed people at MDC to a substantial risk of serious harm; (5) whether Defendant made false public statements about the conditions of confinement at MDC; (6) whether the Defendant violated the United States Constitution by knowing of and disregarding a substantial risk of serious harm to the safety and health of the Class; (7) what damages should be awarded to redress the harms suffered by the members of the Class as a result of the unconstitutional conditions; and (8) whether punitive damages should be awarded against Defendant for intentional and malicious misconduct.
160. Defendant’s practices and the claims alleged in this Complaint are common to all members of the Class.
161. Plaintiffs’ claims are typical of those of the Class. Plaintiffs were subjected to the inhumane conditions of confinement at MDC during the Conditions Crisis.
162. The legal theories on which Plaintiffs rely are the same or similar to those on which all Class members would rely, and the harms suffered by them are typical of those suffered by all the other Class members.
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163. Plaintiffs will fairly and adequately protect the interests of the Class. The interests of the Class representatives are consistent with those of the Class members. In addition, Plaintiffs’ counsel are experienced in class action and civil rights litigation.
164. Plaintiffs’ counsel know of no conflicts of interest among Class members or between the attorneys and Class members that would affect this litigation.
165. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court, which individual litigation of these claims would impose.
166. This class action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all Class members is impracticable. The damages suffered by members of the Class, although substantial, are small in relation to the extraordinary expense and burden of individual litigation and therefore it is highly impractical for such Class members to attempt individual redress for damages.
167. There will be no extraordinary difficulty in the management of this class action. FIRST CAUSE OF ACTION
(Damages for Violation of the Fifth Amendment) 168. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 169. Plaintiffs bring this claim on their own behalf and on behalf of the Class. 170. Plaintiffs and the Class were forced to live without sufficient heat or light, for over a week, in complete darkness and near-freezing temperatures. These conditions were compounded by related deterioration in other conditions of confinement, including being locked in their cells without access to showers or hot water, without exercise, without clean laundry,
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without access to the commissary, without medical care, without regular access to hot or edible meals, without access to counsel, without communication with their families, all of which, alone and in combination, posed an unreasonable risk of serious damage to Plaintiffs’ and the Class members’ health and physical and mental soundness.
171. For the pretrial detainees, these conditions amounted to unlawful punishment. 172. Defendant was aware or should have been aware of these conditions, which were open and obvious throughout the entire jail. 173. Defendant knew of and disregarded an excessive risk to health and safety. 174. Defendant failed to act with reasonable care to mitigate these risks. 175. Because Defendant failed to act to remedy Plaintiffs’ and Class members’ degrading and inhuman conditions of confinement in violation of their Fifth Amendment rights, Plaintiffs seek damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 176. Because of Defendant’s unlawful conduct, Plaintiffs and Class members have suffered physical injury, pain and suffering, emotional distress, humiliation, embarrassment, and monetary damages.
SECOND CAUSE OF ACTION (Damages for Violation of the Eighth Amendment) 177. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 178. Plaintiffs bring this claim on behalf of members of the Class who were housed in MDC after their convictions. 179. Plaintiffs and the Class were forced to live without sufficient heat or light, for over a week, in complete darkness and near-freezing temperatures. These conditions were compounded by related deterioration in other conditions of confinement, including being locked
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in their cells without access to showers or hot water, without exercise, without clean laundry, without access to the commissary, without medical care, without regular access to hot or edible meals, without access to counsel, without communication with their families, all of which, alone and in combination, posed an unreasonable risk of serious damage to Plaintiffs’ and the Class members’ health and physical and mental soundness.
180. Defendant was aware of these conditions, which were open and obvious throughout the entire jail.
181. Defendant knew of and disregarded an excessive risk to health and safety. 182. Defendant intentionally or recklessly failed to act with reasonable care to mitigate these risks. 183. By forcing Plaintiffs and the Class to live in these cruel, unusual, degrading, and inhuman conditions of which Defendant was aware, without legitimate penological purpose, Defendant, acting under color of law and his authority as a federal officer, intentionally or recklessly deprived Plaintiffs and Class members of the minimal civilized measures of life’s necessities and subjected Plaintiffs to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. 184. Because Defendant was and continued to be deliberately indifferent to Plaintiffs’ degrading and inhuman conditions of confinement in violation of their Eighth Amendment rights, Plaintiff seeks damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 185. Because of Defendant’s unlawful conduct, Plaintiffs and Class members have suffered physical injury, pain and suffering, emotional distress, humiliation, embarrassment, and monetary damages.
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WHEREFORE, Plaintiffs Scott, Cerda, and the Class members respectfully request that

the Court enter a class-wide judgment:

A. Certifying this suit as a class action;

B. Awarding reasonable and just compensatory and punitive damages to Plaintiffs

and the Class for the injuries they suffered;

C. Awarding Plaintiffs reasonable attorney’s fees pursuant to the Equal Access for

Justice Act 28 U.S.C. § 2412; and

D. Ordering such other and further relief as this Court deems just, proper and

equitable.

Dated: New York, New York February 22, 2019

EMERY CELLI BRINCKERHOFF & ABADY LLP

By: /s/ Katherine R. Rosenfeld Katherine R. Rosenfeld O. Andrew F. Wilson 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000

Attorneys for Plaintiffs and the Putative Class

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 Case 1:19-cv-01075-MKB-SMG Document 29 Filed 11/15/19 Page 1 of 58 PageID #: 143

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
DAVID SCOTT, JEREMY CERDA, OSMAN AK, MERUDH PATEL, GREGORY HARDY, and LARRY WILLIAMS,
individually and on behalf of all others similarly situated,
Plaintiffs,
-against-
FORMER WARDEN HERMAN E. QUAY, FACILITIES MANAGER JOHN MAFFEO, and THE UNITED STATES OF AMERICA,
Defendants.

No. 19 Civ. 1075
AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

David Scott, Jeremy Cerda, Osman Ak, Merudh Patel, Gregory Hardy, and Larry Williams, on behalf of themselves and others similarly situated, and by and through their attorneys, Emery Celli Brinckerhoff & Abady LLP, the Cardozo Civil Rights Clinic, and Alexander A. Reinert, allege as follows for their complaint:
PRELIMINARY STATEMENT 1. Wardens and jail managers must provide the people in their jails with a minimal civilized measure of life’s necessities—adequate safety, food, warmth, exercise, hygiene, and medical care. These are some of the most basic conditions of confinement the Constitution requires. These standards define a civilized society. 2. This case concerns a humanitarian crisis that unfolded in Brooklyn’s federal jail, the Metropolitan Detention Center (“MDC”), during the bitterly cold week of January 27, 2019 to February 3, 2019. The crisis is remarkable both because of how obvious it was in the making and how little was done about it once it happened. The general failings of the MDC’s
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infrastructure and management were widespread and obvious for years before; problems with the heating and electrical systems in particular were erupting throughout January 2019. And when the expected happened, the MDC’s then-Warden, Defendant Herman Quay, and Defendant Facilities Manager John Maffeo, engaged in a shocking dereliction of their obligations to provide these most basic minimal living standards to more than a thousand people in his care and custody.
3. Following an electrical fire, the West Building of the MDC was without normal electricity beginning on January 27, 2019. In the seven-day period that followed, Defendants subjected the men detained in the MDC West Building, the majority of whom were in custody awaiting their trials, to inhumane conditions that posed unreasonable and substantial risks to their health and safety.
4. For more than a week, the MDC’s cells remained dark and cold. People were confined in near pitch-black darkness. People sat shivering in their beds, huddled under blankets with little or no heat in the cells.
5. The lack of light and heat was compounded by an array of other brutal conditions. People were confined to their cells continuously for days. Hot showers and hot water were suspended or severely limited. Cells with toilets that were not functioning were filled with the smell of decaying feces. People continued to live in their soiled clothing and bedsheets without any laundry. Requests for medical and psychiatric care were ignored. People had no access to regular or hot food. Communication with the outside world—whether by email, phone, or visits from lawyers and family members—ceased. People struggled to maintain their sanity in a void of information about when the blackout would end. And of course, jail employees were forced to work under these impossible circumstances.
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6. These horrifying conditions, independently and through their mutually reinforcing effects, produced a serious deprivation of basic human needs for the people confined in the MDC.
7. Defendants Herman E. Quay and John Maffeo (the “Individual Defendants”) knew about the problems with the MDC’s infrastructure well before this particular crisis and knew about the crisis when it happened. They were aware of the appalling conditions at the MDC in real time and, as each hour of the crisis unfolded, they failed to make reasonable efforts to remedy those conditions. They acted with a complete disregard for the humanity of the people who were being held in the jail, and for the people who were working in the jail. They did not provide people with additional blankets or clothing. They did not seek assistance from Con Edison or FEMA in obtaining backup power sources. They did not take any measures to protect the sick, the elderly, or the disabled, who were most immediately vulnerable to harm. Instead, the Individual Defendants locked the more than one thousand people in the jail in their cells, and left them to freeze in short-sleeved, cotton jumpsuits in the dark as a polar vortex blasted New York City.
8. Mr. Scott, Mr. Cerda, Mr. Ak, Mr. Patel, Mr. Hardy, and Mr. Williams, five former MDC detainees, bring this action for damages on behalf of themselves and all other people subjected to these conditions to redress Defendants’ violation of their rights under the Fifth and Eighth Amendments of the Constitution of the United States pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and negligence pursuant to the Federal Tort Claims Act.
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PARTIES 9. Plaintiff DAVID SCOTT is a citizen of the United States and a 60-year-old man who resides in Queens County, New York. At all times relevant to this Complaint, Mr. Scott was in the custody of the Federal Bureau of Prisons (“BOP”) at the Metropolitan Detention Center located in Brooklyn, New York. Mr. Scott was released from the MDC, and BOP custody, on February 20, 2019. 10. Plaintiff JEREMY CERDA is a citizen of the United States and a 25-year-old man who resides in Queens County, New York. At all times relevant to this Complaint, Mr. Cerda was in the custody of the BOP at the Metropolitan Detention Center located in Brooklyn, New York. Mr. Cerda was released from the MDC, and BOP custody, on February 5, 2019. 11. Plaintiff OSMAN AK is a citizen of the United States and a 47-year-old man who resides in Long Island, New York. At all times relevant to this Complaint, Mr. Ak was in the custody of the BOP at the Metropolitan Detention Center located in Brooklyn, New York. Mr. Ak was released from the MDC on July 11, 2019. 12. Plaintiff MERUDH PATEL is a Citizen of the United States and a 31-year-old man who resides in Harrison, New Jersey. At all times relevant to this Complaint, Mr. Patel was in the custody of the BOP at the Metropolitan Detention Center located in Brooklyn, New York. Mr. Ak was released from the MDC on September 9, 2019. 13. Plaintiff GREGORY HARDY is a Citizen of the United States and a 45-year-old man who resides in Kingston, New York. At all times relevant to this Complaint, Mr. Hardy was in the custody of the BOP at the Metropolitan Detention Center located in Brooklyn, New York. Mr. Hardy was released from the MDC on July 16, 2019.
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14. Plaintiff LARRY WILLIAMS is a Citizen of the United States and a 45-year-old man who resides in New York City. At all times relevant to this Complaint, Mr. Williams was in the custody of the BOP at the Metropolitan Detention Center located in Brooklyn, New York. Mr. Williams was released from the MDC on September 18, 2019.
15. Mr. Scott, Mr. Cerda, Mr. Ak, Mr. Patel, Mr. Hardy, and Mr. Williams sue for compensatory and punitive damages on behalf of themselves and all other members of the Plaintiff class who are similarly situated.
16. Defendant HERMAN E. QUAY, former Warden of the MDC, was at all times relevant to this Complaint the Warden of the MDC and acting within the scope and course of his employment with the BOP. As Warden of the MDC, Defendant Quay was responsible for and oversaw all day-to-day activity at the MDC. He was responsible for all aspects of the operation and function of the MDC. His responsibilities included ensuring the safety of all in the institution and ensuring the orderly running of the institution. Approximately 1,600 men live in the MDC’s West Building. Defendant Quay knew that power and heat problems were foreseeable at the MDC, he was personally aware of the conditions described below at all times relevant to the Complaint, and he failed to take adequate steps to prevent these conditions or alleviate them when they occurred. He is sued in his individual capacity.
17. Defendant JOHN MAFFEO, Facilities Manager at the MDC, was at all times relevant to this Complaint acting within the scope and course of his employment with the BOP. He began working at the MDC as Acting Facilities Manager on January 7, 2018. As facilities manager, Defendant Maffeo is responsible for the maintenance of the MDC’s buildings through the planning, direction, and management of all maintenance, repair, alterations, and construction projects. He is responsible for supervising the general maintenance staff; the facility’s heating,
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ventilation, and air conditioning (“HVAC”) staff; power house (boiler and cooling system) staff; staff electricians, plumbers, and engineers; three general foremen; and a facilities assistant. Defendant Maffeo knew that power and heat problems were foreseeable at the MDC, he was personally aware of the conditions described below at all times relevant to the Complaint, and he failed to take adequate steps to prevent these conditions or alleviate them when they occurred. He is sued in his individual capacity.
18. At all times relevant to this Complaint, Warden Quay’s and Facilities Manager Maffeo's employer, the BOP, was an agency of Defendant UNITED STATES OF AMERICA, who is liable for the injuries caused by Defendants Quay and Maffeo pursuant to the Federal Tort Claims Act.
JURISDICTION AND VENUE 19. This action arises under the Fifth and Eighth Amendments to the United States Constitution and the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. 20. This Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. § 1331 and 28 U.S.C. § 1346(b)(1). 21. Venue in this case is based upon 28 U.S.C. § 1391(b)(2) and 28 U.S.C.A. § 1402(b). The Eastern District of New York is the proper venue because it is the judicial district wherein the acts and omissions complained of occurred.
STATEMENT OF FACTS 22. From January 27, 2019 to February 3, 2019, the MDC was plunged into darkness and cold (“the Conditions Crisis”). David Scott, Jeremy Cerda, Osman Ak, Merudh Patel, Gregory Hardy, Larry Williams, and more than a thousand other class members at the MDC were subjected to unconstitutional and inhumane conditions. Warden Quay was warned of
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systemic problems at the MDC before the Conditions Crisis, he had notice of these horrific conditions during the crisis, and he failed to remedy them. I. Warden Quay’s Knowledge of the MDC’s Longstanding Infrastructure Failures
23. Warden Quay knew what was coming: the MDC’s problems were widespread and well known. Former MDC Warden Cameron Lindsay has said that over the last ten years, “the MDC was one of the most troubled, if not the most troubled, facility in the Bureau of Prisons.” In a hearing after the Conditions Crisis, Judge Nicholas Garaufis remarked that the jail’s physical state had been deteriorating for years.
24. Among many issues plaguing the jail for years, including the flagging physical plant and mismanagement, the MDC has long suffered from inadequate heat and a failing infrastructure. People detained at the MDC have long complained about the cold and fluctuating temperatures at the jail. The need to update the MDC’s HVAC equipment in the West Building had been known to the BOP for at least five years prior to the Conditions Crisis.
25. The MDC has long struggled to regulate temperatures in the West Building. 26. In addition to the general concern about the MDC’s infrastructure, Warden Quay was aware of specific warning signs concerning the jail’s electricity and heat during the weeks leading up to the Conditions Crisis. He also was aware that the MDC’s power and heat problems had serious spillover effects on critical aspects of jail functioning, such as attorney and family visitation. 27. The MDC had previously experienced a power outage and subsequent lockdown in November and December of 2018. 28. On information and belief, there were three blackouts in January 2019 before the Conditions Crisis during which the MDC lost power for a day or more.
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29. For example, on January 4, 2019, the MDC management and staff informed Warden Quay that the West Building had experienced a partial power outage and was operating on emergency lighting in numerous areas. The facilities staff informed him that the power outage likely would not be repaired until the next day.
30. Warden Quay knew a power outage of this scale significantly impacts the safe and orderly operation of the institution. For example, he understood that the emergency lighting in the West visiting room was “intermittent, dim, and could result in certain areas of near total darkness.” Warden Quay cancelled attorney visits until the electricity could be restored.
31. The MDC did not remedy the January 4 blackout until the evening of January 5, 2019. Attorney visits were not reinstated until January 6, 2019.
32. In addition to electrical issues, John Maffeo, the MDC’s Facilities Manager, has testified that the MDC suffered heating issues beginning in and around the week of January 13– 20, 2019.
33. On information and belief, Maffeo refused to let electricians into the related area, handled it personally, and refused to let anyone else assist him.
34. Union President Anthony Sanon, the chief of the correction officers’ union, stated that he “reported to his superiors in mid-January” that, as a result of “problems with cold,” “corrections officers were wearing scarves, coats and hats on duty.”
35. Multiple detainees have reported that the MDC was without heat in some areas from January 19, 2019 onward.
36. Warden Quay and his staff assured Sanon they would monitor the heat. Sanon later described the Warden’s response to the Conditions Crisis as superficial: “They were trying to sugarcoat it.”
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37. By the third week in January, the heating issues persisted. Hai June Bencebi, another MDC employee, said it became “extremely cold” at the MDC around January 19, 2019.
38. The problems with the MDC’s heating and electricity came to a head on Sunday, January 27, 2019.
39. Con Edison would later attribute the power outage on January 27, 2019 to the failure to remedy preexisting problems at the jail. Instead of fixing the problem, the MDC had put more demands for more power on a weaker system. II. Facilities Manager Maffeo’s Knowledge of the MDC’s Consistent Problems with Heat
and Electricity 40. Facilities Manager Maffeo had worked at the MDC since January 7, 2018, when he started as Acting Facilities Manager. 41. Since Maffeo began working at the MDC, the jail has suffered consistent heating and electrical problems. 42. Upon information and belief, many heating and cooling coils in air handlers serving housing areas of the MDC have required repair and replacement during this time. 43. In addition to the well-known issues regarding the jail’s inadequate heat and failing infrastructure, on January 4, 2019, a circuit breaker tripped, impacting the jail’s electrical supply. 44. Maffeo also testified in federal court regarding heating and power issues at the building “a week or two” before the Conditions Crisis. Maffeo stated that multiple heating coils burst on January 21, 2019, six days before the electrical fire, “including one responsible for heating inmate cells.” III. The Conditions Crisis: Sunday, January 27, 2019 to Sunday, February 3, 2019 45. At midday on January 27, 2019, the MDC experienced a partial power outage when an electrical panel caught fire in the jail’s control room.
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46. After the electrical panel failed, the jail lost electricity in a number of systems and equipment, including overhead lighting and electrical outlets in cells and common areas, phones, computer systems, and overhead lighting and electrical outlets in staff offices and common areas. The MDC switched to emergency lighting. As MDC officers acknowledged, the blackout created a dangerous situation inside the MDC.
47. In addition to losing light—while New York City was gripped in what meteorologists were calling the “Polar Vortex,” record-breaking cold for the winter—the MDC had inconsistent and inadequate heat in the cells of the housing units.
48. The MDC’s temperature regulation issues adversely affected the conditions of confinement both before and during the Conditions Crisis.
49. Upon information and belief, the inadequate heat during this period was caused by longstanding HVAC problems in the facility, lack of preparation to keep people warm during colder than average weather, and/or the electrical fire. In addition, when repairing or adjusting the heating coils that burst on January 21, 2019, MDC staff either did not properly reset certain heating controls or mistakenly turned off the air handler, causing low temperatures during the Conditions Crisis.
50. The Individual Defendants and MDC staff did not effectively handle preexisting temperature regulation problems at the MDC and should have recognized the importance of ensuring that people in their care had sufficient warm clothing and blankets, given that the commissary was closed, and that indigent people especially were unable to purchase additional clothing for themselves.
51. All named plaintiffs suffered emotional distress, mental anguish, and physical injuries, including hunger and exposure to extreme cold without adequate clothing, as a result of
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the Individual Defendants’ failure to provide them with basic necessities during this humanitarian crisis. IV. The Lack of Transparency between MDC Officials and the Public
52. When attorney and family visitation was suspended on January 27, 2019, the first day of the Conditions Crisis, MDC officials gave no explanation to visitors.
53. When visitation remained suspended the following morning, MDC officials still gave no explanation to visitors. Upon questioning, they stated that there was a lighting problem in the visitation area.
54. The Federal Defenders eventually learned of the Conditions Crisis through clients who had access to Federal Defender phone lines.
55. On January 31, 2019, the fifth day of the Conditions Crisis, prison officials released a statement to the New York Times, characterizing the Conditions Crisis as an “electrical failure” due to Con Edison. Con Edison quickly denied this.
56. On February 2, 2019, Representative Jerrold Nadler, a New York Democrat who heads the House Judiciary Committee, toured the MDC with other government officials. When Representative Nadler questioned Warden Quay regarding the lack of planning and urgency to resolve the power outage, as well as why the electricians were not even working that day, the Warden had no answers. V. The Unconstitutional and Inhumane Conditions of Confinement Experienced by
Named Plaintiff David Scott During the Conditions Crisis 57. On Sunday, January 27, 2019, Mr. Scott was in the recreation area at the MDC when the lights suddenly went out. Mr. Scott was caught off-guard by the electricity failure. Jail staff ordered that everyone immediately lock-in to their cells.
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58. David Scott is 60 years old. He was born in 1959 and raised in Queens, New York.
59. Mr. Scott has worked for the past several years as a call center operator, assisting people calling to schedule rides for the Access-A-Ride program.
60. Mr. Scott first arrived at the MDC on January 10, 2019 to await his trial. 61. After his admission, Mr. Scott spent approximately one week in the Intake Unit, Unit 41. He was then transferred to Unit 61, where he remained until his release from the MDC on February 20, 2019. 62. On January 27, 2019, he was ordered into his cell in the midst of the power outage. 63. The next day, Monday, January 28, 2019, it became noticeably colder in the already-cold unit. Mr. Scott had no heat in his cell. The air vents in Mr. Scott’s cell were blowing cold air. 64. Some MDC staff on the unit wore coats, hats and extra layers over their uniforms. 65. Mr. Scott’s clothes consisted of one cotton short-sleeved jumpsuit, undershirts, underwear, and socks. He had no long-sleeved shirt or warm layers. 66. Mr. Scott was never offered or provided additional clothing or blankets. 67. Mr. Scott had only two thin blankets that he was given when he arrived at the MDC. 68. Mr. Scott wrapped himself in a blanket, but the frigid temperatures made it impossible to stay warm.
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69. Beginning on January 27, 2019, Mr. Scott was locked in his cell for 24 hours a day for several days. Eventually, he was permitted to leave his cell for brief periods of time, but he spent most of his time during the Conditions Crisis locked alone in his freezing cell.
70. Because there was no light in the cell, Mr. Scott could not read. He ate meals in the dark and could not see his own food.
71. Mr. Scott had no access to email, phone calls, or television during the Conditions Crisis, other than the brief periods when he was permitted out of his cell and the Federal Defender phone line was available.
72. One MDC officer told Mr. Scott that it could take several weeks or a month for power to come back on.
73. Mr. Scott received meals later than the normal mealtimes and the food was often cold. Mr. Scott was constantly hungry throughout the Conditions Crisis.
74. He was unable to purchase food or clothing from the Commissary during the Conditions Crisis.
75. Mr. Scott spent most of the week lying under his covers huddling to stay warm. On occasion he would try to do push-ups to stay warm.
76. Mr. Scott had no access to hot water during the Conditions Crisis. He cleaned himself in his cell sink and took two cold showers.
77. Mr. Scott wore the same clothes for a week and rotated amongst three pairs of underwear.
78. Mr. Scott could not communicate with his family or girlfriend during the Conditions Crisis. When his girlfriend attempted to visit him on January 28, 2019, MDC staff turned her away and told her that visiting was suspended due to the blackout.
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79. Mr. Scott was not able to receive counsel visits during the Conditions Crisis. 80. The living environment on Unit 61 was loud and hostile. People were banging on their cells in frustration that MDC staff had locked the unit into their cells and that no information was being provided to them about anything. 81. On several occasions, MDC officers arrived on the unit in a show of force, wearing full riot gear, including helmets and weapons, and ordered the unit to lock-in. 82. Mr. Scott learned that one detainee on the unit had suffered a seizure but had received no medical care even when the emergency button in his cell was pushed. 83. Mr. Scott observed that there seemed to be little staff on the unit, and it often felt abandoned. This was terrifying to Mr. Scott because of the prospect that he would be locked in his cell without help nearby in the event of a further emergency. 84. Without legal or social visits, phone calls, or commissary access, and locked alone in his cell with no foreseeable end to the situation, Mr. Scott felt isolated and afraid. 85. Mr. Scott felt claustrophobic in his cell. He tried to keep his mind occupied by thinking about his family, including his parents who both passed away in 2018. 86. Before the blackout, Mr. Scott was scheduled to receive an x-ray for numbness in his hands. He also had developed a skin fungus which required topical treatments, and he was taking antibiotics to treat an abscess under his armpit. 87. Mr. Scott requested medical care relating to these conditions on several occasions during the Conditions Crisis, but his requests were ignored. 88. Later in the week, Mr. Scott saw the protestors outside the jail protesting the conditions, on his behalf. He realized that the world had not forgotten about him and the other detainees. He was moved by the fact that the outside world was paying attention and cared.
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89. On Friday, February 1, 2019, Mr. Scott appeared in this Court with his lawyer, Ashley Burrell from the Federal Defenders Office.
90. Mr. Scott’s lawyer reported to the Court that conditions were dire at the MDC, specifically reporting that Mr. Scott had been without heat or electricity since January 27, 2019, that he had not received necessary medical care, and that he had been sitting in the dark in his cell for days in the brutal cold. She expressed concern to the Court about the impact of these conditions on Mr. Scott given his age.
91. In response, the Court directed on February 1, 2019 that Mr. Scott receive medical attention to address his requests for renewed antibiotics for the abscess, and x-rays and medical attention to diagnose the numbness in his left arm and hand.
92. On February 4, 2019, Mr. Scott finally was seen by a Nurse Practitioner at the MDC in response to the Court’s Order.
93. On Saturday, February 2, 2019, Mr. Scott was locked in his cell all day. “Lunch” was served at 5:30pm.
94. On Sunday, February 3, 2019, power was restored to Mr. Scott’s cell. Mr. Scott’s unit was then locked-in to their cells for the evening without explanation.
95. On April 30, 2019, Mr. Scott sent an SF 95 form to the BOP, seeking administrative relief for the experiences he suffered during the Conditions Crisis. The BOP acknowledged that it received the form on May 1, 2019. Mr. Scott’s administrative relief was denied by the Bureau of Prisons on October 31, 2019.
96. Mr. Scott was released from custody on bail on February 20, 2019.
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VI. The Unconstitutional and Inhumane Conditions of Confinement Experienced by Named Plaintiff Jeremy Cerda During the Conditions Crisis 97. On Sunday, January 27, 2019, Mr. Cerda woke up and discovered the lights were
out in his cell in the West Building of the MDC. In some common areas, there were a few lights, but the cells themselves were completely unlit.
98. Jeremy Cerda is 25 years old. He was born in 1993 in Queens, New York. He lives with his mother and his younger sister.
99. Mr. Cerda grew up in Queens and has a GED. He has worked at different jobs, including retail and as a delivery driver. He has a two-year-old daughter.
100. Mr. Cerda suffers from major depression and anxiety. 101. On January 25, 2019, Mr. Cerda returned to Court to address a potential violation of the terms of a bond. The Court ordered that Mr. Cerda be remanded from the courthouse directly to the MDC for his failure to obtain employment, a condition of his bond. 102. On the afternoon of January 25, 2019, Mr. Cerda was placed in the Intake Unit, Unit 41, at the MDC. He remained on Unit 41 during his entire confinement at the MDC. 103. Prior to his admission to the MDC, on Friday, January 25, 2019, Mr. Cerda had been incarcerated on one prior occasion, for approximately one week at the MDC in 2015. 104. Two days after his January 25, 2019 admission to the MDC, the lights went out. In the following seven days, Mr. Cerda received some natural light in his cell in the daytime, but in the evening and night, his cell was pitch black. 105. At the start of the Conditions Crisis, Mr. Cerda began to feel extremely cold. There was little or no heat in the cell. The cell was freezing due to the sub-zero temperatures outside.
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106. On Sunday, January 27, 2019, the high temperature outside was 45 degrees Fahrenheit; the low was 28 degrees.
107. Mr. Cerda’s cellmate attempted to cover the air vent of the cell with paper to keep heat in the cell.
108. At the time, Mr. Cerda only had a cotton short-sleeved t-shirt, a cotton shortsleeved jumpsuit, socks, and slide-on shoes. He had four blankets and no sheets: two thinner blankets that were used as bottom sheets to cover the bare mattress (no sheets had been provided to him by the MDC) and two blankets to cover himself with.
109. Mr. Cerda could not purchase any warm clothes or thermals because the commissary was not open.
110. From Monday, January 28, 2019 to Thursday January 31, 2019, the daily high temperatures outside were 39, 43, 35, and 17 degrees, respectively. The daily low temperatures were 23, 23, 7, and 3 degrees.
111. Mr. Cerda received no clean clothes or bedding during the Conditions Crisis. 112. To try to stay warm, Mr. Cerda wrapped himself in two blankets and spent his time either sleeping or lying in bed. 113. Mr. Cerda received no explanation for the failure of the heat and electricity. MDC officers told people on his unit that they did not know when either the heat or light would be back on, and that the outage could last as long as a month. 114. Beginning on Sunday, January 27, 2019, and for approximately seven days, Mr. Cerda was locked in his cell for extended periods. On a few occasions during the next week, Mr. Cerda was allowed out of his cell to sit in a common area for a short period of time.
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115. The only contact that Mr. Cerda had with jail staff was when a guard came to give Mr. Cerda his meals.
116. Mr. Cerda ate most of his meals in the cell during this seven-day period, often in the dark so that he was not able to see what he was eating.
117. The meals were served at random and unpredictable times, and often came hours after they were supposed to—breakfast, for example, was served in the afternoon one day.
118. The water that came out of the tap in Mr. Cerda’s cell was brown and discolored. Mr. Cerda had to drink the cell water and was not given any other drinking water.
119. The toilet in Mr. Cerda’s cell was not functioning properly and could only be flushed intermittently.
120. Other than serving meals and doing the count, Mr. Cerda did not see any jail staff. No one ever came to his cell to check on him.
121. During the Conditions Crisis, Warden Quay walked through the unit with a group of other people. The Unit was still on lockdown, but people were released from their cells during the Warden’s tour. Some people were wrapped in blankets as they stood outside their cells during the Warden’s tour. The cells were freezing cold and without light.
122. Late in the week, Mr. Cerda saw people protesting in the parking lot outside the jail. Mr. Cerda was happy to see the protestors because he thought that no one on the outside knew what was happening.
123. Mr. Cerda did not have any heat at all in his cell for approximately five days. 124. Mr. Cerda was not permitted or able to communicate with his lawyer or family members between January 27, 2019 and February 3, 2019. He had no access to phone calls or
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mail, or to email via the CorrLinks system. Mr. Cerda’s mother and lawyer were not able to visit him.
125. On one occasion between January 27, 2019 and February 3, 2019, Mr. Cerda attempted to contact his lawyer on the Federal Defender’s dedicated phone, but he could not reach her because she does not work for the Federal Defenders.
126. Mr. Cerda was only permitted to take two showers between January 27, 2019 and February 3, 2019, both of which were cold.
127. Mr. Cerda was disturbed by the constant noise and banging on the unit between January 27, 2019 and February 3, 2019. Other people on the unit were screaming and crying. People were begging the guards to let them out of the lockdown. Some were fainting and experiencing medical problems.
128. On or about February 1, 2019, Mr. Cerda began to think about hurting himself. He could no longer tolerate being locked in the cell for 24 hours a day. He had no idea when the blackout conditions would end. He could not contact anyone and felt scared and alone. Mr. Cerda was worried about his safety.
129. Although Mr. Cerda needed help, he did not receive nor was he offered any mental health treatment at any point between January 27, 2019 and February 3, 2019.
130. On that Friday, February 1, 2019, the high was 22 degrees and the low was 11 degrees.
131. Mr. Cerda did not receive a physical or mental health screening in connection with his admission to the MDC until Friday, February 1, 2019. At that time, he reported to the medical staff that he suffered from depression and anxiety.
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132. On Saturday and Sunday, February 2, 2019 and February 3, 2019, the high temperature outside was 34 degrees and 53 degrees, respectively. The lows were 16 and 33 degrees.
133. On April 30, 2019, Mr. Cerda sent an SF 95 form to the BOP, seeking administrative relief for the experiences he suffered during the Conditions Crisis. The BOP acknowledged that it received the form on May 1, 2019. Mr. Cerda’s administrative relief was denied by the Bureau of Prisons on October 31, 2019.
134. At Mr. Cerda’s next hearing, on February 5, 2019, upon hearing of the conditions at the MDC, the Court stated: “no one deserves to live in these conditions, if even half of what has been represented on the record is accurate.” VII. The Unconstitutional and Inhumane Conditions of Confinement Experienced by
Named Plaintiff Osman Ak During the Conditions Crisis 135. On Sunday, January 27, 2019, Mr. Ak was working in the kitchen at the MDC when the lights suddenly went out. Prison staff ordered a lockdown of everyone in their cells. 136. Osman Ak is 47 years old. He was born in 1972 in Istanbul, Turkey. He lives with his wife and two children. 137. Mr. Ak grew up in Turkey and has a high school degree. He has previously worked in construction, owned a convenience store, and driven for Uber and Lyft. 138. Mr. Ak first arrived at the MDC on November 16, 2019. 139. After his admission, Mr. Ak was transferred to Unit KOA 819, where he remained until his release from the MDC on July 11, 2019. 140. On January 27, 2019, he was ordered back to his cell in the midst of the power outage. 141. Mr. Ak’s clothes consisted of two pairs of pants, two shirts, underwear, and socks.
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142. Mr. Ak had only one blanket, which was given to him when he arrived at the MDC.
143. Mr. Ak was never offered or provided additional clothing or blankets. 144. Mr. Ak layered his clothes and wrapped himself in a blanket, but the frigid temperatures made it impossible to stay warm. 145. Beginning on January 27, 2019, Mr. Ak was locked in his cell for 24 hours a day for several days. Eventually, he was permitted to leave his cell to take a shower, but he spent most of his time during the Conditions Crisis locked in his freezing cell. 146. Mr. Ak had no access to hot water during the Conditions Crisis. He could barely bring himself to take a shower because of the cold water, and he was concerned about getting sick. 147. Mr. Ak was immersed in complete darkness throughout the Conditions Crisis. 148. There was no heat in Mr. Ak’s cell. Mr. Ak was subject to extremely cold temperatures throughout the Conditions Crisis. 149. Cold wind blew through the bottom of Mr. Ak’s cell door throughout the Conditions Crisis. In an attempt to stop this, Mr. Ak covered the crack between the door and the ground with a towel. 150. Mr. Ak was denied access to recreation. 151. Mr. Ak had no access to email, phone calls, or television during the Conditions Crisis. 152. Mr. Ak received meals later than normal mealtimes and the food was often cold. On some occasions, BOP staff did not provide meals.
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153. Mr. Ak was unable to purchase food or clothing from the Commissary during the Conditions Crisis.
154. Mr. Ak wore the same clothes for a week. During the Conditions Crisis, he washed his clothes in the sink.
155. Mr. Ak could not communicate with counsel during the Conditions Crisis. 156. Mr. Ak could not communicate with his family during the Conditions Crisis. 157. Without legal or social visits, phone calls, or commissary access, and locked in his cell with no foreseeable end to the situation, Mr. Ak felt stressed. 158. Mr. Ak feared for his safety, thinking that because it was completely dark, anyone could be attacked at any given moment. 159. Mr. Ak observed that there seemed to be little staff on the unit. 160. The living environment on Unit KOA 819 was loud and chaotic. People were banging on their cells in frustration that MDC staff had locked the unit into their cells and that no information was being provided to them about anything. 161. Mr. Ak’s cellmate suffered from breathing problems and was eventually transferred out of the West Building during the Conditions Crisis. 162. On Sunday, February 3, 2019, power was restored to Mr. Ak’s cell. About an hour later, Mr. Ak was finally able to exit his cell. VIII. The Unconstitutional and Inhumane Conditions of Confinement Experienced by Named Plaintiff Merudh Patel During the Conditions Crisis 163. On Sunday, January 27, 2019, Mr. Patel was in the middle of a visit from his fiancée when the lights suddenly went out. Prison guards informed everyone that the visitors had to leave.
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164. Merudh Patel is 31 years old. He was born in 1988 in Ahmedabad, India and was raised in New Jersey. He lives with his fiancée.
165. Mr. Patel received his Bachelor of Science in biomedical engineering from the Rutgers University School of Engineering, and has worked in digital media advertising.
166. Mr. Patel first arrived at the MDC on June 1, 2018. 167. After his admission, Mr. Patel was housed in Unit K82, where, apart from 21 days spent in the Special Housing Unit (“SHU”), he remained until he left the MDC. 168. Mr. Patel spent the Conditions Crisis in the SHU. Due to the tinted windows in his cell, Mr. Patel received very little natural light, and spent the subsequent seven days in the dark. 169. Without heat, it became extremely cold in Mr. Patel’s cell for the duration of the blackout. Wind chills exacerbated the cold. When Mr. Patel attempted to cover a gap in his cell’s door with a towel to prevent wind chills, an MDC officer told him that doing so was against the rules and he had to remove the towel. 170. Mr. Patel’s clothing consisted of one shirt, one pair of underwear, and one jumpsuit, which he had received upon entering the SHU. 171. Mr. Patel was never offered or given any extra clothing or blankets. 172. Mr. Patel only had one blanket and one towel. 173. All that Mr. Patel could do to stay warm was use the clothes, blanket, and towel he had been given, and curl up to retain body heat. 174. Beginning on January 27, 2019, Mr. Patel was locked down for 24 hours a day for the next seven days, without leaving his freezing cell a single time. He felt trapped inside his cell.
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175. Mr. Patel had no access to email, phone calls, or television during the Conditions Crisis.
176. Throughout the Conditions Crisis, Mr. Patel was served bagged, cold food. Mr. Patel felt very hungry throughout the Conditions Crisis.
177. Mr. Patel was unable to purchase food or clothing from the Commissary during the Conditions Crisis.
178. The ceiling of Mr. Patel’s cell leaked cold water on his face and his bed as he slept, leaving his bed soaking wet. He tried wiping away the water on the ceiling with the one towel he had, but it did not help the situation.
179. The shower in Mr. Patel’s cell did not have hot water. He took several cold showers, yet he feared getting sick from them.
180. An MDC officer told Mr. Patel that laundry was unavailable, so he was forced to wash his clothes using the shower in his cell.
181. Mr. Patel could not communicate with his family during the Conditions Crisis. When his fiancée attempted to visit him, she was denied.
182. The living environment around Mr. Patel’s cell was very noisy. Other people were yelling and banging on their cells’ walls to attempt to get MDC officers’ attention, who would only come if it became very loud.
183. Mr. Patel felt worried and emotional throughout the Conditions Crisis. In the SHU, he felt ignored and without basic human rights, and he did not know what was going on.
184. On Sunday, February 3, 2019, power was restored to Mr. Patel’s cell. 185. Mr. Patel was released from custody on September 9, 2019.
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IX. The Unconstitutional and Inhumane Conditions of Confinement Experienced by Named Plaintiff Gregory Hardy During the Conditions Crisis 186. On Sunday, January 27, 2019, Mr. Hardy was sleeping in his cell at the MDC
when the lights suddenly went out. Jail staff ordered that everyone immediately lock-in to their cells.
187. Gregory Hardy is 45 years old. He was born in 1974 and raised in Kingston, New York.
188. Mr. Hardy has a high school degree. He also has a CDO license from commercial driving school.
189. Mr. Hardy works as a truck driver. 190. Mr. Hardy first arrived at the MDC on June 20, 2018. 191. After his admission, Mr. Hardy was admitted to Unit K82, where he remained until his release from the MDC on July 16, 2019. 192. At the start of the Conditions Crisis, Mr. Hardy began to feel extremely cold. There was little or no heat in the cell. The cell was freezing due to the sub-zero temperatures outside. 193. Mr. Hardy used cardboard to block the cold air coming out of the vents. The MDC officers instructed Mr. Hardy to remove the cardboard. 194. Mr. Hardy’s clothes consisted of one sweater, one sweatshirt, two pairs of pants, one pair of long johns, two pairs of underwear, and two pairs of socks. 195. Mr. Hardy was never offered or provided additional clothing or blankets. 196. Mr. Hardy had only one blanket that he was given when he arrived at the MDC. 197. Mr. Hardy wore layers and wrapped himself in a sheet, but the frigid temperatures made it impossible to stay warm.
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198. Beginning on January 27, 2019, Mr. Hardy was locked in his cell for 24 hours a day for several days. He was not permitted to leave his cell. He spent most of his time during the Conditions Crisis locked alone in his freezing cell.
199. Mr. Hardy did not have access to a shower during the Conditions Crisis. 200. Mr. Hardy was immersed in complete darkness throughout the Conditions Crisis. 201. Mr. Hardy had no access to email, phone calls, or television during the Conditions Crisis. 202. Mr. Hardy received meals later than the normal mealtimes, and the food was often cold. Some meals were skipped. 203. Mr. Hardy relied on eating food products he had purchased from the Commissary before the Conditions Crisis began. 204. Mr. Hardy was thirsty throughout the Conditions Crisis. 205. The water from the sink in Mr. Hardy’s cell was so cold that it sometimes froze over. 206. The toilet in Mr. Hardy’s cell was not functioning properly and could only be flushed intermittently. His cell began to smell of urine and feces as a result. 207. Mr. Hardy was unable to purchase food or clothing from the Commissary during the Conditions Crisis. 208. Mr. Hardy wore the same clothes for a week. 209. Mr. Hardy could not communicate with his family during the Conditions Crisis. 210. Mr. Hardy did not have access to legal counsel during the Conditions Crisis.
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211. The living environment on Unit K82 was loud and hostile. People were banging on their cells in frustration that MDC staff had locked the unit into their cells and that no information was being provided to them about anything.
212. Mr. Hardy was subject to consistent loud noise. 213. Mr. Hardy observed that there seemed to be few staff on the unit. 214. Without legal or social visits, phone calls, or commissary access, and locked alone in his cell with no foreseeable end to the situation, Mr. Hardy felt depressed and stressed. 215. Mr. Hardy felt claustrophobic in his cell. 216. Mr. Hardy had trouble sleeping during the Conditions Crisis. When he did fall asleep, he suffered from nightmares. 217. Before the blackout, Mr. Hardy had been receiving deliveries of medication, Tamsulosin HCl, for his kidney on a nightly basis. 218. Mr. Hardy’s medication was not delivered to him during the Conditions Crisis. 219. As a result of not having access to medication, Mr. Hardy suffered from pain and swollen glands during the Conditions Crisis. 220. Mr. Hardy had trouble breathing during the Conditions Crisis. 221. Mr. Hardy requested medical care relating to these conditions on several occasions during the Conditions Crisis, but his requests were ignored. 222. Mr. Hardy pressed the panic button, but it did not work. 223. On Sunday, February 3, 2019, power was restored to Mr. Hardy’s cell. After an hour, Mr. Hardy was permitted to exit his cell. 224. Mr. Hardy did not receive his medication again until two weeks after the Conditions Crisis ended.
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225. Mr. Hardy was released from custody on July 16, 2019. X. The Unconstitutional and Inhumane Conditions of Confinement Experienced by
Named Plaintiff Larry Williams During the Conditions Crisis 226. On Sunday, January 27, 2019, Mr. Williams was out of his cell sitting in a common area at the MDC when he heard a fire alarm go off and began to smell smoke. 227. Soon after the fire alarms went off, MDC officers ordered everyone in Mr. Williams’s unit to return to their cells, and the lights suddenly went out. 228. Larry Williams is 45 years old. He was born in 1974 and raised in New York City. 229. Mr. Williams first arrived at the MDC in 2003. After several transfers in and out of the facility, he returned to the MDC in February 2009, where he stayed until his release on September 18, 2019. 230. During the power outage, Mr. Williams was housed in Unit H53, on the Fifth floor of the MDC. 231. When Mr. Williams was a young boy, his grandmother—who had raised him for most of his childhood—died as a result of severe burns to her body. Mr. Williams was with her in the hospital and remembers seeing her body covered in burns. 232. On January 27, 2019, when Mr. Williams began to smell smoke, hear fire alarms, and see fire trucks outside his window, he began to panic. None of the MDC staff would tell Mr. Williams what was going on. He feared he would die from the fire, as his grandmother had. 233. Once the power went out on January 27, 2019, Mr. Williams’s cell began to get very cold. There was no heat in his cell. His cell was entirely made of metal and soon felt like a freezer.
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234. Mr. Williams’s clothes consisted of one cotton short-sleeved jumpsuit, undershirts, underwear, one long-sleeved shirt, and socks. He had one blanket in his cell.
235. Mr. Williams was never offered or provided additional clothing or blankets. 236. Beginning on January 27, 2019, Mr. Williams was locked in his cell, and only permitted to leave for a few hours each day. By February 1, 2019, Mr. Williams was locked in his freezing cell for 24 hours a day. 237. Mr. Williams worked serving meals at the MDC. Even though there was no power, Mr. Williams was forced to serve meals during part of the Conditions Crisis. Ordinarily, food would be delivered to the fifth floor and then reheated before being served. During the Conditions Crisis, Mr. Williams noticed that meals were being delivered cold to the fifth floor, where they then sat out for some time, becoming even colder. The food Mr. Williams served to other people in his unit during the Conditions Crisis was cold. 238. During the Conditions Crisis, Mr. Williams also noticed that meals were being served on the same carts that were being used to transport garbage. 239. Mr. Williams had little to no access to hot water during the Conditions Crisis. 240. Mr. Williams had no access to laundry or linen exchange during the Conditions Crisis. 241. Mr. Williams was unable to purchase food or clothing from the Commissary during the Conditions Crisis. 242. Mr. Williams had no access to email or phone calls during the Conditions Crisis. 243. Mr. Williams could not communicate with his family during the Conditions Crisis. 244. Mr. Williams did not have access to legal counsel during the Conditions Crisis.
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245. Mr. Williams suffers from hyperthyroidism and takes medication for this condition on a daily basis. Mr. Williams ran out of his medication on February 1, 2019. Mr. Williams was unable to refill his medication during the Conditions Crisis.
246. After he ran out of medicine, Mr. Williams began to experience heart palpitations, dizziness, diarrhea, stomach cramps, headaches, and other symptoms of hyperthyroidism.
247. Mr. Williams also felt anxious and had nightmares throughout the Conditions Crisis. The anxiety and nightmares continued for weeks after power was restored.
248. Mr. Williams did not witness any medical help being provided to people in his unit during the Conditions Crisis.
249. Mr. Williams asked for medical attention during the Conditions Crisis, but officers told him that “no one’s there.”
250. Mr. Williams asked to see mental health staff during the Conditions Crisis, but MDC officers ignored his repeated requests and then, towards the end of the week, they told him that no mental health staff were available on weekends.
251. Mr. Williams was not able to see mental health staff until two weeks after the Conditions Crisis ended.
252. Mr. Williams and others on his unit began a hunger strike around February 2, 2019 in order to try to prompt MDC staff to do something about the Conditions Crisis.
253. Mr. Williams observed some of the other people who went on the hunger strike with him be taken to the SHU in response to their participation in the hunger strike.
254. On at least one occasion, Mr. Williams witnessed MDC officers in his unit wearing full riot gear.
255. Mr. Williams was released from custody on September 18, 2019.
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256. Mr. Williams is currently a student at St. Francis College in Brooklyn studying for a bachelor’s degree in philosophy.
257. Mr. Williams is a 2019-2020 Fellow in Columbia University’s Beyond the Bars Fellowship. XI. The Common Unconstitutional and Inhumane Conditions of Confinement at the
MDC Experienced by the Putative Class Members During the Conditions Crisis 258. The MDC’s West Building has the capacity to house approximately 1,600 people. 259. The horrific conditions were pervasive across the West Building and posed a serious threat to health and safety. 260. During the Conditions Crisis, class members experienced a number of common conditions of confinement at the MDC West Building. A. No Light in the Jail’s Cells 261. When the MDC lost all power in one electrical panel, there was no electricity in the cells. Cells had no light and were pitch black by the late afternoon as the only light came from small, obscured cell windows. And even when the sun was up, some cells were completely dark. Common areas such as corridors were irregularly and dimly lighted. 262. Multiple people have reported the same pervasively dark conditions. 263. For example, it was so dark that one person was unable to read his Bible in his cell. Another person, who took many different medications, said that it was too dark to see which pill was which and he was afraid to take the wrong medication or quantity. B. Inadequate Heat in the Jail’s Cells 264. During the coldest week of the winter, the MDC did not provide adequate heat to the people confined in the West Building. People were not provided with sufficient additional
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blankets or with warm clothes. Frost covered cell windows. People reported suffering from congestion, sore throats, and other medical conditions because of the frigid temperatures.
265. Multiple people have reported on the same, freezing conditions. For example: a. One person stated it was so cold in his cell that the water in his drinking cup froze over. b. Even with the weak light coming in through his cell window, another person could see his own breath. c. Some people layered themselves with all of the clothing they had in their cells and wrapped towels around their heads and faces to try to stay warm. d. One person found it too cold and uncomfortable to sleep, even with all his clothes on (including two pairs of socks), two blankets, and a book blocking cold air from the vents in his cell. e. Another person reported that he saw MDC officers bundled up in jackets, hoodies, and hats, but that he didn’t have anything to bundle up with. He tried to stay warm by walking around his cell and wrapping his blanket around himself. f. Another person knew that at one point his cell was 30 to 40 degrees because an MDC officer entered his cell, then read and announced the temperature. g. Several people told their attorneys that an MDC officer entered their unit with a hand-held thermometer that read 34 degrees. h. On January 31, 2019, another person awoke to find a layer of ice (approximately ⅛” to ¼” thick) on the inside of his cell window. i. When people tried to block cold air from entering their cells through the bottom of their door, they were told this was against the institution’s rules.
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266. Upon information and belief, cooling vents were blowing at high speeds inside

some cells, which unavoidably exacerbated the freezing temperatures suffered by people. People

in small cells were unable to move out of the path of the fast-moving cold air.

267. People at the MDC are not routinely provided warm clothing. While, ordinarily,

people at the MDC may purchase thermal underwear and sweat suits from the commissary,

because the computer system that manages commissary accounts was nonoperational due to the

power outage, people were unable to purchase warm clothing during the Conditions Crisis.

C. Other Related Inhumane and Unconstitutional Conditions

268. The loss of light and heat were compounded by a cascade of related deteriorations

in the conditions of confinement during the Conditions Crisis.

269. These related conditions included: complete and near-complete lockdown in cells,

limited medical care, infrequent showers and limited hot water, no exercise, no clean laundry, no

commissary, no hot meals, no access to counsel, no email, and no family visits.

270. The Individual Defendants and MDC staff failed to recognize the importance of

providing information to people detained at the MDC and to external stakeholders, including

defense counsel and family members, about the status of conditions in the jail, the status of legal

and social visiting, and the reasons for canceling visits.

271. Defendant Quay and MDC staff did not properly communicate information about

the blackout and efforts to restore power to the approximately 1,600 men in their custody.

272. MDC management did not effectively address the temperature and medical issues

that arose during the Conditions Crisis.

i.

Lockdown in Cells

273. People were locked in their cells for most of the day and night for the majority of

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the Conditions Crisis. People were not allowed to leave their cells for any reason, such as to

make phone calls, visit the law library, exercise, or eat meals.

274. People were unable to use unit phones, laundry machines, and computers and

could not fulfill commissary orders during the Conditions Crisis.

275. People in the SHU had their one-hour recreation time suspended and were kept in

their cells for twenty-four hours a day.

276. People who were not in the SHU were confined to their cells for at least four

hours more than usual between January 28, 2019 and January 31, 2019 and were entirely secured

in their cells from the afternoon of February 1, 2019 until the evening of February 3, 2019.

ii.

Treatment by Prison Staff

277. There were widespread reports of poor treatment by prison staff. Prison guards

also did not provide information about the Conditions Crisis, or about when the power may

return.

278. Examples of the common experience of poor treatment by prison staff include:

a. Multiple people reported being threatened, ignored, or disciplined when they

asked prison staff for information or supplies.

b. One person reported guards disappearing for hours.

c. The only written memorandum to incarcerated people was written 6 days into the

Conditions Crisis.

d. People were not informed about any alternative methods for requesting

prescriptions in light of the computer system being down.

e. People reported feelings of despair after being told that the blackout would last

weeks.

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iii.

No Medical Care

279. People did not have access to medical staff even for serious medical conditions.

They could not fill or refill medical prescriptions or request medical care because the medical

computer system was not functioning. People who requested medical care verbally were ignored.

People were denied medical appointments and treatment for new and ongoing conditions. People

who pressed the emergency buttons in their cells were ignored.

280. Examples of the common experience of lack of medical care include:

a. Defendant Quay and MDC staff did not ensure that people who use Continuous

Positive Airway Pressure (“CPAP”) machines were able to do so during the

power outage. Many people with obstructive sleep apnea were unable to use their

CPAP machines for six days due to nonoperational cell outlets, making it hard to

sleep and causing anxiety. In some cases, their cellmates had to make sure that

they did not choke in their sleep. The prior complaints to MDC staff about CPAP

usage and electrical outages provided MDC staff with the information necessary

to develop a procedure to accommodate people who require the use of CPAP

machines during a power outage, but the staff failed to do so.

b. One person reported being transferred to a cold, dark cell during the Conditions

Crisis after being in the Emergency Room for acute pancreatitis, and then not

receiving his necessary medical attention, medication, or special diet while in his

cell. Upon his transfer back to the MDC, he was also unable to use his CPAP

machine.

c. Another person, who suffers from chronic asthma, required daily use of his

oxygen mask and inhaler. Throughout his detention, he was denied his oxygen

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mask and had to rely on the two inhalers in his possession when he was arrested. During the Conditions Crisis, the cold, stagnant air caused him serious breathing problems, including coughing and wheezing fits. He felt like he was repeatedly on the verge of an asthma attack and needed to use his inhaler multiple times a day (though it is not intended to be used that frequently). The repeated use of his inhaler then caused chest pains and lightheadedness. He feared that he would faint, and in the darkness of the MDC, staff would not be able to see his collapse. d. Several people reported that they were unable to receive refills for their inhalers, and that the Conditions Crisis exacerbated their asthma symptoms, causing at least one asthma attack. e. A person who takes two anti-seizure pills a day was down to his last three pills on February 1. He was told that the jail could not provide him with a refill because the electronic system that was needed to do so was down. f. Another person with glaucoma had high pressure in his eyes and was seeing flashes, an indication that he needed to go to the hospital immediately. His pleas were ignored. He also had bandages for a gunshot wound that had been unchanged for weeks, and his wound was oozing pus. g. Two people suffered seizures during the Conditions Crisis and pressed the emergency button for help, but no one came to aid them. One person fell to the ground and hit his head. Only his cellmate helped him. The panic button was broken, and no prison officers came to help. Another person suffered two seizures and was not given medical assistance, despite his requests.
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h. A person pressed the emergency call button on the morning of February 2, 2019, and an MDC officer simply reset the button without checking on him. The person pressed the button again and was eventually told—much later—that “no medical services are available now.”
i. A person with high blood pressure requested medical attention and that his medication be refilled at least three times. He ran out of his medication on January 28, 2019 and it was not refilled until February 5, 2019.
j. When one person requested refills of his insulin shots, an MDC official responded by saying “you’re finished.”
k. A person felt ill as a result of not receiving his medication. When he pushed the panic button, the MDC officers ignored it, even after he pushed it multiple times. This person stated that later, officers covered the panic button with duct tape, preventing people from calling for help in the event of an emergency.
l. One person was provided with incorrect medicine that he knew he could not safely take.
m. One person suffering from anemia reported not receiving his vitamins and fainting as a result.
n. A person suffered from a serious cardiac emergency on day two of the blackout after he was locked in his cell for two days. When he was finally removed from the unit, he was delayed in accessing needed outside medical care including due to staffing shortages and elevator delays. He then spent five days in the hospital as a result of his cardiac emergency.
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o. Another person also reported not having bandages replaced on a wound, resulting

in severe infection and ulceration and later requiring multiple days of

hospitalization.

p. One person did not receive his medicine for sickle cell anemia, resulting in three

painful episodes during the Conditions Crisis due to his condition.

q. One person reported being unable to receive mental health services after hearing

voices and feeling depressed and anxious during the Conditions Crisis.

r. One inmate with a serious psychiatric history of suicide attempts did not receive

his mental health medications.

s. One person reported that after not receiving medication for his mental health

symptoms, he swallowed multiple razor blades. After MDC staff repeatedly refused

to provide him with medical care, he was eventually taken to a hospital and forced

to undergo multiple surgical procedures.

t. One person fainted due to anxiety, after not receiving medication for his mental

health symptoms and having his requests for medical assistance ignored.

u. Defendants failed to provide numerous people with critically important

medications during the Conditions Crisis. Many people who required insulin did

not receive it. Many people also did not receive required medications for blood

pressure, heart problems, seizures, skin fungus, pain relief, migraines, stomach

pain and ulcers, glaucoma, and HIV, as well as for mental health issues, including

schizophrenia, bipolar disorder, anxiety, and depression.

iv.

Limited Showers and Hot Water

281. People were not permitted to shower regularly and there was no or limited hot

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water.

282. Multiple people reported the same conditions:

a. One person said there was “no hot water at all” and he did not shower at all

during the Conditions Crisis because “I wasn’t going to take a shower in frozen

water. It was already cold in the cell.”

b. One person reported that he had “to stink because the shower was freezing cold.”

c. One person stated that he had gone without a hot shower from January 26, 2019 to

January 31, 2019.

d. People complained that the tap water in their cells was cold and brackish. The

brown, cloudy water from the tap was not drinkable.

e. Another person stated, “the (cold) running water that they do have started running

red and brown.”

f. A person reported “[l]ittle or no hot water in showers or cells” and the water that

was in the cells was “non-potable,” “brown,” and “sewage-type.”

v.

Poor Cell Conditions

283. People were left in dysfunctional and unsanitary environments within their cells.

284. Examples of this common experience include:

a. Cold, dirty water leaked from the ceiling onto people’s beds.

b. Multiple people reported broken toilets. They could not be flushed for days at a

time. Cells began to smell of urine and feces as a result.

vi.

No Access to Clean Drinking Water

285. Multiple people reported the faucet in their cell being their only source of water.

Some faucets’ water was reported as brown, dirty, and foul tasting.

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286. One person relied on milk delivered with breakfast as his only source of liquid

throughout the Conditions Crisis.

287. One person reported that even though he was lactose intolerant, he felt forced to

drink milk in order to stay hydrated because he feared that the water was unsafe. This resulted in

extreme stomach upset.

vii.

No Clean Laundry

288. People were not provided with clean clothes or clean bedding. Those unable to

purchase thermal clothing from the commissary before the blackout were left wearing the

facility’s short-sleeve jumpsuit and t-shirts throughout the Conditions Crisis. Examples of this

common experience include:

a. People stated that they had not received clean underwear or socks for a week.

b. A person had water leaking from the ceiling of his cell onto his bed. His sheets

were soaking wet and had not been changed in a week.

c. One person with an ulcerative colitis flare was forced to sleep on sheets covered

in his own blood.

d. Another person with colitis developed a bleeding rash, and when he showed an

MDC officer his dirty underwear to receive a new pair, the officer told him, “It’s

above my pay grade.”

viii.

No Commissary

289. People could not access the commissary, which was closed because of the limited

electricity. For some people, the commissary was not available to them for over a month, since

the closure during the Conditions Crisis was during their unit’s week to access it.

290. Examples of this common experience include:

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j. People reported to the Federal Defenders that the commissary was closed, and

they were therefore unable to buy extra sweatshirts, thermals, or blankets.

k. Other people had run out of soap, toothpaste, toilet paper, and contact lens

solution but were unable to buy them from the commissary.

ix.

No Sufficient, Regularly Scheduled, Warm, or Edible Meals

291. People received cold or tepid meals at irregular times, often hours later than the

normal times. People were often hungry. Sometimes food was restricted to one meal a day.

When food did arrive, it was often in inedible condition, having been kept out for many hours

before it was served due to the full lockdown. Bagged lunches, such as a bologna sandwich and

canned food, were handed out instead of meals.

292. Examples of loss of regular, hot meals include:

a. On February 2, 2019, one person reported that he did not receive breakfast,

received lunch at 4:30 p.m. (the first meal of the day), and received dinner at 8:30

p.m. At approximately 10:20 a.m. that morning, when another person asked an

MDC officer when they would receive breakfast, he was told “I don’t need to

explain anything” and “You’ll be fed when you’re fed.”

b. Another person reported irregular meals: breakfast (supposed to be at 6:30 a.m.)

was served at 10:00 a.m., lunch (supposed to be at 11:00 a.m.) was served at 5:00

p.m., and dinner was served at 7:30 p.m. and was cold. They were given the same

meals for lunch and dinner.

c. Another person reported that his unit did not receive hot meals during the

blackout and instead had bagged lunches with bologna or cheese sandwiches.

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d. One person reported receiving meals with tomatoes, potatoes, and bananas, all

foods he could not eat due to his kidney disease.

e. One person who kept kosher only received canned sardines to eat.

f. Another person reported that the food was “undercooked and cold” two days in a

row, giving him a bad stomach ache.

g. The people on one unit reported to their attorney on January 31, 2019 (Thursday)

that they hadn’t received warm food since the previous Sunday.

x.

No Access to Counsel

293. People could not contact their lawyers through the normal channels of email

(CorrLinks), phone, or mail. Attorney visitation was cancelled. The only functioning phone line

was a dedicated line to the Federal Defenders office, which received numerous calls from scared

and frantic people during the brief periods they were allowed out of their cells. People were not

aware of alternative methods to contact their counsel during the Conditions Crisis.

294. Examples of this common experience include:

a. On January 29, 2019, one person tried to acquire the form to request a legal

telephone call but was told by MDC officers that he would have to wait until

Monday (six days later).

b. Several people had sentencing hearings scheduled the following week and had

been unable to speak with their lawyers.

c. One person reported that while calling the Federal Defenders, an MDC officer

told him to hang up the phone. A team of officers then searched his cell and threw

his legal mail on the floor.

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295. MDC staff did not provide timely and complete information to defense counsel

explaining why legal visits were cancelled or when they would be restored. MDC and BOP staff

did not acknowledge in their communications with the Federal Defenders that there had been a

fire. MDC and BOP staff failed to timely inform defense counsel that legal visits were cancelled.

For example, they provided only two-and-a-half hours’ notice on January 29, 2019 and only 20

minutes’ notice on January 30, 2019.

xi.

No Family Communication

296. Social visits with family members were suspended.

297. MDC and BOP staff failed to provide family members and the general public with

information about conditions in the jail and why social and legal visits had been suspended.

298. For example, one person’s family members were “the only people that ma[de

him] feel comfortable” in jail, and he would “go about [his] day by talking to them.” He found it

stressful not to be able to contact them.

299. Another person with diabetes and mental health issues was unable to contact his

fiancée during the Conditions Crisis. When their correspondence stopped, she feared he had been

sent to the hospital or died.

300. The above commonly brutal conditions, individually and through their mutually

reinforcing effects, posed serious harm to the health and safety of all people who were housed at

the MDC’s West Building during the Conditions Crisis.

XII. Warden Quay Was Personally Involved in Creating and Maintaining the Unconstitutional Conditions of Confinement

301. The chaos and misery of the Conditions Crisis was entirely foreseeable.

302. The jail’s deteriorating infrastructure was a matter of widespread public

knowledge. Warden Quay knew that a power outage was possible at any time.

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303. Warden Quay was aware of repeated problems with heat and light at the MDC earlier in January 2019 leading up to the Conditions Crisis.
304. There were ongoing staffing shortages in the facility. 305. Warden Quay knew of the power outage on January 27, 2019. He has averred that “after learning of the fire that occurred in the MDC on January 27, 2019, my staff reported to me regarding the impact to the institution. By late that same day, I learned that the fire had destroyed the ‘Priority 3’ power distribution equipment, one of three power distribution systems in the West Building. I was informed by staff that, for the time being, repairs were more feasible and quicker than replacement, and that the repairs would likely take at least a week.” 306. Throughout the Conditions Crisis, Warden Quay has averred, he “continued to assess the operational and security challenges presented by the facility issues on a day-by-day basis.” 307. Warden Quay also testified: “I was informed, for instance, that only essential systems, such as security equipment, fire equipment, health equipment, electrical doors, and emergency lighting systems had power.” 308. In the face of a crippling crisis at the MDC, and knowing that the situation could not be remedied for at least a week, Warden Quay failed to take any steps to maintain basic living standards for the people in his charge. 309. Warden Quay left more than a thousand men isolated in dark and freezing conditions for nearly a week, with limited access to medical care and hot food and water, without attorney or family visitation, and cut off from access to the CorrLinks telephone and email systems. 310. Warden Quay’s failings were legion:
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a. Warden Quay did not activate an emergency plan that addressed the power outage at the facility. “City Councilman Jumaane Williams said there seemed to be no emergency plan [at the MDC] and ‘no plan to create a plan’ when he and other legislators met prison officials last week.” On information and belief, Warden Quay was directly asked by the correction officers’ Union to activate an emergency plan that would address the power outage and he refused to do so. Warden Quay did not establish an emergency command center.
b. Warden Quay’s response to the Conditions Crisis was to order people to be confined to their cold, dark cells.
c. Warden Quay did not move people with sleep apnea who had prescribed CPAP machines for respiratory support to a part of the facility where the electricity was working (e.g., the medical offices or the East Building) or to another BOP facility with working electricity until February 2, 2019, when someone communicated the problem to a member of Congress touring the facility. For six days, these men slept without sufficient oxygen. When later asked why he had not done anything to provide a substitute for this critical medical support, Warden Quay claimed that “no one raised the question.” Two people had previously alerted MDC staff about the dangers for CPAP users of electrical outages during the winter of 2018 when their in-cell electrical outlets were temporarily nonoperational.
d. Warden Quay did not take steps toward swift resolution of the electrical problems. For example, on Friday February 1, 2019, Representative Nadler announced that he had learned “that contracted electricians had already left, and that power was unlikely to be restored over the weekend.”
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e. Warden Quay did not undertake the most basic steps to ameliorate the harm from the Conditions Crisis: i. He did not distribute more blankets, bedding, or warm clothes; ii. He did not obtain temporary supplies to provide electricity and heat, such as emergency generators or portable space heaters for the housing units, but he did obtain such generators and space heaters for certain staff areas; iii. He did not make provisions for people with serious physical or mental illnesses, the elderly, or people with disabilities; iv. He did not provide flashlights or batteries; v. He did not distribute toiletries and wipes; vi. He did not assign mental health staff to the units for rounds; vii. He did not instruct the medical staff to go to the units for rounds; viii. He did not ask medical staff to affirmatively look up which prescriptions needed to be filled and make sure people received required psychiatric and other medications; ix. He did not arrange for legal calls for people with upcoming hearings, trials, or sentencings; x. He did not provide extra food or bottled water; xi. He did not implement a partial or complete evacuation when it became known early in the week that heat and power could not be restored in a reasonable amount of time; xii. He did not transfer people into the empty, more functional jail next door at the East Facility.
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311. Warden Quay’s failings also forced many MDC staff to work in the same freezing, dark, and dangerous conditions.
312. Warden Quay rejected an offer by New York City to supply emergency generators and emergency blankets. Mayor Bill de Blasio issued a statement on Twitter that the City would send trucks with blankets, hand warmers, and generators “whether they like it or not.” 313. Warden Quay systematically and deliberately ignored, or failed to take reasonable measures to address, the visibly deplorable and unconstitutional conditions at the MDC during the Conditions Crisis. XIII. Warden Quay Makes False and Inaccurate Statements About the Conditions Crisis
314. In addition to his failures to prevent or ameliorate the crisis, Warden Quay prolonged the Conditions Crisis by engaging in deliberate efforts to avoid public scrutiny by misstating facts concerning the severity and nature of the conditions at the MDC.
315. Inexplicably, Warden Quay falsely reported that: 1. “inmates have not been confined to their cells”; 2. that “heat is in the high 60s and low 70s”; 3. the prisoners were still allowed leisure/recreational activities; 4. the heat has never been impacted and is monitored regularly due to the cold weather; 5. the hot water has not been impacted as it is on the same system as the heat; 6. there are no problems with meals, people are still receiving hot meals; 7. there is no problem with medical treatment; medications are still delivered twice daily;
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8. the only issue related to medication is that the computers are not working so prisoners cannot request medication through the computers; and
9. medical treatment still can be requested through the units and also during the twice daily medical runs.
316. The Warden’s spokesperson falsely wrote in an email that the power failure had “minimally impacted” the jail’s housing units: “All housing units have functional lighting . . . [h]eat and hot water has not been impacted. Likewise, inmate meals are not impacted; inmates are receiving regularly scheduled hot meals each day.”
317. On Wednesday, February 6, 2019, the Department of Justice announced that it would investigate the blackout.
318. After touring the MDC with the Warden on February 2, 2019, Representative Nadler criticized the Warden for “an absolute lack of urgency or caring.”
319. During this tour, Representative Nadler asked Warden Quay why there wasn’t a better plan for a power outage of this sort, why there was not more of a sense of urgency to fix it, and why electricians were not working that day, Warden Quay had no answers. XIV. Facilities Manager Maffeo Was Personally Involved in Creating and Maintaining
the Unconstitutional Conditions of Confinement 320. The causes of the Conditions Crisis were entirely foreseeable. 321. The jail’s deteriorating infrastructure was a matter of widespread public knowledge. Defendant Maffeo knew that a power outage was possible at any time. 322. Defendant Maffeo was aware of repeated problems with heat and light at the MDC earlier in January 2019 leading up to the Conditions Crisis.
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323. When the electrical fire occurred on January 27, 2019, Maffeo knew that this would not be an overnight fix, but rather a longer-term issue for the facility. He notified the Warden that the power would be out for multiple days.
324. When elected officials toured the MDC during the Conditions Crisis, New York City Council Member Brad Lander described Maffeo as “openly contemptuous” of the elected officials’ inquiries regarding the conditions inside. XV. Facilities Manager Maffeo Makes False and Inaccurate Statements About the
Conditions Crisis. 325. Following the Conditions Crisis, Facilities Manager Maffeo has downplayed the effects of the heating and electrical issues on the peopled housed in the MDC. 326. Maffeo stated that despite the limited electrical power during the Crisis, the heating system “was largely unaffected. Temperature readings were taken on a daily basis, and consistently were within normal limits. If temperature readings showed that the temperature in an area of the building was outside normal limits, Facilities staff were notified and steps were taken to restore normal heating.” 327. Contrary to those statements, Maffeo has also said that extra blankets were brought to affected units.
BIVENS CLASS ACTION ALLEGATIONS 328. All named Plaintiffs bring this action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) under Rule 23(b)(3) of the Federal Rules of Civil Procedure on their own behalf and on behalf of a class of all persons similarly situated. 329. Plaintiffs seek to represent a certified Plaintiff class consisting of all persons incarcerated at the MDC’s West Building during the Conditions Crisis (“the Bivens Class”). 330. The members of the Bivens Class are too numerous to be joined in one action, and
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their joinder is impracticable. Upon information and belief, the class exceeds 1,500 individuals. 331. Common questions of law and fact exist as to all Bivens Class members and
predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Complaint violate the United States Constitution; (2) what measures Defendants took in response to the Conditions Crisis; (3) whether Defendants implemented an adequate emergency plan during the Conditions Crisis; (4) whether Defendants’ practices during the Conditions Crisis exposed people at the MDC to a substantial risk of serious harm; (5) whether Defendants made false public statements about the conditions of confinement at the MDC; (6) whether the Defendants violated the United States Constitution by knowing of and disregarding a substantial risk of serious harm to the safety and health of the Bivens Class; (7) what damages should be awarded to redress the harms suffered by the members of the Bivens Class as a result of the unconstitutional conditions; and (8) whether punitive damages should be awarded against Defendants for intentional and malicious misconduct.
332. Defendants’ practices and the claims alleged in this Complaint are common to all members of the Bivens Class.
333. Plaintiffs’ claims are typical of those of the Bivens Class. Plaintiffs were subjected to the inhumane conditions of confinement at the MDC during the Conditions Crisis.
334. The legal theories on which Plaintiffs rely are the same or similar to those on which all Bivens Class members would rely, and the harms suffered by them are typical of those suffered by all the other Bivens Class members.
335. Plaintiffs will fairly and adequately protect the interests of the Bivens Class. The interests of the Bivens Class representatives are consistent with those of the Bivens Class
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members. In addition, Plaintiffs’ counsel are experienced in class action and civil rights litigation.
336. Plaintiffs’ counsel know of no conflicts of interest among Bivens Class members or between the attorneys and Bivens Class members that would affect this litigation.
337. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court, which individual litigation of these claims would impose.
338. This class action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all Bivens Class members is impracticable. The damages suffered by members of the Bivens Class, although substantial, are small in relation to the extraordinary expense and burden of individual litigation and therefore it is highly impractical for such Bivens Class members to attempt individual redress for damages.
339. There will be no extraordinary difficulty in the management of this class action. FTCA CLASS ACTION ALLEGATIONS
340. Plaintiffs Scott and Cerda bring this action pursuant to the Federal Tort Claims Act under Rule 23(b)(3) of the Federal Rules of Civil Procedure on their own behalf and on behalf of a class of all persons similarly situated.
341. Plaintiffs Scott and Cerda seek to represent a certified Plaintiff class consisting of all persons incarcerated at the MDC’s West Building during the Conditions Crisis, or alternatively, consisting of all persons incarcerated at the MDC’s West Building during the Conditions Crisis who have or will in the future have satisfied the exhaustion requirement imposed by 28 U.S.C. § 2675 (“the FTCA Class”).
342. The members of the FTCA Class are too numerous to be joined in one action, and 51

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their joinder is impracticable. Upon information and belief, the class exceeds 1,500 individuals. 343. Common questions of law and fact exist as to all FTCA Class members and
predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Complaint amounts to a tort claim of negligence; (2) what measures Defendants took in response to the Conditions Crisis; (3) whether Defendants implemented an adequate emergency plan during the Conditions Crisis; (4) whether Defendants’ practices during the Conditions Crisis exposed people at the MDC to a substantial risk of serious harm; (5) whether Defendants made false public statements about the conditions of confinement at the MDC; (6) whether the Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the FTCA Class; and (7) what damages should be awarded to redress the harms suffered by the members of the FTCA Class as a result of the conditions.
344. Defendants’ practices and the claims alleged in this Complaint are common to all members of the FTCA Class.
345. The claims of Plaintiffs Scott and Cerda are typical of those of the FTCA Class. Plaintiffs Scott and Cerda were subjected to the inhumane conditions of confinement at the MDC during the Conditions Crisis.
346. The legal theories on which Plaintiffs Scott and Cerda rely are the same or similar to those on which all FTCA Class members would rely, and the harms suffered by them are typical of those suffered by all the other FTCA Class members.
347. Plaintiffs Scott and Cerda will fairly and adequately protect the interests of the FTCA Class. The interests of the FTCA Class representatives are consistent with those of the FTCA Class members. In addition, counsel for Plaintiffs Scott and Cerda are experienced in
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class action and civil rights litigation. 348. Counsel for Plaintiffs Scott and Cerda know of no conflicts of interest among
FTCA Class members or between the attorneys and FTCA Class members that would affect this litigation.
349. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court, which individual litigation of these claims would impose.
350. This class action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all FTCA Class members is impracticable. The damages suffered by members of the FTCA Class, although substantial, are small in relation to the extraordinary expense and burden of individual litigation and therefore it is highly impractical for such FTCA Class members to attempt individual redress for damages.
351. There will be no extraordinary difficulty in the management of this class action. FIRST CAUSE OF ACTION
(Damages for Violation of the Fifth Amendment) 352. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 353. Plaintiffs bring this claim on their own behalf and on behalf of the Class. 354. Plaintiffs and the Class were forced to live without sufficient heat or light, for over a week, in complete darkness and near-freezing temperatures. These conditions were compounded by related deterioration in other conditions of confinement, including being locked in their cells without access to showers or hot water, without exercise, without clean laundry, without access to the commissary, without medical care, without regular access to hot or edible
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meals, without access to counsel, without communication with their families, all of which, alone and in combination, posed an unreasonable risk of serious damage to Plaintiffs’ and the Class members’ health and physical and mental soundness.
355. For the pretrial detainees, these conditions amounted to unlawful punishment. 356. Defendants Quay and Maffeo were aware or should have been aware of these conditions, which were open and obvious throughout the entire jail. 357. Defendants Quay and Maffeo knew of and disregarded an excessive risk to health and safety. 358. Defendants Quay and Maffeo failed to act with reasonable care to mitigate these risks. 359. Because Defendants Quay and Maffeo failed to act to remedy Plaintiffs’ and Class members’ degrading and inhuman conditions of confinement in violation of their Fifth Amendment rights, Plaintiffs seek damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 360. Because of the unlawful conduct of Defendants Quay and Maffeo, Plaintiffs and Class members have suffered physical injury, pain and suffering, emotional distress, humiliation, embarrassment, and monetary damages.
SECOND CAUSE OF ACTION (Damages for Violation of the Eighth Amendment) 361. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 362. Plaintiffs bring this claim on behalf of members of the Class who were housed in the MDC after their convictions. 363. Plaintiffs and the Class were forced to live without sufficient heat or light, for
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over a week, in complete darkness and near-freezing temperatures. These conditions were compounded by related deterioration in other conditions of confinement, including being locked in their cells without access to showers or hot water, without exercise, without clean laundry, without access to the commissary, without medical care, without regular access to hot or edible meals, without access to counsel, without communication with their families, all of which, alone and in combination, posed an unreasonable risk of serious damage to Plaintiffs’ and the Class members’ health and physical and mental soundness.
364. Defendants Quay and Maffeo were aware of these conditions, which were open and obvious throughout the entire jail.
365. Defendants Quay and Maffeo knew of and disregarded an excessive risk to health and safety.
366. Defendants Quay and Maffeo intentionally or recklessly failed to act with reasonable care to mitigate these risks.
367. By forcing Plaintiffs and the Class to live in these cruel, unusual, degrading, and inhuman conditions of which Defendant was aware, without legitimate penological purpose, Defendants Quay and Maffeo, acting under color of law and their authority as federal officers, intentionally or recklessly deprived Plaintiffs and Class members of the minimal civilized measures of life’s necessities and subjected Plaintiffs to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.
368. Because Defendants Quay and Maffeo were and continued to be deliberately indifferent to Plaintiffs’ degrading and inhuman conditions of confinement in violation of their Eighth Amendment rights, Plaintiff seeks damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
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369. Because of Defendants Quay and Maffeo’s unlawful conduct, Plaintiffs and Class members have suffered physical injury, pain and suffering, emotional distress, humiliation, embarrassment, and monetary damages.
THIRD CAUSE OF ACTION (Damages for Negligence)
370. Plaintiffs Scott and Cerda incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
371. Plaintiffs Scott and Cerda bring this claim on behalf of all members of the FTCA Class who were housed in the MDC during the Conditions Crisis.
372. Plaintiffs Scott and Cerda and the FTCA Class were forced to live without sufficient heat or light for over a week, in complete darkness and near-freezing temperatures. These conditions were compounded by related deterioration in other conditions of confinement, including being locked in their cells without access to showers or hot water, without exercise, without clean laundry, without access to the commissary, without medical care, without regular access to hot or edible meals, without access to counsel, and without communication with their families, all of which, alone and in combination, posed an unreasonable risk of serious damage to Plaintiffs’ and the Class members’ health and physical and mental soundness.
373. Defendants Quay and Maffeo were aware of these conditions, which were open and obvious throughout the entire jail.
374. At all relevant times pursuant to this Complaint, Defendant United States had a duty to exercise ordinary care to Plaintiffs Scott and Cerda and the FTCA Class.
375. At all relevant times pursuant to this Complaint, Defendant United States failed to uphold this duty to Plaintiffs Scott and Cerda and the FTCA Class, resulting in a humanitarian crisis. The failure to mitigate this excessive risk to health and safety demonstrated a complete
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disregard for the humanity of the people suffering throughout the Conditions Crisis and was a result of Defendants’ negligent acts and omissions.
376. The actions of Defendants Quay and Maffeo represent a gross deviation from the actions a reasonable individual would have taken in their positions, given their knowledge and employment as Warden and Facilities Manager of the MDC.
377. Defendants Quay and Maffeo were at all times relevant to this Complaint acting within the scope and course of their employment by the Federal Bureau of Prisons, an agency of the United States government.
378. A private employer would otherwise be liable for the negligence of Defendants Quay and Maffeo. The United States is therefore liable for tort claims under the Federal Tort Claims Act.
379. In addition to Plaintiffs Scott and Cerda, more than 90 putative members of the FTCA Class have filed SF 95 forms to date.
380. Because of Defendants’ unlawful conduct, Plaintiffs Scott and Cerda and members of the FTCA Class have suffered physical injury, pain and suffering, emotional distress, humiliation, embarrassment, and monetary damages.
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WHEREFORE, Plaintiffs Scott, Cerda, Ak, Patel, Hardy, Williams, and the Class

members respectfully request that the Court enter a class-wide judgment:

A. Certifying this suit as a class action;

B. Awarding reasonable and just compensatory and punitive damages to Plaintiffs

and the Class for the injuries they suffered;

C. Awarding Plaintiffs reasonable attorney’s fees pursuant to the Equal Access for

Justice Act 28 U.S.C. § 2412; and

D. Ordering such other and further relief as this Court deems just, proper and

equitable.

Dated: New York, New York November 15, 2019

EMERY CELLI BRINCKERHOFF & ABADY LLP

By: /s/ Katherine R. Rosenfeld Katherine R. Rosenfeld O. Andrew F. Wilson Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000

CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Alexander Hunter, Legal Intern Gabriella Javaheri, Legal Intern Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871

Alexander R. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403

Attorneys for Plaintiffs and the Putative Class

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 Case 1:19-cv-01075-MKB-SMG Document 65 Filed 05/08/20 Page 1 of 2 PageID #: 487

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
DAVID SCOTT, JEREMY CERDA, OSMAN AK, MERUDH PATEL, GREGORY HARDY, and LARRY WILLIAMS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
FORMER WARDEN HERMAN E. QUAY, FACILITIES MANAGER JOHN MAFFEO, and THE UNITED STATES OF AMERICA,
Defendants.

NOTICE OF MOTION
Civil Action No. 19-CV-1075
(Brodie, J.) (Gold, M.J.)

PLEASE TAKE NOTICE that, upon the accompanying memorandum of law, the

Declaration of Asiamel Cruz, the Declaration of Seth D. Eichenholtz, with exhibits, and upon all

prior pleadings and proceedings herein, Defendants Quay, Maffeo and the United States of

America will move this Court before the Honorable Margo K. Brodie, United States District Judge

for the Eastern District of New York, United States Courthouse, 225 Cadman Plaza East,

Brooklyn, New York, on a date and time to be determined by the Court, for an Order dismissing

Plaintiffs’ Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).

PLEASE TAKE FURTHER NOTICE that, pursuant to the Court=s January 24, 2020

Order, Plaintiff=s memorandum of law in opposition, if any, should be served upon the undersigned

no later than March 31, 2020.

PLEASE TAKE FURTHER NOTICE that, pursuant to the Court=s January 24, 2020

Order, Defendants’ reply memorandum of law, if any, should be served upon the Plaintiff, and the

fully briefed motion filed, no later than April 21, 2020.

Dated:

Brooklyn, New York February 13, 2020

Case 1:19-cv-01075-MKB-SMG Document 65 Filed 05/08/20 Page 2 of 2 PageID #: 488
RICHARD P. DONOGHUE United States Attorney Eastern District of New York Attorney for Defendants 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201
By: ___/s/________________________ Seth D. Eichenholtz Sean P. Greene Shana C. Priore Assistant United States Attorneys (718) 254-7036/6484/6008 Seth.Eichenholtz@usdoj.gov Sean.Greene@usdoj.gov Shana.C.Priore@usdoj.gov
To: Counsel for Plaintiffs Scout Katovich, Esq. Katie R. Rosenfeld, Esq. O. Andrew F. Wilson, Esq. Emery Celli Brinckerhoff & Abady LLP 600 Fifth Ave at Rockefeller Plaza, 10th Floor New York, New York 10020
Alexander Hunter Gabriella Javaheri Alexander A. Reinert, Esq. Betsy R. Ginsberg, Esq. c/o Benjamin N. Cardozo School of Law 55 Fifth Avenue New York, New York 10003

Case 1:19-cv-01075-MKB-SMG Document 65-1 Filed 05/08/20 Page 1 of 17 PageID #: 489

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
DAVID SCOTT, JEREMY CERDA, OSMAN AK, MERUDH PATEL, GREGORY HARDY, and LARRY WILLIAMS, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
FORMER WARDEN HERMAN E. QUAY, FACILITIES MANAGER JOHN MAFFEO, and THE UNITED STATES OF AMERICA,
Defendants.

DECLARATION OF AUSA SETH D. EICHENHOLTZ
Civil Action No. 19-CV-1075
(Brodie, J.) (Gold, M.J.)

SETH D. EICHENHOLTZ, declares pursuant to 28 U.S.C. ' 1746, under penalty of perjury, that the following is true and correct:
1. I am an Assistant United States Attorney, of counsel to Richard P. Donoghue, United States Attorney, Eastern District of New York, attorney for defendants Quay, Maffeo, and the United States of America. I have responsibility for the defense of this action. I submit this declaration in support of Defendants’ Motion to Dismiss the Amended Complaint, and to place before the Court true and correct copies of various documents that support Defendants’ motion.
2. Attached as Exhibit A is a true and correct copy of the Declaration of Herman Quay, dated February 15, 2019, filed in Federal Defenders of New York v. Federal Bureau of Prisons, et al., 19-CV-660 (MKB)(SMG).

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Case 1:19-cv-01075-MKB-SMG Document 65-1 Filed 05/08/20 Page 2 of 17 PageID #: 490

3. Attached as Exhibit B is a true and correct copy of the Declaration of John Maffeo,

dated February 15, 2019, filed in Federal Defenders of New York v. Federal Bureau of Prisons, et

al., 19-CV-660 (MKB)(SMG).

Dated:

Brooklyn, New York February 13, 2020

RICHARD P. DONOGHUE United States Attorney Eastern District of New York Attorney for Defendants Quay, Maffeo and United States of America 271-A Cadman Plaza East, 7th Floor Brooklyn, New York 11201

By: _____/s/_____________________________ Seth D. Eichenholtz Assistant United States Attorney (718) 254-7036 Seth.Eichenholtz@usdoj.gov

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EXHIBIT A

Case 1:19-cv-01075-MKB-SMG Document 65-1 Filed 05/08/20 Page 4 of 17 PageID #: 492

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

FEDERAL DEFENDERS OF NEW YORK, INC., on behalf of itself and its clients detained at the Metropolitan Detention Center – Brooklyn,

- against -

Plaintiff,

Civil Action No. 19-CV-660

FEDERAL BUREAU OF PRISONS, et al.,
Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

(Brodie, J.) (Gold, M.J.)

DECLARATION OF WARDEN HERMAN QUAY

I, Herman Quay, do declare and state as follows:

1. I am a Warden employed by the United States Department of Justice, Federal Bureau of

Prisons (BOP), and I am assigned to the Metropolitan Detention Center in Brooklyn,

New York (MDC). I have been Warden at MDC since December 2015.

2. As Warden, I supervise all aspects of the operation and function of MDC. My

responsibilities include ensuring the safety of all in the institution and ensuring the

orderly running of the institution. MDC currently houses approximately 1,650 federal

inmates.

3. MDC policies currently provide for attorney legal visits five days a week for 11.5 hours

per day, and on weekends and holidays for six hours per day. Additionally, all of MDC’s

general population housing units have dedicated, unmonitored phones that inmates can

use to contact the Federal Defenders of New York.

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4. Although there are slight variations in our local policies, generally, the MDC’s attorney visitation schedule is from 8:00 a.m. until 7:30 p.m., Monday through Friday, and from 8:00 a.m. until 2:00 p.m., Saturday and Sunday.
5. Attorney visits are typically held in visitation rooms in the East and West buildings of MDC, each of which also contain private conference rooms for attorney-client meetings. Because the visitation rooms are often crowded during social visiting hours, the hours from 8:00 a.m. until 12:00 p.m. on Monday through Friday are reserved exclusively for attorney visitation. We encourage attorneys to conduct their visits during those hours if possible.
6. The visitation rooms are the only place at MDC where inmates are permitted to interact with members of the general public. This area requires extremely close monitoring to assure the physical safety of inmates and members of the public, and to prevent the exchange of weapons, drugs, and other prohibited contraband.
7. BOP regulations require that inmates have reasonable access to counsel and legal materials, and I am acutely aware of the importance of attorney visits at MDC. During my time as Warden, the only times when inmate visitation is cancelled is when doing so is necessary to ensure the safety and good order of the institution. To the best of my memory, and based on our visitor logs, inmate visitation was cancelled for a full day on fewer than 10 days in all of 2018. A. Cancelation of Inmate Visitation On January 4 & 5, 2019
8. On January 4, 2019, I was informed by MDC management and staff that the West Building had experienced a partial power outage and was operating on emergency lighting in numerous areas. I was informed by my facilities staff that the power outage
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likely would be repaired by the next day. 9. A power outage of this scale significantly impacts the safe and orderly operation of the
institution. The emergency lighting in the West visiting room is intermittent, dim, and can result in certain areas of near total darkness. There are also no external windows in that room to provide additional natural lighting during the daytime hours. In addition, when power is lost at MDC’s visitor lobby, as it was on these days, the security equipment, including a metal detector and a wave millimeter machine used to scan visitors for weapons and other contraband, could not be used. 10. In my determination, these conditions made it unsafe for inmates to meet with visitors, especially because our visiting area had greatly reduced lighting. As a result, I cancelled all inmate visitation until our staff was able to fully restore power to the West Building. 11. Power was restored in the West Building in the evening of January 5, 2019. As a result, I ordered the resumption of normal inmate visitation on January 6, 2019. B. Cancellation of Inmate Visitation on January 14, 2019 12. From December 22, 2018 through January 25, 2019, MDC, along with the rest of BOP and certain other federal governmental agencies, was operating under a lapse of funding. During this time, correctional staff were required to report to work. Nevertheless, during this period there were several days that more staff than usual called in sick and did not report to work. 13. Every morning, my Captain, who is in charge of the personnel roster for custody staff, reports to me regarding staffing levels. If MDC has an unexpected staffing shortage, we have to address such shortages by shifting staff from postings that are considered less essential (in terms of providing for the safety and security of the institution) to postings
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that are considered more essential. 14. Staffing shortages rarely impact inmate visitation because, for the reasons I have noted
above, security for the visitation rooms is considered a high priority. In general, we are able to reallocate staff from other areas to prevent any interruption of visits. 15. On January 14, 2019, we had approximately double the usual number of staff not come to work because they reported being sick. As a result, we did not have enough staff to cover the supervision of inmate visitation without leaving other essential posts in the facility, such as inmate housing areas, inadequately staffed. 16. In order ensure the safety of the inmate housing areas, and other essential areas of MDC, I cancelled inmate visitation for January 14, 2019. 17. This was the only day during the shutdown that we had to cancel inmate visitation on account of staffing shortages. C. The January 27, 2019 Fire and Subsequent Power Outage 18. On January 27, a major electrical fire impacted the MDC. 19. After learning of the fire that occurred in the MDC on January 27, 2019, my staff reported to me regarding the impact to the institution. By late that same day, I learned that the fire had destroyed the “Priority 3” power distribution equipment, one of three power distribution systems in the West Building. I was informed by staff that, for the time being, repairs were more feasible and quicker than replacement, and that the repairs would likely take at least a week. 20. Throughout this emergency, we continued to assess the operational and security challenges presented by the facility issues on a day-by-day basis. I was informed, for instance, that only essential systems, such as security equipment, fire equipment, health
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equipment, electrical doors, and emergency lighting systems had power. 21. The power outage resulting from the January 27, 2019 fire again left the visiting area
without sufficient lighting, and left critical security equipment in the visitor lobby without the necessary electricity to operate. Again, these conditions meant that inmate visitation in the West Building would present a serious security risk to MDC’s staff, inmates, and visitors. Accordingly, on each day while electrical systems remained compromised, from January 27, 2019 through February 2, 2019, I made the decision, on a day-by-day basis, to cancel all inmate visits. 22. Despite these conditions, and during this entire time, all inmates in the general population had access to dedicated, unmonitored phones to contact the Federal Defenders. These phone lines were operational throughout this period despite the lack of power and lighting in many areas. When inmates were on lockdown in their cells, however, they were not able to access these phones. 23. During the ensuing days, I continued to assess the status of the institution and alternative arrangements to meet inmates’ needs, including visitation, while maintaining institutional order and security. 24. One option I considered was to allow for inmates housed in the West Building to receive legal visitors in the East Building, which did not lose power. This option presented many challenges and risks. For example, West Building inmates would need to be escorted through a narrow, winding hallway linking the East and West Buildings. The west side of the link was affected by the power outage and had several areas of total darkness that would have posed a significant safety risk for both inmates and staff. Accordingly, additional staff would have been required to escort inmates safely. Furthermore, per
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practice and in order to ensure safe movement, the remainder of inmate movement in the institution is restricted when individual inmates are escorted throughout the building in order to prevent inadvertent contact with separatees. This could impact movement to and from health services and program areas. Thus, escorting inmates from their housing units in the West Building to the East visiting room would require more time and more staff. The extra staff was a consideration because we already had additional staff on the housing units during the day due to the limited lighting. 25. Additionally, approximately 1,600 male inmates live in the West Building. Currently, the East Building houses only female inmates. Because MDC’s male and female inmates are separated from one another, using the East Building visiting area for male inmates would limit the time available for female inmate visits in the East Building. 26. Finally, as with all inmate movement, we would have needed to ensure that we never moved inmates together who, for various security or other reasons, were required to be kept separate from one another. 27. For all these reasons, I determined that, given the security risks and operational challenges with this proposal, and given the estimated time remaining to complete repairs to the power system, visitations for inmates in the West Building could not be relocated to the East Building. Despite the challenges described above, I had determined that if the power outage was going to continue for longer than one week, MDC would make plans to restart legal visiting. 28. By Saturday, February 2, 2019, my staff was able to restore sufficient lighting to the visiting area in the West Building to resume inmate visitation. Accordingly, on Sunday, February 3, 2019, we were able to allow inmate legal visitation to resume under the
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normal schedule in the West Building. 29. Later on Sunday, February 3, 2019, I was informed that a large group of protestors who
had gathered outside MDC had breached the entrance to the facility. As a result, for security reasons, we decided to cancel visitation and ordered staff to safely evacuate the visitors currently in the facility. 30. Later that same day, February 3, 2019, electrical power was fully restored to the West Building. D. Cancellation of Inmate Visitation on February 4, 2019 31. On Monday, February 4, 2019, with power restored, I expected visits to proceed as usually scheduled. However, at some point that morning, the MDC received a bomb threat and when reported to NYPD, they confirmed they also received a bomb threat. 32. As a result of the bomb threat, I ordered certain mandatory security protocols to take effect. These protocols included the safe evacuation of visitors and outside contractors, and the cancellation of inmate visiting until staff could ensure that there was no threat to the facility. 33. Later that day, my staff reported that the building was clear. Visitation resumed that evening after the 4:00 p.m. count cleared, and once again, on February 5, 2019, we were able to resume normal visiting hours. 34. Since that day, per MDC policy, daily inmate visitation at MDC has proceeded each and every day.
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Case 1:19-cv-01075-MKB-SMG Document 65-1 Filed 05/08/20 Page 12 of 17 PageID #: 500
EXHIBIT B

CCasaese1:11:91-9c-vc-v0-1007656-0M-MKKBB-S-SMMGG DDocoucmumenetn6t 52-21-1 FFileilded050/20/81/52/019 PPagaege131 of 157PPaaggeeIDID##: 4: 5201

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

FEDERAL DEFENDERS OF NEW YORK, INC., on behalf of itself and its clients detained at the Metropolitan Detention Center – Brooklyn,

- against -

Plaintiff,

Civil Action No. 19-CV-660

FEDERAL BUREAU OF PRISONS, et al.,
Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

(Brodie, J.) (Gold, M.J.)

DECLARATION OF JOHN MAFFEO

I, John Maffeo, do declare and state as follows:

1. I am a Facilities Manager employed by the United States Department of Justice, Federal

Bureau of Prisons (BOP), and assigned to the Metropolitan Detention Center in

Brooklyn, New York (MDC). I have been Facilities Manager at MDC Brooklyn since

July 22, 2018. Prior to my promotion, I was Acting Facilities Manager since January 7,

2018.

2. As Facilities Manager, I supervise the facilities staff and overall facilities department

operations. Specifically, I supervise the general maintenance staff, the HVAC (heating,

ventilation, air conditioning) staff, power house (boiler and cooling system) staff, staff

electricians, staff plumbers, staff engineers, three general foremen, and a facilities

assistant.

3.

e MDC is comprised of two buildings, commonly nown as t e “ ast” and “ est”

buildings. These buildings are connected through an internal hallway connecting the first

floor of eac building, commonly referred to as t e “lin ”

CCasaese1:11:91-9c-vc-v0-1007656-0M-MKKBB-S-SMMGG DDocoucmumenetn6t 52-21-1 FFileilded050/20/81/52/019 PPagaege142 of 157PPaaggeeIDID##: 4: 52012
4. The West building has three different electrical power distribution systems. This is because BOP regulations require redundancies for essential power systems. The three power systems are designated as Priorities 1, 2 and 3. As determined by BOP guidelines, Priority 1 and 2 power all life safety equipment, fire equipment, door locks and security systems, power, emergency lights, and elevators. Priority 3 powers the remaining electrical systems in the institution. This includes non-emergency lighting and systems.
5. The equipment that MDC Brooklyn staff use in the lobby to check visitors for weapons and other contraband plug into wall outlets and are powered by Priority 3 electrical systems. A. The January 4-5, 2019 Power Issue
6. On January 4, 2019, at approximately 6:00 a.m., I received a report that the lights went out in the West building of MDC Brooklyn. I subsequently learned that the Priority 3 power distribution system went down because a circuit breaker was tripped, stopping the flow of external power from the utility company. I attempted to mitigate the power failure by activating three backup generators. However, at 1:30 a.m. on January 5, while the contractor was troubleshooting other issues, all three generators started to fail. As a result, we engaged with a contractor to fix the generators while continuing to work to reset the circuit breaker for Priority 3 systems. During this period, all Priority 3 systems were without power, including non-emergency lights in the visiting area and power to the lobby equipment used to check visitors.
7. I advised Warden Quay and his management staff of the power outage. I also advised him that I expected the power would be restored by the next day.
8. On January 5, 2019, at approximately 5:00 p.m., we restored power to the building by

CCasaese1:11:91-9c-vc-v0-1007656-0M-MKKBB-S-SMMGG DDocoucmumenetn6t 52-21-1 FFileilded050/20/81/52/019 PPagaege153 of 157PPaaggeeIDID##: 4: 52023
resetting the Priority 3 circuit breaker. On January 6, 2019, a temporary generator was delivered to MDC while our three generators were out of service. By January 7, the temporary generator was wired to our system and on standby if necessary. On January
, all of MDC’s generators were repaired and operational B. The January 27, 2019 Electrical Fire and Subsequent Power Outage 9. On Sunday, January 27, 2019 at around 1:00 p.m., I received a call from my staff on shift at MDC that there appeared to be a fire on the first floor of the building. I instructed my staff member to contact the operations lieutenant about the emergency. 10. When I arrived at MDC an hour after receiving the call, I called Associate Warden Garcia and the general foremen I supervise to report to work. The New York City Fire Department was already on site. They located the fire in the electrical room within a mechanical room on the second floor. ConEdison, the utility company that supplies power to MDC, had also been called and was on site. 11. I went to the electrical room to assess the damage. The fire completely and fully destroyed the equipment that distributes power to the Priority 3 power systems. Fortunately, the Priority 1 and Priority 2 equipment was not damaged in the fire. 12. Given my background in electrical systems, I was familiar with the kind of equipment that was destroyed in the fire. I knew that we would not be able to restore power overnight. I also knew that we would not be able to use backup generators to supply power, because those generators would also use the equipment that was destroyed in the fire. I advised the Warden that the power would likely be out for several days. 13. By approximately 4:30 p.m., I was notified that the fire was clear and I could begin an inspection of the building. I assessed the ventilation system and set up emergency

CCasaese1:11:91-9c-vc-v0-1007656-0M-MKKBB-S-SMMGG DDocoucmumenetn6t 52-21-1 FFileilded050/20/81/52/019 PPagaege164 of 157PPaaggeeIDID##: 4: 52034
lighting in the parking lot outside of the building. 14. Without electrical power, the whole building was operating on emergency lighting. The
est uilding’s visitation room ad only limited emergency lighting. In addition, the security e uipment in MDC’s est building lobby, including a metal detector and a millimeter wave scanner used to scan visitors for weapons and other contraband, could not be used because these devices require an electrical connection. 15. On Monday, January 28, I met with an electrical contractor to evaluate the system and set up a plan to repair it. The contractor gave me an initial estimate of ten days to build temporary equipment to replace the damaged equipment. The contractor started to work immediately. 16. Over the course of the next week, I continued to assess the state of the electrical e uipment and, at t e arden’s re uest, searc for solutions to power as muc as t e building as possible. 17. I was able to locate some spare circuits on electrical panels that received power from Distribution 1 and Distribution 2, and reprogram those circuits to provide additional lighting to certain areas. Through the course of the week, we did successfully restore some lighting to some essential areas of the West building. However, we could not use this method to restore power to all areas and all systems, including inmate cells, because there was not enough electrical amperage in these spare circuits to supply such a large power demand. 18. In general emergency lighting is provided to those areas deemed most essential to safety and security. 19. First, we restored additional lighting in the health services department, food services area,

CCasaese1:11:91-9c-vc-v0-1007656-0M-MKKBB-S-SMMGG DDocoucmumenetn6t 52-21-1 FFileilded050/20/81/52/019 PPagaege175 of 157PPaaggeeIDID##: 4: 52045

and receiving and discharge. Starting Thursday, January 31, we began working to restore additional lig ting to t e visiting room, per t e arden’s re uest y late Friday, February 1, we were able to restore additional lighting to the visiting area. 20. Power was ultimately fully restored on Sunday, February 3 before 6:30 p.m. All equipment and lighting resumed functionality from that point forward.

I declare under penalty of perjury in accordance with the provisions of 28 U.S.C. § 1746 that the above is accurate to the best of my knowledge and belief.

_______________________________ John Maffeo Facilities Manager, MDC Brooklyn

_2__/1_5_/_1_9______ Date

 
 Case 1:19-cv-01075-ERK-PK Document 134 Filed 05/25/21 Page 1 of 27 PageID #: 1374

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
DAVID SCOTT, JEREMY CERDA, OSMAN AK, MERUDH PATEL, GREGORY HARDY, and LARRY WILLIAMS, individually and on behalf of all others similarly situated,
Plaintiffs,
– against –
FORMER WARDEN HERMAN E. QUAY, FACILITIES MANAGER JOHN MAFFEO, and THE UNITED STATES OF AMERICA,
Defendants.

MEMORANDUM & ORDER 19-cv-1075 (ERK) (PK)

KORMAN, J.: Plaintiffs brought this Federal Tort Claims Act (FTCA) action for negligence
on behalf of a putative class of persons incarcerated at the Bureau of Prisons’ (BOP) Metropolitan Detention Center (MDC) facility in Brooklyn during a power outage.1 The complaint alleged that on January 27, 2019, during a period of severe winter weather, the West Building at the MDC lost power because of an electrical fire. ECF

1 Plaintiffs also brought claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Those claims were dismissed and they are not discussed here.
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No. 29 at 1–2.2 MDC staff were unable to restore power until February 3, 2019, a week later. Id. at 1. As a result of the power outage, those held in the West Building were allegedly subjected to “inhumane conditions that posed unreasonable and substantial risks to their health and safety,” which the complaint referred to as the “Conditions Crisis.” Id. at 2, 16–43. Plaintiffs now move to certify a class pursuant to Federal Rule of Civil Procedure 23.
I. BACKGROUND Putative class representatives David Scott and Jeremy Cerda, as well as plaintiffs Osman Ak, Merudh Patel, Gregory Hardy, and Larry Williams, were incarcerated in the West Building when the power went out. Plaintiffs support their motion to certify a class with declarations and two documents incorporated by reference: a report from the Office of the Inspector General within the Department of Justice and congressional testimony by the Executive Director of the Federal Defenders of New York, David E. Patton.3 Taken together, this evidence paints a
2 All citations to ECF documents are to the page number of the filed PDF located in the header, not the internal pagination. 3 See Office of the Inspector Gen., U.S. Dep’t Justice, Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impacts on Inmates (2019), https://oig.justice.gov/reports/2019/e1904.pdf [hereinafter OIG Rep.]; The Federal Bureau of Prisons and Implementation of the First Step Act: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 116th Cong. (2019) (statement of David E. Patton, Executive Director, Federal Defenders of New York) [hereinafter Patton Testimony].
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harrowing picture of prison conditions in the wake of the fire and power outage. In particular, the evidence describes a series of inhumane and potentially dangerous conditions that affected residents throughout the West Building during the week without power. I briefly summarize plaintiffs’ evidentiary showings made for the purposes of this motion, bearing in mind that “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans and Tr. Funds, 568 U.S. 455, 466 (2013).
Lockdown Conditions After the power outage, MDC staff “ordered a lockdown of everyone in their cells.” ECF No. 131-3 at 3 ¶ 7; see also ECF No. 131-5 at 3 ¶ 6 (“staff ordered that everyone immediately lock-in to their cells.”). Scott “was locked in his [cell] for 24 hours a day for several days,” while Patel was “locked down for 24 hours a day for the next seven days, without leaving [his] freezing cell a single time.” ECF No. 1312 at 3 ¶ 7; ECF No. 131-4 at 3 ¶ 12. Williams was initially allowed to leave his cell “for a few hours each day,” but by February 1, he “was locked in [his] freezing cell for 24 hours a day.” ECF No. 131-6 at 3 ¶ 9. Similarly, Hardy was “locked alone in [his] freezing cell” for “24 hours a day for several days” and “was not permitted to leave.” ECF No. 131-5 at 3 ¶ 13. The OIG report found that MDC staff “confin[ed] inmates in their cells for extended periods of time.” OIG Rep. at 22. Congresswoman Nydia Velazquez twice toured the West Building and found that
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residents had been locked down for at least 48 hours straight, despite initial assurances by MDC staff that the lockdown was only a temporary measure to facilitate a count of the residents. Patton Testimony at 3.
Lack of Light West Building residents spent the Conditions Crisis “immersed in complete darkness.” ECF No. 131-3 at 3 ¶ 9; see also ECF No. 131-5 at 3 ¶ 7. Scott had no light in his cell, “could not read, . . . [and] ate meals in the dark” even though he “could not see [his] own food.” ECF No. 131-2 at 3 ¶ 8. Patel spent “seven days in the dark” in the Special Housing Unit. ECF No. 131-4 at 3 ¶ 6. A representative of the Federal Defenders who toured the facility on February 1 found that the cells were “pitch black,” with only the emergency lighting in the common areas operational. Patton Testimony at 3.
Lack of Heat or Adequate Clothing All the plaintiffs endured “frigid temperatures” during the Conditions Crisis. ECF No. 131-2 at 3 ¶ 14. Scott had no heat in his cell, “air vents . . . were blowing cold air,” and the “frigid temperatures made it impossible to stay warm.” Id. at 3 ¶¶ 9, 14. Ak was locked in his “freezing cell” without heat and “subjected to extremely cold temperatures.” ECF No. 131-3 at 3 ¶¶ 10–11. He attempted to stop the cold wind from blowing under his cell door by blocking it with a towel. Id. at 3 ¶ 12. Patel’s cell was “extremely cold” and he also attempted to “prevent wind
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chills” with a towel, but an MDC officer ordered him to remove it. ECF No. 131-4 at 3 ¶ 7. Hardy’s cell was “freezing” and he “began to feel extremely cold.” ECF No. 131-5 at 3 ¶¶ 8–9. Williams’s cell “was entirely made of metal and soon felt like a freezer.” ECF No. 131-6 at 3 ¶ 8.
The OIG Report concluded that the heating issues predated the power outage, but that “long-standing unaddressed temperature regulation issues . . . combined with the extremely cold outdoor temperatures, caused temperatures in certain inmate housing units . . . to drop below the BOP target of 68 degrees [Fahrenheit].” OIG Rep. at 11; see also Patton Testimony at 4 (“There were longstanding facilities management and building maintenance problems, and those problems were the cause of the crisis. There were in fact serious heat problems—problems that predated the electrical fire and were exacerbated by MDC employees’ mistakes.”). The Federal Defenders representative reported that some cells had heat, while “others were frigid.” Patton Testimony at 3. During a visit the next day, another representative found that one cell “registered 50 degrees [Fahrenheit] on a portable thermometer.” Id.
The cold was exacerbated by MDC staff’s failure to provide residents with adequate clothing. Scott had only “one cotton short-sleeved jumpsuit, undershirts, underwear and socks” but “had no long-sleeved shirt or warm layers.” ECF No. 1312 at 3 ¶¶ 11. He “wore the same clothes for a week and rotated amongst three pairs
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of underwear.” Id. at 3 ¶ 12, 4 ¶ 21. Ak had “two pairs of pants, two shirts, underwear, and socks” along with one blanket. ECF No. 131-3 at 3 ¶¶ 13–14. He layered his clothes and wrapped himself in the blanket but was unable to stay warm. Id. at 3 ¶ 16. Patel had “one shirt, one pair of underwear, [] one jumpsuit . . . one blanket and one towel.” ECF No. 131-4 at 3 ¶¶ 8–10. He had to “curl up to retain body heat.” Id. at 3 ¶ 11. Hardy had a sweater, sweatshirt, wool hat, and longjohns, but he did not have replacements and was forced to wear the same clothes for a week. ECF No. 131-5 at 3 ¶ 10, 4 ¶ 21. Williams had “one-cotton short-sleeved jumpsuit, undershirts, underwear, one long-sleeved shirt, and socks . . . [and] one blanket.” ECF No. 131-6 at 3 ¶ 10. None of the plaintiffs were offered additional clothing or blankets. ECF No. 131-2 at 3 ¶ 12; No. 131-3 at 3 ¶ 15; ECF No. 131-4 at 3 ¶ 9; ECF No. 131-5 at 3 ¶ 11; ECF No. 131-6 at 3 ¶ 11. The commissary did not function during the power outage, preventing plaintiffs from buying additional supplies to keep warm. OIG Rep. at 18; ECF No. 131-2 at 4 ¶ 18; ECF No. 131-3 at 4 ¶ 19; ECF No. 131-4 at 3 ¶ 14; ECF No. 131-5 at 3 ¶ 16; ECF No. 131-6 at 3 ¶ 12.
The OIG Report noted that some residents had purchased cold-weather items prior to the outage, but that those who “could not afford to do so, or had not done so [before the commissary closed] . . . likely felt the coldest.” OIG Rep. at 17. The Federal Defenders found that “[t]he majority [of residents] were not given extra blankets or long sleeved clothing.” Patton Testimony at 4.
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Lack of Access to Hot Food and Water Plaintiffs were deprived of hot food during the Conditions Crisis. Scott “received meals later than the normal mealtimes and the food was often cold,” causing him to be “constantly hungry throughout the Conditions Crisis.” ECF No. 131-2 at 4 ¶ 17. Ak’s meals were also delayed and cold, and “[o]n some occasions, BOP staff did not provide meals” at all. ECF No. 131-3 at 4 ¶ 18. Patel received “bagged, cold food” and “felt very hungry throughout the Conditions Crisis.” ECF No. 131-4 at 3 ¶ 13. For Hardy, “[s]ome meals were skipped,” and he “relied on eating food products [he] had purchased from the Commissary before the Conditions Crisis began.” ECF No. 131-5 at 3 ¶¶ 14–15. However, he was “thirsty throughout the Conditions Crisis.” Id. at 3 ¶ 17. Williams was forced to serve cold food to other residents and noticed meals “being delivered cold” and left out to cool further. ECF No. 131-6 at 3–4 ¶ 13. With the commissary closed, plaintiffs were unable to buy food to supplement what MDC staff provided. ECF No. 131-2 at 4 ¶ 18; ECF No. 131-3 at 4 ¶ 19; ECF No. 131-4 at 3 ¶ 14; ECF No. 131-5 at 3 ¶ 16; ECF No. 131-6 at 3 ¶ 12. The OIG report found that MDC staff provided meals and prepared food hot, but that longer delivery times due to lockdown conditions may have allowed food to cool. OIG Rep. at 27–28. Plaintiffs also lacked access to hot water for cleaning, bathing, and laundry during the Conditions Crisis. Scott had “no access to hot water” and was forced to
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clean himself in his cell sink and take cold showers. ECF No. 131-2 at 4 ¶ 20. Ak “could barely bring [him]self to take a shower because of the cold water” and he “was concerned about getting sick.” ECF No. 131-3 at 3 ¶ 17. Patel, too, feared getting sick from cold showers. ECF No. 131-4 at 4 ¶ 16. The water in Hardy’s cell “was so cold that it sometimes froze over.” ECF No. 131-5 at 4 ¶ 19. One resident suffering from ulcerative colitis showed the Federal Defenders representative “bloody bedding that had not been changed because of the lack of laundry services.” Patton Testimony at 3.
Lack of Access to Counsel and Visitation MDC staff restricted communication and visitation with family and counsel during the Conditions Crisis. Scott “had no access to email, phone calls, or television . . . other than the brief periods when [he] was permitted out of [his] cell and the Federal Defender phone line was available.” ECF No. 131-2 at 5 ¶ 25. MDC staff turned Scott’s girlfriend away when she attempted to visit, and he was unable to receive counsel visits. Id. at 5 ¶¶ 26–27. Ak, Hardy, and Williams were denied access to any form of communication or visitation. ECF No. 131-3 at 4 ¶¶ 23–26; ECF No. 131-5 at 4 ¶¶ 25–27; ECF No. 131-6 at 4 ¶¶ 17–19. Patel was denied access to communication or visitation, and his fiancée was turned away by MDC staff. ECF No. 131-4 at 4 ¶¶ 20–22. The OIG Report faulted MDC staff for failing “to recognize the importance . . . of providing information to inmates and external stakeholders
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about the status of conditions in the jail, the status of legal and social visiting, and the reasons for canceling visiting.” OIG Rep. at 39. The report also noted that MDC “houses a significant population of pretrial inmates, some of whom may require daily access to counsel to prepare for trial,” meaning that “it was critical . . . to keep inmates, counsel, and the courts informed about any disruptions to legal visiting.” Id.
Lack of Communication from MDC Staff MDC staff failed to communicate with West Building residents. After the lights went out, the situation was “loud and hostile” and “[p]eople were banging on their cells in frustration” because “no information was being provided to them about anything.” ECF No. 131-2 at 4 ¶ 22; see also ECF No. 131-3 at 4 ¶ 21; ECF No. 131-5 at 4 ¶ 22. Patel “did not know what was going on,” causing him to feel “worried and emotional throughout the Conditions Crisis.” ECF No. 131-4 at 4 ¶ 19. The OIG concluded that MDC staff “could have done more to keep inmates informed,” and that lack of information about what was happening contributed to “unrest inside the jail.” OIG Rep. at 30, 39.
Lack of Access to Medical Care The power outage disrupted access to medical care. Scott requested medical care several times, but MDC staff ignored him. ECF No. 131-2 at 5 ¶ 32. Hardy did not receive his kidney medication during the Conditions Crisis, causing him to suffer
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from pain and swollen glands. ECF No. 131-5 at 4–5 ¶¶ 31–33. Like Scott, he made several requests for medical care during the Conditions Crisis which were ignored. Id. at 5 ¶ 35. Williams was unable to refill his medication for hyperthyroidism during the Conditions Crisis, causing him to “experience heart palpitations, dizziness, diarrhea, stomach cramps, headaches, and other symptoms.” ECF No. 131-6 at 4 ¶¶ 20–21. When he requested medical attention, officers told him that “no one’s there.” Id. at 4 ¶ 24. MDC staff also ignored Williams’s repeated requests to see mental health staff during the week of the Conditions Crisis before informing him that they could not fulfill his request because mental health professionals would not be available on weekends. Id. at 5 ¶ 25.
While the OIG was unable to “evaluate the efficacy of medical care provided to a particular inmate or the population as a whole,” its report documented a missed insulin delivery and two missed medication deliveries. OIG Rep. at 28. The OIG also found that 15 residents who used Continuous Positive Airway Pressure (CPAP) machines were unable to do so because of the power outage. Id. at 29. One resident “with an open wound” showed the Federal Defenders representative his “pusscovered bandages that hadn’t been changed in two weeks.” Patton Testimony at 3.
II. DISCUSSION Plaintiffs seek to certify a class “consisting of [] all those people who were confined in the Metropolitan Detention Center’s West Building . . . from January 27,
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2019 until February 3, 2019, and who have or will in the future have satisfied the exhaustion requirement imposed by [the FTCA].” ECF No. 131 at 1–2. Plaintiffs bear the burden to show compliance with all of Rule 23’s requirements, and a “district court may certify a class only after determining that each Rule 23 requirement is met” by conducting its own “rigorous analysis.” Lisnitzer v. Zucker, 983 F.3d 578, 588 (2d Cir. 2020); see also Comcast Corp. v. Behrend, 569 U.S. 27, 33–34 (2013). Compliance must be shown by a “preponderance of the evidence.” In re Flag Telecom Holdings, Ltd. Secs. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (internal quotation omitted). At the certification stage, “[m]erits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen, 568 U.S. at 466.
Rule 23(a) requires that the party seeking certification make prerequisite showings of (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. In re Petrobras Secs., 862 F.3d 250, 260 (2d Cir. 2017). The Second Circuit has also held that Rule 23 contains “an implied requirement of ascertainability,” the touchstone of which is “whether the class is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.” Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (internal quotation omitted).
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Plaintiffs must also demonstrate that the proposed class fits one of the categories of class actions that may be maintained under Rule 23(b). Comcast, 569 U.S. at 33. Rule 23(b)(3), the category plaintiffs rely on, requires them to show that “[1] questions of law or fact common to class members predominate over any questions affecting only individual members, and [2] that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” The first part of this test is usually referred to as the “predominance” requirement, while the second is known as the “superiority” requirement. See In re Petrobras, 862 F.3d at 260; In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 117 (2d Cir. 2013).
Ascertainability The implied requirement of ascertainability tests whether a class is “defined by objective criteria that are administratively feasible [such that] identifying its members would not require a mini-hearing on the merits of each case.” Brecher, 806 F.3d at 24–25 (internal quotation omitted). This is not a heavy burden because the requirement is “designed only to prevent the certification of a class whose membership is truly indeterminable.” Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 567 (S.D.N.Y. 2014) (Rakoff, J.) (internal quotation omitted). The proposed class is ascertainable. Membership is governed by the objective criteria of (1) incarceration at the MDC’s West Building during the Conditions
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Crisis, and (2) exhaustion under the FTCA. Defendants have easy access to both pieces of information and have already been ordered to turn some of it over to plaintiffs. See ECF No. 59 at 2 (reporting that nearly 1,700 individuals were housed in the West Building during the Conditions Crisis and that defendants had compiled a list of most of their names); ECF No. 83 (protective order governing discovery of address information for those individuals). It will therefore be administratively feasible to “determine whether a particular individual is a member” of the class. Brecher, 806 F.3d at 24.
Fed. R. Civ. P. 23(a) Prerequisites Numerosity
Rule 23(a)(1) requires that the movant show that “the class is so numerous that joinder of all members is impracticable.” In the Second Circuit, impracticability of joinder, and thus numerosity, “is presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Plaintiffs contend that the proposed class includes approximately 1,600 members. ECF No. 131-1 at 19. Defendants determined that “approximately 1,694” individuals were housed in MDC’S West Building during the Conditions Crisis, and they concede that this requirement is met. ECF No. 131-10 at 7. Plaintiffs’ attorney also filed an omnibus administrative claim on behalf of 573 putative class members. ECF No. 131-7 at 5 ¶ 10. Accordingly, plaintiffs have demonstrated numerosity.
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Commonality Rule 23(a)(1) requires that there be “questions of law or fact common to the class.” The movant must demonstrate that there is a common contention that can “drive the resolution of the litigation” because “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal quotation omitted); see also Sykes v. Mel S. Harris & Assocs., 780 F.3d 70, 84 (2d Cir. 2015). Raising questions that touch many claims is not enough; rather, the critical issue is whether there are common questions that demonstrate “the capacity of a class-wide proceeding to generate common answers” bearing on the claims of the class members. Wal-Mart, 564 U.S. at 350 (emphasis in original) (internal quotation omitted). Only one such common question is needed to “unite all of the plaintiffs’ claims” and satisfy commonality. Id. at 359 & n.10. The commonality requirement is met here. The heart of this case is the common negligence claim against defendants. Plaintiffs point to several factual and legal contentions the resolution of which will generate common answers “central to the validity of each of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. Common factual issues raised by the complaint include (1) whether defendants were aware of the need to maintain MDC’s infrastructure but failed to do so, (2) whether defendants developed and implemented an adequate emergency response plan,
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(3) what emergency measures defendants took or failed to take during the Conditions Crisis, (4) whether those acts or omissions exposed people incarcerated at MDC to a substantial risk of serious harm, and (5) whether defendants knew of and disregarded that risk. See ECF No. 29 at 52. The resolution of these issues will in turn bear on the ultimate factual question of whether defendants’ conduct before and after the power outage breached the duty of care owed to class members while they were incarcerated at MDC and therefore constituted negligence.
Defendants’ arguments to the contrary miss the mark. They argue that it “cannot be assumed that each individual . . . experienced a breach of a cognizable duty of care or that, if so, he sustained an injury . . . and that a breach of that duty was the proximate cause of any injury.” ECF No. 131-10 at 9. The question at this stage is not whether these elements can be assumed or established, but rather whether a class-wide proceeding can resolve them in a way that generates common answers bearing on each of the claims raised by class members.
I conclude that it can. Plaintiffs’ claims arise from conditions that applied to them in uniform or similar ways, and which they allege were caused by defendants’ policies, acts, and omissions. See supra Part I (summarizing plaintiffs’ evidence of West Building conditions). To give some possible examples among many, a negative answer to the question of “whether defendants in fact failed to provide adequate clothing, heat, and hot water to people incarcerated in the MDC’s West Building
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during the power outage” would resolve all claims related to that conduct “in one stroke.” Wal-Mart, 564 U.S. at 350. Similarly, a negative answer to the question of “whether defendants breached the duty of care owed to those in their custody by failing to remedy these conditions” would cause the same result. Several such questions feature in this case, and the commonality prerequisite is accordingly satisfied.
Typicality Rule 23(a)(3) requires the movant to show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Typicality “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (internal quotation omitted). Commonality and typicality “tend to merge into one another, so that similar considerations animate analysis” of both prerequisites. Id. “[M]inor variations in the fact patterns underlying the individual claims,” Robidoux v. Celani, 987 F.2d 931, 936–37 (2d Cir. 1993), will not defeat typicality where “plaintiffs allege that their injuries derive from a unitary course of conduct by a single system.” Marisol A., 126 F.3d at 377. Typicality is satisfied here for much the same reason commonality is: plaintiffs allege that defendants violated duties owed to them as a class. The alleged
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violations, such as failure to adequately respond to the power outage or to take reasonable steps to ameliorate conditions presenting risks of substantial harm to West Building residents, occurred “in a manner common to the plaintiff class.” Marisol A., 126 F.3d at 377. All the alleged violations resulted from the action or inaction of MDC and BOP officials charged with ensuring the care and safety of those incarcerated in the facility’s West Building. Even assuming that there are minor variations in how these alleged violations affected individual claimants, that would not be enough to conclude that the lead plaintiffs’ claims are atypical of the proposed class.
Defendants argue that typicality is absent here because plaintiffs have satisfied the FTCA’s exhaustion requirement, while some members of the proposed class have allegedly not yet done so. They claim that these “differences in the legal claims are fatal to Plaintiffs’ typicality argument.” ECF No. 131-10 at 10. But the proposed class definition makes clear that it includes only those claimants “who have or will in the future have satisfied the exhaustion requirement imposed by [the FTCA].” ECF No. 131 at 1–2. The typicality problem identified by defendants is illusory because anyone who fails to exhaust is automatically defined out of the class. Moreover, plaintiffs have already exhausted under the FTCA, and thus there is no danger that they will prioritize overcoming an atypical exhaustion-related defense ahead of the common interests of the class. ECF No. 131-2 at 6 ¶ 38; see also Baffa
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v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 60 (2d Cir. 2000) (explaining that the typicality inquiry is animated in part by “danger that absent class members will suffer if their representative is preoccupied with defenses unique to her”).
The parties also spar over whether those claimants who have not exhausted would be eligible for some form of tolling, either as equitable relief or because plaintiffs tolled the FTCA’s administrative period on behalf of all putative class members by filing this action. See Am. Pipe. & Constr. Co. v. Utah, 414 U.S. 538, 552–53 (1974). I decline to resolve the dispute at this stage. Claimants who ultimately fail to exhaust under the FTCA—for whatever reason—will not be part of the certified class. Whether additional claimants are eligible for some form of tolling that would allow them to exhaust in the future is outside the scope of this motion for certification.
Adequacy Rule 23(a)(4) requires movant to show that “the representative parties will fairly and adequately protect the interests of the class.” This prerequisite “serves to uncover conflicts of interest between named parties and the class they seek to represent” because such conflicts would undermine the lead plaintiffs’ incentives to vigorously advocate on behalf of the class. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). “Determination of adequacy typically ‘entails inquiry as to
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whether: 1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.’” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir. 2007) (quoting Baffa, 222 F.3d at 60). Only “fundamental conflicts” will render a representative inadequate, Charron v. Wiener, 731 F.3d 241, 249 (2d Cir. 2013), and even some fundamental conflicts that go to “to the very heart of the litigation” may be cured by dividing a class into subclasses. Id. at 250 (internal quotation omitted).
Lead plaintiffs have shown that they will fairly and adequately protect the interests of the class. Both “assert claims arising out of the same conduct and resulting in the same type of injuries” as members of the proposed class. B & R Supermarket, Inc. v. Mastercard Int’l Inc., 2018 WL 1335355, at *9 (E.D.N.Y. Mar. 14, 2018). At this stage, there is no conflict between the interests of lead plaintiffs and the interests of class members, much less a fundamental one. Defendants raise the same objection to adequacy as they did to typicality, arguing that lead plaintiffs cannot adequately represent claimants who have not exhausted under the FTCA. For the reasons discussed above, that argument is unpersuasive.
Proposed class counsel are experienced and competent lawyers who will be able to conduct this litigation. The proposed class is represented by the law firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP (Emery Celli), the Benjamin
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N. Cardozo Civil Rights Clinic and its Director Betsy Ginsberg, and Cardozo School of Law professor Alexander Reinert. Together, these attorneys have extensive experience litigating civil rights actions and class actions in federal court. See ECF No. 131 Exs. F–H; Rosenfeld v. Lenich, 2021 WL 508339, at *5 (E.D.N.Y. Feb. 11, 2021) (finding that Emery Celli has “a wealth of experience handling complex class actions”); McBean v. City of New York, 260 F.R.D. 120, 132 n.17 (S.D.N.Y. 2009) (finding that Emery Celli “amply demonstrate[d]” its “ability and determination to represent the class effectively”); Brown v. Kelly, 244 F.R.D. 222, 233 (S.D.N.Y. 2007), aff’d in part, vacated in part on other grounds, 609 F.3d 467 (2d Cir. 2010) (describing Emery Celli as “a preeminent civil rights firm.”). In addition, their briefing on this motion was of high quality and demonstrated command of the law and attention to detail. Defendants do not argue that proposed class counsel would be unable to effectively advocate for, and manage this litigation on behalf of, the proposed class. See ECF No. 131-10 at 15–17. Accordingly, I find that proposed class counsel will fairly and adequately represent the interests of the proposed class.
Fed. R. Civ. P. 23(b)(3) Requirements Plaintiffs have satisfied all the prerequisites to class certification. I now turn to the additional requirements they must show to maintain a class action under Rule 23(b)(3).
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1. Predominance Rule 23(b)(3) provides that a court must “find[] that the questions of law or fact common to class members predominate over any questions affecting only individual members.” Predominance turns on whether the class’s interests are “sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. The predominance requirement is similar to the commonality prerequisite, but it is “even more demanding.” Comcast, 569 U.S. at 34. “In order to meet the predominance requirement . . . a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, predominate over those issues that are subject only to individualized proof.” In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006) (internal quotation omitted). I begin by examining “the elements of the claims and defenses to be litigated.” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 138 (2d Cir. 2015). The FTCA allows tort claims for negligence against employees of federal agencies if a private person would be liable in the same circumstances under the laws of the place where the conduct occurred. See 28 U.S.C. § 2672. The state law negligence analogue here requires plaintiffs to “demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” Pasternack v. Lab’y Corp. of Am. Holdings, 27 N.Y.3d 817, 825 (2016) (quoting
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Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985)). The definition and scope of a duty is a question of law. Id.
I find that the central—and predominating—issues in this case are (1) the scope of the duty of care defendants owed to people incarcerated in the West Building at MDC during the Conditions Crisis, (2) whether defendants breached that duty, and (3) whether they thereby injured plaintiffs. Plaintiffs assert that defendants breached their duty of care and created “an unreasonable risk of serious damage to Plaintiffs’ and the Class members’ health and physical and mental soundness.” ECF No. 29 at 56. The alleged breach was the same for all class members: failing to take adequate measures to respond to the power outage or remediate the dangerous conditions that were “open and obvious” in its aftermath. Id.
Similarly, many of the injuries allegedly flowing from the breach—e.g. loss of light and heat, exposure to near-freezing temperatures, long-term confinement in cells, and deprivation of communication with families and lawyers—impacted class members generally. See supra Part I; ECF No. 29 at 56–57. In other words, these claims all involve allegations of negligence against the same actors, arising from the same conduct, affecting claimants who were all housed in the same building at the same time in the same or similar ways. These issues are thus “susceptible to generalized, class-wide proof,” and resolving them on a class-wide basis “would achieve economies of time, effort, and expense, and promote uniformity of decisions
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as to persons similarly situated.” In re Nassau Cnty., 461 F.3d at 225, 227 (internal quotation omitted). Resolving the truth and extent of defendants’ wrongdoing will be useful to the class as a whole.
Some plaintiffs may have suffered unique injuries in addition to those experienced by the class, so individual damages issues may present themselves in this case if liability is established. However, I find that those issues will not predominate over the common duty, breach, and injury questions. “Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.” Sykes, 780 F.3d at 81 (internal quotation omitted). And “[t]here are a number of management tools available to a district court to address [these] issues” should they arise, including trial bifurcation, assignment to a magistrate judge or special master for damages calculations, or decertification and notice after a liability determination. In re Nassau Cnty., 461 F.3d at 231 (internal quotation omitted).
2. Superiority Superiority requires a finding that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The rule provides that the following factors should be considered: (A) the class members’ interests in individually controlling the prosecution or
defense of separate actions;
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(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action. Id.; In re Nassau Cnty., 461 F.3d at 230. This list is not exhaustive. Amchem, 521 U.S. at 615–16. Defendants mention the superiority requirement but do not argue that plaintiffs fail to meet it. See ECF No. 131-10 at 17–19. Nevertheless, I engage in the required “rigorous analysis,” Lisnitzer, 983 F.3d at 588, and conclude that all four factors weigh in favor of finding superiority.
a. Interest in Individual Control The first factor examines the interest individual class members hold in controlling the course of their own actions. The preference for individual control reflects our “deep-rooted historic tradition that everyone should have his [or her] own day in court,” to which representative litigation is an exception. Taylor v. Sturgell, 553 U.S. 880, 892–93 (2008) (internal quotation omitted). That preference may be outweighed in some cases, such as where the possible recovery for each individual complainant is small relative to the cost of litigation. Amchem, 521 U.S. at 617 (“The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.”) (internal quotation omitted).
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That is the case here, where the potential recovery for each individual claimant is likely to be small relative to the cost and complexity of litigating those claims against the federal government. That is particularly true because the proposed class is composed of incarcerated or recently incarcerated people, who are likely to lack the resources or legal training to vindicate their rights. See Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 813 (1985) (use of the class action device is appropriate where “[t]he plaintiff’s claim may be so small, or the plaintiff so unfamiliar with the law, that he [or she] would not file suit individually.”); Amchem, 521 U.S. at 616.
b. Other Pending Litigation Analysis of the second factor reinforces the conclusion that potential class members lack significant interest in maintaining separate actions. Of the approximately 1,600 prospective class members, only a handful have filed their own suits. One of those cases was dismissed because the plaintiff failed to prosecute, and another resulted in a stipulated dismissal. See ECF No. 28, Alicea v. Quay, 19-cv2135-MKB-PK (E.D.N.Y. July 8, 2020); ECF No. 29, Saeed v. Quay, 19-cv-2134MKB-PK (E.D.N.Y. Jan. 14, 2021). Plaintiffs report that “many of the plaintiffs who filed related lawsuits have voluntarily dismissed those cases to join this action as putative class members.” ECF No. 131-1 at 31. Plaintiffs in the two remaining cases were given a chance to oppose consolidation of their actions with this one, and none did so. The “small number of individual suits against defendants . . . indicat[es]
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a lack of interest in individual prosecution.” In re Cmty. Bank of N. Va., 418 F.3d 277, 309 (3d Cir. 2005). Finally, class members who do retain such an interest will have the opportunity to opt out of the class. See Fed. R. Civ. P. 23(c)(2)(B)(v).
c. Desirability of Concentration The third factor is easily satisfied. MDC is located in this district, and “all pending litigation arising from the fire [and power outage] is apparently before this court.” Beaulieu v. EQ Indus. Servs., Inc., 2009 WL 2208131, at *23 (E.D.N.C. July 22, 2009). Aggregating these claims will promote judicial economy and uniformity of decisions by “simplify[ing] and streamlin[ing] the litigation process.” In re Nassau Cnty., 462 F.3d at 230. Moreover, this action has already “progressed substantially” through the discovery process on factual issues common to the class. Id.
d. Manageability The fourth factor focuses on whether class action litigation would be manageable under the circumstances. “[F]ailure to certify an action . . . on the sole ground that it would be unmanageable is disfavored and should be the exception rather than the rule.” In re Petrobras Secs., 862 F.3d at 268 (internal quotation omitted). I find that there are no significant manageability challenges present in this case. To the contrary, litigating the claims in this case on a class basis is likely to be more efficient and manageable than handling them individually. As discussed above,
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the predominant issues of law and fact affecting each plaintiff’s claims are either

similar or identical. To the extent that unforeseen issues do arise, they can be

addressed using normal trial management tools. Id. at 274.

III. CONCLUSION

Plaintiffs have demonstrated that the proposed class is ascertainable and

complies with the Rule 23(a) prerequisites. They have also shown compliance with

the requirements to maintain a class pursuant to Rule 23(b)(3). Accordingly, a class

consisting of all those people who were confined in the Metropolitan Detention

Center’s West Building from January 27, 2019 until February 3, 2019, and who have

or will in the future have satisfied the exhaustion requirement imposed by 28 U.S.C.

§ 2675, is certified. Plaintiffs’ counsel is appointed class counsel in light of the work

they have already done on this case, as well as their experience, knowledge, and

resources. See Fed. R. Civ. P. 23(g)(1).

SO ORDERED.

Brooklyn, New York May 25, 2021

Edward R. Korman Edward R. Korman United States District Judge

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