CLOSED
U.S. District Court Northern District of New York − Main Office (Syracuse) [NextGen CM/ECF
Release 1.3 (Revision 1.3.6)] (Prisoner) CIVIL DOCKET FOR CASE #: 9:17−cv−00817−DNH−DEP

A.T. et al v. Harder et al Assigned to: Judge David N. Hurd Referred to: Magistrate Judge David E. Peebles related Case: 9:16−cv−01150−DNH−DEP Cause: 42:1983 Prisoner Civil Rights
Plaintiff
A. T. a minor, by and through his parent and natural guardian Shakeema Tillman

Date Filed: 07/25/2017 Date Terminated: 12/18/2018 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Joshua T. Cotter Legal Services of Central New York − Syracuse 221 South Warren Street Suite 300 Syracuse, NY 13202 315−703−6579 Fax: 315−475−2706 Email: jcotter@lscny.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Haddad Legal Services of Central New York, Inc. − Binghamton 168 Water Street Binghamton, NY 13901 845−891−8406 Fax: 607−217−0210 Email: ghaddad@lscny.org ATTORNEY TO BE NOTICED

Samuel C. Young Legal Services of Central New York − Syracuse 221 South Warren Street Suite 300 Syracuse, NY 13202 315−703−6591 Fax: 315−703−6520 Email: samyoung@lscny.org ATTORNEY TO BE NOTICED

Susan M. Young Legal Services of Central New York − Syracuse 221 South Warren Street Suite 300 Syracuse, NY 13202 315−475−3127 Fax: 315−475−2706 Email: syoung@lscny.org ATTORNEY TO BE NOTICED

Plaintiff
B. C. a minor, by and through Kristi Cochardo

represented by Joshua T. Cotter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Mediator (Mandatory Program) Suzanne Galbato
V. Defendant David Harder Broome County Sheriff, in his official capacity
Defendant Mark Smolinsky Jail Administrator of the Broome County Correctional Facility, in his official capacity Defendant Kevin Moore Deputy Administrator, in his official capacity
Defendant Chenango Valley Central School District TERMINATED: 03/07/2018

George B. Haddad (See above for address) ATTORNEY TO BE NOTICED
Samuel C. Young (See above for address) ATTORNEY TO BE NOTICED
Susan M. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Suzanne O. Galbato Bond Schoeneck & King, PLLC − Syracuse One Lincoln Center Syracuse, NY 13202 315−218−8000 Fax: 315−218−8100 Email: galbats@bsk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert G. Behnke Broome County Attorney's Office Broome County Office Building 60 Hawley Street P.O. Box 1766 Binghamton, NY 13902−1766 607−778−2117 Fax: 607−778−6122 Email: RBehnke@co.broome.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert G. Behnke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert G. Behnke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank W. Miller Office of Frank W. Miller 6575 Kirkville Road East Syracuse, NY 13057 315−234−9900 Fax: 315−234−9908

Defendant
Binghamton City School District TERMINATED: 08/08/2017

Email: fmiller@fwmillerlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher M. Militello Costello, Cooney & Fearon, PLLC − Syracuse Office 500 Plum Street − Suite 300 Syracuse, NY 13204 315−422−1152 Email: cmilitello@ccf−law.com TERMINATED: 10/17/2017

Date Filed 07/25/2017 07/26/2017
07/26/2017 07/27/2017 07/27/2017 07/27/2017 08/08/2017 08/08/2017 08/08/2017 08/09/2017 08/10/2017 08/10/2017

# Docket Text
1 COMPLAINT against Binghamton City School District, David Harder, Kevin Moore, Mark Smolinsky (Filing fee $400 receipt number 0206−4079491) filed by A. T., B. C. (Attachments: # 1 Civil Cover Sheet)(alh, ) (Entered: 07/26/2017)
2 G.O. 25 FILING ORDER ISSUED: Initial Conference set for 10/26/2017 09:30 AM in Syracuse before Magistrate Judge David E. Peebles. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 10/19/2017. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (alh, ) (Entered: 07/26/2017)
3 Summons Issued as to Binghamton City School District, David Harder, Kevin Moore, Mark Smolinsky. (Attachments: # 1 Smolinsky, # 2 Moore, # 3 Binghamton City School District)(alh, ) (Entered: 07/26/2017)
4 AFFIDAVIT of Service for the Summons, Complaint, and General Order 25 served on David Harder, Mark Smolinsky, and Kevin Moore on 7/27/2017, filed by B. C., A. T.. (Cotter, Joshua) (Entered: 07/27/2017)
5 AFFIDAVIT of Service for the Summons, Complaint and General Order 25 served on the Binghamton City School District on 7/26/2017, filed by B. C., A. T.. (Cotter, Joshua) (Entered: 07/27/2017)
Set Deadlines: Binghamton City School District answer due 8/16/2017; David Harder answer due 8/16/2017; Kevin Moore answer due 8/16/2017; Mark Smolinsky answer due 8/16/2017. (alh, ) (Entered: 07/27/2017)
6 STATUS REPORT Informing the Court of the Plaintiffs' Intention to File an Amended Complaint by B. C., A. T.. (Cotter, Joshua) (Entered: 08/08/2017)
7 AMENDED COMPLAINT against David Harder, Kevin Moore, Mark Smolinsky filed by A. T., B. C.. (Attachments: # 1 Proposed Summons)(Cotter, Joshua) (Entered: 08/08/2017)
8 Notice of Related Case by B. C., A. T. submitted to Judge David Hurd . Objections due by 8/15/2017 (Cotter, Joshua) (Entered: 08/08/2017)
9 Summons Issued as to Chenango Valley Central School District. (alh, ) (Entered: 08/09/2017)
10 AFFIDAVIT of Service for Amended Complaint and Notice of Related Case served on David Harder, Mark Smolinsky and Kevin Moore on 8/9/2017, filed by B. C., A. T.. (Cotter, Joshua) (Entered: 08/10/2017)
11 AFFIDAVIT of Service for Summons, Amended Complaint, Notice of Related Case and General Order 25 served on Chenango Valley Central School District on 08/10/2017, filed by B. C., A. T.. (Cotter, Joshua) (Entered: 08/10/2017)

08/10/2017 08/14/2017 08/23/2017 08/23/2017 08/23/2017 08/23/2017 08/24/2017 08/28/2017
08/28/2017 09/20/2017 09/22/2017
10/17/2017 10/17/2017
10/17/2017 11/01/2017

Set Deadline: Chenango Valley Central School District answer due 8/24/2017; Reset Deadlines: David Harder answer due 8/23/2017; Kevin Moore answer due 8/23/2017; Mark Smolinsky answer due 8/23/2017. (alh, ) (Entered: 08/10/2017)
12 RESPONSE TO LETTER BRIEF filed by David Harder, Kevin Moore, Mark Smolinsky as to 8 Notice of Related Case filed by B. C., A. T. . (Attachments: # 1 certificate of service)(Behnke, Robert) (Entered: 08/14/2017)
13 ANSWER to 7 Amended Complaint by David Harder, Kevin Moore, Mark Smolinsky. (Attachments: # 1 Certificate of Service)(Behnke, Robert) (Entered: 08/23/2017)
14 NOTICE of Appearance by Christopher M. Militello on behalf of Chenango Valley Central School District (Militello, Christopher) (Entered: 08/23/2017)
15 Letter Motion from Christopher Militello, Esq. for Chenango Valley Central School District requesting Extension of deadline to respond to Complaint submitted to Judge Peebles . (Militello, Christopher) (Entered: 08/23/2017)
16 NOTICE of Appearance by Frank W. Miller on behalf of Chenango Valley Central School District (Miller, Frank) (Entered: 08/23/2017)
17 TEXT ORDER granting 15 Letter Request for an extension of time for defendant Chenango Valley Central School District to answer or otherwise respond to plaintiff's 7 amended complaint on or before 9/30/2017. Authorized by Magistrate Judge David E. Peebles on 8/24/17. (sal ) (Entered: 08/24/2017)
18 DECISION AND ORDER: ORDERED that 1. Plaintiffs' request that this case be designated as related to V.W. v. Conway, 9:16−CV−1150−DNH−DEP is GRANTED; and 2. The Clerk of the Court is directed to reassign this action to the undersigned for all further proceedings. Signed by Judge David N. Hurd on 8/28/17. (alh, ) (Entered: 08/28/2017)
Judge David N. Hurd added. Senior Judge Thomas J. McAvoy no longer assigned to case. (alh, ) (Entered: 08/28/2017)
19 Letter Motion from Christopher Militello, Esq. for Chenango Valley Central School District requesting Extension of deadline to respond to Complaint submitted to Judge Peebles . (Militello, Christopher) (Entered: 09/20/2017)
TEXT ORDER granting 19 Letter Request for an extension of time for defendant Chenango Valley Central School District to answer or otherwise respond to plaintiff's amended complaint on or before 10/31/2017. The in person Initial Conference set for 10/26/2017 at 9:30 AM is rescheduled for 11/9/2017 at 10:00 AM in Syracuse, 10th floor, before Magistrate Judge David E. Peebles. The Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 11/3/2017. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) Authorized by Magistrate Judge David E. Peebles on 9/22/2017. (Entered: 09/22/2017)
20 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting removal of Christopher M. Militello, Esq. from electronic filing notices as he is no longer involved in this case submitted to Judge Peebles . (Miller, Frank) (Entered: 10/17/2017)
21 CERTIFICATE OF SERVICE by Chenango Valley Central School District re 20 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting removal of Christopher M. Militello, Esq. from electronic filing notices as he is no longer involved in this case submitted to Judge Peebles (Miller, Frank) (Entered: 10/17/2017)
22 TEXT ORDER granting 20 Letter Request to remove Christopher M Militello, Esq. as counsel for the defendant Chenango Valley Central School District in this action. Authorized by Magistrate Judge David E. Peebles on 10/17/2017. (sal) (Entered: 10/17/2017)
23 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting extension of time to serve Answer submitted to Judge Peebles . (Miller, Frank) (Entered: 11/01/2017)

11/03/2017
11/07/2017 11/09/2017
11/09/2017 11/09/2017 11/09/2017
12/01/2017 12/01/2017 12/01/2017 01/02/2018 01/03/2018

24 TEXT ORDER granting 23 Letter Request. The time for defendant Chenango Valley Central School District to answer or otherwise respond to plaintiff's complaint is extended until 12/1/2017. The in person Rule 16 Conference remains scheduled for 11/9/2017 at 10:00 AM in Syracuse, 10th floor, before Magistrate Judge David E. Peebles. Parties are reminded to file a Civil Case Management Plan in preparation of this conference and the deadline for filing this document has been extended until 11/7/2017. Authorized by Magistrate Judge David E. Peebles on 11/3/2017. (sal, ) (Entered: 11/03/2017)
25 CIVIL CASE MANAGEMENT PLAN by B. C., A. T.. (Cotter, Joshua) (Entered: 11/07/2017)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Initial Pretrial Conference held on 11/9/2017. Mandatory disclosures will be exchanged by 12/8/2017. Plaintiffs' counsel intends to file a class certification motion by 12/1/2017, as well as a motion for preliminary injunction some time in December. Expert retention is anticipated. Case is placed into the Mandatory Mediation Program. The deadline for completion of Mandatory Mediation is 1/31/2018. Joinder and amendment deadlines are set for 6/1/2018. Completion of Fact Discovery is due by 8/31/2018. Initial expert reports are due by 9/6/2018. Responsive expert reports are due by 9/20/2018. Rebuttal expert reports are due by 10/11/2018. Completion of all Discovery, including expert depositions, is due by 11/30/2018. Dispositive motions must be filed by 1/18/2019. Next telephone conference is set for 2/15/2018 at 3:30 PM. Plaintiff's counsel is directed to initiate the call to Chambers. APP: Joshua Cotter, Esq., Samuel Young, Esq., Susan Young, Esq., Robert Behnke, Esq., and Charles Spagnoli, Esq.. (sal ) (Entered: 11/09/2017)
Set Hearings: A Telephone Conference is set for 2/15/2018 at 3:30 PM before Magistrate Judge David E. Peebles. Plaintiffs' counsel is directed to initiate the call to Chambers, which can be reached at (315) 234−8620. (sal ) (Entered: 11/09/2017)
26 ORDER REFERRING CASE to Mandatory Mediation. The deadline for Mediator Selection is 12/7/2017. The deadline for completion of Mandatory Mediation is 1/31/2018. Signed by Magistrate Judge David E. Peebles on 11/9/2017. (sal ) (Entered: 11/09/2017)
27 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of bench trial: 4−6 days. Preferred Trial Location: Utica. The deadline for completion of Mandatory Mediation is 1/31/2018. Joinder of Parties due by 6/1/2018. Amended Pleadings due by 6/1/2018. Completion of Fact Discovery due by 8/31/2018. Initial expert reports are due by 9/6/2018. Responsive expert reports are due by 9/20/2018. Rebuttal expert reports are due by 10/11/2018. All Discovery, including Expert Depositions, is due by 11/30/2018. Dispositive Motions must be filed by 1/18/2019. PLEASE SEE ATTACHED ADDENDUM REGARDING REQUESTS FOR EXTENSIONS OF TIME. Signed by Magistrate Judge David E. Peebles on 11/9/2017. (Attachments: # 1 Addendum)(sal) (Entered: 11/09/2017)
28 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting extension of time to serve Answer and Rule 26 Disclosures submitted to Judge Peebles . (Miller, Frank) (Entered: 12/01/2017)
29 CERTIFICATE OF SERVICE by Chenango Valley Central School District re 28 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting extension of time to serve Answer and Rule 26 Disclosures submitted to Judge Peebles (Miller, Frank) (Entered: 12/01/2017)
30 TEXT ORDER granting 28 Letter Request by Defendant Chenango Valley Central School District for an extension of time until 1/2/2018 to answer plaintiff's complaint and serve its Rule 26 Disclosures. Authorized by Magistrate Judge David E. Peebles on 12/1/2017. (sal ) (Entered: 12/01/2017)
31 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting an extension of time to serve our answer submitted to Judge David E. Peebles . (Miller, Frank) (Entered: 01/02/2018)
32 TEXT ORDER granting 31 Letter Request for defendant Chenango Valley Central School District to answer or otherwise respond to plaintiff's amended complaint on or before 2/2/2018. Authorized by Magistrate Judge David E. Peebles on 1/3/18. (sal )

01/03/2018
01/23/2018
01/23/2018 01/29/2018 01/29/2018 01/29/2018 01/30/2018
01/31/2018
01/31/2018 01/31/2018 01/31/2018 01/31/2018

(Entered: 01/03/2018)
33 MOTION to Certify Class Motion Hearing set for 2/9/2018 10:00 AM in Utica before Judge David N. Hurd Response to Motion due by 1/23/2018 Reply to Response to Motion due by 1/29/2018. filed by B. C., A. T.. (Attachments: # 1 Declaration of Joshua Cotter, # 2 Exhibit(s) 1−6 of the Declaration of Joshua Cotter, # 3 Exhibit(s) 7−12 of the Declaration of Joshua Cotter, # 4 Exhibit(s) 13−22 of the Declaration of Joshua Cotter, # 5 Exhibit(s) Exhibits 23−25 of the Declaration of Joshua Cotter, # 6 Exhibit(s) 26−27 of the Declaration of Joshua Cotter, # 7 Exhibit(s) 28−31 of the Declaration of Joshua Cotter, # 8 Memorandum of Law) (Cotter, Joshua) (Entered: 01/03/2018)
34 AFFIDAVIT in Opposition re 33 MOTION to Certify Class filed by David Harder, Kevin Moore, Mark Smolinsky. (Attachments: # 1 Exhibit(s) A CJ Discipline File, # 2 Exhibit(s) B Age Specific Diet for Juveniles, # 3 Exhibit(s) C AT Discipline File, # 4 Exhibit(s) E BC Discipline File, # 5 Exhibit(s) F DK Discipline File, # 6 Exhibit(s) G OC Discipline File, # 7 Memorandum of Law, # 8 Certificate of Service)(Behnke, Robert) (Entered: 01/23/2018)
35 Medical Records filed by David Harder, Kevin Moore, Mark Smolinsky. (Behnke, Robert) (Entered: 01/23/2018)
36 Letter Motion from Plaintiffs' Counsel for B. C., A. T. requesting Permission to File a Reply to the Sheriff's Office Defendants' Opposition to Plaintiffs' Motion for Class Certification submitted to Judge David Hurd . (Cotter, Joshua) (Entered: 01/29/2018)
37 REPLY to Response to Motion re 33 MOTION to Certify Class filed by B. C., A. T.. (Attachments: # 1 Declaration Supplementing Joshua Cotter's Initial Declaration, # 2 Exhibit(s) 1−2 of Supplemental Declaration of Joshua Cotter)(Cotter, Joshua) (Entered: 01/29/2018)
38 Medical Records filed by B. C., A. T.. (Cotter, Joshua) (Entered: 01/29/2018)
39 TEXT ORDER: Plaintiffs' 36 Letter Motion requesting permission to file their 37 Reply and 38 Medical Records to defendants' 33 Response in opposition to the plaintiffs' 33 Motion to Certify Class is GRANTED and accepted for the Court's consideration. The Motion to Certify Class is fully briefed, no further submissions will be accepted for filing. Authorized by Judge David N. Hurd on 1/30/18. (alh, ) (Entered: 01/30/2018)
40 STIPULATION SELECTING MEDIATOR: IT IS HEREBY STIPULATED AND AGREED that Suzanne Galbato has been selected, contacted and has agreed to serve as Mediator for this action. IT IS FURTHER STIPULATED AND AGREED, that counsel will participate in the mediation session in good faith and confer with the Mediator regarding the scheduling of additional conferences, bearing in mind the deadline for completion of Mediation set forth in the Court's Order Referring the Case to Mediation. Stipulation signed by: Joshua Cotter and Robert Behnke. Dated: 1/31/18(Cotter, Joshua) (Entered: 01/31/2018)
41 Letter Motion from Plainitffs' Counsel for B. C., A. T. requesting an Exstension of the Deadline to Complete Mediation submitted to Judge Peebles . (Cotter, Joshua) (Entered: 01/31/2018)
42 TEXT ORDER granting 41 Letter Request. The parties have selected a mediator and the Mandatory Mediation is currently scheduled for 2/13/2018, therefore, the deadline for completion of Mandatory Mediation is extended until 2/13/2018.Authorized by Magistrate Judge David E. Peebles on 1/31/2018. (sal ) (Entered: 01/31/2018)
43 Letter Motion from Robert G. Behnke for David Harder, Kevin Moore, Mark Smolinsky requesting rescheduling of status conference submitted to Judge Peebles . (Behnke, Robert) (Entered: 01/31/2018)
44 TEXT ORDER granting 43 Letter Request. The Telephone Conference set for 2/15/2018 at 3:30 PM is rescheduled for 3/15/2018 at 10:00 AM before Magistrate Judge David E. Peebles. Plaintiffs' counsel is directed to initiate the call to Chambers, which can be reached at (315) 234−8620. Authorized by Magistrate Judge David E. Peebles on 1/31/18. (sal ) (Entered: 01/31/2018)

02/06/2018
02/06/2018 02/07/2018 02/07/2018 02/08/2018 02/08/2018
02/09/2018 02/09/2018 02/09/2018
02/16/2018

45 MOTION for Preliminary Injunction Motion Hearing set for 3/9/2018 10:00 AM in Utica before Judge David N. Hurd Response to Motion due by 2/20/2018 Reply to Response to Motion due by 2/26/2018. filed by B. C., A. T.. (Attachments: # 1 Declaration of Joshua Cotter, # 2 Exhibit(s) 1−6 of the Cotter Declaration, # 3 Exhibit(s) 7−12 of the Cotter Declaration, # 4 Exhibit(s) 13−17 of the Cotter Declaration, # 5 Exhibit(s) 18−20 of the Cotter Declaration, # 6 Exhibit(s) 21−22 of the Cotter Declaration, # 7 Exhibit(s) 23−25 of the Cotter Declaration, # 8 Exhibit(s) 26 of the Cotter Declaration, # 9 Exhibit(s) 27 of the Cotter Declaration, # 10 Exhibit(s) 28−35 of the Cotter Declaration, # 11 Exhibit(s) 36−38 of the Cotter Declaration, # 12 Exhibit(s) 40−44 of the Cotter Declaration, # 13 Exhibit(s) 45−47 of the Cotter Declaration, # 14 Declaration of Jami Waldron, # 15 Exhibit(s) A−B of the Waldron Declaration, # 16 Declaration of Andrea Weisman PhD., # 17 Exhibit(s) A−B of the Weisman Declaration, # 18 Memorandum of Law) (Cotter, Joshua) (Entered: 02/06/2018)
46 Medical Records filed by B. C., A. T.. (Cotter, Joshua) (Entered: 02/06/2018)
47 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting Approval of Settlement Agreement submitted to Judge Hurd . (Miller, Frank) (Entered: 02/07/2018)
48 Letter Motion from Robert G. Behnke for David Harder, Kevin Moore, Mark Smolinsky requesting adjournment of motion submitted to Judge Hurd . (Behnke, Robert) (Entered: 02/07/2018)
49 RESPONSE TO LETTER BRIEF filed by B. C., A. T. as to 48 Letter Request/Motion filed by David Harder, Kevin Moore, Mark Smolinsky . (Cotter, Joshua) (Entered: 02/08/2018)
50 TEXT ORDER GRANTING ADJOURNMENT OF MOTIONS: Granting 48 Letter Motion from Robert G, Behnke, Esq. regarding extension of time to respond to plaintiffs' motion for preliminary injunction. Pursuant to the verbal Order of the Hon. David N. Hurd, 45 MOTION for Preliminary Injunction, is adjourned and the motion response and reply dates are reset as follows; Defendants' Response to the Motion is now due by 5:00pm on MARCH 5, 2018 and Plaintiffs' Reply to the Response to the Motion, if any, is now due by 5:00pm on MARCH 12, 2018. Oral argument as to all motions that have been filed in this matter : 33 MOTION to Certify Class , 47 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting Approval of Settlement Agreement submitted to Judge Hurd , 45 MOTION for Preliminary Injunction shall be heard and are NOW set for Friday, MARCH 23, 2018 at 10:00AM in USDC / Utica, NY. Appearances required in Court in Utica. Please adjust your calendars accordingly. So Ordered by Judge David N. Hurd on 2/8/2018. (ptm) (Entered: 02/08/2018)
51 ORDER regarding 47 Letter Motion: The Court accepts the Settlement Agreement. Signed by Judge David N. Hurd on 2/9/18. (alh, ) (Entered: 02/09/2018)
52 STIPULATION AND ORDER FOR INTERIM SETTLEMENT AGREEMENT. Signed by Judge David N. Hurd on 2/9/18. (alh, ) (Entered: 02/09/2018)
53 ORDER: ORDERED that: (1) The action against the School District is DISMISSED except for the following; (2) the attorneys' fee issue between the plaintiffs and School District remains to be resolved; (3) plaintiffs and the School District shall settle the attorneys' fee issue on or before March 9, 2018 and notify the Court of the results; (4) In the event that no settlement is reached, plaintiffs shall file an application for attorneys' fees on or before March 23, 2018; (5) the School District shall answer the application on or before April 6, 2018; (6) plaintiffs may file a reply on or before April 13, 2018; and (7) the decision regarding attorneys' fees shall be binding upon the plaintiffs and the School District. Signed by Judge David N. Hurd on 2/9/18. (alh, ) (Entered: 02/09/2018)
54 REPORT OF MANDATORY MEDIATION − A Mandatory Mediation session was held on 2/13/2018. Total Hours Spent by Mediator: 6; The outcome of Mandatory Mediation is: MEDIATION WAS INCONCLUSIVE. Another Mediation session has been scheduled. (Galbato, Suzanne) (Entered: 02/16/2018)

02/16/2018 02/16/2018 02/16/2018 02/20/2018 03/05/2018 03/05/2018
03/06/2018 03/12/2018 03/15/2018
03/15/2018 03/23/2018
04/04/2018

55 NOTICE of Appearance by George B. Haddad on behalf of All Plaintiffs (Haddad, George) (Main Document 55 replaced on 2/16/2018) (alh, ). (Entered: 02/16/2018)
CLERK'S CORRECTION OF DOCKET ENTRY re 55 Notice of Appearance: Clerk has replaced image with non−modifiable image. (alh, ) (Entered: 02/16/2018)
56 Letter Motion from Suzanne O. Galbato for Suzanne Galbato requesting that the mediation period be held open submitted to Judge Peebles . (Galbato, Suzanne) (Entered: 02/16/2018)
57 TEXT ORDER granting 56 Letter Request. The parties have advised that court that they will continue to negotiate settlement. The deadline for completion of Mandatory Mediation is therefore stayed until further order of the court. Authorized by Magistrate Judge David E. Peebles on 2/20/2018. (sal ) (Entered: 02/20/2018)
58 Letter Motion from Frank W. Miller, Esq. for Chenango Valley Central School District requesting Approval of Settlement Agreement submitted to Judge Hurd . (Miller, Frank) (Entered: 03/05/2018)
59 RESPONSE in Opposition re 45 MOTION for Preliminary Injunction filed by David Harder, Kevin Moore, Mark Smolinsky. (Attachments: # 1 Affidavit of Sean Bell, # 2 Affidavit of James Borchardt, # 3 Affidavit of Marcus DeAngelo, # 4 Affidavit of Jeff Katen, # 5 Affidavit of Jason Kirk, # 6 Affidavit of Dennis Rowe, # 7 Affidavit of Daniel Snyder, # 8 Affidavit of Jennifer Vasquez, # 9 Affidavit of Adam Wilcox, # 10 Exhibit(s) A−New Regulation on Inmate Confinement, # 11 Exhibit(s) B− Commission of Correction Report, # 12 Exhibit(s) C− NCCHC Accreditation Report, # 13 Memorandum of Law, # 14 Certificate of Service)(Behnke, Robert) (Entered: 03/05/2018)
60 STIPULATION AND ORDER ON ATTORNEYS' FEES AND COSTS. Signed by Judge David N. Hurd on 3/6/18. (alh, ) (Entered: 03/06/2018)
61 REPLY to Response to Motion re 45 MOTION for Preliminary Injunction filed by B. C., A. T.. (Cotter, Joshua) (Entered: 03/12/2018)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Telephone Conference held on 3/15/2018. Preliminary injunction and class certification motions are pending before District Judge Hurd and oral argument is currently set for 3/23/2018. Preliminary discovery has been exchanged and document demands will be served by each side shortly. Parties anticipate retaining experts. A mandatory mediation session was held, however, the case could not be resolved. Magistrate Judge Peebles discusses settlement with the parties and will be kept as an open issue. Next telephone conference is set for 6/14/2018 at 3:00 PM. Defendants' counsel is directed to initiate the call to Chambers. APP: Joshua Cotter, Esq., and Robert Behnke, Esq.. (sal) (Entered: 03/15/2018)
Set Hearings: A Telephone Conference is set for 6/14/2018 at 3:00 PM before Magistrate Judge David E. Peebles. Defendants' counsel is directed to initiate the call to Chambers, which can be reached at (315) 234−8620. (sal ) (Entered: 03/15/2018)
TEXT Minute Entry for proceedings held before Judge David N. Hurd in Utica, NY. Motion Hearing held on 3/23/2018. Judge Hurd hears argument as to 33 MOTION to Certify Class filed by B. C., A. T., and 45 MOTION for Preliminary Injunction filed by B. C., A. T. and RESERVES DECISION with written opinion to follow. Appearances: Joshua T. Cotter, Esq., Samuel C. Young, Esq., and Susan M. Young, Esq. for plaintiffs A.T. and B. C. Robert G. Behnke, Esq., and Jennifer L. Suwak, Esq. for defendants David Harder, Mark Smolinsky, Kevin Moore. (10:00 − 10:45)(Court Reporter Nancy Freddoso) (ptm) (Entered: 03/23/2018)
62 MEMORANDUM−DECISION AND ORDER: ORDERED that 1. Plaintiffs' 33 motion for class certification is GRANTED; 2. Plaintiffs' 45 motion for a preliminary injunction is GRANTED; 3. The official−capacity claim against Deputy Administrator Moore is DISMISSED without prejudice; 4. Defendants, their agents, servants, employees, and officers, and all other persons in active concert or participation with them and who receive actual notice of this preliminary injunction, by personal service or otherwise, are hereby IMMEDIATELY ENJOINED AND RESTRAINED, pending the final determination of this action, from imposing 23−hour disciplinary isolation on juveniles at the Broome County Jail; 5. Defendants shall IMMEDIATELY only lock

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05/03/2018 05/10/2018
05/10/2018 05/30/2018

juveniles in their cells for disciplinary purposes if the juvenile poses an immediate threat to the safety or security of the facility and only after less restrictive measures have been employed and found inadequate to address the particular threat at issue; 6. Under no circumstances shall a juvenile be locked in their cell for greater than four hours for disciplinary purposes; 7. If a juvenile remains an immediate threat to the safety and security of the facility after four hours, a psychiatrist shall be consulted and a plan put in place to ensure the juvenile's safe return to the general juvenile population; 8. Defendants shall IMMEDIATELY ensure all juveniles have access to at least three hours of educational instruction each day as well as any IDEA−mandated special education and related services; and 9. If a juvenile with a mental health or intellectual disability will potentially lose access to the benefits, services, and programs offered at the facility as a result of the disciplinary process, defendants shall ensure mental health staff will perform an individualized assessment of the juvenile as soon as possible. This assessment shall at minimum include: (a) a review of the individual's mental health needs; (b) a determination regarding whether any reasonable modifications can be made to eliminate future risk; (c) a determination regarding whether the individual with a disability continues to pose a risk; and (d) whether placement in segregation is medically appropriate. Signed by Judge David N. Hurd on 4/4/18. (alh, ) (Entered: 04/04/2018)
63 Letter Motion from Plaintiffs' Counsel for B. C., A. T. requesting a Settlement Conference submitted to Judge Peebles . (Cotter, Joshua) (Entered: 05/02/2018)
64 TEXT ORDER granting 63 Letter Request. A Settlement Conference is set for 5/10/2018 at 9:30 AM in Syracuse, 10th floor, before Magistrate Judge David E. Peebles. At that conference the parties are directed to appear in person, through counsel and, unless specifically excused by the court prior to the time of the conference, by a representative of the party with full authority to enter into binding agreements on behalf of that party in connection with this litigation. In preparation for the scheduled settlement conference, not later than 5/8/2018, the parties shall submit directly to Judge Peebles' chambers a short, concise statement setting forth the material facts of the case, together with an indication of which if any are disputed; providing a synopsis of the parties' respective legal positions concerning any issues presented in the case; and outlining any settlement discussions which have occurred. This can be done by facsimile at (315) 234−8621 or e−mail at NYND_DEP_ECF_NOTICES@nynd.uscourts.gov. That confidential statement, which shall not be filed with the court clerk and need not be served upon opposing counsel, should also include an assessment of the strength and weaknesses of the party's position in the case together with a candid indication of the party's settlement position. Authorized by Magistrate Judge David E. Peebles on 5/3/2018. (sal ) (Entered: 05/03/2018)
65 TEXT ORDER : In light of the Settlement Conference set for 5/10/2018, the status telephone conference set for 6/14/2018 at 3:00 PM is adjourned without date at this time. Authorized by Magistrate Judge David E. Peebles on 5/3/2018. (sal ) (Entered: 05/03/2018)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Settlement Conference held on 5/10/2018. Parties discuss the outstanding issues concerning the settlement terms with Magistrate Judge Peebles. Parties will discuss further and exchange settlement documents within the next couple of weeks. Attorneys' fees issue remains outstanding and the parties will negotiate further in hopes of resolving. A telephone conference is set for 5/30/2018 at 3:00 PM. Plaintiffs' counsel is directed to initiate the call to Chambers. APP: Joshua Cotter, Esq., Samuel Young, Esq., and Susan Young, Esq. for Plaintiffs. Robert Behnke, Esq., Jennfer Suwak, Esq., Mark Smolinsky, and David Harder for Defts.. (sal) (Entered: 05/10/2018)
Set Hearings: A Telephone Conference is set for 5/30/2018 at 3:00 PM before Magistrate Judge David E. Peebles. Plaintiffs' counsel is directed to initiate the call to Chambers, which can be reached at (315) 234−8620. (sal) (Entered: 05/10/2018)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Telephone Conference held on 5/30/2018. An updated proposed settlement agreement is being circulated among the parties. The terms are currently being negotiated. Magistrate Judge Peebles directs the parties to file a Status Report, on or before

05/31/2018 06/28/2018 06/29/2018 07/09/2018
08/07/2018 10/16/2018 10/16/2018 10/30/2018 10/30/2018 12/13/2018
12/18/2018
12/18/2018

6/29/2018, indicating whether attorney's fees will be left as an open issue or it is resolved. APP: Joshua Cotter, Esq., Susan Young, Esq., Robert Behnke, Esq., and Mark Smolinsky. (sal) (Entered: 05/31/2018)
66 TEXT ORDER : The parties are directed to file a Status Report, on or before 6/29/2018, indicating whether attorney's fees will be left as an open issue or it is resolved. Authorized by Magistrate Judge David E. Peebles on 5/31/2018. (sal ) (Entered: 05/31/2018)
67 STATUS REPORT by B. C., A. T.. (Cotter, Joshua) (Entered: 06/28/2018)
68 TEXT ORDER : The parties are directed to file a Status Report, on or before 8/31/2018, indicating whether attorney's fees will be left as an open issue or it is resolved. Authorized by Magistrate Judge David E. Peebles on 6/29/2018. (sal ) (Entered: 06/29/2018)
69 Joint MOTION Preliminary Approval of Class Settlement , Approval of Notice of Settlement filed by B. C., A. T.. (Attachments: # 1 Exhibit(s) 1 to Notice of Motion: Signed Stipulation, # 2 Proposed Order/Judgment Preliminarily approving Settlement, # 3 Memorandum of Law, # 4 Declaration of Joshua Cotter in support of Joint Motion, # 5 Exhibit(s) A and B to Cotter Declaration) Motions referred to David E. Peebles. (Cotter, Joshua) (Entered: 07/09/2018)
70 STATUS REPORT Regarding Attorneys' Fees by B. C., A. T.. (Cotter, Joshua) (Entered: 08/07/2018)
71 ORDER GRANTING THE PARTIES' JOINT 69 MOTION FOR (1) PRELIMINARY APPROVAL OF CLASS−ACTION SETTLEMENT, AND (2) APPROVAL AND DISTRIBUTION OF THE NOTICE OF SETTLEMENT. Fairness Hearing will be held before Judge Hurd on 12/18/18 at 1:00 pm. Signed by Judge David N. Hurd on 10/15/18. (nas) (Entered: 10/16/2018)
Fairness Hearing set for 12/18/2018 01:00 PM in Utica before Judge David N. Hurd. (nas, ) (Entered: 10/16/2018)
72 STIPULATION AND SETTLEMENT OF ATTORNEYS' FEES AND COSTS by B. C., A. T. submitted to Judge Hurd. (Cotter, Joshua) (Entered: 10/30/2018)
73 AFFIDAVIT of Posting of Notice of Proposed Settlement by David Harder, Kevin Moore, Mark Smolinsky. (Behnke, Robert) (Entered: 10/30/2018)
74 Joint MOTION Final Approval of Class−Action Settlement Motion Hearing set for 12/18/2018 01:00 PM in Utica before Judge David N. Hurd Response to Motion due by 12/3/2018 filed by B. C., A. T.. (Attachments: # 1 Memorandum of Law in Support of Joint Motion, # 2 Declaration Supplemental Declaration of Joshua Cotter in Support of Joint Motion, # 3 Proposed Order/Judgment Granting Joint Motion for Final Approval) Motions referred to David E. Peebles. (Cotter, Joshua) (Entered: 12/13/2018)
75 ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT: ORDERED that 1. The Settlement Agreement filed by the parties on July 9, 2018 (Dkt. No. 74 ) is APPROVED as fair, reasonable, and adequate to the class of "All 16− and 17−year−olds who are now or will be incarcerated at the Broome County Correctional Facility," to the subclass of "All 16− and 17−year−olds with disabilities, as defined by the Individuals With Disabilities Education Act, who are now or will be incarcerated at the Broome County Correctional Facility, and who are in need of special education and related services"; and to the subclass of "All 16− and 17−year−olds with psychiatric and/or intellectual disabilities, as defined by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, who now or will be incarcerated at the Broome County Correctional Facility, who are at risk of being placed in disciplinary isolation because of their disability"; and 2. The parties' agreement on fees and costs (Dkt. No. 72 ) is APPROVED. Signed by Judge David N. Hurd on 12/18/18. (nas) (Entered: 12/18/2018)
TEXT Minute Entry for proceedings held before Judge David N. Hurd in Utica, NY. Fairness Hearing on Class Settlement held on 12/18/2018. Counsel place agreement of terms and conditions of class action settlement on record. Judge Hurd, upon statements of counsel, notes that no direct objections have been received and approves and grants

the Final Approval of the Class−Action Settlement and will Order the Final Settlement Agreement and attorney's fees stipulation. Appearances: Samuel C. Young, Esq.,and Susan M. Young, Esq. for plaintiffs A.T. and B. C.; Robert G. Behnke, Esq., for defendants David Harder, Mark Smolinsky, Kevin Moore. (Entered: 12/18/2018)

 
 Case 9:17-cv-00817-DNH-DEP Document 1 Filed 07/25/17 Page 1 of 34

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

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A.T., a minor, by and through his

:

parent and natural guardian Sha-

:

keema Tillman; B.C., a minor, by and

:

through Kristi Cochardo; on behalf of

:

themselves and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

v.

:

: DAVID HARDER, Broome County Sheriff,
: in his official capacity; MARK
: SMOLINSKY, Jail Administrator of the
: Broome County Correctional Facility, in his
: official capacity; KEVIN MOORE, Deputy
: Administrator, in his official capacity;
: BINGHAMTON CITY SCHOOL
: DISTRICT.
:

Defendants.

:

:

:

:

:

:

:

:

:

------------------------------------------------------------- x

CLASS ACTION COMPLAINT 9_:1_7__-9C:1V7--_cv_-_8_1_7_(_T_JM/DEP)

PRELIMINARY STATEMENT 1. This class-action civil-rights lawsuit challenges the solitary confinement of 16- and 17-year-olds, most of whom have not been convicted of any crime, at the Broome County Correctional Facility (“Broome County Jail” or “the Jail”). Despite an emerging consensus that solitary confinement places juveniles at

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risk of serious harm-including suicide, psychosis, and post-traumatic stress disorder- and despite a national abandonment of solitary confinement of juveniles, the Broome County Sheriff’s Office has embraced the frequent and arbitrary use of solitary confinement. As the Sheriff’s Office is well aware, these practices are exposing the young people held at the Jail to serious harm. Compounding the profound consequences of the Office’s wanton use of solitary confinement, Sheriff’s Office officials also are denying juveniles basic educational services and denying students with disabilities access to special education supports and services.
2. At the Broome County Jail, juveniles are routinely confined to small cells – some no larger than 8’ x 10’ -- for 23 hours a day, for weeks and even months on end. These children, many already suffering from mental disabilities, have little to nothing to do in their cells: no meaningful human interaction, no education or programming, no music or television, and limited reading materials. Juveniles who reach their breaking point and want to kill themselves are stripped naked and put in a “suicide cell” until they are no longer suicidal and then returned right back to those same conditions to continue their punishment.
3. The juveniles are at most given one hour each day for “recreation”, which might take place in an empty, cement-enclosed “yard.” The juveniles’ recreation time in the Jail’s Special Housing Unit (“SHU’) gives them little respite from the harms they face isolated in their cells. Juveniles are shackled for their first week of recreation in the SHU and for additional weeks as a punishment if
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they are found misbehaving in the SHU. They are also given recreation time with adult inmates who harass, instigate, and physically ass23ault them.
4. The Sheriff’s Office is imposing solitary confinement for minor misbehavior that is not unusual for teenagers, especially those with mental health disabilities. Juveniles have been placed in isolation for horseplay, speaking loudly, failing to clean their cells and even playing with snow.
5. Potentially dangerous for anyone, solitary confinement can be especially harmful for juveniles, who still are developing physically, psychologically, and socially. Isolating children for 23 hours a day can cause trauma, depression, anxiety, and psychosis, increase the risk of suicide and self-harm, and permanently interfere with a child’s psychological and social development. For juveniles with mental illnesses or disabilities, the risk of harm from isolation is even greater because those illnesses or disabilities can worsen.
6. Not only is it harmful to deprive a child of meaningful social interaction or mental stimulation, it also is counterproductive to the goals of ensuring safety, security, and good order. Research shows that isolating children results in increased agitation and an increased risk of misbehavior. Correctional facilities that have reduced their reliance on disciplinary isolation for juveniles have seen reductions in rates of violence and misbehavior. At most, these facilities allow for short-term confinement—measured in hours, not days, weeks, or months—as a last resort when other options fail to diffuse situations which pose an acute risk of harm to the juvenile or others,
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7. Adding to the harm being inflicted on juveniles detained at the Broome County Jail by solitary confinement is the routine practice of denying these children basic educational services. No juvenile in isolation receives regular educational instruction and oftentimes they receive only a packet of worksheets to complete in their cell. These cell packets are no substitute for the classroom and are particularly inappropriate and damaging for juveniles with special education needs.
8. The Defendants have violated and continue to violate the Plaintiffs’ rights under the Fourteenth Amendment and Eighth Amendment of the U.S. Constitution, Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Individuals with Disabilities Education Act. The plaintiffs seek declaratory and injunctive relief that will end the inhumane policies and practices inside the Broome County Jail.
PARTIES I. The Named Plaintiffs
9. A.T. is an African-American 17-year-old boy detained at the Jail, where he is currently in solitary confinement. A.T. has received at least 15 different disciplinary isolation sanctions and has served over one hundred days in solitary confinement. He appears in this action through his mother and guardian Shakeema Tillman.
10. B.C. is a Caucasian 17-year-old boy detained at the Jail, where he is currently in solitary confinement. B.C. has received at least 10 different isolation
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sanctions and has served over one hundred and fifty days in solitary confinement. He appears in this action through his mother and guardian Kristi Cochardo. II. The Defendants
11. David Harder is the Sheriff of Broome County and head of the Broome County Sheriff’s Office, an administrative arm of Broome County. The Custody Department of the Sheriff’s Office manages the Broome County Correctional Facility, a jail located in Dickinson, New York. The Custody Department receives federal funding. Sheriff Harder has final policy-making authority for Broome County for all policies that govern the Jail. Sheriff Harder also has supervisory authority over the Jail, and is personally involved in authorizing and maintaining the unconstitutional policies and customs challenged by Plaintiffs. Sheriff Harder is sued in his official capacity. The Broome County Jail receives federal financial assistance and is a public entity within the meaning of Title II of the ADA.
12. Mark Smolinsky is the Chief Jail Administrator for the Broome County Sheriff’s Office. Major Smolinsky is responsible for the management of the Broome County Jail, and is personally involved in authorizing, maintaining, and enforcing the unconstitutional policies and customs challenged by Plaintiffs. Major Smolinsky is sued in his official capacity.
13. Kevin Moore is the Deputy Jail Administrator for the Broome County Sheriff’s Office. Captain Moore is responsible for the management of the Broome County Jail, and is personally involved in authorizing, maintaining, and enforcing
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the unconstitutional policies and customs challenged by Plaintiffs. Captain Moore is sued in his official capacity.
14. The Binghamton City School District is the public school district for the town of Dickinson, where the Broome County Jail is located. It is the educational provider for incarcerated individuals at the Jail. The District receives federal financial assistance.
FACTS Solitary Confinement at the Broome County Jail
15. Located in Dickinson, New York, the Broome County Jail is a 563-bed correctional facility that houses pre-trial detainees, sentenced individuals, and technical parole violators. It is overseen by defendant Broome County Sheriff David Harder, with defendants Major Smolinsky and Captain Moore having day-to-day responsibility for the facility.
16. At the Broome County Jail, normal out of cell time for juveniles is approximately 12 hours a day. That time is used for recreation, showers, accessing the library, and during weekdays, attending GED educational classes, other programs such as anger management and life skills.
17. The Broome County Jail’s disciplinary policies and practices draw no distinctions between adults and juveniles and authorize the isolation of a juvenile for any rule violation. For any alleged violation juveniles may be immediately “keeplocked” to their cells in the juvenile unit or, pending a disciplinary hearing, confined in “administrative segregation” for up to 15 business days after which they may be
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sentenced to additional “punitive segregation.” Administrative segregation and punitive segregation can be served in the Jail’s “Special Housing Unit” (“SHU”), commonly referred to by inmates as “the Box,” or in the Jail’s juvenile unit cells in “keep-lock.”
18. The Sheriff’s policy gives their staff wide discretion to decide whether isolation is an appropriate punishment and whether it should be served in lock-in or the SHU. Whether the Sheriff’s Office labels it “keep-lock,” “protective custody”, “punitive segregation,” or “administrative segregation,” and whether served in the SHU or in their own cell, it is solitary confinement: 23 hours a day of isolation with no meaningful social interaction, environmental stimulation, or human contact.
19. The Jail’s SHU consists of approximately 32 cells arranged on two floors and houses adults and juveniles alike. A typical cell no larger than 8’ x 10’ and contains a stainless steel toilet, sink, a small metal desk, an overheard fluorescent light and a small plexiglass window. The cell is entered through a large metal door which swings out. The door has a small plexiglass window about nose height and a metal panel slot that can only be unlocked from outside the cell through which food trays are passed. The cells have no phones, radios, or televisions.
20. Juveniles in the Jail’s SHU cells are locked in their cells for weeks on end with little to no out-of-cell time. They are taken out of their cells for one hour of so called “recreation” and a 10 minute shower every other day. Recreation time is
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at different times every day so juveniles are routinely held in their cell for over 24 hours until they receive their one hour of recreation.
21. Juveniles locked in SHU cells have virtually no meaningful human interaction. The only avenues of communication for juveniles is to speak through vents in their cells, or yell loudly enough for people to hear through the cell walls and doors. Juveniles are often reprimanded by corrections officers for attempting to speak with other detainees locked in the SHU.
22. Interactions with Jail staff is limited because corrections officers remain in their office area, which inmates call “the bubble”, only to emerge for their required obligations, like feeding the juveniles. Nurses come three times a day to pass out medication but do not check on the mental health status of the juveniles. Nobody from mental health checks on the juveniles while they are in the SHU.
23. Nearly every aspect of the SHU is dehumanizing. When juveniles are first brought to the SHU, they are strip searched and their personal property taken from them. For the first three days in the SHU they are allowed only one religious book. If they do not have a religious book they are left with nothing to do but sit and think. The Sheriff’s Office shackles the juveniles almost every time they have contact with corrections officers outside of their cells. When they are not handcuffed they are followed closely by two to three large corrections officers.
24. The cells in which they spend all of their time have the odor of feces and urine and are riddled with graffiti. Juveniles regularly see adult inmates throw
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urine on other inmates or guards and sometimes fall victim to the attacks themselves.
25. When family visits occur, the Sheriff’s Defendants limit them to a total of two hours each week.
26. Juveniles one hour out of their cell for “recreation” consists of being placed in the “yard.” The “yard” is entirely enclosed by concrete walls and steel mesh, with no seating, equipment, or activities.
27. By the Sheriff’s Office’s policy and practice all new juvenile arrivals at the SHU are placed in mechanical restraints for one week during their one hour of recreation. They are shackled around the waist, wrist, and ankles, making movement and exercise difficult. Juveniles are regularly placed in mechanical restraints during recreation as a punishment for violating facility rules while in the SHU. It is not uncommon for a juvenile to spend their recreation time in shackles for more than one week. When they are not shackled, juveniles pace, or do pushups on the hard concrete floor to pass the time.
28. Adults are on the “yard” during the juveniles’ recreation time. As a result of this co-mingling, juveniles are often threatened and involved in fights with adults during their recreation time. Due to fear of altercations juveniles sometimes forego their sole hour out of their cells because they fear the prospect of fighting or suffering further abuse at the hands of an adult inmate.
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29. Night time rarely provides a respite from the dehumanizing conditions. The juveniles frequently have difficulty sleeping at night. Adults keep them awake by shouting their plans to attack them during recreation time.
30. The SHU is not just for juveniles who break the facilities rules. Juveniles are also housed there as a matter of convenience when they are placed on “protective custody” or when they “exhibit unusual behavior.” These juveniles have no special privileges. They suffer the same inhumane conditions and deprivations of their rights as the juveniles who are placed in the SHU as a punishment.
31. Jail officials also use cells in the Jail’s separate juvenile unit for disciplinary isolation. These cells are virtually identical to the SHU cells. Juveniles confined to them suffer the same deprivation: 23 hours a day or more locked in a cell with essentially no meaningful human interaction. Because jail officials also use the juvenile unit to house adults, juveniles in disciplinary isolation in that unit face similar threats from adults like the threats in SHU.
32. The Sheriff’s Defendants, through their policies and practices, are directly responsible for these harsh conditions and the related risk of harm. Juveniles Are More Vulnerable to the Harms of Solitary
33. Defined by the National Commission on Correctional Health Care as “the housing of an adult or juvenile with minimal rare meaningful contact with other individuals,” solitary confinement can harm both adults and juveniles. Juveniles and adults are fundamentally different. Because juveniles are still
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developing psychologically, neurologically, and socially, they are especially susceptible to psychological harm when they are isolated from other people.
34. Juveniles in isolation face a significant risk of serious mental harm. Solitary confinement negatively impacts juveniles by perpetuating, worsening, or precipitating mental health concerns, including but not limited to post-traumatic stress disorders, psychosis, anxiety disorders, major depression, agitation, general lack of trust, suicidal ideation, suicidal intent, self-mutilation, and suicidal behavior. Research shows that almost all suicides within juvenile correctional facilities occur when the child is in some type of isolation and that the majority of juveniles who commit suicide had a history of being placed in isolation.
35. These mental health concerns can cause long-term harm. Solitary confinement can lead to chronic conditions like depression, which in teenagers can manifest as anger or as self-harm. In addition, children who experience depression and anxiety in their teenage years are at a higher risk for presenting with these diagnoses again. Damage associated with low self-esteem, vegetative features, and hopelessness associated with depression can similarly be long standing. Depression has a 10% to 15% mortality rate associated with it. Solitary confinement increases the risk of suicide substantially compared to the general population.
36. Solitary confinement of juveniles can also lead to long-term trust issues with adults, including paranoia, anger and hatred. Unlikely to trust others, juveniles emerging from solitary have trouble forming therapeutic relationships necessary to address mental health concerns resulting from solitary confinement.
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37. Medical research on adolescent brains explains why juveniles are more vulnerable to the risk of long-term harm. In the adolescent brain, the connections between the frontal lobe and the mid-brain have not fully developed. If an adolescent is traumatized in certain ways, it can cause permanent changes in brain development and create a higher risk of developing permanent psychiatric conditions like paranoia and anxiety. Trauma from solitary confinement has a high likelihood of causing these permanent changes.
38. The risk of harm is made worse by the disproportionately high incidence of preexisting trauma and mental health concerns among juveniles in the criminal justice system. Research shows that more than 60% of the youth in correctional settings have an underlying major mental illness. Stress from isolation can compound past trauma and exacerbate mental illnesses and disabilities. For those juveniles with mental illnesses and disabilities, the risk of harm is especially great. People with mental illnesses and disabilities already have cognitive deficits in their brain structure or biochemistry. They already have weakened defensive mechanisms, are at a higher risk for further mental health complications, and are more susceptible to significant trauma from isolation. Trauma from isolation will be more long-lasting for those with mental illnesses or disabilities than those without.
39. The American Medical Association, the American Academy of Child and Adolescent Psychiatry, and the National Commission on Correctional Health Care all have called on correctional facilities to halt the use of solitary confinement of juveniles for disciplinary purposes, otherwise referred to as disciplinary isolation
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40. The harm of solitary faced by juveniles in isolation is intensified by placing them in restraints during their one daily hour of recreation, as such restraints are known to cause both physical and psychological harm.
41. In a series of Eighth Amendment cases involving the death penalty and life without parole sentences, the Supreme Court has held that the Constitution requires that children not be punished like adults without first accounting for the unique traits that make them children.
42. A number of professional organizations and institutions have echoed the Supreme Court’s principle that children cannot be treated like adults. The National Commission on Correctional Health Care, for example, issued a statement articulating their position that juveniles should not be placed in solitary confinement for any duration and highlighted their particular vulnerability to adverse reactions from isolation. The World Health Organization, United Nations, and other international bodies have also recognized that solitary confinement is particularly harmful to a child’s psychological well-being and cognitive development. Acknowledging the high risk of mental illness as well as the higher rates of suicide and self-harm for youth in solitary confinement, in 2015 the U.N.’s Special Rapporteur on Torture condemned solitary confinement of children for any duration, calling it torture.
43. The Juvenile Detention Alternatives Initiative (JDAI), which has developed the most widely recognized set of national best practices on the use of solitary confinement with juvenile populations, provides that solitary confinement
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can never be used for purposes of punishment or discipline and must be limited to less than four hours.
44. States have been banning the use of disciplinary isolation for children held in juvenile detention facilities. So far, at least twenty-one states have prohibited juvenile detention facilities from using disciplinary isolation for juveniles.
45. Having recognized in a 2012 report that “[n]owhere is the damaging impact of incarceration on vulnerable children more obvious than when it involves solitary confinement,” the U.S. Department of Justice recently prohibited the use of solitary confinement for juveniles in federal prisons.
46. State and city officials are implementing similar bans in adult jails and prisons. For example, the Onondaga County Justice Center in Syracuse, New York, pursuant to a 2017 settlement agreement has stopped the use of disciplinary isolation for juveniles held in the facility. At Rikers Island, the second largest jail in the country, the City Corrections Commissioner and Mayor banned the use of solitary confinement for juveniles in 2014. A number of other jurisdictions, including Mississippi and Los Angeles, have also recently adopted reforms that abolish disciplinary or punitive isolation for juveniles.
47. The recommendations of experts and the actions taken by corrections officials and legislatures show a growing consensus that disciplinary isolation is harmful for juveniles and unnecessary for safety. Many experts, correction officials, and legislatures agree that when isolation is used it should be for the shortest
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period of time necessary to gain control of a security threat, should be under strict controls, and should involve the continual monitoring of the juvenile. The Sheriff’s Office is Fully Aware of the Risks of Solitary Confinement and Has Deliberately Chosen to Ignore Those Risks
48. By virtue of complaints, internal reports, meetings with advocates, news coverage and a recent policy pronouncement by its own accrediting agency, the Sheriff’s Office has been repeatedly put on notice of the substantial right of serious harm posed by its use of solitary confinement. Notwithstanding this notice, the Sheriff’s Office continues its regular use of solitary confinement and ignores the complaints of the juvenile inmates.
49. The Sheriff’s Office is also aware, or should be aware, of the harm inflicted by their use of mechanical restraints as a punishment for juveniles held in solitary confinement.
50. Staff at the Broome County Jail are required to document and report through the chain of command any inmates who appear to them, or any staff member, to be in need of mental health interventions. Upon information and belief, the Jail’s mental health staff informed the Sheriff’s Defendants that B.C. may be at risk to commit suicide while in isolation and that mental health removed him from the Box and put in in suicide watch. Nonetheless, once B.C. calmed down, the Sheriff’s Defendants returned him to the Box.
51. Upon information and belief, local advocates met with County Executive Jason Garnar, Sheriff David Harder and Major Mark Smolinsky to warn them about the dangers of solitary confinement for juveniles at the Jail. Upon
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information and belief, County Executive Garnar spoke with Sheriff Harder about the Jail’s practice of placing juveniles in solitary confinement.
52. Juveniles routinely try to bring the conditions at the Broome County Jail to the attention of the Sheriff’s Office, but the Sheriff’s Office has systemically ignored those complaints and even have gone so far as to stonewall the children who try to complain. The Grievance Coordinator routinely denies juveniles grievance forms to complain about their conditions of confinement. Their complaints to corrections officers in the SHU or in their housing unit also fall on deaf ears.
53. In April 2016, one of the organizations that accredits the Broome County Jail—the National Commission on Correctional Health Care (NCCHC) --adopted a position statement that all juveniles should be excluded from solitary confinement of any duration because isolation is particularly harmful for juveniles. Upon information and belief, the Sheriff’s Defendants were made aware of the substantial risk of serious harm that isolation poses to juveniles based on NCCHC’s publications. The Sheriff’s Defendants’ Disciplinary Isolation Policies and Practices Discriminate Against Juveniles with Disabilities
54. The Sheriff Defendants violate the rights of juveniles with psychiatric and/or intellectual disabilities by housing them in solitary confinement; by failing to accommodate their particular vulnerability to the conditions of solitary confinement; and by denying them access to programs and services because they are housed in solitary confinement based on behaviors related to their disabilities.
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55. At the jail, juveniles with mental health disabilities are disciplined for non-conforming and erratic behaviors related to their conditions, some of which could have been avoided if the Sheriff’s Office provided adequate mental health care or accommodations. The harsh conditions and lack of accommodations cause juveniles in isolation to continue and escalate these symptomatic behaviors. In response they are locked in for longer periods of time.
56. Repeated stints in disciplinary isolation result in repeated denials of education, programming, and services. Thus, by failing to make reasonable accommodations to their disciplinary policies and practices, the Sheriff’s Defendants discriminate against juveniles with mental disabilities.
57. The Sheriff’s Office’s policies and procedures, regarding the use of solitary confinement against people with psychiatric and/or intellectual disabilities is a direct violation of the ADA and Section 504 of the Rehabilitation Act. Denying Juveniles in Disciplinary Isolation Appropriate Education Under New York State Law Without Due Process
58. In addition to being placed at risk of serious harm, individuals in isolation are also denied New York state-mandated educational services without due process.
59. County jails, along with the school district in which the jail is located, must provide educational services to juveniles including, at minimum, three hours of educational instruction. Only under specific, limited circumstances, and following a detailed process, can this right to instruction be restricted. Placement in disciplinary isolation, alone, is never a justification for shutting a juvenile out of
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the classroom. Yet, it is the Defendants’ policy and practice to deny instruction solely because a juvenile is placed in disciplinary isolation.
60. The Sheriff’s Office’s policies bar juveniles in disciplinary isolation from attending school and from regularly receiving tutoring or other individualized instruction or classroom services. These children are left without any regular educational instruction for as long as they are in disciplinary isolation. At most a teacher comes to the SHU once a week for less than ten minutes, but more often juveniles in the SHU go for weeks at a time without receiving any school work or instruction. Juveniles held in isolation in their cells are occasionally allowed out for instruction, but more regularly are given a packet of worksheets to complete in their cell alone. Upon information and belief, the Binghamton City School District makes no meaningful effort to provide juveniles held in solitary confinement with educational instruction.
61. When juveniles are informed that they will be subject to disciplinary isolation, the Sheriff’s Office and the School District do not evaluate the impact of the discipline on their schooling. They receive no notice that when charged with a misbehavior that isolation will result in a complete denial of meaningful educational instruction, or that they will be cut off from their regular class work. Students placed in administrative segregation are denied access to education— sometimes for weeks at a time—without any adjudication as to their guilt with respect to the misbehavior charges.
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62. When the disciplinary hearing finally does happen, the hearing officer makes no finding that the misbehavior was related to the Jail’s educational program. Nor does the hearing officer make an affirmative finding that the juvenile’s continued presence in school would pose a threat to anyone. Aside from appealing the underlying disciplinary decision, there is no process for reviewing the denial of educational services.
63. Because disciplinary isolation is used so cavalierly, Defendants take away educational services for any reason or no reason at all. Even when an infraction has nothing to do with school, juveniles are removed from all education and related services and programming without any notice or opportunity to be heard. Denying Juveniles with Disabilities in Disciplinary Isolation a Free and Appropriate Public Education Required by the IDEA
64. Juveniles with qualifying disabilities under the IDEA are also subject to the Defendants’ policy and practice of denying meaningful educational instruction to juveniles in disciplinary isolation. Once in disciplinary isolation, juveniles with disabilities, like their non-disabled peers, are subjected to the Defendants’ policy and practice of cutting off meaningful educational instruction to juveniles in disciplinary isolation.
65. Upon information and belief, the education-by-worksheet approach does not comply with the Individualized Education Program (“IEP”) of children with qualifying disabilities under the IDEA. Students with emotional disabilities and learning disabilities need specialized instruction and accommodations in order to
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access education. For example, one major modification for children with ADHD is to break up large assignments into smaller parts. Handing a child with ADHD a bundle of worksheets does not serve to make education more accessible to him or her. In addition, worksheet packets do not make education more accessible to those students who have significant difficulties with reading.
66. Upon information and belief, most members of the putative class attend school in the Binghamton City School District. Therefore, the District has access to the IEPs of juveniles with disabilities at the Broome County Jail who attended Binghamton City High School. The District is thus on notice that most juveniles with disabilities incarcerated at the Broome County Jail require special education and related services pursuant to their IEPs. Nonetheless, Defendants deny juveniles with disabilities the free and appropriate education (“FAPE”) required by law.
67. Moreover, Defendants discriminate against juveniles with qualifying disabilities by failing to determine whether a juvenile’s behavior is a manifestation of their disabilities. Under the IDEA, a juvenile with disabilities is entitled to procedural protections if they will be excluded from school for 10 consecutive days or more, or if the juvenile is subjected to series of removals totaling more than 10 days in a school year based on a pattern of behavior. In that event, a meeting of the relevant members of the juvenile’s IEP team must be held, after inviting the juvenile’s parents, to determine if behavior resulting in the discipline is a manifestation of the juvenile’s disability. If so, the school must return the juvenile
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to class, and develop appropriate supports to address the behavior. None of these procedural protections are provided to juveniles with disabilities at the Broome County Jail.
PLAINTIFFS’ INDIVIDUAL ALLEGATIONS Plaintiff A.T.
68. Seventeen-year-old A.T. likes music and basketball. He misses spending time with his family especially his ten year old sister. A.T. lives with his girlfriend, one year old, and his girlfriend’s mother in Binghamton, New York. When A.T. gets out of the Broome County Jail, he wants to marry his girlfriend, and get a job so he can support his young son.
69. A.T. has been diagnosed with Bi-Polar Disorder and ADHD. A.T. has had an IEP in school since 6th grade, and, before being incarcerated at the Jail, he was in 10th Grade at Binghamton High School. He struggles to do well in math and reading without extra support from his teachers.
70. A.T.’s disabilities make it difficult for him to pay attention for extended periods of time, make him feel anxious, depressed, and impulsive. He is an individual with a disability as defined by the ADA and Section 504.
71. A.T. is a pretrial detainee and has been at the Jail since November 3, 2016 but has also been detained at the jail previously on other charges. He will be held at the Jail until his criminal case is resolved.
72. A.T. has been sanctioned with disciplinary isolation at the Jail at least 15 times for a total of over 150 days. A.T. has been placed in disciplinary isolation
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several times for minor infractions. He was placed in the SHU for 30 days for writing on an extra sweatshirt, 15 days keep-lock for requesting to eat out of his cell and yelling out his cell door when locked in, and two days in keep-lock because a guard said he smelled smoke in his cell, and one day in keep lock for talking back to a corrections officer. He is currently in the SHU as a result of a fight and will be in the SHU until December 9, 2017.
73. A.T. has little to do in the Box. Being locked in for so long has made him feel depressed and alone. He passes the time by pacing around his cell and doing push-ups. He also reads a lot but has not received many new books since getting to the Box in March, so he is stuck re-reading the same books over and over again. Regularly the boredom becomes so bad that he just lays on his bed until he falls asleep.
74. Since he got to the Box, A.T. has been worried about adult harassment. He has seen adults throw urine on other inmates and corrections officers. Adults regularly tell him that they are going to “get him” when they get out for recreation. Adult inmates not only threaten A.T. but also his family. One adult told A.T. when he gets out of jail he will slit A.T.’s infant son’s throat. More than once an adult inmate has thrown a cup of urine at the floor in front of his cell door and the urine flowed under the door into his cell. A.T. has been in multiple fights with adult inmates during his recreation time in the Box. Often the adults would instigate him into reacting by insulting him, his mother, or his young son.
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75. The first week A.T. got to the Box he was shackled during recreation. He was shackled around his waist, wrists and ankles. The restraints severely restricted his movement and made exercise extremely difficult. He has been shackled during recreation in the Box several other times including for a period of over one month. Being shackled during recreation makes him frustrated and depressed. He wants to be able to enjoy the one hour he has out of his cell but the shackles make that impossible.
76. During one incident in the Box, A.T. was given a cheese sandwich and milk for lunch. A.T. complained that he cannot eat the food because he is lactose intolerant. The corrections officers ignored him. Everyone in the Box refused to give back their trays until A.T. was given a different meal. Eventually the corrections officer gave him a peanut butter sandwich but the bread was stale and there was hair on the sandwich. A.T. became upset and started yelling. The corrections officers responded by entering A.T.’s cell and forcing him into a mechanical restraint chair. While in the chair he was pepper sprayed. After being sprayed he was taken to the medical unit still in the chair and water was poured over his face by a nurse. He was then placed in a cell in the medical unit, still in the clothes covered in pepper spray and in the restraint chair. After several hours in the restraint chair he was taken out of it and told to strip his clothes off. The corrections officers did not give him new clothes after he stripped. He stayed in medical unit cell naked for the next two and a half days.
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77. A.T. exhibits symptoms that directly correlate with his placement in solitary confinement. A.T. feels stressed, anxious, angry, and hopeless, consistent with a moderate to severe depression. He rarely gets visitors. He has previously had suicidal ideations from being in the Box. Nobody from mental health has ever come to check on him when he was in disciplinary isolation. The only time anyone from medical comes to the Box is to pass out medications. Prior to placing him in isolation nobody from the Jail spoke with A.T. about his disabilities.
78. Each time A.T. has been in disciplinary isolation, either in keep-lock or in the SHU, he could not attend education classes or programming. He had no notice or a hearing about cutting him off from education classes as a sanction for rules violations he was charged with. Previously in disciplinary isolation A.T. would sporadically receive packets of worksheets as his education. No teacher ever helped him with the worksheets, and he could not complete them on his own. For the past several months the School District stopped delivering packets to A.T. when he was in solitary confinement.
79. A.T. has tried to file grievances several times since being incarcerated at the Jail. He has asked the Broome County Jail grievance coordinator, who refused to give him a grievance slip on two occasions. He has filled out multiple request forms to see the grievance coordinator all of which went unanswered.
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Plaintiff B.C. 80. Seventeen-year-old B.C. loves his mom, who always looks out for him.
When he gets out of jail he hopes to graduate high school, get a job and start a family.
81. B.C. has been diagnosed as Learning Disabled since he was very young, and also deals with severe anxiety issues. He takes medication to deal with his mental health issues. The jail is aware of B.C.’s mental health needs. At the jail mental health staff provide him with an anti-anxiety medication and medication to help him sleep at night. Before being detained B.C. was taking 9th and 10th grade classes at an alternative BOCES program in Broome County. In school he had an IEP to help him reach his goals.
82. B.C.’s learning disabilities and anxiety disorder affect his ability to complete school work, pay attention, follow directions, and his decision making. He is an individual with a disability as defined by the ADA and Section 504.
83. B.C. is a pre-trial detainee and has been held at the Jail for more than a year. Almost half the time he has spent in the Broome County Jail has been in solitary confinement. When B.C. first arrived at the Jail he was placed in “protective custody” for two months. “Protective custody” is served in the SHU and B.C. had the same restrictions as inmates serving a sanction in disciplinary isolation while in protective custody.
84. B.C. has been sanctioned with disciplinary isolation more than 10 times for a total of over 125 days. He is currently in the Box for a fight with another detainee. He will remain in the Box until September 23, 2017. Many of his
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keep-locks have come from acting like a normal teenage boy: he received days in keep-lock for talking loudly, singing, horseplay on the pod, arguing with other juveniles, saying hello to his brother who he saw in the hallway of the jail, and not having a clean enough cell and for playing with snow on the recreation yard.
85. B.C. has little to do in the Box. To pass the time he works out, reads the Bible and watches flies and spiders outside his window. He has started to talk to himself since being in the Box. Because of the intense feelings of boredom, he experiences in isolation most of his day is spent sleeping. Despite these feelings of boredom B.C. will occasionally refuse recreation because of threats he received from adult inmates. He once went three days without leaving his cell because he did not want to have to deal with the adult inmates’ harassment.
86. The abuse B.C. suffers is not only at the hands of the adult inmates. Corrections officers regularly provoke him and trigger him to react by discussing his charges or insulting him. On one occasion, corrections officers were conducting searches of the cells in the Box. They approached B.C.’s door and told him to kneel on his bed. B.C. complied and was handcuffed. The corrections officers began to throw his personal belongings outside of the cell. B.C. argued with them but they continued to throw his items out of the cell. After more protests from B.C., one of the corrections officers took B.C.’s clothes, blankets, and sheets, stuffed them in B.C.’s toilet, poured soap on the clothes and flushed it. The officer told B.C. he was “just doing laundry.” One corrections officer then took B.C.’s handcuffs off and threw him against his toilet and onto the ground. While on the ground B.C. was
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repeatedly struck in the head and body by the corrections officer who threw him down. B.C. ended up with a swollen face and black eye.
87. Corrections officers have repeatedly knocked on B.C.’s cell door during the night to keep him from falling asleep.
88. B.C. has been put in mechanical restraints many times during recreation since being sent to the Box. He is shackled around the waist, ankles, and wrists. Like every new arrival to the Box he was shackled during recreation for his first week there. The longest time he has been forced to wear shackles during recreation was three weeks. Being shackled during recreation makes him feel like he is an animal.
89. B.C. exhibits symptoms that directly correlate with his placement in solitary confinement. B.C. is irritable and become agitated easily. He has lost interest in other people or things and feels more discouraged about his future than he used to be. B.C. is depressed in the Box. He has nothing to do in his cell. He can’t sleep at night because so many adults yell and scream all night. B.C. has not been able to get any meaningful therapy or counseling services. No mental health workers come to his cell. Prior to placing him in isolation nobody from the Jail spoke with B.C. about his disabilities.
90. In solitary confinement B.C. has been denied access to educational instruction and programming. On the rare occasions he receives school work, he has trouble completing it because there is no teacher he can ask questions to and he does not receive the special education supports he needs. B.C. once went for almost
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three months without seeing an instructor or receiving work packets. He has never received a notice or a hearing about cutting him off from education classes as a sanction for rules violations.
91. Several times B.C. has tried to file a grievance about the conditions of solitary confinement and not receiving any educational instruction. On the juvenile pod corrections officers routinely ignored him. Since being in the Box, B.C. has asked for several grievance forms to complain about the conditions of his confinement. B.C. was able to file one grievance but never received a response. He followed that grievance attempt with additional requests to see the grievance coordinator but those requests were also ignored.
92. The Defendants’ actions or inactions have been taken under color of state law.
CLASS ALLEGATIONS 93. All Plaintiffs bring the First and Second Causes of Action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, seeking declaratory and injunctive relief on behalf of a class of all present and future 16- and 17-yearolds who are now or will be incarcerated at the Jail. All class members face a substantial risk of serious harm as a result of the Sheriff’s Defendants’ disciplinary isolation policies and practices, and all class members face an unlawful denial of educational services without due process. 94. All Plaintiffs bring the Third Cause of Action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, seeking declaratory and
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injunctive relief on behalf of a subclass of all current and future 16 and 17-year-olds with disabilities, as defined by the Individuals with Disabilities Education Act, who are or will be incarcerated at the Broome County Jail and are in need of special education and related services (“IDEA Subclass”).
95. All Plaintiffs bring the Fourth and Fifth Causes of Action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, seeking declaratory and injunctive relief on behalf of a subclass of all current and future 16- and 17year-olds with psychiatric and/or intellectual disabilities, as defined by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, who are at risk of being placed in disciplinary segregation at the Broome County Jail because of their disabilities (“ADA and 504 Subclass”).
96. All four requirements of rule 23(a) are satisfied: a. Numerosity: Joinder of all class members is impracticable
because of the size of the class and the characteristics of the class members. At any given time, all of the juveniles incarcerated at the Broome County Jail are at a significant risk of unconstitutional placement in isolation, unlawful denial of educational services, and unlawful discrimination because of disability-related misbehavior. Between May 2016 and May 2017, more than 80 juveniles were held at the Broome County Jail. Every month, additional class members cycle in and out of the Broome County Jail. Many of these juveniles are unable to file lawsuits on their own because of their youth, special education needs, disabilities, lack of financial resources and length of time they will be incarcerated.
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b. Commonality: There are questions of law and fact common to all members of the class, including, but not limited to whether the Defendants’ policies and practices of placing 16 and 17 year olds in disciplinary isolation have resulted in and will continue to result in in a violation of the class members’ Eighth and Fourteenth Amendment rights, whether Defendants practice of locking juveniles with psychiatric and/or intellectual disabilities in disciplinary isolation based on their disabilities violates the ADA and Section 504 of the Rehabilitation Act, whether the Defendants have unlawfully denied educational services in violation of the class members’ Fourteenth Amendment rights and whether the Defendants have violated the IDEA subclass members’ rights under the IDEA.
c. Typicality: The claims of the named Plaintiffs are typical of those of the class. All named Plaintiffs are incarcerated at the Broome County Jail. Each named Plaintiff has been subjected to the challenged policies and practices.
d. Adequacy of Representation: The named Plaintiffs, their representatives, and class counsel will fairly and adequately represent the interests of the class. The named Plaintiffs and their representatives have no interests in this matter that are antagonistic to other class members. Class counsel have many years of experience in civil rights and class action litigation.
97. Class-wide declaratory and injunctive relief are appropriate under rule 23(b)(2) because the Defendants have acted or refused to act on grounds generally applicable to the class as a whole.
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JURISDICTION AND VENUE 98. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983 the Americans with Disabilities Act (ADA) 42 U.S.C. § 12101 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 99. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201 and 2202. This Court may also grant injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. This Court has authority to award costs and attorneys’ fees under 42 U.S.C. § 1988. 100. Venue is proper in the Northern District of New York pursuant to 28 U.S.C. § 1391(b)(1) and (b)(2). Defendants have their official residence in the Northern District of New York. A substantial part of the events and omissions giving rise to the claims in this action occurred in this district.
CLAIMS FOR RELIEF First Cause of Action 101. The Sheriff’s Defendants’ actions or inactions have violated and continue to violate the named Plaintiffs and putative class members’ rights under the Eighth Amendment and Fourteenth Amendment of the United States Constitution.
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Second Cause of Action 102. The Defendants’ actions or inactions have violated and continue to violate the named Plaintiffs’ and putative class members’ rights under the Fourteenth Amendment.
Third Cause of Action 103. The Defendants’ actions or inactions have violated and continue to violate the named Plaintiffs’ and the rights of the putative IDEA Subclass members under the Individuals with Disabilities Education Act, 20 USC §§ 1400 et seq.
Fourth Cause of Action 104. The Sheriff’s Defendants’ actions or inactions have violated and continue to violate all Plaintiffs and the putative ADA and Section 504 subclass members’ rights under Title II of the Americans with Disabilities Act. All Plaintiffs and members of the putative ADA and Section 504 subclass seek declaratory and injunctive relief remedying these ongoing and systemic violations.
Fifth Cause of Action 105. Sheriff’s Defendants’ actions or inactions have violated and continue to violate all Plaintiffs and the putative ADA and Section 504 subclass members’ rights under Section 504 of the Rehabilitation Act of 1973. All Plaintiffs and members of the putative ADA and Section 504 subclass seek declaratory and injunctive relief remedying these ongoing and systemic violations.
REQUESTS FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court:
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a. Declare that Sheriff Defendants’ acts and omissions violated the named Plaintiffs’ and class members’ rights under the Eighth and Fourteenth Amendments;
b. Declare that Defendants’ acts and omissions violated named Plaintiffs’ and IDEA Subclass members’ rights under the IDEA, 20 U.S.C. §§ 1400-1482;
c. Declare that Sheriff Defendants’ acts and omissions violated the named plaintiffs’ and the ADA and Section 504 subclass members’ rights under Title II of the ADA, 42 U.S.C. §§ 12101-12213;
d. Declare that Sheriff Defendants’ acts and omissions violated the named plaintiffs’ and the ADA and Section 504 subclass members’ rights under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794;
e. Enter all necessary and appropriate injunctive relief (including, but not limited to, policies, procedures, training, supervision, and monitoring) to end the ongoing violations of the U.S. Constitution and federal law;
f. Award the Plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. § 1988, 42 U.S.C. § 12205, and 42 U.S.C. § 1415; and
g. Grant any other relief that the Court deems necessary and proper.
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Dated: July 25, 2017 Syracuse, New York

Respectfully submitted,
/s/ Joshua Cotter Joshua Cotter (Bar No. 518217) Sarah Morrisson* Susan Young (Bar No.102862) Samuel Young (Bar No. 508916) LEGAL SERVICES OF CENTRAL NEW YORK 221 S. Warren Street, 3rd Floor Syracuse, NY 13202 Tel: (315) 703-6500 jcotter@lscny.org
Attorneys for Plaintiffs
*Pending submission of Application for Admission

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 Case 9:17-cv-00817-DNH-DEP Document 7 Filed 08/08/17 Page 1 of 33

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

------------------------------------------------------------- x

A.T., a minor, by and through his

:

parent and natural guardian Sha-

:

keema Tillman; B.C., a minor, by and

:

through Kristi Cochardo; on behalf of

:

themselves and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

v.

:

: DAVID HARDER, Broome County Sheriff,
: in his official capacity; MARK
: SMOLINSKY, Jail Administrator of the
: Broome County Correctional Facility, in his
: official capacity; KEVIN MOORE, Deputy
: Administrator, in his official capacity;
: CHENANGO VALLEY CENTRAL
: SCHOOL DISTRICT.
:

Defendants.

:

:

:

:

:

:

:

:

:

------------------------------------------------------------- x

CLASS ACTION FIRST AMENDED COMPLAINT
17-CV-0817(TJM)(DEP)

PRELIMINARY STATEMENT 1. This class-action civil-rights lawsuit challenges the solitary confinement of 16- and 17-year-olds, most of whom have not been convicted of any crime, at the Broome County Correctional Facility (“Broome County Jail” or “the Jail”). Despite an emerging consensus that solitary confinement places juveniles at

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risk of serious harm-including suicide, psychosis, and post-traumatic stress disorder- and despite a national abandonment of solitary confinement of juveniles, the Broome County Sheriff’s Office has embraced the frequent and arbitrary use of solitary confinement. As the Sheriff’s Office is well aware, these practices are exposing the young people held at the Jail to serious harm. Compounding the profound consequences of the Office’s wanton use of solitary confinement, Sheriff’s Office officials also are denying juveniles basic educational services and denying students with disabilities access to special education supports and services.
2. At the Broome County Jail, juveniles are routinely confined to small cells – some no larger than 8’ x 10’ -- for 23 hours a day, for weeks and even months on end. These children, many already suffering from mental disabilities, have little to nothing to do in their cells: no meaningful human interaction, no education or programming, no music or television, and limited reading materials. Juveniles who reach their breaking point and want to kill themselves are stripped naked and put in a “suicide cell” until they are no longer suicidal and then returned right back to those same conditions to continue their punishment.
3. The juveniles are at most given one hour each day for “recreation”, which might take place in an empty, cement-enclosed “yard.” The juveniles’ recreation time in the Jail’s Special Housing Unit (“SHU’) gives them little respite from the harms they face isolated in their cells. Juveniles are shackled for their first week of recreation in the SHU and for additional weeks as a punishment if
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they are found misbehaving in the SHU. They are also given recreation time with adult inmates who harass, instigate, and physically assault them.
4. The Sheriff’s Office is imposing solitary confinement for minor misbehavior that is not unusual for teenagers, especially those with mental health disabilities. Juveniles have been placed in isolation for horseplay, speaking loudly, failing to clean their cells and even playing with snow.
5. Potentially dangerous for anyone, solitary confinement can be especially harmful for juveniles, who still are developing physically, psychologically, and socially. Isolating children for 23 hours a day can cause trauma, depression, anxiety, and psychosis, increase the risk of suicide and self-harm, and permanently interfere with a child’s psychological and social development. For juveniles with mental illnesses or disabilities, the risk of harm from isolation is even greater because those illnesses or disabilities can worsen.
6. Not only is it harmful to deprive a child of meaningful social interaction or mental stimulation, it also is counterproductive to the goals of ensuring safety, security, and good order. Research shows that isolating children results in increased agitation and an increased risk of misbehavior. Correctional facilities that have reduced their reliance on disciplinary isolation for juveniles have seen reductions in rates of violence and misbehavior. At most, these facilities allow for short-term confinement—measured in hours, not days, weeks, or months—as a last resort when other options fail to diffuse situations which pose an acute risk of harm to the juvenile or others,
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7. Adding to the harm being inflicted on juveniles detained at the Broome County Jail by solitary confinement is the routine practice of denying these children basic educational services. No juvenile in isolation receives regular educational instruction and oftentimes they receive only a packet of worksheets to complete in their cell. These cell packets are no substitute for the classroom and are particularly inappropriate and damaging for juveniles with special education needs.
8. The Defendants have violated and continue to violate the Plaintiffs’ rights under the Fourteenth Amendment and Eighth Amendment of the U.S. Constitution, Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Individuals with Disabilities Education Act. The plaintiffs seek declaratory and injunctive relief that will end the inhumane policies and practices inside the Broome County Jail.
PARTIES The Named Plaintiffs
9. A.T. is an African-American 17-year-old boy detained at the Jail, where he is currently in solitary confinement. A.T. has received at least 15 different disciplinary isolation sanctions and has served over one hundred days in solitary confinement. He appears in this action through his mother and guardian Shakeema Tillman.
10. B.C. is a Caucasian 17-year-old boy detained at the Jail, where he is currently in solitary confinement. B.C. has received at least 10 different isolation
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sanctions and has served over one hundred and fifty days in solitary confinement. He appears in this action through his mother and guardian Kristi Cochardo. The Defendants
11. David Harder is the Sheriff of Broome County and head of the Broome County Sheriff’s Office, an administrative arm of Broome County. The Custody Department of the Sheriff’s Office manages the Broome County Correctional Facility, a jail located in Dickinson, New York. The Custody Department receives federal funding. Sheriff Harder has final policy-making authority for Broome County for all policies that govern the Jail. Sheriff Harder also has supervisory authority over the Jail, and is personally involved in authorizing and maintaining the unconstitutional policies and customs challenged by Plaintiffs. Sheriff Harder is sued in his official capacity. The Broome County Jail receives federal financial assistance and is a public entity within the meaning of Title II of the ADA.
12. Mark Smolinsky is the Chief Jail Administrator for the Broome County Sheriff’s Office. Major Smolinsky is responsible for the management of the Broome County Jail, and is personally involved in authorizing, maintaining, and enforcing the unconstitutional policies and customs challenged by Plaintiffs. Major Smolinsky is sued in his official capacity.
13. Kevin Moore is the Deputy Jail Administrator for the Broome County Sheriff’s Office. Captain Moore is responsible for the management of the Broome County Jail, and is personally involved in authorizing, maintaining, and enforcing
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the unconstitutional policies and customs challenged by Plaintiffs. Captain Moore is sued in his official capacity.
14. The Chenango Valley Central School District is the public school district for the town of Dickinson, where the Broome County Jail is located. It is the educational provider for incarcerated individuals at the Jail. The District receives federal financial assistance.
FACTS Solitary Confinement at the Broome County Jail
15. Located in Dickinson, New York, the Broome County Jail is a 563-bed correctional facility that houses pre-trial detainees, sentenced individuals, and technical parole violators. It is overseen by defendant Broome County Sheriff David Harder, with defendants Major Smolinsky and Captain Moore having day-to-day responsibility for the facility.
16. At the Broome County Jail, normal out of cell time for juveniles is approximately 12 hours a day. That time is used for recreation, showers, accessing the library, and during weekdays, attending GED educational classes, other programs such as anger management and life skills.
17. The Broome County Jail’s disciplinary policies and practices draw no distinctions between adults and juveniles and authorize the isolation of a juvenile for any rule violation. For any alleged violation juveniles may be immediately “keeplocked” to their cells in the juvenile unit or, pending a disciplinary hearing, confined in “administrative segregation” for up to 15 business days after which they may be
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sentenced to additional “punitive segregation.” Administrative segregation and punitive segregation can be served in the Jail’s “Special Housing Unit” (“SHU”), commonly referred to by inmates as “the Box,” or in the Jail’s juvenile unit cells in “keep-lock.”
18. The Sheriff’s policy gives their staff wide discretion to decide whether isolation is an appropriate punishment and whether it should be served in lock-in or the SHU. Whether the Sheriff’s Office labels it “keep-lock,” “protective custody”, “punitive segregation,” or “administrative segregation,” and whether served in the SHU or in their own cell, it is solitary confinement: 23 hours a day of isolation with no meaningful social interaction, environmental stimulation, or human contact.
19. The Jail’s SHU consists of approximately 32 cells arranged on two floors and houses adults and juveniles alike. A typical cell no larger than 8’ x 10’ and contains a stainless steel toilet, sink, a small metal desk, an overheard fluorescent light and a small plexiglass window. The cell is entered through a large metal door which swings out. The door has a small plexiglass window about nose height and a metal panel slot that can only be unlocked from outside the cell through which food trays are passed. The cells have no phones, radios, or televisions.
20. Juveniles in the Jail’s SHU cells are locked in their cells for weeks on end with little to no out-of-cell time. They are taken out of their cells for one hour of so called “recreation” and a 10 minute shower every other day. Recreation time is
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at different times every day so juveniles are routinely held in their cell for over 24 hours until they receive their one hour of recreation.
21. Juveniles locked in SHU cells have virtually no meaningful human interaction. The only avenues of communication for juveniles is to speak through vents in their cells, or yell loudly enough for people to hear through the cell walls and doors. Juveniles are often reprimanded by corrections officers for attempting to speak with other detainees locked in the SHU.
22. Interactions with Jail staff is limited because corrections officers remain in their office area, which inmates call “the bubble”, only to emerge for their required obligations, like feeding the juveniles. Nurses come three times a day to pass out medication but do not check on the mental health status of the juveniles. Nobody from mental health checks on the juveniles while they are in the SHU.
23. Nearly every aspect of the SHU is dehumanizing. When juveniles are first brought to the SHU, they are strip searched and their personal property taken from them. For the first three days in the SHU they are allowed only one religious book. If they do not have a religious book they are left with nothing to do but sit and think. The Sheriff’s Office shackles the juveniles almost every time they have contact with corrections officers outside of their cells. When they are not handcuffed they are followed closely by two to three large corrections officers.
24. The cells in which they spend all of their time have the odor of feces and urine and are riddled with graffiti. Juveniles regularly see adult inmates throw
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urine on other inmates or guards and sometimes fall victim to the attacks themselves.
25. When family visits occur, the Sheriff’s Defendants limit them to a total of two hours each week.
26. Juveniles’ one hour out of their cell for “recreation” consists of being placed in the “yard.” The “yard” is entirely enclosed by concrete walls and steel mesh, with no seating, equipment, or activities.
27. By the Sheriff’s Office’s policy and practice all new juvenile arrivals at the SHU are placed in mechanical restraints for one week during their one hour of recreation. They are shackled around the waist, wrist, and ankles, making movement and exercise difficult. Juveniles are regularly placed in mechanical restraints during recreation as a punishment for violating facility rules while in the SHU. It is not uncommon for a juvenile to spend their recreation time in shackles for more than one week. When they are not shackled, juveniles pace, or do pushups on the hard concrete floor to pass the time.
28. Adults are on the “yard” during the juveniles’ recreation time. As a result of this co-mingling, juveniles are often threatened and involved in fights with adults during their recreation time. Due to fear of altercations juveniles sometimes forego their sole hour out of their cells because they fear the prospect of fighting or suffering further abuse at the hands of an adult inmate.
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29. Night time rarely provides a respite from the dehumanizing conditions. The juveniles frequently have difficulty sleeping at night. Adults keep them awake by shouting their plans to attack them during recreation time.
30. The SHU is not just for juveniles who break the facilities rules. Juveniles are also housed there as a matter of convenience when they are placed on “protective custody” or when they “exhibit unusual behavior.” These juveniles have no special privileges. They suffer the same inhumane conditions and deprivations of their rights as the juveniles who are placed in the SHU as a punishment.
31. Jail officials also use cells in the Jail’s separate juvenile unit for disciplinary isolation. These cells are virtually identical to the SHU cells. Juveniles confined to them suffer the same deprivation: 23 hours a day or more locked in a cell with essentially no meaningful human interaction. Because jail officials also use the juvenile unit to house adults, juveniles in disciplinary isolation in that unit face similar threats from adults like the threats in SHU.
32. The Sheriff’s Defendants, through their policies and practices, are directly responsible for these harsh conditions and the related risk of harm. Juveniles Are More Vulnerable to the Harms of Solitary
33. Defined by the National Commission on Correctional Health Care as “the housing of an adult or juvenile with minimal rare meaningful contact with other individuals,” solitary confinement can harm both adults and juveniles. Juveniles and adults are fundamentally different. Because juveniles are still
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developing psychologically, neurologically, and socially, they are especially susceptible to psychological harm when they are isolated from other people.
34. Juveniles in isolation face a significant risk of serious mental harm. Solitary confinement negatively impacts juveniles by perpetuating, worsening, or precipitating mental health concerns, including but not limited to post-traumatic stress disorders, psychosis, anxiety disorders, major depression, agitation, general lack of trust, suicidal ideation, suicidal intent, self-mutilation, and suicidal behavior. Research shows that almost all suicides within juvenile correctional facilities occur when the child is in some type of isolation and that the majority of juveniles who commit suicide had a history of being placed in isolation.
35. These mental health concerns can cause long-term harm. Solitary confinement can lead to chronic conditions like depression, which in teenagers can manifest as anger or as self-harm. In addition, children who experience depression and anxiety in their teenage years are at a higher risk for presenting with these diagnoses again. Damage associated with low self-esteem, vegetative features, and hopelessness associated with depression can similarly be long standing. Depression has a 10% to 15% mortality rate associated with it. Solitary confinement increases the risk of suicide substantially compared to the general population.
36. Solitary confinement of juveniles can also lead to long-term trust issues with adults, including paranoia, anger and hatred. Unlikely to trust others, juveniles emerging from solitary have trouble forming therapeutic relationships necessary to address mental health concerns resulting from solitary confinement.
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37. Medical research on adolescent brains explains why juveniles are more vulnerable to the risk of long-term harm. In the adolescent brain, the connections between the frontal lobe and the mid-brain have not fully developed. If an adolescent is traumatized in certain ways, it can cause permanent changes in brain development and create a higher risk of developing permanent psychiatric conditions like paranoia and anxiety. Trauma from solitary confinement has a high likelihood of causing these permanent changes.
38. The risk of harm is made worse by the disproportionately high incidence of preexisting trauma and mental health concerns among juveniles in the criminal justice system. Research shows that more than 60% of the youth in correctional settings have an underlying major mental illness. Stress from isolation can compound past trauma and exacerbate mental illnesses and disabilities. For those juveniles with mental illnesses and disabilities, the risk of harm is especially great. People with mental illnesses and disabilities already have cognitive deficits in their brain structure or biochemistry. They already have weakened defensive mechanisms, are at a higher risk for further mental health complications, and are more susceptible to significant trauma from isolation. Trauma from isolation will be more long-lasting for those with mental illnesses or disabilities than those without.
39. The American Medical Association, the American Academy of Child and Adolescent Psychiatry, and the National Commission on Correctional Health Care all have called on correctional facilities to halt the use of solitary confinement of juveniles for disciplinary purposes, otherwise referred to as disciplinary isolation
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40. The harm of solitary faced by juveniles in isolation is intensified by placing them in restraints during their one daily hour of recreation, as such restraints are known to cause both physical and psychological harm.
41. In a series of Eighth Amendment cases involving the death penalty and life without parole sentences, the Supreme Court has held that the Constitution requires that children not be punished like adults without first accounting for the unique traits that make them children.
42. A number of professional organizations and institutions have echoed the Supreme Court’s principle that children cannot be treated like adults. The National Commission on Correctional Health Care, for example, issued a statement articulating their position that juveniles should not be placed in solitary confinement for any duration and highlighted their particular vulnerability to adverse reactions from isolation. The World Health Organization, United Nations, and other international bodies have also recognized that solitary confinement is particularly harmful to a child’s psychological well-being and cognitive development. Acknowledging the high risk of mental illness as well as the higher rates of suicide and self-harm for youth in solitary confinement, in 2015 the U.N.’s Special Rapporteur on Torture condemned solitary confinement of children for any duration, calling it torture.
43. The Juvenile Detention Alternatives Initiative (JDAI), which has developed the most widely recognized set of national best practices on the use of solitary confinement with juvenile populations, provides that solitary confinement
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can never be used for purposes of punishment or discipline and must be limited to less than four hours.
44. States have been banning the use of disciplinary isolation for children held in juvenile detention facilities. So far, at least twenty-one states have prohibited juvenile detention facilities from using disciplinary isolation for juveniles.
45. Having recognized in a 2012 report that “[n]owhere is the damaging impact of incarceration on vulnerable children more obvious than when it involves solitary confinement,” the U.S. Department of Justice recently prohibited the use of solitary confinement for juveniles in federal prisons.
46. State and city officials are implementing similar bans in adult jails and prisons. For example, the Onondaga County Justice Center in Syracuse, New York, pursuant to a 2017 settlement agreement has stopped the use of disciplinary isolation for juveniles held in the facility. At Rikers Island, the second largest jail in the country, the City Corrections Commissioner and Mayor banned the use of solitary confinement for juveniles in 2014. A number of other jurisdictions, including Mississippi and Los Angeles, have also recently adopted reforms that abolish disciplinary or punitive isolation for juveniles.
47. The recommendations of experts and the actions taken by corrections officials and legislatures show a growing consensus that disciplinary isolation is harmful for juveniles and unnecessary for safety. Many experts, correction officials, and legislatures agree that when isolation is used it should be for the shortest
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period of time necessary to gain control of a security threat, should be under strict controls, and should involve the continual monitoring of the juvenile. The Sheriff’s Office is Fully Aware of the Risks of Solitary Confinement and Has Deliberately Chosen to Ignore Those Risks
48. By virtue of complaints, internal reports, meetings with advocates, news coverage and a recent policy pronouncement by its own accrediting agency, the Sheriff’s Office has been repeatedly put on notice of the substantial right of serious harm posed by its use of solitary confinement. Notwithstanding this notice, the Sheriff’s Office continues its regular use of solitary confinement and ignores the complaints of the juvenile inmates.
49. The Sheriff’s Office is also aware, or should be aware, of the harm inflicted by their use of mechanical restraints as a punishment for juveniles held in solitary confinement.
50. Staff at the Broome County Jail are required to document and report through the chain of command any inmates who appear to them, or any staff member, to be in need of mental health interventions. Upon information and belief, the Jail’s mental health staff informed the Sheriff’s Defendants that B.C. may be at risk to commit suicide while in isolation and that mental health removed him from the Box and put in in suicide watch. Nonetheless, once B.C. calmed down, the Sheriff’s Defendants returned him to the Box.
51. Upon information and belief, local advocates met with County Executive Jason Garnar, Sheriff David Harder and Major Mark Smolinsky to warn them about the dangers of solitary confinement for juveniles at the Jail. Upon
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information and belief, County Executive Garnar spoke with Sheriff Harder about the Jail’s practice of placing juveniles in solitary confinement.
52. Juveniles routinely try to bring the conditions at the Broome County Jail to the attention of the Sheriff’s Office, but the Sheriff’s Office has systemically ignored those complaints and even have gone so far as to stonewall the children who try to complain. The Grievance Coordinator routinely denies juveniles grievance forms to complain about their conditions of confinement. Their complaints to corrections officers in the SHU or in their housing unit also fall on deaf ears.
53. In April 2016, one of the organizations that accredits the Broome County Jail—the National Commission on Correctional Health Care (NCCHC) --adopted a position statement that all juveniles should be excluded from solitary confinement of any duration because isolation is particularly harmful for juveniles. Upon information and belief, the Sheriff’s Defendants were made aware of the substantial risk of serious harm that isolation poses to juveniles based on NCCHC’s publications. The Sheriff’s Defendants’ Disciplinary Isolation Policies and Practices Discriminate Against Juveniles with Disabilities
54. The Sheriff Defendants violate the rights of juveniles with psychiatric and/or intellectual disabilities by housing them in solitary confinement; by failing to accommodate their particular vulnerability to the conditions of solitary confinement; and by denying them access to programs and services because they are housed in solitary confinement based on behaviors related to their disabilities.
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55. At the jail, juveniles with mental health disabilities are disciplined for non-conforming and erratic behaviors related to their conditions, some of which could have been avoided if the Sheriff’s Office provided adequate mental health care or accommodations. The harsh conditions and lack of accommodations cause juveniles in isolation to continue and escalate these symptomatic behaviors. In response they are locked in for longer periods of time.
56. Repeated stints in disciplinary isolation result in repeated denials of education, programming, and services. Thus, by failing to make reasonable accommodations to their disciplinary policies and practices, the Sheriff’s Defendants discriminate against juveniles with mental disabilities.
57. The Sheriff’s Office’s policies and procedures, regarding the use of solitary confinement against people with psychiatric and/or intellectual disabilities is a direct violation of the ADA and Section 504 of the Rehabilitation Act. Denying Juveniles in Disciplinary Isolation Appropriate Education Under New York State Law Without Due Process
58. In addition to being placed at risk of serious harm, individuals in isolation are also denied New York state-mandated educational services without due process.
59. County jails, along with the school district in which the jail is located, must provide educational services to juveniles including, at minimum, three hours of educational instruction. Only under specific, limited circumstances, and following a detailed process, can this right to instruction be restricted. Placement in disciplinary isolation, alone, is never a justification for shutting a juvenile out of
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the classroom. Yet, it is the Defendants’ policy and practice to deny instruction solely because a juvenile is placed in disciplinary isolation.
60. The Sheriff’s Office’s policies bar juveniles in disciplinary isolation from attending school and from regularly receiving tutoring or other individualized instruction or classroom services. These children are left without any regular educational instruction for as long as they are in disciplinary isolation. At most a teacher comes to the SHU once a week for less than ten minutes, but more often juveniles in the SHU go for weeks at a time without receiving any school work or instruction. Juveniles held in isolation in their cells are occasionally allowed out for instruction, but more regularly are given a packet of worksheets to complete in their cell alone. Upon information and belief, the Chenango Valley School District makes no meaningful effort to provide juveniles held in solitary confinement with educational instruction.
61. When juveniles are informed that they will be subject to disciplinary isolation, the Sheriff’s Office and the School District do not evaluate the impact of the discipline on their schooling. They receive no notice that when charged with a misbehavior that isolation will result in a complete denial of meaningful educational instruction, or that they will be cut off from their regular class work. Students placed in administrative segregation are denied access to education— sometimes for weeks at a time—without any adjudication as to their guilt with respect to the misbehavior charges.
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62. When the disciplinary hearing finally does happen, the hearing officer makes no finding that the misbehavior was related to the Jail’s educational program. Nor does the hearing officer make an affirmative finding that the juvenile’s continued presence in school would pose a threat to anyone. Aside from appealing the underlying disciplinary decision, there is no process for reviewing the denial of educational services.
63. Because disciplinary isolation is used so cavalierly, Defendants take away educational services for any reason or no reason at all. Even when an infraction has nothing to do with school, juveniles are removed from all education and related services and programming without any notice or opportunity to be heard. Denying Juveniles with Disabilities in Disciplinary Isolation a Free and Appropriate Public Education Required by the IDEA
64. Juveniles with qualifying disabilities under the IDEA are also subject to the Defendants’ policy and practice of denying meaningful educational instruction to juveniles in disciplinary isolation. Once in disciplinary isolation, juveniles with disabilities, like their non-disabled peers, are subjected to the Defendants’ policy and practice of cutting off meaningful educational instruction to juveniles in disciplinary isolation.
65. Upon information and belief, the education-by-worksheet approach does not comply with the Individualized Education Program (“IEP”) of children with qualifying disabilities under the IDEA. Students with emotional disabilities and learning disabilities need specialized instruction and accommodations in order to
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access education. For example, one major modification for children with ADHD is to break up large assignments into smaller parts. Handing a child with ADHD a bundle of worksheets does not serve to make education more accessible to him or her. In addition, worksheet packets do not make education more accessible to those students who have significant difficulties with reading.
66. Moreover, Defendants discriminate against juveniles with qualifying disabilities by failing to determine whether a juvenile’s behavior is a manifestation of their disabilities. Under the IDEA, a juvenile with disabilities is entitled to procedural protections if they will be excluded from school for 10 consecutive days or more, or if the juvenile is subjected to series of removals totaling more than 10 days in a school year based on a pattern of behavior. In that event, a meeting of the relevant members of the juvenile’s IEP team must be held, after inviting the juvenile’s parents, to determine if behavior resulting in the discipline is a manifestation of the juvenile’s disability. If so, the school must return the juvenile to class, and develop appropriate supports to address the behavior. None of these procedural protections are provided to juveniles with disabilities at the Broome County Jail.
PLAINTIFFS’ INDIVIDUAL ALLEGATIONS Plaintiff A.T.
67. Seventeen-year-old A.T. likes music and basketball. He misses spending time with his family especially his ten year old sister. A.T. lives with his girlfriend, one year old, and his girlfriend’s mother in Binghamton, New York.
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When A.T. gets out of the Broome County Jail, he wants to marry his girlfriend, and get a job so he can support his young son.
68. A.T. has been diagnosed with Bi-Polar Disorder and ADHD. A.T. has had an IEP in school since 6th grade, and, before being incarcerated at the Jail, he was in 10th Grade at Binghamton High School. He struggles to do well in math and reading without extra support from his teachers.
69. A.T.’s disabilities make it difficult for him to pay attention for extended periods of time, make him feel anxious, depressed, and impulsive. He is an individual with a disability as defined by the ADA and Section 504.
70. A.T. is a pretrial detainee and has been at the Jail since November 3, 2016 but has also been detained at the jail previously on other charges. He will be held at the Jail until his criminal case is resolved.
71. A.T. has been sanctioned with disciplinary isolation at the Jail at least 15 times for a total of over 150 days. A.T. has been placed in disciplinary isolation several times for minor infractions. He was placed in the SHU for 30 days for writing on an extra sweatshirt, 15 days keep-lock for requesting to eat out of his cell and yelling out his cell door when locked in, and two days in keep-lock because a guard said he smelled smoke in his cell, and one day in keep lock for talking back to a corrections officer. He is currently in the SHU as a result of a fight and will be in the SHU until December 9, 2017.
72. A.T. has little to do in the Box. Being locked in for so long has made him feel depressed and alone. He passes the time by pacing around his cell and
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doing push-ups. He also reads a lot but has not received many new books since getting to the Box in March, so he is stuck re-reading the same books over and over again. Regularly the boredom becomes so bad that he just lays on his bed until he falls asleep.
73. Since he got to the Box, A.T. has been worried about adult harassment. He has seen adults throw urine on other inmates and corrections officers. Adults regularly tell him that they are going to “get him” when they get out for recreation. Adult inmates not only threaten A.T. but also his family. One adult told A.T. when he gets out of jail he will slit A.T.’s infant son’s throat. More than once an adult inmate has thrown a cup of urine at the floor in front of his cell door and the urine flowed under the door into his cell. A.T. has been in multiple fights with adult inmates during his recreation time in the Box. Often the adults would instigate him into reacting by insulting him, his mother, or his young son.
74. The first week A.T. got to the Box he was shackled during recreation. He was shackled around his waist, wrists and ankles. The restraints severely restricted his movement and made exercise extremely difficult. He has been shackled during recreation in the Box several other times including for a period of over one month. Being shackled during recreation makes him frustrated and depressed. He wants to be able to enjoy the one hour he has out of his cell but the shackles make that impossible.
75. During one incident in the Box, A.T. was given a cheese sandwich and milk for lunch. A.T. complained that he cannot eat the food because he is lactose
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intolerant. The corrections officers ignored him. Everyone in the Box refused to give back their trays until A.T. was given a different meal. Eventually the corrections officer gave him a peanut butter sandwich but the bread was stale and there was hair on the sandwich. A.T. became upset and started yelling. The corrections officers responded by entering A.T.’s cell and forcing him into a mechanical restraint chair. While in the chair he was pepper sprayed. After being sprayed he was taken to the medical unit still in the chair and water was poured over his face by a nurse. He was then placed in a cell in the medical unit, still in the clothes covered in pepper spray and in the restraint chair. After several hours in the restraint chair he was taken out of it and told to strip his clothes off. The corrections officers did not give him new clothes after he stripped. He stayed in medical unit cell naked for the next two and a half days.
76. A.T. exhibits symptoms that directly correlate with his placement in solitary confinement. A.T. feels stressed, anxious, angry, and hopeless, consistent with a moderate to severe depression. He rarely gets visitors. He has previously had suicidal ideations from being in the Box. Nobody from mental health has ever come to check on him when he was in disciplinary isolation. The only time anyone from medical comes to the Box is to pass out medications. Prior to placing him in isolation nobody from the Jail spoke with A.T. about his disabilities.
77. Each time A.T. has been in disciplinary isolation, either in keep-lock or in the SHU, he could not attend education classes or programming. He had no notice or a hearing about cutting him off from education classes as a sanction for
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rules violations he was charged with. Previously in disciplinary isolation A.T. would sporadically receive packets of worksheets as his education. No teacher ever helped him with the worksheets, and he could not complete them on his own. For the past several months the School District stopped delivering packets to A.T. when he was in solitary confinement.
78. A.T. has tried to file grievances several times since being incarcerated at the Jail. He has asked the Broome County Jail grievance coordinator, who refused to give him a grievance slip on two occasions. He has filled out multiple request forms to see the grievance coordinator all of which went unanswered. Plaintiff B.C.
79. Seventeen-year-old B.C. loves his mom, who always looks out for him. When he gets out of jail he hopes to graduate high school, get a job and start a family.
80. B.C. has been diagnosed as Learning Disabled since he was very young, and also deals with severe anxiety issues. He takes medication to deal with his mental health issues. The jail is aware of B.C.’s mental health needs. At the jail mental health staff provide him with an anti-anxiety medication and medication to help him sleep at night. Before being detained B.C. was taking 9th and 10th grade classes at an alternative BOCES program in Broome County. In school he had an IEP to help him reach his goals.
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81. B.C.’s learning disabilities and anxiety disorder affect his ability to complete school work, pay attention, follow directions, and his decision making. He is an individual with a disability as defined by the ADA and Section 504.
82. B.C. is a pre-trial detainee and has been held at the Jail for more than a year. Almost half the time he has spent in the Broome County Jail has been in solitary confinement. When B.C. first arrived at the Jail he was placed in “protective custody” for two months. “Protective custody” is served in the SHU and B.C. had the same restrictions as inmates serving a sanction in disciplinary isolation while in protective custody.
83. B.C. has been sanctioned with disciplinary isolation more than 10 times for a total of over 125 days. He is currently in the Box for a fight with another detainee. He will remain in the Box until September 23, 2017. Many of his keep-locks have come from acting like a normal teenage boy: he received days in keep-lock for talking loudly, singing, horseplay on the pod, arguing with other juveniles, saying hello to his brother who he saw in the hallway of the jail, and not having a clean enough cell and for playing with snow on the recreation yard.
84. B.C. has little to do in the Box. To pass the time he works out, reads the Bible and watches flies and spiders outside his window. He has started to talk to himself since being in the Box. Because of the intense feelings of boredom, he experiences in isolation most of his day is spent sleeping. Despite these feelings of boredom B.C. will occasionally refuse recreation because of threats he received from
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adult inmates. He once went three days without leaving his cell because he did not want to have to deal with the adult inmates’ harassment.
85. The abuse B.C. suffers is not only at the hands of the adult inmates. Corrections officers regularly provoke him and trigger him to react by discussing his charges or insulting him. On one occasion, corrections officers were conducting searches of the cells in the Box. They approached B.C.’s door and told him to kneel on his bed. B.C. complied and was handcuffed. The corrections officers began to throw his personal belongings outside of the cell. B.C. argued with them but they continued to throw his items out of the cell. After more protests from B.C., one of the corrections officers took B.C.’s clothes, blankets, and sheets, stuffed them in B.C.’s toilet, poured soap on the clothes and flushed it. The officer told B.C. he was “just doing laundry.” One corrections officer then took B.C.’s handcuffs off and threw him against his toilet and onto the ground. While on the ground B.C. was repeatedly struck in the head and body by the corrections officer who threw him down. B.C. ended up with a swollen face and black eye.
86. Corrections officers have repeatedly knocked on B.C.’s cell door during the night to keep him from falling asleep.
87. B.C. has been put in mechanical restraints many times during recreation since being sent to the Box. He is shackled around the waist, ankles, and wrists. Like every new arrival to the Box he was shackled during recreation for his first week there. The longest time he has been forced to wear shackles during
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recreation was three weeks. Being shackled during recreation makes him feel like he is an animal.
88. B.C. exhibits symptoms that directly correlate with his placement in solitary confinement. B.C. is irritable and become agitated easily. He has lost interest in other people or things and feels more discouraged about his future than he used to be. B.C. is depressed in the Box. He has nothing to do in his cell. He can’t sleep at night because so many adults yell and scream all night. B.C. has not been able to get any meaningful therapy or counseling services. No mental health workers come to his cell. Prior to placing him in isolation nobody from the Jail spoke with B.C. about his disabilities.
89. In solitary confinement B.C. has been denied access to educational instruction and programming. On the rare occasions he receives school work, he has trouble completing it because there is no teacher he can ask questions to and he does not receive the special education supports he needs. B.C. once went for almost three months without seeing an instructor or receiving work packets. He has never received a notice or a hearing about cutting him off from education classes as a sanction for rules violations.
90. Several times B.C. has tried to file a grievance about the conditions of solitary confinement and not receiving any educational instruction. On the juvenile pod corrections officers routinely ignored him. Since being in the Box, B.C. has asked for several grievance forms to complain about the conditions of his confinement. B.C. was able to file one grievance but never received a response. He
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followed that grievance attempt with additional requests to see the grievance coordinator but those requests were also ignored.
91. The Defendants’ actions or inactions have been taken under color of state law.
CLASS ALLEGATIONS 92. All Plaintiffs bring the First and Second Causes of Action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, seeking declaratory and injunctive relief on behalf of a class of all present and future 16- and 17-yearolds who are now or will be incarcerated at the Jail. All class members face a substantial risk of serious harm as a result of the Sheriff’s Defendants’ disciplinary isolation policies and practices, and all class members face an unlawful denial of educational services without due process. 93. All Plaintiffs bring the Third Cause of Action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, seeking declaratory and injunctive relief on behalf of a subclass of all current and future 16 and 17-year-olds with disabilities, as defined by the Individuals with Disabilities Education Act, who are or will be incarcerated at the Broome County Jail and are in need of special education and related services (“IDEA Subclass”). 94. All Plaintiffs bring the Fourth and Fifth Causes of Action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, seeking declaratory and injunctive relief on behalf of a subclass of all current and future 16- and 17year-olds with psychiatric and/or intellectual disabilities, as defined by the
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Americans with Disabilities Act and Section 504 of the Rehabilitation Act, who are at risk of being placed in disciplinary segregation at the Broome County Jail because of their disabilities (“ADA and 504 Subclass”).
95. All four requirements of rule 23(a) are satisfied: a. Numerosity: Joinder of all class members is impracticable
because of the size of the class and the characteristics of the class members. At any given time, all of the juveniles incarcerated at the Broome County Jail are at a significant risk of unconstitutional placement in isolation, unlawful denial of educational services, and unlawful discrimination because of disability-related misbehavior. Between May 2016 and May 2017, more than 80 juveniles were held at the Broome County Jail. Every month, additional class members cycle in and out of the Broome County Jail. Many of these juveniles are unable to file lawsuits on their own because of their youth, special education needs, disabilities, lack of financial resources, and length of time they will be incarcerated.
b. Commonality: There are questions of law and fact common to all members of the class, including, but not limited to whether the Defendants’ policies and practices of placing 16 and 17 year olds in disciplinary isolation have resulted in and will continue to result in in a violation of the class members’ Eighth and Fourteenth Amendment rights, whether Defendants practice of locking juveniles with psychiatric and/or intellectual disabilities in disciplinary isolation based on their disabilities violates the ADA and Section 504 of the Rehabilitation Act, whether the Defendants have unlawfully denied educational services in violation of
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the class members’ Fourteenth Amendment rights and whether the Defendants have violated the IDEA subclass members’ rights under the IDEA.
c. Typicality: The claims of the named Plaintiffs are typical of those of the class. All named Plaintiffs are incarcerated at the Broome County Jail. Each named Plaintiff has been subjected to the challenged policies and practices.
d. Adequacy of Representation: The named Plaintiffs, their representatives, and class counsel will fairly and adequately represent the interests of the class. The named Plaintiffs and their representatives have no interests in this matter that are antagonistic to other class members. Class counsel have many years of experience in civil rights and class action litigation.
96. Class-wide declaratory and injunctive relief are appropriate under rule 23(b)(2) because the Defendants have acted or refused to act on grounds generally applicable to the class as a whole.
JURISDICTION AND VENUE 97. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983 the Americans with Disabilities Act (ADA) 42 U.S.C. § 12101 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 98. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201 and 2202. This Court may also grant injunctive relief pursuant to Rule 65 of the Federal Rules of Civil
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Procedure. This Court has authority to award costs and attorneys’ fees under 42 U.S.C. § 1988.
99. Venue is proper in the Northern District of New York pursuant to 28 U.S.C. § 1391(b)(1) and (b)(2). Defendants have their official residence in the Northern District of New York. A substantial part of the events and omissions giving rise to the claims in this action occurred in this district.
CLAIMS FOR RELIEF First Cause of Action 100. The Sheriff’s Defendants’ actions or inactions have violated and continue to violate the named Plaintiffs and putative class members’ rights under the Eighth Amendment and Fourteenth Amendment of the United States Constitution. Second Cause of Action 101. The Defendants’ actions or inactions have violated and continue to violate the named Plaintiffs’ and putative class members’ rights under the Fourteenth Amendment. Third Cause of Action 102. The Defendants’ actions or inactions have violated and continue to violate the named Plaintiffs’ and the rights of the putative IDEA Subclass members under the Individuals with Disabilities Education Act, 20 USC §§ 1400 et seq. Fourth Cause of Action
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103. The Sheriff’s Defendants’ actions or inactions have violated and continue to violate all Plaintiffs and the putative ADA and Section 504 subclass members’ rights under Title II of the Americans with Disabilities Act. All Plaintiffs and members of the putative ADA and Section 504 subclass seek declaratory and injunctive relief remedying these ongoing and systemic violations.
Fifth Cause of Action 104. Sheriff’s Defendants’ actions or inactions have violated and continue to violate all Plaintiffs and the putative ADA and Section 504 subclass members’ rights under Section 504 of the Rehabilitation Act of 1973. All Plaintiffs and members of the putative ADA and Section 504 subclass seek declaratory and injunctive relief remedying these ongoing and systemic violations.
REQUESTS FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court:
a. Declare that Sheriff Defendants’ acts and omissions violated the named Plaintiffs’ and class members’ rights under the Eighth and Fourteenth Amendments;
b. Declare that Defendants’ acts and omissions violated named Plaintiffs’ and IDEA Subclass members’ rights under the IDEA, 20 U.S.C. §§ 1400-1482;
c. Declare that Sheriff Defendants’ acts and omissions violated the named plaintiffs’ and the ADA and Section 504 subclass members’ rights under Title II of the ADA, 42 U.S.C. §§ 12101-12213;
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d. Declare that Sheriff Defendants’ acts and omissions violated the named

plaintiffs’ and the ADA and Section 504 subclass members’ rights under

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794;

e. Enter all necessary and appropriate injunctive relief (including, but not

limited to, policies, procedures, training, supervision, and monitoring) to end

the ongoing violations of the U.S. Constitution and federal law;

f. Award the Plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. §

1988, 42 U.S.C. § 12205, and 42 U.S.C. § 1415; and

g. Grant any other relief that the Court deems necessary and proper.

Dated: August 8, 2017 Syracuse, New York

Respectfully submitted,

/s/ Joshua Cotter Joshua Cotter (Bar No. 518217) Sarah Morrisson* Susan Young (Bar No.102862) Samuel Young (Bar No. 508916) LEGAL SERVICES OF CENTRAL NEW YORK 221 S. Warren Street, 3rd Floor Syracuse, NY 13202 Tel: (315) 703-6500 jcotter@lscny.org

Attorneys for Plaintiffs

*Pending submission of Application for Admission

33

 
 Case 9:17-cv-00817-DNH-DEP Document 52 Filed 02/09/18 Page 1 of 8

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X A.T., a minor, by and through his parent and natural guardian Sha-Keema Tillman, et al., on behalf of themselves and all others similarly situated,
Plaintiffs,

v.

DAVID HARDER, Broome County Sheriff, in his:

official capacity, ct al.

:

Defendants. -------------------------------------------------------------x

17-CV-0817 (DNH) (DEP)

U.S. Ll!SiRICT COURT - tJ.D. OF N.Y.
I I F fLED FEB 0 9 2018

- - - AT

O'CLOCK

Lauence K. B.Jerman, Clerk - Utica

STIPULATION AND ORDER FOR AN INTERIM SETTLEMENT AGREEMENT WHEREAS, l1laintiffs filed a class action Complaint alleging that, by locking juveniles in
closed cells for disciplinary purposes, the Sherifrs Office violated the Plaintiffs' rights under the Americans' with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and the Eighth and Fourteenth Amendment rights of Plaintiffs and that, by denying juveniles educational instruction without procedural protections and special education and rela(cd services, Defendants violated the rights of juveniles under the Fourteenth Amendment and the Indjviduals with Disabilities Education Act;
WHEREAS, Plaintiffs and Defendant Chenango Valley Central School District have agreed to enter into this Stipulation and Order as an interim agreement; NOW, THEREFORE, IT IS HEREBY STIPULATED AND ORDERED:

Case 9:17-cv-00817-DNH-DEP Document 52 Filed 02/09/18 Page 2 of 8
DEFINITIONS
Action refers to and includes A. T, et a/. v. Harder, et a!., No. 17-CV-0817, filed with the United
States District Court for the Northern District of New York. Plaintiffs refers to the named Plaintiffs and the proposed class and subclass. •Jail refers to the Broome County Correctional Facility. School District refers to the Chenango Valley Central District. Defendant refers to the Chenango Valley Central District. Parties refers to the Plaintiffs and the Defendant Chenango Valley Central School District i11 this Action. J uvcnilc(s) refers to any person or persons under eighteen years of age. Effective Date refers to the dny on which the Parties shall submit this Stipulation and Order for the Court's approval. Edgenuity Program is an online, curriculum delivery system that offers core, elective, and AP courses. It offers pre-made and customized courses that are aligned with the Common Core and state standards. The system uses a combination of direct-instruction videos, assessments, and performance tasks. Students can work at their own pace with a teacher monitoring their progress and answering questions as they progress.
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Case 9:17-cv-00817-DNH-DEP Document 52 Filed 02/09/18 Page 3 of 8
I. INTERIM ACTIONS l. The School District will offer, and maintain sufficient staff to offer, all eligible juveniles with three hours of instruction per school day, beginning no later than ten (10) calendar days after the juveniles has been incarcerated, includ1ng during the summer session. 2. In the case of a juvenile who \\'CIS classified as n Student vvith a Disability prior to incarceration, the instruction offered to the juvenile will be provided by a Certified Special Education Teacher, or via a consultnnt Teacher and the School District will offer to the juvenile the related services set forth on the juvenile's most recent Individualized Education PlEin. The indirect consultant teacher will consult with the general education teacher to facili tate the provision of Special Education lnstl'llction at least twice weekly or more as necessary to the ex tent services are permitted in the jail setting and are consistent with the students IEP. 3. In the case of a juvenile who is not classified as a Student with a Disability prior to incarceration, the School District will maintain procedures for the referral and identification of juveniles suspected of having a disability for an evaluation and determination of eligibility for special education in accordance with the requirements of 8 NYCRR § 200.4, including the requirements set f<H·th therein. The instructional staff ofthe Scbool District at the Jail, the juvenile's parent or guardian and the student's home District, or any other person allowed to make referrals under 8 NYCRR § 200.4 may refer an individual for evaluation. The re fe rrals will be directed to the Administrator overseeing the Jail's instructional program, and the Administrator \Viii be considered the building administrator within the meaning of 8 NYCRR § 200.4. The Administrator and the Home School District's Director of Special Education will be responsible for
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obtaining consent to evaluate 1rom the juveniles' parent, rmd for proceeding with the necessary evaluations upon obtaining such consen t in accordance with the requirements in 8 NYCRR § 200.4. 4. In the case of a juvenile who was classilicd ns n Student with a Disability prior to incarcerntion, and who is due for an annual review, or a reevaluation, the School District will arrange such annual review or reevaluation in cooperation with the Students' Home DistrictL in nccorclance with the requirements of 8 NYCRR § 200.4, including the requirements set forth therein. 5. The School District will tt1kc at1endance of the juveniles in the cducntional programs, programming offered by the School District, and special educat ion related services nt the Jail, and provide such records to counsel for the Plainti ffs on a regular basis. In the event that the Sheniffs Oflice "locks down" the Jail, or otherwise fails to make juveniles available for instruction or programming, such events will be noted on the attendance records. 6. In the case of juveniles ·who are expected to be incarcerated for more than ten ( I0) calendar days, instructional staff will meet with !'he juvenile at the time instruction is offered to advise them of the high schoo l cred it-bearing instruction and programs available from the School District for juveniles at the Jail. The School District will create a written program participation form, explaining the programs and their availability (including days and times), and permitting juveni les to select in writing the programs in which they would like to participate. The progmms may be provided "online" through the Edgenuity Progrmn or similar online services. Such program participation forms will be provided to juveniles ns soon as practicable after their initial reception period through
4

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the Edgenuity Program. The School District will create a wri tten form, explaining the bcnclits and availability of high school credit-bearing instruction, to be acknowledged and signed by the juvenile at the commencement of instruction. In the case ofjuveniles who arc residents of the School District, during this initial meeting the School District will complete any necessary documentation to allow the juvenile, upon discharge, to resume nttencling the juvenile's high school without the necessity of re-enrolling as n student of the School District. The School District will create a form, to be placed in the juvenile's property, informing the juvenile of the schoo l they will be enrolled in tollo'tving their discharge. 7. This interim agreetnent shall remain in eiTcct until October 31, 2019 or until a unal agreement is reached between the plaintiffs, Chenango Valley School District, and the Broome County Sheriff's Ofticc. II. REPORTING AND MONITORJNG 8. By no latet·than the seventh day ofeach month, the School District shall provide Plaintiff' counsel with: a. The attendance forms, required by paragraph 5, that were filled out for juveniles for the
previo us month; b. All written forms on which juveniles acknowledge the availability ofhigh school credit
bcMing instruction fo r the previous month; c. All program participation forms fi lled out by juveniles for the previous month. 9. The Administrator will be the School District's compliance coordinator for the purposes
of this Agreement, and counsel for the Plaintiffs may email the Administrator with any questions regarding compliance with this Agreement, with a copy of the emaiJ 1o counsel
5

Case 9:17-cv-00817-DNH-DEP Document 52 Filed 02/09/18 Page 6 of 8
for the School District. If the School District changes its compliance coordinator, the School shall promptly notify Plaintiffs' counsel of the identity of the new compliance coordinator. 10. For and in consideration for the promises contained herein, the plaintiffs named herein shall release and forever discharge the Chenango Valley Central School District, its officers, Board Members, employees and agents from all actions, causes ofactions, suits, debts, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, controversies, including but not limited to claims of discrimination upon any ground or protected category, agreements, promises, trespasses, judgn1ents, executions, claims and demands whatsoever, in law or in equity, which against the said Chenango Valley Central School District, its officers, Board Members, employees and agents said plaintiff.<> may have had, now have or at any time in the past held through the date of this release. It is also understood and agreed that this release is however, only limited by the issue of attorney's fees. Only the issue of the plaintiffs attorney's fees will remain unresolved following the execution of this agreement. The parties agree that they will negotiate in good faith regarding the portion of attorney's fees to be paid by the Chenango Valley Central School District defendants, together with any appropriate negotiated costs associated therewith for plaintiffs attorney's fees. Other than this issue, all claims referenced in the complaint filed herein, or which could have been asserted by the plaintiffs herein, are waived and released as provided for herein.
6

Case 9:17-cv-00817-DNH-DEP Document 52 Filed 02/09/18 Page 7 of 8
IV. PARTICIPATION IN ONGOING LITIGATION 11. To the extent necessary, the School District shall produce such documentary evidence and witnesses' testimony as are deemed necessary by the Plaintiffs during the remainder of this litigation.
V. ENTIRE AGREEMENT 12. This Stipulation and Order embod ies the entire agreement of the Pa1ties. No prior or contemporaneous agreements, oral or wrillen, entered into prior to the execution of this Stipulation and Order regarding the subject matter of this Action shall be deemed to exist, or to hind the Parties hereto, or to vary the terms and conditions contained herein. Captions are included herein solely for convenience of reference and shall not be used to limit the terms of the Stipulation and Order.
VI. ELECTRONIC SIGNATURE 13. The Parties agree to usc their electronic signature to demonstrate their consent to this Stipulation and Order.
7

Case 9:17-cv-00817-DNH-DEP Document 52 Filed 02/09/18 Page 8 of 8

Is/ Joshua T. Coller. Esq. Joshua T. Cotter, Esq. George Haddad, Esq. Susan M. Young, Esq. Samuel C. Young, Esq.
LEGAL SERVICES OF CENTRAL NEW YORK
221 S. Warren Street Syracuse, New York 13202 Tel: (315) 703-6500 j cot ter@lscny.org ghaddad@lscny .org syoung@lscny .org samyoung@Jscny.org
Afforneysfor Plaintiff.'~

Is/ Frank J\1/i/!er. Esq. Frank Miller, Esq. Law Office of Frank Miller 6575 Kirkville Road Easl Syracuse, New York 13057 Tel. (3 15)-234-9900 t'miller@i\vmillerlmvfirm.com
Alforney for Defendant Chenango Valley School District

'J, Dated: February 20 18
(}ctcq_, K(.

1 t:h SO ORDERED this day of February, 2018
~7!~
HON:DAViDHRD ' UNITED STATES DISTRICT JUDGE

8

 
 Case 9:17-cv-00817-DNH-DEP Document 62 Filed 04/04/18 Page 1 of 39

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
A.T., a minor, by and through his parent and natural guardian Shakeema Tillman, and B.C., a minor, by and through Kristi Cochardo,
Plaintiffs,
-v-
DAVID HARDER, Broome County Sheriff, in his official capacity, MARK SMOLINSKY, Jail Administrator of the Broome County Correctional Facility, in his official capacity, and KEVIN MOORE, Deputy Administrator, in his official capacity,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
APPEARANCES:
LEGAL SERVICES OF CENTRAL NEW YORK Attorneys for Plaintiffs 221 South Warren Street, Suite 300 Syracuse, NY 13202
LEGAL SERVICES OF CENTRAL NEW YORK Attorneys for Plaintiffs 168 Water Street Binghamton, NY 13901
BROOME COUNTY ATTORNEY'S OFFICE Attorneys for Defendants Broome County Office Building 60 Hawley Street, P.O. Box 1766 Binghamton, NY 13902

9:17-CV-817
OF COUNSEL: JOSHUA T. COTTER, ESQ. SAMUEL C. YOUNG, ESQ. SUSAN M. YOUNG, ESQ. GEORGE B. HADDAD, ESQ. ROBERT G. BEHNKE, ESQ.

Case 9:17-cv-00817-DNH-DEP Document 62 Filed 04/04/18 Page 2 of 39
DAVID N. HURD United States District Judge
TABLE OF CONTENTS
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. The Broome County Jail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Solitary Confinement at the Jail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Andrea Weisman, Ph.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. Defendants' Opposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. Proposed Regulatory Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. Reports from Supervisory or Accrediting Bodies. . . . . . . . . . . . . . . . . . 8 3. Affidavits from Broome County Jail Staff . . . . . . . . . . . . . . . . . . . . . . . . 8 i. Sean Bell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ii. James Borchardt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 iii. Marcus DeAngelo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 iv. Jeff Katen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 v. Jason Kirk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 vi. Dennis Rowe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 vii. Daniel Snyder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 viii. Jennifer Vasquez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ix. Adam Wilcox. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
III. DISCUSSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. Class Certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1. Numerosity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2. Commonality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3. Typicality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4. Adequacy of Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 5. Rule 23(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 6. Ascertainability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Preliminary Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. Substantial Likelihood of Success. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 i. Deliberate Indifference to Conditions of Confinement. . . . . . . . 27 ii. Fourteenth Amendment Due Process & the IDEA.. . . . . . . . . . 34 iii. The ADA & Section 504. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 2. Strong Showing of Irreparable Harm. . . . . . . . . . . . . . . . . . . . . . . . . . 36 3. Public Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 4. Balance of Hardships. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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MEMORANDUM–DECISION and ORDER I. INTRODUCTION
Named plaintiffs A.T. and B.C.1 seek declaratory and injunctive relief on behalf of themselves and a proposed class of fellow 16- and 17-year-olds ("juveniles") who have been or will be held in some form of solitary confinement at the Broome County Correctional Facility (the "Broome County Jail" or the "Jail").
The Broome County Jail is operated by defendants Broome County Sheriff David Harder ("Sheriff Harder"), Jail Administrator Mark Smolinsky ("Administrator Smolinsky"), and Deputy Jail Administrator Kevin Moore ("Deputy Administrator Moore") (collectively "defendants"), each of whom is sued here in their official capacity.2
Plaintiffs' first amended complaint asserts five claims. In the first and second causes of action, they assert 42 U.S.C. § 1983 claims alleging defendants routinely place juveniles in solitary confinement and then deny them access to educational opportunities in violation of the Eighth and Fourteenth Amendments (the proposed "juvenile class").
In plaintiffs' third cause of action, they assert a claim under the Individuals with Disabilities in Education Act ("IDEA") alleging a subclass of juveniles placed in solitary confinement are being denied the special education and related support serv ices to which they are entitled under the statute (the proposed " IDEA subclass").
1 The named plaintiffs are (or were at the time of filing) minors. They appear here through their parents or natural guardians and are referred to by their initials in accordance with FED. R. CIV. P. 5.2.
2 Initially, plaintiffs also sued the Chenango Valley Central School District. However, plaintiffs settled their claims against the School District in an order approved on February 9 and stipulated to an agreement on attorney's fees in an order approved on March 6. As of March 7, the School District has been terminated as a defendant in this action.
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Case 9:17-cv-00817-DNH-DEP Document 62 Filed 04/04/18 Page 4 of 39
In plaintiffs' fourth and fifth causes of action, they assert claims under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504") alleging a separate subclass of qualifying juveniles are being denied access to certain programs, services, and benefits without first receiving the individualized assessment mandated by these federal laws (the proposed "disability subclass").
Plaintiffs have moved for class certification under Federal Rule of Civil Procedure ("Rule") 23. Plaintiffs have also moved for a preliminary injunction under Rule 65. Defendants oppose both requests. The parties have exchanged limited discovery on an expedited basis and the motions were fully briefed in advance of oral argument, which was heard on March 23, 2018 in Utica, New York. Decision was reserved. II. BACKGROUND
Plaintiffs have submitted declarations and other evidence in support of their request for class certification, see Cotter Class Cert. Decl. (detailing supporting submissions), and in support of their motion for preliminary injunctive relief, see Cotter Prelim. Inj. Decl. (same); Weisman Decl. (including supporting exhibits).
In opposition, defendants have submitted selected records from current or former members of the proposed juvenile class, see Behnke Class Cert. Aff. (detailing submissions), information about proposed regulatory changes, Behnke Prelim. Inj. Decl. Ex. A, reports from the New York State Commission of Correction and the National Commission on Correctional Health Care, Behnke Prelim. Inj. Decl. Exs. B & C, and a series of two- and three-page affidavits from Broome County Jail staff members Sean Bell, James Borchardt, Marcus DeAngelo, Jeff Katen, Jason Kirk, Dennis Rowe, Daniel Snyder, Jennifer Vasquez, and Adam Wilcox.
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Case 9:17-cv-00817-DNH-DEP Document 62 Filed 04/04/18 Page 5 of 39
All of these materials have been considered and the particularly relevant portions will be summarized below. Notably, however, neither party has sought an evidentiary hearing in connection with either of plaintiffs' motions, and an independent review of the submissions has not revealed any genuine disputes over the facts essential to resolve the pending requests. See, e.g., Matter of Defend H2O v. Town Bd. of the Town of E. Hampton, 147 F. Supp. 3d 80, 96-97 (E.D.N.Y. 2015) (discussing circumstances where an evidentiary hearing on a preliminary injunction may prove unnecessary). Accordingly, while disputes over certain factual matters remain outstanding, their resolution is unnecessary at this juncture.
A. The Broome County Jail The Broome County Jail is a 563-bed correctional facility located in Dickinson, New York that houses pre-trial detainees, convicted individuals serving sentences, and technical parole violators. The Jail primarily holds an adult inmate population. However, the facility is also used to house juveniles, many of whom suffer from mental health or intellectual disabilities. Generally speaking, juveniles being held at the Broome County Jail are housed in their own pod ("F-Pod"), where they are permitted outside their cells for about 12 hours a day for recreation, showers, library use, class time, and other programming. The average length of time a juvenile spends at the Jail is 37 days, and the vast majority of the juveniles held at the Jail are pre-trial detainees. B. Solitary Confinement at the Jail Defendants' policies contemplate several different forms of disciplinary isolation or segregation: (1) "informal discipline," where an inmate waives the right to a hearing and simply accepts the corrections officer's proposed sanction, which is usually a 24-hour period
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of confinement in a cell; (2) "administrative segregation," where an inmate is confined to their cell or to the Secure Housing Unit ("SHU") for up to 15 business days pending a disciplinary hearing; (3) "protective custody," a form of administrative segregation that can exceed the 15-day limit; and (4) "disciplinary segregation" or "keep-lock," an additional period of lock-in or SHU time imposed as a punitive measure.
In each instance, the inmate is confined to a sparsely furnished cell measuring about 8 by 10 feet for approximately 23 hours a day. Plaintiffs contend these measures are routinely imposed by Broome County Jail staff on members of the proposed juvenile class regardless of mental health history and even for minor misbehavior, such as horseplay, engaging in a water fight, tossing paper into a waste basket, or failing to clean their cell to a guard's satisfaction. Plaintiffs assert that once a juvenile is placed in any of these forms of solitary confinement, defendants deny them access to education or special education instruction and related support services in violation of state and federal law.
In addition, plaintiffs contend the Broome County Jail's practices and policies fail to distinguish between adults and juveniles, between pre-trial detainees and post-conviction prisoners, or even between normal juveniles and those with mental or intellectual disabilities. As a result, juveniles at the Jail often come in visual or physical contact with members of the adult inmate population, who among other things have been known to try to attack them, to throw urine at them, and to shout threatening messages to them.
C. Andrea Weisman, Ph.D In support of their request for preliminary relief, plaintiffs have submitted a detailed declaration from Andrea Weisman, Ph.D., a licensed clinical psychologist. Dr. Weisman visited the Broome County Jail, interviewed two of the five juveniles being held there at the
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time of her visit, reviewed the Jail's written policies, examined the records of various juveniles who were held at the facility, and interviewed various members of the Jail staff.
Dr. Weisman opines in relevant part that "the policies and practices guiding the placement of youth in solitary confinement are extraordinarily harsh and are extremely damaging to youth so confined" and concludes that defendants' "adherence to these policies place all juveniles who are, or will be, incarcerated at the Jail at substantial risk of serious harm."
D. Defendants' Opposition Defendants' submissions can be divided into three categories: (1) an explanation of the salient features of a proposed amendment to state corrections law; (2) reports from supervisory or accrediting bodies; and (3) a series of short affidavits from Broome County Jail staff members offering context for defendants' penological decision-making vis-à-vis certain juveniles who have submitted declarations in support of plaintiffs' pending requests for relief or who are otherwise involved in this litigation. 1. Proposed Regulatory Amendment On November 1, 2017, the New York State Commission of Corrections proposed certain amendments to the current regulations "regarding inmate cell confinement and essential services deprivation." According to defendants, these proposed changes will "require any disciplinary or administratively segregated inmate who is under eighteen years of age [to be] allowed out of their cell for a minimum of four hours per day." Under the proposal, this four-hour requirement is not in stone but rather may be denied to a juvenile any time the "chief administrative officer determines that [ ] denial is necessary to preserve the safety, security or good order of the facility." The proposed
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changes will provide for weekly review of this kind of denial, which must also be memorialized in writing and maintained in a centralized database.
In addition, the proposed regulations permit facility staff to restrict or even deny educational services to juveniles provided that the denial is reviewed by the chief administrative officer "within one school day and every school day thereafter while such restriction or denial is in effect."
2. Reports from Supervisory or Accrediting Bodies Defendants submitted two reports in an attempt to rebut certain of plaintiffs' claims. First, defendants submitted a February 14, 2018 New York State Commission of Correction Report entitled "The Worst Offenders." As defendants explain, this report does not include the Broome County Jail even though Dr. Weisman opined in her report that the Jail was "the worst facility she has seen in her thirty years." Second, defendants submitted a September 25, 2017 accreditation report from the National Commission on Correctional Health Care ("NCCHC"). According to defendants, this submission establishes that the Broome County Jail is in compliance with NCCHC standards for "restraint and seclusion." 3. Affidavits from Broome County Jail Staff i. Sean Bell Officer Bell states that he currently works in D-pod, the SHU. He asserts that inmates in the SHU "are able to exercise and jog around the perimeter of the yard." In addition, Officer Bell explains SHU inmates have access to legal papers and a bible during the first 24 hours in the SHU. After that, they are "permitted three books and three magazines in their cells." These inmates also have "daily access to three newspapers" if they want to read them. According to Officer Bell, he passes the newspapers "from cell to cell each day so any
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inmate who signs up for a paper has the opportunity to read it." Officer Bell denies ever assaulting any inmates or witnessing any corrections officer
assault any inmate in his presence. To the contrary, Officer Bell claims that A.T., one of the named plaintiffs, "would target any new person" in SHU and has previously assaulted another inmate. According to Officer Bell, he also observed D.K., another juvenile, "throw urine through the window of an adult's cell in F-pod" while the adult inmate was asleep. Officer Bell states that he did not observe any adult inmates harassing any juveniles, and opines that juveniles "were more likely" to harass the adults.
ii. James Borchardt Officer Borchardt is the Inmate Grievance Coordinator at the Broome County Jail. He explains that inmates are free to file grievances and appeal any decisions he makes, but asserts that "[n]o juvenile inmates have filed a grievance regarding the issues raised in this litigation." iii. Marcus DeAngelo In his affidavit, Officer DeAngelo explains that he penalized C.J., a juvenile inmate, with "seven day keeplock" after he refused to "stand for a count." According to Officer DeAngelo, C.J. claimed he was going to the bathroom but "was observed sitting on the toilet with his pants up." Officer DeAngelo explains that C.J. was also uncooperative on other occasions "during the count." Further, Officer DeAngelo denies ever observing C.J. talking to himself or asking for help with his worksheets. Finally, Officer DeAngelo asserts that he never witnessed any inmates "spying on the juveniles in the shower." iv. Jeff Katen Officer Katen's affidavit confirms Officer Bell's claim that an inmate is not permitted to
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have anything other than legal materials and religious belongings during the first 24 hours they spend in SHU. Officer Katen also recounts an incident with D.K., who was placed in keeplock because "he informed the staff his listed birth date was wrong." According to Officer Katen, staff placed D.K. in keeplock so they could investigate this claim.
v. Jason Kirk Officer Kirk recounts an instance in which he was present for a "shakedown" in F-pod. According to him, O.C., a juvenile, was restrained because he refused to "put his head down" and became argumentative. Officer Kirk states that named plaintiffs A.T. and B.C. were "given multiple chances . . . to comply with facility rules" but repeatedly violated them. Like Officer DeAngelo, Officer Kirk denies being informed "of any complaints that the adults were watching the juveniles in the shower." Officer Kirk also denies ever observing any adults throwing urine or feces on the cell walls. vi. Dennis Rowe Like Officer Kirk, Sergeant Rowe recalls the "shakedown" where O.C. refused to comply, but adds to it by denying that Jail staff "slammed" O.C.'s head on the floor. As with Officer Bell, Sergeant Rowe opines that the juveniles are the instigators of any harassment involving the adults. Finally, Sergeant Rowe denies hearing any complaints about adult inmates watching juveniles in the showers. vii. Daniel Snyder Officer Snyder offers information about the discrepancy with D.K.'s date of birth described in Officer Katen's affidavit. According to Officer Snyder, he was instructed to lock D.K. in his cell until they could confirm his date of birth—it took seven days of keeplock to confirm that D.K. was, in fact, correct about his own date of birth. Nevertheless, Officer
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Snyder explains that this was necessary for D.K.'s protection and for the protection of other inmates. Finally, Officer Snyder denies ever observing any adults threatening juveniles.
viii. Jennifer Vasquez Officer Vasquez recounts an incident on November 23, 2016 with O.C., who "persistently continued to make noise and was screaming" between the hours of one and two in the morning. Officer Vasquez concluded that O.C. "was being intentionally disruptive and seeking a physical altercation with an officer." After O.C. refused to comply with various commands, staff removed him from F-pod. ix. Adam Wilcox Officer Wilcox's familiarity with the "shakedown" of O.C. comes through his review of incident reports. According to Officer Wilcox, staff needed to control O.C.'s head for his own protection and for the protection of other corrections officers. Officer Wilcox, like several other officers, denies ever observing any adults "spying on the showers." In addition, Officer Wilcox explains that inmates are only "shackled in the recreation yard" if they are "a threat to themselves or another inmate or officer." III. DISCUSSION The fact pattern and procedural posture presented in this case are rem arkably similar to a matter addressed just last year in V.W. v. Conway, 236 F. Supp. 3d 554 (N.D.N.Y. 2017) ("Conway"). There, the named plaintiffs were juveniles who sought relief on behalf of themselves and a proposed class of minor detainees suffering virtually identical treatment at the hands of Onondaga County officials. After plaintiffs' requests for class certification and preliminary injunctive relief were granted, the parties entered into an interim agreement before negotiating the terms of a final class action settlement.
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The parties to the present case are well familiar with Conway. Plaintiffs' counsel in this action successfully litigated the Conway matter, and they have relied heavily on the reasoning and conclusions set forth in Conway in making the requests for class certification and preliminary injunctive relief that are under consideration now. At oral argument, defendants were tasked with articulating how the facts of this case could be understood to give rise to the kind of meaningful distinctions that might ultimately warrant a series of legal conclusions different from those reached in Conway. Defendants struggled to do so, and for good reason: a careful review of the parties' submissions makes it clear that justice is best served by treading Conway's path.
A. Class Certification Plaintiffs seek to certify (1) a class composed of "[a]ll 16- and 17-year-olds who are now or will be incarcerated at the Broome County Correctional Facility"; (2) a subclass of "[a]ll 16- and 17-year-olds with disabilities, as defined by the Individuals with Disabilities Education Act, who are now or will be incarcerated at the Broome County Correctional Facility, who are in need of special education and related services"; and (3) a subclass of "[a]ll 16- and 17-year-olds with psychiatric and/or intellectual disabilities, as defined by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, who are now or will be incarcerated at the Broome County Correctional Facility, who are at risk of being placed in disciplinary segregation because of their disability." Pls.' Mem. Supp. Class Cert. at 12.3 "A district court enjoys broad discretion when it comes to resolving questions of class
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certification because it 'is often in the best position to assess the propriety of the class and has the ability, . . . , to alter or modify the class, create subclasses, and decertify the class whenever warranted.'" Conway, 236 F. Supp. 3d at 572 (quoting Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d Cir. 2001)).
However, because the class action device is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only," Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979), "[a] party seeking class certification must affirmatively demonstrate [its] compliance with the Rule." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (emphasis added) ("Rule 23 does not set forth a mere pleading standard.").
Accordingly, "the district court is required to make a 'definitive assessment of Rule 23 requirements, notwithstanding their overlap with merits issues,' and must resolve material factual disputes relevant to each Rule 23 requirement." Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010) (quoting In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006) ("In re IPO")).4
First, Rule 23 requires a party seeking certification to demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect
4 At this stage, the merits should be considered only to the extent they overlap with Rule 23's inquiry. Dukes, 564 U.S. at 351 ("Frequently that 'rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.").
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the interests of the class.
FED. R. CIV. P. 23(a).
Second, the Rule requires a party to satisfy at least one of three additional
requirements:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
FED. R. CIV. P. 23(b).
Finally, courts have written a third, "implied requirement" into the Rule: a party
seeking certification must demonstrate that the proposed class is "ascertainable." Sykes v.
Mel Harris & Assocs., LLC, 285 F.R.D. 279, 287 (S.D.N.Y. 2012). Under this additional
element, "[a]n identifiable class exists if its members can be ascertained by reference to
objective criteria." Stinson v. City of N.Y., 282 F.R.D. 360, 367 (S.D.N.Y. 2012) (quoting In re
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Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 395 (S.D.N.Y. 2008)). In sum, "[c]lass certification is appropriate where the proposed class meets, by a
preponderance of the evidence following a court's 'rigorous analysis,' the requirements of Rule 23(a) and the proposed class constitutes one of the types of classes enumerated in Rule 23(b)." Stinson, 282 F.R.D. at 367 (citation omitted).
1. Numerosity The first element requires plaintiffs to demonstrate that "the class is so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). Ordinarily, a proposed class that exceeds forty members is considered presumptively numerous for purposes of this requirement. Pa. Pub. Sch. Emps.' Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 120 (2d Cir. 2014) (" Numerosity is presumed for classes larger than forty members."). However, the Second Circuit has cautioned that "the numerosity inquiry is not strictly mathematical" but rather one that should take "into account the context of the particular case, [and] in particular whether a class is superior to joinder based on other relevant factors including: (i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of class members, (iv) their ability to sue separately, and (v) request for injunctive relief that would involve future class members." Morgan Stanley & Co., Inc., 772 F.3d at 120 (citation omitted). In other words, "[t]he numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate." Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco Managed Care, LLC, 504 F.3d 229, 244-45
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(2d Cir. 2007). Plaintiffs argue the proposed juvenile class is sufficiently numerous because the
record demonstrates that at least 110 juveniles spent time at the Broome County Jail during the period between March 1, 2016 and November 1, 2017. Waldron Decl. ¶ 5. Defendants respond that the Jail's internal records show that in 2017 only 18 juveniles "received any form of discipline" at the Broome County Jail. Defs.' Mem. Opp'n at 10-11. Plaintiffs reply that defendants' proffered number is not tied to any evidence in the present record and, even if it were an accurate data point, it fails to account for the fact that the juvenile class proposed by plaintiffs is not limited to just those juveniles actually placed in some form of solitary confinement for disciplinary reasons. Pls.' Reply Mem. at 5-6.
Plaintiffs clearly have the better of this argument. They are correct that in circumstances such as these, courts routinely certify classes that encompass not only those members who have actually been subjected to a challenged policy or practice but also to similarly situated individuals at reasonably foreseeable risk of facing the same fate. See, e.g., Conway, 236 F. Supp. 3d at 574 (certifying class of all juveniles held at the facility now or in the future); Hernandez v. Cty. of Monterey, 305 F.R.D. 132, 152 (N.D. Cal. 2015) (certifying class of all inmates held at the facility).
Various contextual factors also point toward the appropriateness of certification. For instance, plaintiffs' proposed class includes all future juveniles who will be detained at the Broome County Jail, precisely the sort of revolving population that often makes joinder of individual members impracticable. See, e.g., Clarkson v. Coughlin, 783 F. Supp. 789, 797 (S.D.N.Y. 1992) ("The class action device is particularly well-suited in actions brought by prisoners due to the 'fluid composition' of the prison population . . . [and] generally tend[s] to
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be the norm in actions such as this."). And while the juvenile class members will obviously share the same geographic area
(that is, the Broome County Jail) at one point or another, the ability of any one individual member of the class to maintain an individual civil rights suit will at the same time necessarily be limited by the simple reality that their freedom has been severely restricted. Cf. Redmond v. Bigelow, 2014 WL 2765469, at *3 (D. Utah June 18, 2014) (acknowledging that individual members of a putative class of prisoners would face myriad practical difficulties in maintaining individual suits because they "enjoy very little freedom in their daily lives" such as the fact they "are not at liberty to meet and confer with counsel without permission" from prison authorities).
Finally, litigating this suit as a class action promotes judicial economy, since it avoids multiple individual suits that raise the same issues and seek the same relief—an end to current solitary confinement practices for juveniles held at the Broome County Jail, and an end to the deprivation of education and disability support services attendant to that kind of treatment. Cf. Williams v. Conway, 312 F.R.D. 248, 251 (N.D.N.Y. 2016) (McAvoy, J.) (certifying class of present and future deaf and hearing-impaired prisoners at the Justice Center).
Plaintiffs' proposed subclasses meet Rule 23's numerosity requirement for substantially the same reasons. Working from the 110 known members of the juvenile class, plaintiffs cross-reference data from the New York State Department of Education to establish that at least 51 members of the juvenile class were students with a qualifying disability under the IDEA, and rely on studies from the National Center for Mental Health and Juvenile Justice to establish that at least 55 members of the juvenile class would meet the criteria to
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qualify for a disability under the ADA and Section 504. Defendants respond that this method of estimating subclass membership cannot
satisfy the numerosity standard because it is "purely speculative." But as plaintiffs reply, conclusions drawn from statistical data have been found sufficient for purposes of class certification so long as they are demonstrably reasonable ones. See, e.g., Williams, 312 F.R.D. at 252 (finding numerosity satisfied where plaintiffs offered, inter alia, estimate of class members based on statistical data cross-referenced against relevant public reports).
Upon review, that is the case here. In sum, plaintiffs have demonstrated by a preponderance of the evidence that the proposed juvenile class and the two subclasses are sufficiently numerous such that joinder of all members is impracticable. Accordingly, Rule 23's numerosity requirement is satisfied.
2. Commonality This element requires plaintiffs to demonstrate there "are questions of law or fact common to the class." FED. R. CIV. P. 23(a)(2). Importantly, this "does not require all questions of law or fact to be common," and "even a single common question will suffice." Sykes, 285 F.R.D. at 286; see also Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997) ("The commonality requirement is met if plaintiffs' grievances share a common question of law or of fact."); Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992) ("Commonality does not mandate that all class members make identical claims and arguments, only that common issues of fact or law affect all class members."). "The common question must lend itself to 'classwide resolution' such that 'determination of its truth or falsity will resolve an issue that is central to the validity of each
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one of the claims in one stroke.'" Sykes, 285 F.R.D. at 286 (quoting Dukes, 564 U.S. at 350). Importantly, "factual differences in the claims of the class do not preclude a finding of commonality." Id. at 287 (citation and internal quotation marks omitted). Rather, what matters is "the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Id. at 286 (citation and internal quotation marks omitted).
Plaintiffs' submissions establish that they have also met their burden on this element. See Pls.' Mem. Supp. Class Cert. at 16-22 (setting forth evidence in support of the commonality inquiry in detail). Defendants' opposition submission is shot through with attempted explanations for the different reasons that individual juveniles were placed in solitary confinement and/or descriptions of the different circumstances in which such confinement was imposed. But much of that is beside the point.
More importantly for purposes of evaluating this element is the fact that plaintiffs allege defendants have engaged in a common course of unlawful conduct toward members of the proposed class and subclasses, that def endants acted with deliberate indifference to the substantial risk of serious harm posed by certain aspects of that common course of conduct, and that defendants have collectively deprived class and subclass members of the education, special services, and other related procedural protections to which they are entitled.
As in Conway, "the common answers to these questions will drive the resolution of the litigation—whether defendants' conduct violates the Constitution or federal law, and whether defendants should therefore be enjoined from engaging in that course of conduct." 236 F. Supp. 3d at 575 (collecting cases); see also, e.g., Williams, 312 F.R.D. at 253 (finding commonality requirement satisfied based on "jail's alleged failure to provide
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class members with services for the deaf and hearing-impaired" because these grievances share a common question of law or fact and arise from the same course of events). In sum, plaintiffs have demonstrated by a preponderance of the evidence that there are questions of law or fact common to the class and the subclasses.
3. Typicality This requirement is satisfied if "the claims or defenses of the representative parties are typical of the claims or defenses of the class." FED. R. CIV. P. 23(a)(3). "Rule 23(a)(3) is satisfied when each class member's claim arises from the same course of events, and each class member makes similar arguments to prove the defendant's liability." Stinson, 282 F.R.D. at 370-71 (citation omitted). "When the same unlawful conduct was directed at or affected both the named plaintiffs and the prospective class, typicality is usually met." Id. at 371. Generally speaking, minor variations in the fact patterns underlying the individual claims will not preclude a finding of typicality unless there are "unique defenses" that threaten to become the focus of the litigation. See Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000). Plaintiffs have carried their burden on this element for substantially the same reasons as set forth above—the members of the proposed class and subclasses share the sam e legal arguments because their claims are based on the common application of certain challenged policies. Sykes, 285 F.R.D. at 287 ("The commonality and typicality requirements of Rule 23(a) tend to merge such that similar considerations inform the analysis for both prerequisites."); see also e.g., Butler v. Suffolk Cty., 289 F.R.D. 80, 99 (E.D.N.Y. 2013) (finding typicality satisfied where, for example, "whether exhaustion should be excused because administrative remedies were unavailable . . . is a question common to all members
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of the class"). Defendants argue that typicality cannot be satisfied in this case "because the claims of
A.T. and B.C. are moot and they have failed to exhaust their administrative remedies." Defs.' Opp'n Mem. at 12. According to defendants, these are unique defenses that will be "an important focus of the litigation." Id.
These arguments are rejected as bases to defeat class certification. As plaintiffs point out in reply, defendants' claim of mootness appears based on a colloquial usage of the term rather than an attempt at setting forth, much less satisfying, the formal legal standard presumably being referenced. But even assuming for present purposes that defendants are correct, it adds little to the certification inquiry because the inherently transitory nature of the pre-trial detention setting brings this matter within the "narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members of the class." Gerstein v. Pugh, 420 U.S. 103, 110 n.1 (1975); see also W illiams, 312 F.R.D. at 254.
Defendants' exhaustion argument fares no better. They contend the named plaintiffs have failed to comply with administrative exhaustion requirements. Although it is left uncited in their brief, this is apparently a reference by defendants to the requirement set forth in the Prison Litigation Reform Act ("PLRA"). The PLRA provides in relevant part that: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
Importantly, though, failure to exhaust is an affirmative defense and therefore "inmates are not required to specifically plead or demonstrate exhaustion in their
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complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). Accordingly, "exhaustion may be excused if: (1) administrative remedies were unavailable; (2) the defendants forfeited the defense or acted in such a way as to estop them from raising it; or (3) 'special circumstances' justify non-exhaustion." Butler, 289 F.R.D. at 93 (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). As the Supreme Court recently explained, "an administrative procedure is unavailable when, (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Ross v. Blake, 136 S. Ct. 1850, 1859 (2016).
In this case, the named plaintiffs and others have introduced declarations specifically attesting that their requests to see the Jail's grievance officer went unanswered, and on a few occasions they were told that certain issues about which they sought to complain were not grievable at all. In the face of these specific assertions, Officer Borchardt's short, blanket affidavit essentially claiming that no grievances from any juveniles have happened to reach his desk is woefully insufficient to defeat certification at this stage of the proceedings.
In sum, plaintiffs have demonstrated by a preponderance of the evidence that the claims or defenses of the representative parties are typical of the claims or defenses of the class and the subclasses.
4. Adequacy of Representation This requirement is satisfied if "the representative parties will fairly and adequately protect the interests of the class." FED. R. CIV. P. 23(a)(4). "[T]he adequacy requirement is twofold: the proposed class representative must have an interest in vigorously pursing the claims of the class, and must have no interests antagonistic to the interests of other class members." Denney v. Deutsche Bank AG, 443
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F.3d 253, 268 (2d Cir. 2006). In addition, class counsel m ust be "qualified, experienced and able to conduct the litigation." Baffa, 222 F.3d at 60.
This inquiry "serves to uncover conflicts of interest between the parties and the class they seek to represent." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). "Not every conflict, however, precludes a finding of adequacy." Sykes, 285 F.R.D. at 287. "The conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental, and speculative conflict should be disregarded at the class certification stage." Id. (citation omitted).
"In order to defeat class certification, there must be a showing of a genuine conflict between the proposed class representative's interests and those of the other members of the class, and only a conflict that goes to the very subject matter of the litigation will defeat a party's claim of representative status." Stinson, 282 F.R.D. at 371 (quoting in part Hirschfeld v. Stone, 193 F.R.D. 175, 183 (S.D.N.Y. 2000) (internal citation and quotation marks omitted)).
Plaintiffs have also carried their burden here. Defendants' principal argument on this element is that "potential conflicts" exist because A.T. and B.C. "were disciplined for fighting with each other" while being detained at the Broome County Jail. Defs.' Opp'n Mem. at 12. But as plaintiffs point out, that kind of interpersonal conflict does not go to "the very subject matter of the litigation," which for reminder's sake is not the abandonment of measures that might result in safety and good order at the Jail but rather the question of whether the widespread use of solitary confinement on the Jail's juvenile population is a legally permissible shortcut toward achieving that end.
As discussed above, the representatives of the class and the subclasses have been
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subjected to the same common course of treatment by the same officials on the basis of the same policies. Each named plaintiff has expressed a clear desire to seek prospective injunctive relief from these policies. That outcome will benefit the other juveniles currently detained at the Broome County Jail, and it will also benefit the juveniles who will be held at the Jail in the future.
Further, class counsel have extensive litigation experience in the class action context and in effectively seeking classwide injunctive relief in federal forums. See, e.g., Conway, 236 F. Supp. 3d at 577 (collecting cases). Accordingly, plaintiffs have demonstrated by a preponderance of the evidence that the representative parties will fairly and adequately protect the interests of the class and the subclass.
5. Rule 23(b) Plaintiffs also satisfy this requirement. They rely on Rule 23(b)(2), which applies when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED. R. CIV. P. 23(b)(2). "The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them." Dukes, 564 U.S. at 360. The members of the class and the subclasses would benefit from the same remedy—an order enjoining defendants from application of the policies and practices resulting in the deprivations at issue. Dukes, 564 U.S. at 360 ("Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class."). Accordingly, plaintiffs have met their burden on this element.
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6. Ascertainability Plaintiffs have also satisfied this final requirement. Among other things, the members of both the class and the subclasses are readily identifiable pursuant to objective criteria, such as records maintained by defendants. In sum, plaintiffs have affirmatively demonstrated their compliance with each of the requirements for class certification. Accordingly, plaintiffs' motion for class certification will be granted. B. Preliminary Injunction Plaintiffs contend preliminary injunctive relief is warranted in this case for substantially the same reasons it was justified in Conway. According to plaintiffs, defendants routinely place teenagers being held at the Broome County Jail in various forms of solitary confinement, exposing them to the sort of extreme conditions that pose a serious risk of substantial harm to a segment of the Jail's population that is already vulnerable. Plaintiffs emphasize that policy makers in the federal government and in 21 states around the country have abandoned this practice precisely because the risks of serious harm far outweigh any countervailing considerations. Plaintiffs point to a large and growing body of research that confirms the use of solitary on juveniles is actually counterproductive to the penological goals of facility safety and security. "A preliminary injunction is an extraordinary remedy never awarded as of right." Gen. Mills, Inc. v. Chobani, LLC, 158 F. Supp. 3d 106, 114 (N.D.N.Y. 2016) (quoting Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). "The party seeking the injunction carries the burden of persuasion to demonstrate, 'by a clear showing,' that the necessary elements are satisfied." Reckitt Benckiser Inc. v. Motomco Ltd., 760 F. Supp. 2d 446, 452 (S.D.N.Y. 2011) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
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As a general matter, the party seeking preliminary relief must show: "(1) a likelihood of irreparable harm; (2) either a likelihood of success on the merits or sufficiently serious questions as to the merits plus a balance of hardships that tips decidedly in their favor; (3) that the balance of hardships tips in their favor regardless of the likelihood of success; and (4) that an injunction is in the public interest." Gen. Mills, Inc., 158 F. Supp. 3d at 115; see also Chobani, LLC v. Dannon Co., Inc., 157 F. Supp. 3d 190, 199 (N.D.N.Y . 2016).
However, in cases like this one, where the movant is not seeking to restore the status quo ante but rather requesting an order that commands an affirmative act or mandates a specific course of conduct, a heightened standard applies: this type of preliminary injunction should issue only "upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (citation om itted); see also N.Y. ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (requiring a "clear" or "substantial" likelihood of success as well as a "strong showing" of irreparable harm); N.J. v. New York, 872 F. Supp. 2d 204 (E.D.N.Y. 2011) ("This higher standard is particularly appropriate when a plaintiff seeks a preliminary injunction against a government body such as a school district.").
"In the prison context, a request for injunctive relief must always be viewed with great caution so as not to immerse the federal judiciary in the management of [ ] prisons." Fisher v. Goord, 981 F. Supp. 140, 167 (W .D.N.Y. 1997) (citing Farmer, 511 U.S. at 846-47). Under the PLRA, preliminary injunctive relief in any civil action with respect to prison conditions must be narrowly drawn, extend no further than necessary to correct the harm, and be the least intrusive means necessary to correct that harm. See 18 U.S.C. § 3626(a)(2)). In
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considering a request for injunctive relief, a court must give "substantial weight" to any adverse impact on public safety or the operation of a criminal justice system the relief might have. § 3626(a)(1)(A).
1. Substantial Likelihood of Success Plaintiffs assert three kinds of claims: first, they allege defendants' routine use of solitary confinement on juveniles violates the Eighth and Fourteenth Amendments; second, they allege defendants deny juveniles in solitary confinement the minimum educational instruction guaranteed by state law in violation of the Fourteenth Amendment and the special education services and other procedural protections to which they are entitled under the IDEA; and third, they allege defendants categorically deny disabled juveniles access to available programs, services, and benefits by placing them in solitary confinement without performing the individualized assessment mandated by federal law. i. Deliberate Indifference to Conditions of Confinement Generally speaking, a plaintiff asserting a § 1983 claim based on the allegedly unconstitutional conditions of his or her confinement must show that: "(1) objectively, the deprivation . . . was sufficiently serious that he was denied the minimal civilized measure of life's necessities, and (2) subjectively, the defendant official acted with a sufficiently culpable state of mind . . . , such as deliberate indifference to inmate health or safety." Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). T he objective element requires a plaintiff to "show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health." Id. The subjective element requires a plaintiff to show the prison official knew of, and disregarded, "an excessive risk to inmate health or safety." Id. This relatively straightforward standard has always applied to evaluate a § 1983 claim
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brought by a convicted inmate serving a sentence. And in 2009, the Second Circuit instructed lower courts that this same standard should apply to pre-trial detainees challenging the conditions of their confinement. Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) ("Claims for deliberate indifference to a . . . serious threat to the health or saf ety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth [which protects convicted prisoners] or Fourteenth [which protects citizens detained pending trial] Amendment.").
But that is no longer the case. Recently, the Second Circuit overruled its holding in Caiozzo "to the extent that it determined that the standard for deliberate indifference is the same under the Fourteenth Amendment as it is under the Eighth Amendment." Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (footnote omitted). In Darnell, the Second Circuit modified the "subjective prong" of the deliberate indifference analysis for pre-trial detainees, explaining it should be "defined objectively." 849 F.3d at 35. In other words, a pre-trial plaintiff can now succeed on a § 1983 conditions-of-confinement claim in the Second Circuit by showing defendants "knew, or should have known, that the condition posed an excessive risk to health or safety." Id.
In this case, as in Conway, the vast majority of the class members are pre-trial detainees and thus entitled to the more protective version of this standard. However, in this case, as in Conway, plaintiffs seek to establish their entitlement to injunctive relief using the more inclusive, and more stringent, Eighth Amendment standard.
Under this version of the standard, "there is no' static test' to determine whether a deprivation is sufficiently serious; '[t]he conditions themselves must be evaluated in light of contemporary standards of decency.'" Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)
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(quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)). As relevant here, prisoners may not be exposed "to conditions that 'pose an unreasonable risk of serious damage to [their] future health."" Id. (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curiam)).
The subjective element requires a plaintiff to show "that the defendant acted with more than mere negligence." Farmer, 511 U.S. at 835. "To constitute deliberate indifference, '[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety.'" Walker, 717 F.3d at 125 (quoting Jabbar, 683 F.3d at 57); see also Lapierre v. Cty. of Nassau, 459 F. App'x 28, 29 (2d Cir. 2012) (summary order) ("Subjectively, the official charged with deliberate indifference must have acted with the requisite state of mind, the equivalent of criminal recklessness").
For instance, "[e]vidence that the risk was 'obvious or otherwise must have been known to a defendant' may be sufficient for a fact finder to conclude that the defendant was actually aware of the risk." Walker, 717 F.3d at 125 (quoting Brock v. Wright, 315 F.3d 158, 164 (2d Cir. 2003)). In addition, conduct that is not " reasonably calculated to restore prison discipline and security" may also be considered. Trammell v. Keane, 338 F.3d 155, 163 (2d Cir. 2003); see also Crawford v. Cuomo, 796 F.3d 252, 257-58 (2d Cir. 2015) (drawing distinction between good-faith efforts to maintain or restore discipline and conduct undertaken for the purpose of causing harm).
Plaintiffs contend they are substantially likely to succeed on the merits of this claim by offering the same rationales accepted in Conway: objectively, that juveniles are developmentally vulnerable, that placing them in close proximity to adult inmates presents a risk of physical and emotional harm, and that states and the federal government are
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abandoning the practice nationwide; and subjectively, that Broome County Jail officials have been on actual notice of the serious risks of harm through complaints from juveniles, through this litigation, and through their own accrediting agency, which has disapproved of the use of solitary confinement on juveniles.
Plaintiffs are correct. Their submissions convincingly demonstrate that juveniles face an objectively sufficiently serious risk of harm from the solitary confinement practices at the Broome County Jail. They have also identified substantial, compelling evidence in support of a finding that defendants are specifically aware of, and have consciously chosen to disregard, the serious risk of harm posed by the solitary confinement practices as they relate to juveniles at the facility.
As plaintiffs establish, there is a broad and growing consensus among the scientific and professional community that juveniles are psychologically more vulnerable than adults. See, e.g., Graham v. Florida, 560 U.S. 48, 68 (2010) ("[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds."); Roper v. Simmons, 543 U.S. 551, 569 (2005) (recognizing the "comparative immaturity and irresponsibility of juveniles).
The Supreme Court has continued to stress that these f undamental differences are consequential in the Eighth Amendment context. See, e.g., Miller v. Alabama, 132 S. Ct. 2455 (2012) (observing that youth "is a moment and condition of life when a person may be most susceptible to influence and to psychological damage"). For instance, the Court has forbidden the imposition of the death penalty on juveniles, Roper, 543 U.S. at 578, concluded that juveniles cannot be sentenced to life without parole for offenses short of homicide, Graham, 560 U.S. at 82, and held that, even in cases of homicide, juveniles cannot be
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subjected to a mandatory sentencing scheme that automatically imposes a sentence of life without parole. Miller, 132 S. Ct. at 2475.
Plaintiffs persuasively analogize the circumstances at issue in this case to numerous examples from around the country where courts have found that the imposition of solitary confinement violated the constitutional rights of adult inmates with mental conditions. As plaintiffs' submissions demonstrate, many of the juveniles in the plaintiff class also suffer from similar, pre-existing mental conditions.
And as for all members of the class, plaintiffs' submissions further establish that the risks posed here are even greater, given that juveniles share the same increased vulnerability to long-term, or even permanent, psychological damage. Cf. Peoples v. Annucci, 180 F. Supp. 3d 294, 299 (S.D.N.Y. 2016) ("After even relatively brief periods of solitary confinement, inmates have exhibited systems such as . . . hallucinations, increased anxiety, lack of impulse control, severe and chronic depression, . . . sleep problems, and depressed brain functioning."). Further, the federal government and at least 21 states have prohibited the use of disciplinary isolation for juveniles (and in fact, the State of New York has also largely eliminated the practice). Cf. Graham, 560 U.S. at 62 (considering "national consensus" in determining "contemporary values" of society).
Plaintiffs have also identified significant evidence demonstrating defendants have been on notice of the specific risks of serious risk of harm from these practices through complaints from the juveniles themselves, their own continued observations, and the fact that these practices have continued unabated despite this pending litigation. Farmer, 511 U.S. at 846 (permitting court to consider "developments that postdate the pleadings and pretrial motions" when considering subjective culpability). Further, plaintiffs have identified data from
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other jurisdictions as well as their own expert showing that the use of disciplinary confinement on juveniles is typically not reasonably calculated to restore prison safety and, even when it is, disciplinary isolation undermines that goal when it continues after immediate safety concerns have abated.
In opposition, defendants fail to overcome this substantial showing. First, they contend that the proposed regulations, when implemented, will address the myriad concerns identified here. But at least at this juncture, these proposed reg ulations are just that—proposed. It should go without saying that federal courts are not in the business of speculating about whether a proposed regulation might pass constitutional muster.
And even if defendants were somehow in a position to submit a concrete timeline for the good-faith implementation of every single one of the proposed changes, that proffer would do nothing to ameliorate the substantial, ongoing risk of harm at the Jail right now. Further, as plaintiffs point out in reply, even perfect paper standards are meaningless if the officials charged with implementing them decide to bend the rules.
Second, defendants cite to Hughes v. Judd, 108 F. Supp. 3d 1167 (M.D. Fla. 2015), to argue that the line of Supreme Court precedent on which plaintiffs rely to establish that juveniles are "constitutionally different" than adults extends only to sentencing considerations. See id. at 1182 (deriding the plaintiffs' argument as "catchy but insubstantial" and concluding that "Miller says little, if anything, about the constitutional standard applicable to juvenile detention").
However, to the extent Hughes's reasoning clashes with that set forth in Conway, it is rejected. See, e.g., Camreta v. Greene, 563 U.S. 692, 709 n.7 ("A decision of a federal district court judge is not binding precedent in either a different judicial district, the same
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judicial district, or even upon the same judge in a different case."). Third, defendants contend plaintiffs cannot succeed on a claim based on
"administrative classifications of pretrial detainees" because those determinations "do not give rise to a liberty interest absent evidence of an intent to punish." Defs.' Mem. Opp'n at 12. However, plaintiffs' persuasively argue that defendants' assertion appears to conflate the standard for a procedural claim brought by a pre-trial detainee with the kind of conditions-ofconfinement due process theory being pursued here.
Fourth, defendants contend that Dr. W eisman's opinion about the conditions of the Broome County Jail is too "conclusory" and thus "should be give [sic] no weight." In support of this rebuttal, defendants submitted the February 14, 2018 New York State Commission of Correction Report entitled "The Worst Offenders." As defendants explain, this report does not include the Broome County Jail.
Even if this dispute were resolved in defendants' favor, it would add little or nothing to the relevant inquiry. After all, the Broome County Jail might not be among the five worst facilities ever evaluated by the state's commission. But nothing about that fact would bear on the issue of whether it was the worst facility plaintiffs' expert psychologist has ever seen in her many years of professional practice.
Finally, and relatedly, defendants' submissions seek to establish a variety of minor factual disputes surrounding the imposition of various forms of confinement on various juveniles at various times. But as discussed at the outset, any such disagreements are immaterial to the question presented at this juncture; i.e., whether plaintiffs are substantially likely to succeed on their claim that the Jail's widespread, excessive usage of solitary confinement on juveniles is unconstitutional. In sum, defendants' arguments are insufficient
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to undermine plaintiffs' clear and persuasive showing on this claim. ii. Fourteenth Amendment Due Process & the IDEA "In a § 1983 suit brought to enforce procedural due process rights, a court must
determine (1) whether a property interest is implicated, and, if it is, (2) what process is due before the plaintiff may be deprived of that interest." Singh v. Joshi, 152 F. Supp. 3d 112, 124 (E.D.N.Y. 2016) (quoting Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011)).
Relatedly, "[t]he IDEA offers federal funds to States in exchange for a commitment: to furnish a 'free appropriate public education'—more concisely known as a FAPE—to all children with certain physical or intellectual disabilities." Conway, 236 F. Supp. 3d at 586 (citation omitted). "As defined in the Act, a FAPE comprises 'special education and related services'—both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction.'" Id.
With respect to their due process claim, plaintiffs assert a constitutionally protected property interest in receiving a certain amount of minimum education under New York's Education Law. With respect to their IDEA claim, plaintiffs assert defendants routinely fail to adhere to the procedural requirements mandated by federal law, such as a "manifestation hearing," before changing a qualifying juvenile's "current placement."
These arguments are accepted for the same reasons set forth in Conway. In opposition, defendants again suggest these claims are "moot," this time by claiming they "intend to work with the School District to implement [the] settlement" reached between plaintiffs and the School District. Defs.' Mem. Opp'n at 10. But a statement of good intentions is insufficient, especially since defendants do not appear to be bound in any way by the settlement they mention. In sum, plaintiffs have demonstrated at this juncture that
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they are substantially likely to succeed on the merits of these claims. iii. The ADA & Section 504 Although plaintiffs acknowledge that Broome County Jail officials have authority to
"impose legitimate safety requirements necessary for the safe operation" of the facility, they contend defendants violate the ADA and Section 504 by routinely placing juveniles with disabilities in solitary confinement without ever conducting the type of "individualized assessment" of their disability that these laws require.
To establish a prima facie violation under either the ADA or Section 504, a plaintif f must show (1) he is a qualified individual with a disability; (2) defendant is an entity subject to the statutes; and (3) he was denied an opportunity to participate in or benefit from the defendant's services, programs, or activities, or otherwise discriminated against by reason of his disability. Wright v. N.Y. State Dep't of Corr. & Cmty. Supervision, 831 F.3d 64, 72 (2d Cir. 2016) (holding DOCCS' "blanket ban" on use of motorized wheelchair fails to "make an individualized assessment of a disabled inmate's particular needs").
Plaintiffs contend most if not all of the behavior that leads to juveniles with disabilities being placed in solitary confinement is attributable to their adolescence, or to un- or under-treated mental health or intellectual disabilities. Plaintiffs argue that defendants routinely place these individuals in solitary without consulting a mental health worker and without assessing whether solitary confinement is appropriate. According to plaintiffs, "a correctional facility cannot categorically deny an inmate with a disability access to available programs, services and benefits without first performing an individualized assessment." Pls.' Mem. Supp. Class Cert. at 24. Upon review of the briefing, plaintiffs are also substantially likely to succeed on the merits of this claim.
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2. Strong Showing of Irreparable Harm "The showing of irreparable harm is perhaps the single most important prerequisite for the issuance of a preliminary injunction." Weinstein v. Krumpter, 120 F. Supp. 3d 289, 297 (E.D.N.Y. 2015) (citation and internal quotation marks omitted). "The concept of irreparable harm has been described 'as certain and imminent harm for which a monetary award does not adequately compensate.'" Donohue v. Mangano, 886 F. Supp. 2d 126, 149-50 (E.D.N.Y. 2012) (quoting Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 113-14 (2d Cir. 2003)). As in Conway, plaintiffs have made such a showing here. "First, as a general matter, there is a presumption of irreparable harm when there is an alleged deprivation of constitutional rights." Donohue, 886 F. Supp. 2d at 150. In addition, plaintif fs have submitted substantial, convincing evidence that defendants' continued use of solitary confinement on juveniles puts them at serious risk of short- and long-term psychological damage, and that the related deprivation of education services by both defendants hinders important aspects of their adolescent development. See, e.g., New York, 872 F. Supp. 2d at 214 ("[I]nterruption of a child's schooling causing a hiatus not only in the student's education but also in other social and psychological developmental processes that take place during the child's school, raises a strong possibility of irreparable injury." (citation omitted)); Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 392 (N.D.N.Y . 2001) (McAvoy, J.) ("It is almost beyond dispute that wrongful discontinuation of a special education program to which a student is entitled subjects that student to actual irreparable harm."). Accordingly, this element weighs in favor of granting a preliminary injunction.
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3. Public Interest The public interest generally supports a grant of preliminary injunctive relief where, as here, a plaintiff has demonstrated a substantial likelihood of success on the merits and a strong showing of irreparable harm. This interest is particularly strong where the rights to be vindicated are constitutional in nature. Ligon v. City of N.Y., 925 F. Supp. 2d 478, 541 (S.D.N.Y. 2013) ("[T]he public interest lies with the enforcement of the Constitution."). Plaintiffs have submitted compelling evidence to rebut defendants' conclusory assertion that facility safety and security provide an overriding justification for the current implementation of the policy and practice at issue in this case. Plaintiffs have also clearly shown that juveniles in solitary confinement only sporadically receive the educational instruction and related disability services contemplated by state and federal law. Accordingly, the public interest is served by the grant of a preliminary injunction. 4. Balance of Hardships No one disputes that defendants have a strong interest in maintaining safety and security at the Broome County Jail. But as discussed above, plaintiffs have submitted sufficient evidence to undermine defendants' assertion that safety and security are legitimately served by the current iteration of these practices when applied to juveniles. Accordingly, the balance of hardships favors the grant of a preliminary injunction. IV. CONCLUSION Plaintiffs have affirmatively demonstrated compliance with Rule 23's requirements and therefore the motion for class certification will be granted. Plaintiffs have also shown a substantial likelihood of success on the merits of their claims and demonstrated that the other relevant factors weigh in their favor. Accordingly, their request for a preliminary
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injunction will also be granted. Therefore, it is ORDERED that 1. Plaintiffs' motion for class certification is GRANTED; 2. Plaintiffs' motion for a preliminary injunction is GRANTED; 3. The official-capacity claim against Deputy Administrator Moore is DISMISSED
without prejudice5; 4. Defendants, their agents, servants, employees, and officers, and all other persons
in active concert or participation with them and who receive actual notice of this preliminary injunction, by personal service or otherwise, are hereby IMMEDIATELY ENJOINED AND RESTRAINED, pending the final determination of this action, from imposing 23-hour disciplinary isolation on juveniles at the Broome County Jail;
5. Defendants shall IMMEDIATELY only lock juveniles in their cells for disciplinary purposes if the juvenile poses an immediate threat to the safety or security of the facility and only after less restrictive measures have been employed and found inadequate to address the particular threat at issue;
6. Under no circumstances shall a juvenile be locked in their cell for greater than four hours for disciplinary purposes;
7. If a juvenile remains an immediate threat to the safety and security of the facility after four hours, a psychiatrist shall be consulted and a plan put in place to ensure the
5 Defendants indicate that Deputy Administrator Moore retired on January 15, 2018. Ordinarily, Rule 25 of the Federal Rules of Civil Procedure would provide for the automatic substitution of Deputy Administrator's Moore's successor as a defendant. However, defendants indicate that the Deputy Administrator position at the Jail remains vacant. If and when it is filled, defendants shall so notify the Court and plaintiffs may then move to add an official-capacity claim against the successor if appropriate.
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juvenile's safe return to the general juvenile population; 8. Defendants shall IMMEDIATELY ensure all juveniles have access to at least three
hours of educational instruction each day as well as any IDEA-mandated special education and related services; and
9. If a juvenile with a mental health or intellectual disability will potentially lose access to the benefits, services, and programs offered at the facility as a result of the disciplinary process, defendants shall ensure mental health staff will perform an individualized assessment of the juvenile as soon as possible. This assessment shall at minimum include: (a) a review of the individual's mental health needs; (b) a determination regarding whether any reasonable modifications can be made to eliminate future risk; (c) a determination regarding whether the individual with a disability continues to pose a risk; and (d) whether placement in segregation is medically appropriate.
IT IS SO ORDERED.
Dated: April 4, 2018 Utica, New York.
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 Case 9:17-cv-00817-DNH-DEP Document 18 Filed 08/28/17 Page 1 of 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
A.T., a minor, by and through his parent and natural guardian Shakeema Tillman, and B.C., a minor, by and through Kristi Cochardo,
Plaintiffs,
-v-
DAVID HARDER, Broome County Sheriff, in his official capacity, MARK SMOLINSKY, Jail Administrator of the Broome County Correctional Facility, in his official capacity, KEVIN MOORE, Deputy Administrator, in his official capacity, and CHENANGO VALLEY CENTRAL SCHOOL DISTRICT,
Defendants.
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APPEARANCES:
LEGAL SERVICES OF CENTRAL NEW YORK
Attorneys for Plaintiffs 221 South Warren Street, Suite 300 Syracuse, NY 13202
BROOME COUNTY ATTORNEY'S OFFICE
Attorneys for Defendants David Harder, Mark Smolinsky, and Kevin Moore
Broome County Office Building 60 Hawley Street P.O. Box 1766 Binghamton, NY 13902

9:17-CV-817
OF COUNSEL: JOSHUA T. COTTER, ESQ. SAMUEL C. YOUNG, ESQ. SUSAN M. YOUNG, ESQ. ROBERT G. BEHNKE, ESQ.

Case 9:17-cv-00817-DNH-DEP Document 18 Filed 08/28/17 Page 2 of 4

OFFICE OF FRANK W. MILLER Attorneys for Defendant Chenango
Valley Central School District 6575 Kirkville Road East Syracuse, NY 13057

FRANK W. MILLER, ESQ. CHRISTOPHER M. MILITELLO, ESQ.

DAVID N. HURD United States District Judge

DECISION and ORDER

This civil rights action challenges the conditions under which juvenile inmates are

being confined at the Broome County Correctional Facility (the "Broome County Jail") by

defendants Broome County Sheriff David Harder ("Sheriff Harder"), Broome County Jail

Administrator Major Mark Smolinsky ("Major Smolinsky"), and Broome County Jail Deputy

Administrator Captain Kevin Moore ("Captain Moore") (collectively the "Sheriff's Office

defendants").

According to the amended complaint filed by minor plaintiffs A.T. and B.C. (collectively

"plaintiffs"), the Sheriff's Office defendants frequently and arbitrarily impose harsh solitary

confinement on juveniles being detained at the Broome County Jail in violation of the U.S.

Constitution and federal law. Plaintiffs further allege that defendant Chenango Valley Central

School District (the "School District") has failed to provide legally adequate educational

instruction to plaintiffs and other juveniles who are placed in such conditions.

This action was initially randomly assigned to Senior U.S. District Judge Thomas J.

McAvoy in accordance with 28 U.S.C. § 137 and certain provisions of General Order 12 of

the Northern District of New York.

On August 8, 2017, plaintiffs filed a letter motion requesting that this action be

designated as "related" to V.W. v. Conway, 9:16-CV-1150-DNH-DEP, an earlier-filed civil

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action pending in this District before the undersigned. As relevant here, the Conway action involves a class action challenge to certain solitary confinement practices being imposed on juveniles being held at the Onondaga County Justice Center (the "Justice Center") under the supervision of Onondaga County Sheriff Eugene Conway and his subordinates. In addition, the operative complaint in Conway asserts that the local school district failed to provide legally adequate educational instruction to juveniles being held in solitary confinement at the Justice Center.
Plaintiffs' submission asserts that the relevant facts and legal issues in these two cases are substantially similar and therefore "[a] substantial saving of judicial resources is likely to result from reassigning this case" by designating this action as "related" to the Conway action. The Sheriff's Office defendants have timely opposed plaintiffs' request.
Under General Order 12(G), a civil case is "related" to another civil case "when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning the cases to the same Judge and Magistrate Judge." Accordingly, "[a]ny party may apply for [a judicial determination that two civil cases are related] by filing with the Clerk a notice of related filing, which should include an explanation as to why the standard [set forth above] is met."
Where, as here, a party has made such an application, General Order 12(G) directs that it "shall be presented to the Judge with the earliest filed case for decision on whether the action(s) should be reassigned as related cases. The Judge with the earliest filed case may then enter an order in the case at bar, either deem ing the case to be related and directing the Clerk to reassign the action, or denying the application for reassignment."
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Case 9:17-cv-00817-DNH-DEP Document 18 Filed 08/28/17 Page 4 of 4 After considering plaintiffs' submission in support of its request as well as the Sheriff's
Office defendants' filing in opposition, this action is sufficiently similar to the Conway action as to meet the standard set forth in General Order 12(G)(2).
Therefore, it is ORDERED that 1. Plaintiffs' request that this case be designated as related to V.W. v. Conway, 9:16CV-1150-DNH-DEP is GRANTED; and 2. The Clerk of the Court is directed to reassign this action to the undersigned for all further proceedings. IT IS SO ORDERED.
Dated: August 28, 2017 Utica, New York.
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 Case 9:17-cv-00817-DNH-DEP Document 69 Filed 07/09/18 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

------------------------------------------------------------- x

A.T., a minor, by and through his parent and :

natural guardian SHA-KEEMA TILLMAN,

:

et al., on behalf of themselves and all others

:

similarly situated,

:

Plaintiffs,

:

:

v.

:

:

DAVID HARDER, Broome County Sheriff, in his :

official capacity, et al.

:

:

:

Defendants.

:

------------------------------------------------------------- x

17-CV-0817 (DNH) (DEP)

NOTICE OF JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS-ACTION SETTLEMENT, AND APPROVAL
AND DISTRIBUTION OF THE NOTICE OF SETTLEMENT

PLEASE TAKE NOTICE that pursuant to Rule 23 of the Federal Rules of Civil Procedure, the plaintiffs and defendants will jointly move this Court, at 10 Broad Street, Utica, New York, on a date and at a time set by the Court, to grant preliminary approval of the proposed settlement agreement attached as Exhibit 1 to this Notice; approve the form of the class notice, and direct the Broome County Sheriff’s Office to provide notice to all class members; provide class members with thirty days after Notice is posted and served to comment on the proposed settlement as specified in the Notice; and set a date for a fairness hearing for final approval of the settlement.

1

Case 9:17-cv-00817-DNH-DEP Document 69 Filed 07/09/18 Page 2 of 2

Date: July 9, 2018 Syracuse, N.Y.

Respectfully submitted,

/s/Joshua Cotter_______________ Joshua T. Cotter, Esq. Susan M. Young, Esq. George Haddad, Esq. Samuel C. Young, Esq. LEGAL SERVICES OF CENTRAL NEW YORK 221 S. Warren Street Syracuse, New York 13202 Tel: (315) 703-6500 jcotter@lscny.org syoung@lscny.org samyoung@lscny.org
Attorneys for Plaintiffs

/s/ Robert Behnke Robert Behnke, Esq. Broome County, Department of Law Broome County Office Building, 6th Floor 60 Hawley St. Binghamton, New York 13902 Tel. (607)-778-2117 RBehnke.co.broome.ny.us
Attorney for the Sheriff’s Office Defendants

2

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 1 of 14
EXHIBIT 1

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 2 of 14

T'NITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

'-,,--,,-!;:--e-r---,;----i---

----------------

x

A.T., a minor, by and through his parent and

natural guardian Sha-Keema Tillman, et al.,

on behalf of themselves and all others

similarly situated,

Plaintiffs,

v,

DAVID HARDER, Broome County Sherifl in his official capacity, et al.

Defendants,

17-CV-0817 (DNH) (DEP)

sTIpu*ArrqNANLoRqER,FoB, A_FTNAT.SETTLEMENT AqREnMp.l{T
WHEREAS, Plaintiffs filed a class action Complaint alleging that, by locking juveniles in closed cells for disciplinary purposes, the Sheriffs Office violated Plaintiffs' rights under the
Americans' with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and the Eighth
and Fourteenth Amendments to the United States Constitution and that, by denying juveniles educational instruction without procedural protections and speoial education and related services, Defendants violated Plaintiffs' rights under the Fourteenth Amendment and the Individuals with Disabilities Education Act;
WHEREAS, the Court certified a class and two subclasses and issued a preliminary injunction in this Action on April 4,2018;
WHEREAS, since the initiation of this Action, the Defendants have provided Plaintiffs with extensive data and documents concerning the disciplinary and education policies and practices for juveniles at the Broome County Conectional Facility;

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 3 of 14
WHEREAS, the Parties have engaged in extensive settlement negotiations and have
voluntarily agreed to enter into this Settlement Agreement to resolve this Action;
WHEREAS, the Parties represent and agree that this Settlement Agreement is fair, reasonable, and adequate to protectthe interests ofall Parties and the class;
WHEREAS, the Parties have negotiated in good faith and have agreed to settle this Action on the terms and conditions set forth herein;
WHEREAS, nothing in this Settlement Agreement shall be construed as an admission of law or fact or acknowledgement of liability, wrongdoing, or violation of law by the Defendants
regarding any of the allegations contained in the Complaint in this Action, or as an admission or acknowledgement by Defendants conoerning whether Plaintiffs are the prevailing party in this action by virtue of this Settlement Agreement; and
WIIEREAS' the agreement and any Order entered therein shall have no precedential value or effect whatsoever, and shall not be admissible, in any other action or proceeding as evidence or for any other purpose, except in an action or proceeding to enforce this Agreement;
NOW THEREFORX,IT IS HEREBY STIPULATED, AGREED, AND ORDERED
AS F'OLLOWS:
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Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 4 of 14
DET'INITIONS As used in this Agreement: Actiqn means A.7., et. al. v. Harder, et, al., Case No. l7-CV-0817 (United States District Court for the Northern District of New York), filed July 25,20t7. PJglnlitfs-of Flaintiffs Class means the named Plaintiffs and the putative class and subclasses as certified by the Court in this Action, SelbEdthts means David Harder, and Mark Smolinsky in their official capacity, and the Chenango Valley Central School District. Parties means the Plaintiffs and Defendants in this Action. $phool District means the Chenango Valley Central School District. Sheriffs Office means the Broome County Sheriffs Office and Sherifls Offrce personnel.
Slpriffs Ofligp Defeqdan,lg means David Harder, and Mark Smolinsky in their official capacity 4jsgipline/Discinlihqry means punitive actions taken in response to alleged misbehavior,
including, but not limited to, the imposition of keep-lock, administrative segregation, orprotective custody.
Elhctt"e Dee means the date of entry of the order of United States District Court for the Northem District of New York approving this Settlement Agreement. Correction$l Fgcilitir or Jail means the Broome County Conectional Facility.
iluyenileJ,$J,means any person or persons under eighteen years of age.
1bu$h.eo{iti$q Ttlf{lr.means the multi-disciplinary team of the Sheriff s Office staff, medical
and mental health staff contracted to provide health-related services at the Jail, and the Chenango Valley School Dishict staff assigned to supervise, educate, care for, or work with juveniles at the Jail. *$$lernentAereernoFt qlr.A,sr,g+me*t means this Stipulation and Order for a Final Settlement Agreement between the Parties.
3

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 5 of 14
r. BEHAVToRMANAGIMpIiT
A. B,gptficflons op tlrg UseplQ.g+furemgqt 1. No juvenile may be locked in a closed cell for disciplinary purposes unless the juvenile poses
an imminent threat to the safety and security of the facility and less restrictive measures will
not adequately address the threat. Such confinement shall be for the minimum period of time necessary to resolve the threat.
2. As soon as practicable after locking a juvenile in his or her oell pursuant to paragraph (AXl),
a correction officer shall create a written incident report, describing the imminent threat to the safety and security of the facility and the less-restrictive measures that were used before confinement.
3. To ensure compliance with paragraph (AXl), the correction officer on duty shall as soon and
as frequently as practicable assess the behavior of any juveniles who are locked in their cells and shall release any juvenile from confinement when the correction officer observes that the imminent threat to the safety and security of the facility is resolved. While conducting such reviews the staff member shall employ tactics such as crisis intervention, de-escalation, or mediation in order to attempt to resolve the threat. If the threat has not been resolved, the correction offrcer shall update the appropriate incident report to document any intervention
measures that were deployed.
4. The Sheriff s Oflice shall promptly notify mental health whenever a juvenile is confined to
their cell pursuant to their cell pursuant to paragraph 0XAX1) so that mental health staff may as soon as practicable employ meditation or crisis intervention techniques to resolve the threat,
4

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 6 of 14

provided that the mental health staff is available to do so and deem such techniques to be

appropriate. When such techniques are used, they shall be documented.
5. No juvenile shall be locked in a cell pursuantto paragraph (AXl) beyond the 8-hour staffshift

during which the juvenile was first placed in such confinement unless the next shift's incoming
Security Lieutenant first interviews the juvenile, conducts a review of all relevant

documentation including the incident report, and determines that continued confinement is

(A)(l). necessary pursuant to the standard in paragraph

The Security Lieutenant shall

document his/her conclusions on the incident report, including the specific facts upon which

the Security Lieutenant concludes that the juvenile poses an imminent threat to the safety and
security of the facility, update the inmate information system, and, if continued confinement

is found necessary, notify the Major. No juvenile shall be locked in a cell pursuant to paragraph
(AXl) for subsequent 8-hour staff shifts unless the Security Lieutenant conducts the review

and does the documenting described in this paragraph at the beginning ofeach subsequent

shift.
6. No juvenile shall be locked in a cell pursuant to paragraph (AXl) beyond three (3) consecutive

8-hour staff shifts unless the Major, or his designee in the event he is unavailable, interviews

the juvenile, conducts a review of all relevant dooumentation including the incident report, and

determines that continued confinement is necessary pursuant to the standard in paragraph

I(AX1). The Major or his designee shall document his or her conolusions on the incident report in the same manner as required in paragaph I(AX5), In the event continued confinement is

necessary, the Major, or his designee, will review the juvenile's placement at the end of every

5

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 7 of 14
subsequent 8-hour-shift in accordance with this paragraph until it is determined continued confinement is no longer necessary pursuant to the standard in paragraph (AXl).
7. Any juvenile locked in a cell pursuant to paragraph (AXl) beyond the initial 8-hour staff shift
during whioh the juvenile was first placed in suoh confinement shall, during the subsequent 8hour staff shift, be seen by a medical/mental health professional who will assess and document: (a) whether the juvenile poses an imminent threat of bodily harm to self or others because of a
mental health concern or (b) whether the juvenile is experiencing serious harm as a result of
their cell oonfinement. If the licensed medioal/mental health professional determines either to be the case, the Sheriff s Office shall follow the altemative placement or behavior management
reoommendations of the licensed medical/mental health professional.
8. Any juvenile locked in a cell pursuant to paragraph (AXl) shall be afforded all privileges
including but not limited to recreation, showers, visitation and education, they are entitled under the law, and access to any other services to which they are entitled under the law.
B. Implementation of a Comprehensive Behavior Management System
9. To effectuate section I(A) of this Agreement while maintaining the safety of the Jail, the
Sheriffs Office shall implement a comprehensive behavior managem€nt system that shall include, at a minimum, (a) an incentive program for juveniles with a reward system to encourage positive behavior, including, but not limited to, participation in programming and education services; (b) a list of prohibited behaviors and their consequences (including a list of those behaviors for which a juvenile may be placed in confinement under paragraph I(AXI)); (o) a least-reshictive sanctions system where sanctions are proportional to the alleged
6

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 8 of 14
misbehavior; and (d) a description of the full range of programming offered at the Jail by the Sheriff s Office and the Chenango Valley School District. 10. The Sheriffls OfTice shall apply a least-restrictive sanctions system including, but not limited to, the following: (i) on the spot correction; (ii) counseling; (iii) conflict resolution or mediation services; (iv) removal of points or privileges earned under the incentive system; and (v) the imposition of a work task for the day. I 1. The SherifPs Office shall maintain a Youth Coalition Team to work with juveniles at the Jail.
. The team shall meet bi-monthly to discuss juveniles' behavior and strategies to better serve the
juveniles at the facility. 12. The Sheriffs Office shall develop and provide an addendum to the Inmate Handbook for
juveniles upon their entry into the Jail that explains the behavior management system. The Sheriff s Office shall also update its disciplinary directives or create a new directive to describe the behavior management system and issue a memorandum to staff members that explains the behavior management system. 13. In response to a behavior which results in isolation pursuant to paragraph I(AXI), the Youth Coalition Team shall develop, and the SherifPs Office shall implement, individual behavior management plans for each juvenile following the juvenile's isolation period at the Jail that
will identi$ the special needs of the juvenile and any accommodations required for the
juvenile's medical, mental health, or educational needs. If a licensed mental health
professional has identified a juvenile as having a chronic or serious mental illness, the behavior
management plans shall accommodate these juveniles by requiring that alternatives to
disciplinary confinement be used.
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Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 9 of 14
14. The SherifPs Office shall make good-faith efforts to expand programming available to
juveniles. The Youth Coalition Team shall ensure that juveniles are informed of, and have
access to, the programming available to them. 15. The Sheriff s Office shall train the Youth Coalition Team members and Jail staff who interact
with juveniles on the behavior management system and on techniques and best practices in supervising juveniles in an institutional context, including, but not limited to, training on brain development, conflict resolution, de-escalation and mediation techniques for juveniles, crisis management, and mental health. 16. Licensed mental health professionals from the Youth Coalition Team shall provide any juvenile with psychosocial group counseling or psychiatric assessment and treatment as found necessary by the professionals.
II. EDUCATIOI-{
17. The Sheriff s Office will provide sufficient classroom space in the Jail, and security staff to escort juveniles to that classroom space and supervise juveniles during instruction, as the School District determines is necessary to meet the educational obligations set forth in their Settlement Agreement with the Plaintiffs,
rI. BpP_ORrINc AI\{p MprIITp__BINq"
18. In the event Plaintiffls counsel are unable to resolve disputes with the Sheriff s Office Pursuant to section IV of this agreement, Plaintiff s counsel and their experts may conduct tours of the facility when a tour is relevant, upon advanced notice to the Sheriff s Office and their counsel. Said tours shall be limited to areas of the facility relevant to the dispute and shall be at a time approved by the Sheriff s Office.
8

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 10 of 14

19. Within ten (45) days of the Effective Date, the Sheriff s office shallprovide Plaintiffs' counsel

with:

a. the Juvenile addendum to the Inmate Handbook, a new Minor Inmate Behavior

Development and Management directive or updated disciplinary directive, and
memorandum issued pursuant to paragraph (BX6).
b. the training materials used to hain the Youth Coalition Team members and Jail
staff who interact with juveniles pursuant to paragraph (8X12).

2A.By no later than the seventh day of each month, the Sheriff s Office shall provide Plaintiffs'

counsel with:
a. copies of all incident reports and forms that document the charges and the time
in and time out of confinement for juveniles locked in a cell pursuant to paragraph (AX2) during the previous month;
b. copies of any behavior management plans for the previous month that were

updated pursuant to paragraph I(AX6);
c. a spreadsheet with the following data for the previous month: (i) all incidents
during which a juvenile was locked in their cell pursuant to paragraph I(AX2)
for that month, including their nameo [CN, race, sex, and date of birth (month/year); (ii) the behavior that resulted in confinement; (iii) confinement

begin date and time; (iv) confinement end date and time; and (v) any remarks

relating to the confinement;

9

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 11 of 14
21. Counsel for the plaintiffs may email Major Mark Smolinsky with any questions regarding compliance with this Agreement, with a copy of the email to the counsel for the Sheriff s Office. If Major Smolinsky is no longer available to answer questions, the Sheriff s Office shall identify a new individual who is available.
ry. ryBSEMEM
22,T\e Parties agree and jointly request that the Court find that this Agreement satisfies the requirements of l8 U.S.C. $ 3626(a).
23.The Parties commit to work in good faith to avoid enforcement actions. If Plaintiffs believe that Defendants are not in compliance with a provision ofthis Settlement Agreement, Plaintiffs shall give notioe to all parties in writing and shall state with specificity the alleged noncompliance. Upon receipt of such notice by Defendants, the Parties will promptly engage in
good-faith negotiations concerning the alleged non-compliance and appropriate measures to
cure any non-compliance. If Plaintiffs and the Defendants have not reached an agreement on the existence of the alleged non-compliance and curative measures within twenty-one (21)
days after receipt of such notice of alleged non-compliance, Plaintiffs may seek all appropriate judicial relief with respect to such alleged non-complianoe, upon two (2) business days' prior notice ("Escalation Notice") to counsel for the Defendants, which notice shall inform such counsel that Plaintiffs intend to seek judioial relief. The Parties may extend these time periods by written agreement. Nothing said by any party or counsel for any party during the goodfaith negotiations referenced in this paragraph may be used by the other party or parties in any
subsequent litigation, including, without limitation, litigation in connection with this
Agreement, for any purpose whatsoever.
10

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 12 of 14
24, Notwithstanding the dispute resolution procedures set forth above, if exigent circumstances
arise, Plaintiffs may seek expedited judicial relief against the Defendants based upon an alleged
breach of this Agreement, upon three (3) business days' prior notice to counsel for the
Defendants.
25. The failure by any party to enforce any provision of this Agreement with respect to any deadline or other provision herein shall not be construed as a waiver of their right to enforce
deadlines or provisions of this Agreement.
v. MoprFrc4rlor!
26. This Agreement may not be modified without the written consent of the Parties and the
approval of the Court.
vr. SETTI{EMENT TERM
27. This Agreement is effective immediately upon the final approval of the Court. 28. This Agreement shall expire on October T,2019, unless juveniles continue to be housed at the
Jail, in which case this Agreement shall expire after the Sheriff s Office notifies the Court and Plaintiffs confirm that all juveniles have been permanently removed from the Jail and will no longer be housed there.
ll

Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 13 of 14
VII. EXE.CUTION AND DINDING ETFEQT
29. This Agreement may be executed in counterparts, and each counterpart, when executed, shall have the fulI efficacy of a signed original. Photocopies and PDFs of such signed counterparts may be used in lieu of the originals for any purpose.
30. The undersigned representative of each party to this Agreement certifies that each is authorized to enter into the terms and conditions of this Agreement and to execute and bind legally such party to this document.
31.The terms and conditions of this Agreement, and the commitments and obligations of the Parties, shall inure to the benefit of, and be binding upon, the successors and assigns ofeach pafly.
vrn. p.NTIRa "asRE4i\',mNJt
32. This Agreement contains all the terms and conditions agreed upon by the Parties with regard
to the final settlement contemplated herein, ffid, following the Court's final approval,
supersedes all prior agreements, representations, statements, negotiations, and undertakings (whether oral or written) with regard to the settlement of this Action.
IX. NOTIFICATIONS TO COUNSEL
33. Notices and other written communications pursuant to this Agreement shall be in writing. Notices shall be addressed to the attorneys of the respective parties specified in the signature pages of this Agreement.
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Case 9:17-cv-00817-DNH-DEP Document 69-1 Filed 07/09/18 Page 14 of 14

34. In the event that any substitution is to be made in counsel to receive communications under this Agreement, all counsel shall be informed, and the name and contact information for substitute counsel shall be provided.
x.
35. The parties agree they will negotiate in good faith regarding the attorneys' fees and costs to be paid by the Sheriff s Office. In the event that the parties reach an impasse in their negotiations, they will notify the Court in writing of the same, at which point the Plaintiffs will have thirty days to bring a motion for attomeys' fees and costs.

T. Cotter, Esq. Susan M. Young, Esq. Samuel C. Young, Esq. George Haddad, Esq. LEGAL SBRvIcps oF CENTRAL Npw YonT 221S. Warren Street Syracuse, New York 13202 Tel: (315) 703-6500 jcotter@lscny.org
Attor neys for P I a int ifis

Robert Behnke, Esq. Broome County, Department of Law Broome County Office Building, 6th Fl 60 Hawley St. Binghamton, New York 13902 Tel. (607)-778-2t17 Rbehnke.co.broome.ny.us
Attorneyfor the Sheriff's Ofice Defendants

Dated: June ,2018

SO ORDERED this 2018
UNITED STATES DISTzuCT JUDGE t3

 
 Case 9:17-cv-00817-DNH-DEP Document 75 Filed 12/18/18 Page 1 of 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
A.T., a minor, by and through his parent and natural guardian Shakeema Tillman, and B.C., a minor, by and through Kristi Cochardo,
Plaintiffs,
-v-
DAVID HARDER, Broome County Sheriff, in his official capacity, MARK SMOLINSKY, Jail Administrator of the Broome County Correctional Facility, in his official capacity, and KEVIN MOORE, Deputy Administrator, in his official capacity,
Defendants.
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APPEARANCES:
LEGAL SERVICES OF CENTRAL NEW YORK Attorneys for Plaintiffs 221 South Warren Street, Suite 300 Syracuse, NY 13202
LEGAL SERVICES OF CENTRAL NEW YORK Attorneys for Plaintiffs 168 Water Street Binghamton, NY 13901
BROOME COUNTY ATTORNEY'S OFFICE Attorneys for Defendants Broome County Office Building 60 Hawley Street, P.O. Box 1766 Binghamton, NY 13902

9:17-CV-817
OF COUNSEL: JOSHUA T. COTTER, ESQ. SAMUEL C. YOUNG, ESQ. SUSAN M. YOUNG, ESQ. GEORGE B. HADDAD, ESQ. ROBERT G. BEHNKE, ESQ.

Case 9:17-cv-00817-DNH-DEP Document 75 Filed 12/18/18 Page 2 of 4
DAVID N. HURD United States District Judge
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT On July 25, 2017, named plaintiffs commenced this action on behalf of themselves and a proposed class of fellow 16- and 17-year-olds at continued risk of enduring some form of solitary confinement at the Broome County Jail, a facility operated by defendants Broome County Sheriff David Harder, Jail Administrator Mark Smolinsky, and Deputy Jail Administrator Kevin Moore (the "Broome County defendants"). Plaintiffs sought declaratory and injunctive relief to end the Broome County defendants' allegedly routine practice of imposing solitary confinement on juveniles being held at the Jail. Plaintiffs further alleged that defendants denied juveniles in solitary confinement access to certain educational opportunities and related special educational support services required by federal law. In a Memorandum–Decision & Order issued on April 4, 2018, plaintiffs' motions for class certification and for a preliminary injunction were granted. A.T. v. Harder, 298 F. Supp. 3d 391 (N.D.N.Y. 2018). Thereafter, the parties negotiated an interim settlement agreement and worked toward a set of final terms that would provide significant relief to members of the now-certified class and subclasses. On July 9, 2018, the parties jointly moved for preliminary approval of a final class action settlement agreement (the "Settlement Agreement"). Dkt. No. 69. This joint motion was granted on October 16, 2018 (the "October 16 Order"). Dkt. No. 71. At that time, the Court approved the parties' proposed Notice to the Class of the Settlement Agreement (the
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Case 9:17-cv-00817-DNH-DEP Document 75 Filed 12/18/18 Page 3 of 4
"Notice") and directed the Broome County defendants to distribute the Notice in accordance with the parties' proposed terms.
The October 16 Order provided an appropriate time period in which class members could lodge written objections to the Notice's terms. The Order also set Tuesday, December 18, 2018 at 1:00 p.m. as the date and time that a Fairness Hearing would be conducted on the record in Utica, New York to determine whether final approval of the Settlement Agreement should be granted.
In anticipation of the Fairness Hearing, the parties jointly moved for final approval of the class action settlement by submitting a memorandum of law, a supporting declaration, and a proposed order. Dkt. No. 74. In a separate f iling, the parties have also agreed to an award of fees and costs to plaintiffs' counsel in the full amount of $75,000. Dkt. No. 72.
On December 18, 2018, at 1:00 p.m., a Fairness Hearing was conducted on the record in Utica, New York. At that time, no class members had lodged any written objections to the Settlement Agreement.1 Further, no class member or any other party was heard to object to the Settlement Agreement either before or during the Fairness Hearing. Finally, a review of the parties' joint motion papers and attached submissions confirm that the Settlement Agreement satisfies the requirements of the Prison Litigation Reform Act. See 18 U.S.C. § 3626(a)(1)(A).
After considering these facts, the parties' submissions, the statements on the record, and the factors set forth in Rule 23 of the Federal Rules of Civil Procedure, the Settlement Agreement is fair, reasonable, and adequate to the class and to the subclasses. See
1 One class member wrote to plaintiffs' counsel's office about an unrelated matter. - 3 -

Case 9:17-cv-00817-DNH-DEP Document 75 Filed 12/18/18 Page 4 of 4
Wal-Mart Stores, Inc. v. Visa USA Inc., 396 F.3d 96, 117 (2d Cir. 2005) (setting forth nine factors to be considered in assessing the fairness of a proposed class settlement). Accordingly, the parties' joint motion for final approval of the class action settlement will be granted.
Therefore, it is ORDERED that 1. The Settlement Agreement filed by the parties on July 9, 2018 (Dkt. No. 74) is APPROVED as fair, reasonable, and adequate to the class of "All 16- and 17-year-olds who are now or will be incarcerated at the Broome County Correctional Facility," to the subclass of "All 16- and 17-year-olds with disabilities, as defined by the Individuals With Disabilities Education Act, who are now or will be incarcerated at the Broome County Correctional Facility, and who are in need of special education and related services"; and to the subclass of "All 16- and 17-year-olds with psychiatric and/or intellectual disabilities, as defined by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, who now or will be incarcerated at the Broome County Correctional Facility, who are at risk of being placed in disciplinary isolation because of their disability"; and 2. The parties' agreement on fees and costs (Dkt. No. 72) is APPROVED. The Clerk of the Court is directed to terminate any pending motions and close the file. IT IS SO ORDERED.
Dated: December 18, 2018 Utica, New York.
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