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 #: 9:14−cv−00933−BKS−DJS

Hill v. County of Montgomery et al Assigned to: Judge Brenda K. Sannes Referred to: Magistrate Judge Daniel J. Stewart Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Perry Hill both individually and on behalf of a class of others similarly situated

Date Filed: 07/25/2014 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Elmer R. Keach , III Law Offices of Elmer Robert Keach, III, P.C. One Pine West Plaza − Suite 109 Albany, NY 12205 518−434−1718 Fax: 518−770−1558 Email: bobkeach@keachlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason S. Rathod Migliaccio & Rathod LLP 412 H Street NE, Suite 302 Washington, DC 20002 202−470−3520 Fax: 202−800−2730 Email: jrathod@classlawdc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Maria K. Dyson Law Offices of Elmer Robert Keach, III, P.C. One Pine West Plaza − Suite 109 Albany, NY 12205 518−434−1718 Fax: 518−770−1558 Email: mariadyson@keachlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas A. Migliaccio Migliaccio & Rathod LLP 412 H Street NE, Suite 302 Washington, DC 20002 202−470−3520 Email: nmigliaccio@classlawdc.com ATTORNEY TO BE NOTICED

Plaintiff James Rogers

represented by Elmer R. Keach , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria K. Dyson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant County of Montgomery
Defendant Michael Amato Sheriff, Montgomery County
Defendant

Nicholas A. Migliaccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chelsea E. Manocchi Goldberg Segalla, LLP − Albany Office 8 Southwoods Boulevard, Suite 300 Albany, NY 12211−2526 518−935−4239 Email: cmanocchi@goldbergsegalla.com ATTORNEY TO BE NOTICED
Jonathan M. Bernstein Goldberg, Segalla Law Firm − Albany Office 8 Southwoods Boulevard Suite 300 Albany, NY 12211−2526 518−935−4240 Fax: 518−463−5420 Email: jbernstein@goldbergsegalla.com ATTORNEY TO BE NOTICED
Timothy J. Lambrecht Wladis Law Firm, P.C. P.O. Box 245 Syracuse, NY 13214 315−445−1700 Fax: 315−251−1073 Email: tlambrecht@wladislawfirm.com TERMINATED: 08/21/2014
William H Mergner Leary, Bride, Mergner & Bongiovanni, P.A. 7 Ridgedale Avenue Cedar Knolls, NJ 07927 973−539−2090 Email: sdugan@lbmblaw.com ATTORNEY TO BE NOTICED
represented by Chelsea E. Manocchi (See above for address) ATTORNEY TO BE NOTICED
Jonathan M. Bernstein (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Lambrecht (See above for address) TERMINATED: 08/21/2014
William H Mergner (See above for address) ATTORNEY TO BE NOTICED

Michael Franko Jail Administrator, Montgomery County Jail

represented by Chelsea E. Manocchi (See above for address) ATTORNEY TO BE NOTICED
Jonathan M. Bernstein (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Lambrecht (See above for address) TERMINATED: 08/21/2014
William H Mergner (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/25/2014 07/28/2014 07/28/2014
07/28/2014
08/05/2014 08/05/2014 08/05/2014 08/18/2014 08/18/2014 08/19/2014 08/19/2014 08/19/2014 08/21/2014

# Docket Text
1 COMPLAINT against Michael Amato, County of Montgomery, Michael Franko (Filing fee $400 receipt number 0206−3005103) filed by Perry Hill. (Attachments: # 1 Civil Cover Sheet)(nas,) (Entered: 07/28/2014)
2 Summons Issued as to Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Michael Franko, # 2 Montgomery County)(nas, ) (Entered: 07/28/2014)
3 G.O. 25 FILING ORDER ISSUED: Initial Conference set for 11/5/2014 09:00 AM in Albany before Magistrate Judge Randolph F. Treece. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 10/29/2014. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (nas, ) (Entered: 07/28/2014)
4 NOTICE of Admission Requirement as to Party Perry Hill; Attorney Nicholas Migliaccio, Email address is nmigliaccio@wbmllp.com. Phone number is (202)429−2290. Admissions due by 8/11/2014. {notice served via regular mail on attorney Nicholas Migliaccio}(nas, ) (Entered: 07/28/2014)
5 SUMMONS Returned Executed by Perry Hill. Michael Amato served on 8/1/2014, answer due 8/22/2014. (Keach, Elmer) (Entered: 08/05/2014)
6 SUMMONS Returned Executed by Perry Hill. Michael Franko served on 8/1/2014, answer due 8/22/2014. (Keach, Elmer) (Entered: 08/05/2014)
7 SUMMONS Returned Executed by Perry Hill. County of Montgomery served on 8/1/2014, answer due 8/22/2014. (Keach, Elmer) (Entered: 08/05/2014)
8 NOTICE of Appearance by Timothy J. Lambrecht on behalf of All Defendants (Lambrecht, Timothy) (Entered: 08/18/2014)
9 Letter Motion from Timothy J. Lambrecht for Michael Amato, County of Montgomery, Michael Franko requesting for an extension of time to answer submitted to Judge Honorable Randolph F. Treece . (Lambrecht, Timothy) (Entered: 08/18/2014)
10 NOTICE of Appearance by Jonathan M. Bernstein on behalf of Michael Amato, County of Montgomery, Michael Franko (Bernstein, Jonathan) (Entered: 08/19/2014)
11 CERTIFICATE OF SERVICE by Michael Amato, County of Montgomery, Michael Franko re 10 Notice of Appearance (Bernstein, Jonathan) (Entered: 08/19/2014)
12 NOTICE by Michael Amato, County of Montgomery, Michael Franko re 8 Notice of Appearance of Withdrawal of Counsel (Lambrecht, Timothy) (Entered: 08/19/2014)
13 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting a 30−day extension to file the answer to the complaint) submitted to Judge Hon. Randolph F. Treece . (Bernstein, Jonathan) (Entered: 08/21/2014)

08/21/2014 08/22/2014 09/11/2014 09/11/2014 09/19/2014
10/06/2014
10/07/2014 10/09/2014
10/10/2014
10/10/2014 10/10/2014

14 CERTIFICATE OF SERVICE by Michael Amato, County of Montgomery, Michael Franko re 13 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting a 30−day extension to file the answer to the complaint) submitted to Judge Hon. Randolph F. Treece (Bernstein, Jonathan) (Entered: 08/21/2014)
15 TEXT ORDER granting 13 Letter Request, Michael Amato answer due 9/22/2014; County of Montgomery answer due 9/22/2014; Michael Franko answer due 9/22/2014. ORDERED that 9 Letter Request is denied as moot. Authorized by Magistrate Judge Randolph F. Treece on 8/22/14. (nas ) (Entered: 08/22/2014)
16 ANSWER to 1 Complaint by Michael Amato, County of Montgomery, Michael Franko.(Bernstein, Jonathan) (Entered: 09/11/2014)
17 CERTIFICATE OF SERVICE by Michael Amato, County of Montgomery, Michael Franko re 16 Answer to Complaint (Bernstein, Jonathan) (Entered: 09/11/2014)
TEXT NOTICE: The Rule 16 Initial Conference in this matter is RESCHEDULED for 10/9/2014 at 10:00 AM before Magistrate Judge Randolph F. Treece and will be conducted by TELEPHONE. The parties are directed to DIAL IN at 877−336−1839 and use Access Code 6651723 and Security Code 1933 to be connected to the conference call. The parties are directed to submit a proposed Civil Case Management Plan by 10/2/2014. Mandatory Disclosures are to be exchanged by the parties on or before 10/2/2014. Pursuant to Local Rule 26.2, Mandatory Disclosures are to be exchanged among the parties but are NOT to be filed with the Court. (mab) (Entered: 09/19/2014)
18 TEXT ORDER: The Rule 16 Initial Conference in this matter is set for 10/9/2014 at 10:00 AM. Pursuant to the Court's Text Notice dated 9/19/2014, the parties were to submit a proposed Civil Case Management Plan by 10/2/2014. The Court has not received a proposed plan. Pursuant to FRCP 26(f) and 37(f), the failure to timely submit a case management plan or the failure of a party to participate, in good faith, in developing the plan may lead to sanctions or the imposition of reasonable attorney fees. The parties are directed to submit a proposed Civil Case Management Plan by 10/7/2014. SO ORDERED. Authorized by Magistrate Judge Randolph F. Treece on 10/6/2014. (mab) (Entered: 10/06/2014)
19 CIVIL CASE MANAGEMENT PLAN by Perry Hill. (Keach, Elmer) (Main Document 19 replaced on 10/7/2014 to "flatten image") (nas, ). (Entered: 10/07/2014)
20 Minute Entry for proceedings held before Magistrate Judge Randolph F. Treece: Rule 16 Initial Pretrial Conference held on 10/9/2014. Appearances: Elmer Keach, Esq. for Plaintiff and Jonathan Bernstein, Esq. for Defendants. The Court discusses the Mandatory Mediation Program and General Order #47 with the parties. Based upon the discussion with the parties, the nature of this case and that it may be a class action, the Court is persuaded at this time to opt this matter out of the Mandatory Mediation Program. The Court may reconsider this as the case progresses. Scheduling Order deadlines set. Uniform Pretrial Scheduling Order to be issued. (TIME: 10:00AM − 10:45AM). (mab) (Entered: 10/09/2014)
21 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 10 Days. Joinder of Parties due by 12/15/2014. Amended Pleadings due by 12/15/2014. This case has been exempt from the Court's Mandatory Mediation Program. Discovery due by 10/1/2015. Motions to be filed by 12/1/2015. Trial Ready Deadline is 2/1/2016. Jury Trial set for 3/7/2016 at 9:30 AM in Albany, NY before Senior Judge Lawrence E. Kahn. Status Report due by 3/15/2015. Signed by Magistrate Judge Randolph F. Treece on 10/10/2014. (mab) (Entered: 10/10/2014)
22 TEXT ORDER: The Court held a Rule 16 Initial Conference with the parties on 10/9/2014. Based upon the discussions held during the conference, the Court, sua sponte, exempts this matter from the Mandatory Mediation Program. SO ORDERED. Authorized byMagistrate Judge Randolph F. Treece on 10/10/14. (mab) (Entered: 10/10/2014)
23 ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT OBTAIN SEPARATE COUNSEL. Signed by Magistrate Judge Randolph F. Treece on 10/10/2014. (mab) (Entered: 10/10/2014)

10/10/2014 10/23/2014 11/04/2014
11/04/2014 12/15/2014 12/18/2014
12/29/2014 10/01/2015 10/02/2015 10/07/2015
10/16/2015
10/16/2015

Set Deadlines: Defendants to submit response to this Court's 23 Order to Show Cause on or before 12/9/2014. (mab) (Entered: 10/10/2014)
24 NOTICE of Appearance by Nicholas A. Migliaccio on behalf of Perry Hill (Migliaccio, Nicholas) (Entered: 10/23/2014)
25 ORDER re 23 Order to Show Cause regarding joint representation. IT IS ORDERED that Defendants shall be permitted to proceed with joint representation but have not waived their right to retain separate counsel in the future. IT IS FURTHER ORDERED that the documents provided by Defendants as discussed herein shall be filed under seal. Signed by Magistrate Judge Randolph F. Treece on 11/4/2014. (mab) (Entered: 11/04/2014)
26 ***SEALED DOCUMENT: filed under seal pursuant to 25 Order. (mab) (Entered: 11/04/2014)
27 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time of Amendment and Joinder of Parties Deadline, Until January 15, 2015 submitted to Judge Randolph F. Treece . (Keach, Elmer) (Entered: 12/15/2014)
28 TEXT ONLY ORDER: With consent of opposing counsel, Plaintiff's counsel seeks an extension of the joinder and amendment deadlines previously set by this Court. Dkt. No. 27 . The Request is granted and the Court extends the Amended Pleadings and Joinder of Parties deadlines to 1/15/2015. Should a party seek to amend a pleading or join parties after this new deadline, the burden is elevated to good cause. Signed by Magistrate Judge Randolph F. Treece on 12/18/14.(rlh) (Entered: 12/18/2014)
29 ORDER REASSIGNING CASE. Case reassigned to Judge Brenda K. Sannes for all further proceedings. Senior Judge Lawrence E. Kahn no longer assigned to case. Signed by Chief Judge Gary L. Sharpe on 12/29/14. (nas, ) (Entered: 12/29/2014)
30 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Daniel J. Stewart for all further proceedings. Signed by Chief Judge Glenn T. Suddaby on 10/1/15. (nas, ) (Entered: 10/01/2015)
31 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Requesting an in−person conference to discuss discovery in this case). submitted to Judge Hon. Daniel J. Stewart . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 10/02/2015)
32 TEXT ORDER: On October 2, 2015, Defendants filed a Letter Request seeking an in−pereson conference to discuss discovery issues in this matter. Dkt. No. 31 . The request is GRANTED and the parties are directed to appear for a Discovery Confernece on October 16, 2015 at 9:30 AM before the undersigned. The parties are to appear at the James T. Foley US Courthouse, 445 Broadway, Albany, NY, 4th Floor, Room 409 on that date and time. SO ORDERED by Magistrate Judge Daniel J. Stewart on 10/7/2015. (mab) (Entered: 10/07/2015)
33 TEXT ORDER: At the request of the parties, the Court held a discovery conference on the record on October 15, 2015. The parties jointly seek an extension of the discovery deadline in light of the complicated nature of the case and the potential for future class action status. The Court grants the joint request to extend discovery. The discovery deadline is extended to June 1, 2016; the motion deadline is reset to August 1, 2016; and the trial ready deadline is now October 3, 2016. The parties discussed a dispute regarding the production of inmate records and booking sheets. The parties were directed to brief the issue to the Court, with the Plaintiffs brief due on October 30, 2015, and the Defendants response due on November 13, 2015. SO ORDERED. Signed by Magistrate Judge Daniel J. Stewart on 10/16/2015. (Stewart, Daniel) (Entered: 10/16/2015)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Discovery Conference held on 10/16/2015. Appearances: Elmer Keach, Esq. and Maria Dyson, Esq. for Plaintiff; Jonathan Bernstein, Esq. for Defendants. The Court held conference to discuss the parties' joint request to extend the deadlines in this matter. After hearing from counsel, the Court agreed to extend the deadlines. The Court also heard from counsel as to issues regarding the production of inmate records and booking sheets. Further briefing was directed. Plaintiff's brief is due on 10/30/2015. Defendants response brief is due 11/13/2015. The parties presented a

10/16/2015 10/30/2015 11/02/2015 11/09/2015 11/09/2015 11/10/2015
11/19/2015
11/23/2015 11/24/2015
01/20/2016
01/26/2016

stipulated protective order which was signed by the Court and will be placed on the docket. (Court Reporter: Theresa Casal) (TIME: 9:31AM−9:55AM). (mab) (Entered: 10/16/2015)
34 STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Daniel J. Stewart on 10/16/2016. (mab) (Entered: 10/16/2015)
35 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time to File Letter Brief Regarding Booking Records, On Consent submitted to Judge Daniel J. Stewart . (Keach, Elmer) (Entered: 10/30/2015)
36 TEXT ORDER granting 35 Letter Request. Plaintiff's counsel's brief is due by November 6, 2015. Defendants' Counsel's brief is due by November 20, 2015. Authorized by Magistrate Judge Daniel J. Stewart on 11/2/15. (nas) (Entered: 11/02/2015)
37 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time to File Letter Brief on Booking Sheets, on Consent submitted to Judge Daniel J. Stewart . (Keach, Elmer) (Entered: 11/09/2015)
38 TEXT ORDER granting 37 Letter Request. Plaintiff's brief is due by November 10, 2015. Defendants' responding brief is due by November 24, 2015. Authorized by Magistrate Judge Daniel J. Stewart on 11/9/15. (nas) (Entered: 11/09/2015)
39 LETTER BRIEF Regarding Booking and Intake Weight Records by Perry Hill. (Attachments: # 1 Exhibit(s) A−− Hill Booking Records, # 2 Exhibit(s) B −− Example of Admission Health Screening Form, # 3 Exhibit(s) C −− Order, Bruce v. County of Rensselaer, # 4 Exhibit(s) D −− Transcript, Marriott v. County of Montgomery, # 5 Exhibit(s) E − Transcript, McDaniel v. County of Schenectady)(Keach, Elmer) (Entered: 11/10/2015)
40 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting extension of time to resp to Plaintiff's Discovery Motion to December 3, 2015 and for the Court to allow unredacted booking records, transcripts and health assessment records to be sent directly to Chambers and Plaintiff's counsel as they contain health information) submitted to Judge Hon. Daniel J. Stewart . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 11/19/2015)
41 TEXT ORDER granting 40 Letter Request. Defendants' reply is due by 12/3/15. Redacted copies of the documents shall be electronically filed on cm/ecf. Un−redacted documents shall be forwarded to the undersigned's chambers. Authorized by Magistrate Judge Daniel J. Stewart on 11/23/15. (nas, ) (Entered: 11/23/2015)
42 MEMORANDUM OF LAW re 39 LETTER BRIEF, 40 Letter Request/Motion,, 41 Order on Letter Request, (Memorandum of Law in Opposition) filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Certificate of Service)(Bernstein, Jonathan) (Entered: 11/24/2015)
43 TEXT ORDER: Presently before the Court are Letter Briefs filed by counsel with regard to Plaintiff's request for booking and intake weight records for members of the proposed class in this matter. Dkt. Nos. 39 and 42 . In order to address this issue, the Court sets a Discovery Hearing for January 26, 2016 at 9:00 AM before the undersigned. Counsel are directed to appear IN−PERSON at the James T. Foley US Courthouse, 445 Broadway, 4th Floor, Courtroom No. 2, Albany, NY on the scheduled date and time. SO ORDERED by Magistrate Judge Daniel J. Stewart on 1/20/2016. (mab) (Entered: 01/20/2016)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Discovery Hearing held on 1/26/2016. Appearances: Elmer Keach, Esq. for Plaintiff; Jonathan Bernstein, Esq. for Defendants. The Court held a hearing to address the Letter Briefs pending before the Court regarding Plaintiff's request for booking and intake weight records for inmates at the Montomery County Jail. After hearing from both counsel, the Court reserves on a decision, however, directs counsel to confer regarding the database containing the booking records and the practicality and cost of producing such records. Counsel are to file a Status Report by 2/9/2016. The Court

01/27/2016
02/09/2016 02/09/2016 02/10/2016 02/12/2016 02/12/2016 02/24/2016
02/25/2016

will issue an Order. (Time: 9:02AM−9:33AM). (Court Reporter: Lisa Tennyson) (mab) (Entered: 01/26/2016)
44 TEXT ONLY ORDER Oral argument was held on Plaintiffs desire to conduct pre−class certification discovery of potential class members. Counsel for the Plaintiff and the Defendants are directed to meet and confer regarding the Defendants ability to provide the disputed booking records, or information obtained from the booking records, in computerized or other form; the cost of the production of those records or data; the procedure whereby data could be extracted by the Plaintiffs expert; the nature and scope of a protective order that would be agreed to in connection with the information; and the time necessary to produce that information. Counsel for the parties are directed to notify the Court, in letter form, of the results of their efforts on or before February 9, 2016.IT IS SO ORDERED.. Signed by Magistrate Judge Daniel J. Stewart on 1/27/2016. (Stewart, Daniel) (Entered: 01/27/2016)
45 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Requesting that Plaintiff be required to pay cost of production of booking sheets and that these booking sheets be subject of a Protective Order) submitted to Judge Hon. Daniel J. Stewart . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/09/2016)
46 LETTER BRIEF Regarding Production of Booking Information and Associated Costs by Perry Hill. (Keach, Elmer) (Entered: 02/09/2016)
TEXT NOTICE: The jury trial previously scheduled for 3/7/2016 (Dkt. No. 21 ) is hereby adjourned without date. (rjb, ) (Entered: 02/10/2016)
47 TEXT ORDER: The parties are directed to participate in a Telephone Conference on February 16, 2016 at 10:00 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. SO ORDERED by Magistrate Judge Daniel J. Stewart on 2/12/2016. (mab) (Entered: 02/12/2016)
48 TEXT ORDER: The Telephone Conference in this matter is RESCHEDULED for February 24, 2016 at 2:30 PM before the undersigned. The parties are directed to use the instructions to connect to the conference call previously issued on February 12, 2016. SO ORDERED by Magistrate Judge Daniel J. Stewart on 2/12/2016. (mab) (Entered: 02/12/2016)
50 Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Telephone Conference held on 2/24/2016. Appearances: Elmer Keach, Esq. for Plaintiff; Jonathan Bernstein, Esq. for Defendants. The Court held a conference to address Plaintiff's request for pre−class certification discovery in this matter. Based upon the parties' submissions and the discussions held during the conference, the Court made various rulings on the record as to Plaintiff's request. (TIME: 2:34PM−2:44PM). (Court Reporter: Lisa Tennyson) (mab) (Entered: 02/25/2016)
49 TEXT ORDER. A conference call was held with the parties on February 24th 2016 regarding Plaintiff's request for pre−class certification discovery. Based upon the submissions of the parties, and oral arguments on the record, the Court grants Plaintiff's motion to the following extent: (1) within 21 days of this order the Defendant shall provide to the Plaintiff's Counsel the name, address, telephone number, employer and other contact information, date of birth, social security number, date of arrest or confinement, and the date the detainee is released from the facility, for those detained at the Montgomery County Jail for at least two continuous weeks during the period from July 25, 2011 to the present; (2) the Defendant is not required to include the detainees height, weight and build in the information provided; (3) the Defendant will be in charge of hiring an appropriate computer expert to extract the information and to provide it to Plaintiffs Counsel in the most appropriate form; (4) the cost of the expense of producing the information shall be split equally between the Plaintiff and the Defendant, and (5) all of the data and information that is turned over shall be subject to a properly executed protective order that allows review of the records by the attorney and the parties liability and damages expert only. IT IS SO ORDERED. Signed by Magistrate Judge Daniel J. Stewart on 2/25/2016. (Stewart, Daniel) (Entered: 02/25/2016)

03/18/2016 03/23/2016 05/11/2016 05/13/2016
05/19/2016 05/19/2016 05/31/2016
06/09/2016 07/11/2016 07/22/2016 08/29/2016 08/31/2016

51 STIPULATION Stipulated Protective Order Regarding Detainee Admission Records by Perry Hill submitted to Judge Daniel J. Stewart. (Keach, Elmer) (Entered: 03/18/2016)
52 PROTECTIVE ORDER. Signed by Magistrate Judge Daniel J. Stewart on 3/22/2016. (mab) (Entered: 03/23/2016)
53 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting a discovery conference) submitted to Judge Hon. Daniel J. Stewart . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 05/11/2016)
54 TEXT ORDER: On May 11, 2016, Defendants filed a Letter Request seeking a conference to discuss an extension of time to complete discovery in this matter. Dkt. No. 53 . The request for a conference is GRANTED and the parties are directed to participate in a Discovery Telephone Conference on May 20, 2016 at 10:00 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. SO ORDERED by Magistrate Judge Daniel J. Stewart on 5/13/2016. (mab) (Entered: 05/13/2016)
55 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting that 5/20/16 telephone conference be rescheduled.) submitted to Judge Hon. Daniel J. Stewart . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 05/19/2016)
56 TEXT ORDER granting Defendant's 55 Letter Request seeking to reschedule the Discovery Telephone Conference in this matter. The Discovery Telephone Conference is RESCHEDULED for May 31, 2016 at 11:00 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. SO ORDERED by Magistrate Judge Daniel J. Stewart on 5/19/2016. (mab) (Entered: 05/19/2016)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Discovery Hearing held on 5/31/2016. Appearances: Elmer Keach, Esq. and Nicholas Migliaccio, Esq. for Plaintff; Jonathan Bernstein, Esq. for Defendants. A conference with the parties was held to address the status of discovery in this matter and a possible extension of the scheduling order deadlines. Counsel state that they are working towards completing discovery, however, there is still a good amount that needs to be done. Atty Keach states that he intends to go forward with a motion for class certification, but gathering medical records for all the class individuals is taking significant time. The Court extends the discovery deadline to 9/1/2016 and Plaintiff is to make his motion for class certification by 10/7/2016. The deadline to file dispositive motions is STAYED. The Court will issue an Order. (TIME: 11:03AM−11:33AM). (mab) (Entered: 06/02/2016)
57 ORDER RE 53 : ORDERED, that the discovery deadline is now set for September 1, 2016. ORDERED, that the Plaintiff is directed to file a motion for class certification with the District Court no later than October 7, 2016. ORDERED, that the Defendants are authorized to provide un−redacted copies of the grievances requested by the Plaintiff, pursuant to the provisions of the protective order that is now in place. Signed by Magistrate Judge Daniel J. Stewart on 6/9/16. (nas) (Entered: 06/09/2016)
58 MOTION for Limited Admission Pro Hac Vice of Jason S. Rathod Filing fee $100, receipt number 0206−3724372. filed by Perry Hill. (Attachments: # 1 Supplement, # 2 Proposed Order/Judgment, # 3 Affirmation, # 4 Supplement, # 5 Supplement) Motions referred to Daniel J. Stewart. (Migliaccio, Nicholas) (Additional attachment(s) added on 7/15/2016: # 6 e−reg form) (nas, ). (Entered: 07/11/2016)
59 ORDER granting 58 Motion for Limited Admission Pro Hac Vice of Jason S. Rathod, Esq. Signed by Magistrate Judge Daniel J. Stewart on 7/22/2016. (mab) (Entered: 07/22/2016)
60 Letter Motion from Elmer Keach for Perry Hill requesting Thirty Day Extension of Time to Conclude Class Discovery, On Consent submitted to Judge Daniel J. Stewart . (Keach, Elmer) (Entered: 08/29/2016)
61 TEXT ORDER RE: 60 Letter Request. The Discovery Deadline is reset to 9/30/2016. All other pretrial deadlines remain in place. Authorized by Magistrate Judge Daniel J.

09/30/2016 10/03/2016 11/04/2016 11/10/2016
11/16/2016
11/17/2016
12/06/2016 12/13/2016 01/05/2017 01/06/2017

Stewart on 8/31/16. (nas) (Entered: 08/31/2016)
62 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time to Complete Discovery Until October 5, 2016 for all but One Witness, and Requesting Extension of Time to File Motion for Class Certification, On Consent submitted to Judge Daniel J. Stewart . (Keach, Elmer) (Entered: 09/30/2016)
63 TEXT ORDER RE: 62 Letter Request. Deadlines are reset as follows: Discovery due by 11/1/2016 and the motion for class certification deadline is 11/15/16. No further extensions will be granted of these deadlines. Authorized by Magistrate Judge Daniel J. Stewart on 10/3/16. (nas, ) (Entered: 10/03/2016)
64 Letter Motion from Elmer Keach for Perry Hill requesting Discovery Conference with the Court submitted to Judge Daniel J. Stewart . (Keach, Elmer) (Entered: 11/04/2016)
65 TEXT ORDER: On November 4, 2016, Plaintiff filed a Letter Request seeking a conference to address the deposition of Nurse Jane Hubschmidt in this matter. Dkt. No. 64 . Based upon the reasons set forth in Plaintiff's submission, the request is GRANTED and counsel are directed to participate in a Discovery Telephone Conference on November 16, 2016 at 11:00 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. The deadline to file a motion for class certification is held in abeyance pending the scheduled conference. SO ORERED by Magistrate Judge Daniel J. Stewart on 11/10/2016. (mab) (Entered: 11/10/2016)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Discovery Telephone Conference held on 11/16/2016. Appearances: Elmer Keach, Esq. and Nicholas Migliaccio, Esq. for Plaintiff; Jonathan Bernstein, Esq. for Defendants. The Court held a conference to address an issue that has arisen with the deposition of a Non−Party Witness. Atty Keach advises that Nurse Jane Hubschmidt has refused to appear for her deposition. Atty Keach also advises that she has significant health issues, but is willing to make any arrangements in order to accommodate her deposition and requests an Order from the Court directing her appearance. Defendants do not object. The Court determines that it will not issue an Order at this time, but will issue a Judicial Subpoena. Atty Keach will prepare such subpoena and provide it to the Court. Both counsel request additional time to move for class certification. The Court extends the deadline to 1/6/17. A Text Order will be issued. (TIME: 11:02AM−11:14AM). (Court Reporter: Theresa Casal) (mab) (Entered: 11/17/2016)
66 TEXT ORDER: On November 16, 2016, the Court held a Discovery Telephone Conference to address Plaintiff's request for a Court Order directing a Non−Party Witness to appear for a deposition. At this time the Court will not issue an Order, however, Plaintiff is directed to prepare a Judicial Subpoena and provide it to the Court for review. The deadline to complete discovery is extended to December 16, 2016 for the sole purpose of completing the Non−Party Witness deposition. The deadline to file for class certification is extended to January 6, 2017. SO ORDERED by Magistrate Judge Daniel J. Stewart on 11/17/2016. (mab) (Entered: 11/17/2016)
67 Letter Motion from Elmer Keach for Perry Hill requesting Issuance of Court Ordered Subpoena for Jane Hubschmitt submitted to Judge Daniel J. Stewart . (Attachments: # 1 Proposed Court Ordered Subpoena)(Keach, Elmer) (Entered: 12/06/2016)
68 SUBPOENA ISSUED as to Jane Hubschmitt. Signed by Magistrate Judge Daniel J. Stewart on 12/13/2016. (mab) (Entered: 12/13/2016)
69 Letter Motion from Elmer Keach for Perry Hill requesting Enlargement of Time to File Motion for Class Certification, on consent, until January 13, 2017, and Providing a Status Report Regarding the Status of the Hubschmitt Subpoena submitted to Judge Daniel J. Stewart . (Keach, Elmer) (Entered: 01/05/2017)
70 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Defendant's opposition to Plaintiff's letter to the Court dated 1/6/17) submitted to Judge Hon. Daniel J. Stewart . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 01/06/2017)

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71 TEXT ORDER: On January 5, 2017, Plaintiff filed a Letter Request seeking an extension of time to file his Motion for Class Certification in this matter. Dkt. No. 69 . In that same Letter Request, Plaintiff advised that Nurse Hubschmitt has retained counsel and will appear for a deposition, however, since Plaintiff does not wish to delay the filing of such motion he suggested raising any relevant information obtained from her deposition in his Reply Brief. Defendants filed a response to Plaintiff's Letter Request advising the Court that while they do not object to the request for an extension, they do object to Plaintiff raising new information in his reply to the Motion for Class Certification. Dkt. No. 70 . After reviewing the submissions from both counsel, Plaintiff's request for an extension of time to file his motion is GRANTED, however, such motion is to be filed after the deposition of Nurse Hubschmitt has been completed. The Court directs that Nurse Hubschmitt be deposed on or before February 9, 2017. Plaintiff shall file his Motion for Class Certification on or before February 23, 2017. There will be no further extension of these deadlines absent a showing of extraordinary circumstances. SO ORDERED by Magistrate Judge Daniel J. Stewart on 1/11/2017. (mab) (Entered: 01/10/2017)
72 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time to File Motion for Class Certification, Until February 28, 2017 submitted to Judge Daniel J. Stewart On Consent. (Keach, Elmer) (Entered: 02/23/2017)
73 MOTION to Certify Class Motion Hearing set for 4/6/2017 10:00 AM in Syracuse before Judge Brenda K. Sannes Response to Motion due by 3/20/2017 Reply to Response to Motion due by 3/27/2017. filed by Perry Hill. (Keach, Elmer) (Entered: 02/27/2017)
74 MEMORANDUM OF LAW re 73 Motion to Certify Class filed by Perry Hill. (Keach, Elmer) (Entered: 02/27/2017)
75 AFFIDAVIT in Support re 73 MOTION to Certify Class filed by Perry Hill. (Attachments: # 1 Exhibit(s) A −− Report of Plaintiff's Expert, # 2 Exhibit(s) B −− Michael Amato Deposition Transcript, # 3 Exhibit(s) C −− Lynn Dumar Deposition Transcript, # 4 Exhibit(s) D −− Eric Engle Deposition Transcript, # 5 Exhibit(s) E −− Michael Franko Deposition Transcript, # 6 Exhibit(s) F −− Perry Hill Deposition Transcript, # 7 Exhibit(s) G −− Joan Hubschmitt Deposition Transcript, # 8 Exhibit(s) H −− Sue Ninan Deposition Transcript, # 9 Exhibit(s) I −− Bruce O'Shaugnessy Deposition Transcript, # 10 Exhibit(s) J − Robert Pettit Deposition Transcript, # 11 Exhibit(s) K −− Gina Yesse Deposition Transcript, # 12 Exhibit(s) L −− Letter from Tara Haynes, # 13 Exhibit(s) M, Part One −− Meal Plans, # 14 Exhibit(s) M, Part Two −− Meal Plans, # 15 Exhibit(s) N −− Cycle Menu, # 16 Exhibit(s) O, Part One −− Nutritional Spreadsheet, # 17 Exhibit(s) O, Part Two −− Nutritional Spreadsheet, # 18 Exhibit(s) O, Part Three −− Nutritional Spreadsheet, # 19 Exhibit(s) P −− Calorie Chart, # 20 Exhibit(s) Q −− Emails Regarding Inmate Weight Loss, # 21 Exhibit(s) R −− Commission of Correction Decision, # 22 Exhibit(s) S −− Ken Crouse Deposition Transcript, # 23 Exhibit(s) T −− Firm Resume, Keach and Dyson, # 24 Exhibit(s) U −− Firm Resume, Migliaccio, # 25 Exhibit(s) V −− Sample of Inmate Surveys)(Keach, Elmer) (Entered: 02/27/2017)
76 CERTIFICATE OF SERVICE by Perry Hill re 73 MOTION to Certify Class , 74 Memorandum of Law, 75 Affidavit in Support of Motion,,,,, (Keach, Elmer) (Entered: 02/27/2017)
77 TEXT ORDER RE: 72 Letter Request. Plaintiff's request for an extension of time to submit a motion for class certification is denied as moot. Plaintiff has submitted his motion (See Dkt. No. 73). Authorized by Magistrate Judge Daniel J. Stewart on 3/1/17. (nas) (Entered: 03/01/2017)
78 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting an extension of time in which fo file opposition to plaintiff's motion for class certification until April 21, 2017) submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 03/13/2017)
79 TEXT ORDER granting 78 Letter Request for an extension of time to respond to the 73 MOTION to Certify Class : Response to Motion due by 4/21/2017; Reply to Response to Motion due by 4/28/2017. SO ORDERED by Judge Brenda K. Sannes on 3/16/17. (rjb, ) (Entered: 03/16/2017)

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80 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting that Exhibits "B" and "J" to Defendants' Opposition to Plaintiff's Motion for Class Certification be sent directly via mail / under seal) submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 04/10/2017)
81 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting authority to submit an un−redacted version of opposition papers to be supplied directly to Chambers) submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 04/13/2017)
82 TEXT ORDER: The Court has reviewed Defendants' letter motion 80 to file exhibits under seal in support of their opposition to the Plaintiff's motion for class certification. Plaintiff is directed to respond to Defendant's letter motion by April 21, 2017. The Court notes that because it appears that there is a qualified First Amendment right of access to exhibits filed in connection with a motion for class certification, the public's right of access to these documents "can be overcome only by specific, on−the−record findings that closure is essential to protect higher values and narrowly tailored to achieve that aim." Tropical Sails Corp., v. Yext, Inc., No. 14−Civ. 7582, 2016 WL 1451548, * 3 (S.D.N.Y. 2016) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006)). To the extent that the Defendants seek to file documents or exhibits under seal, they should submit a request to do so addressing this standard. The deadlines regarding the 73 Motion to Certify Class are hereby extended as follows: Response to Motion due by 5/5/2017; Reply to Response to Motion due by 5/12/2017. SO ORDERED by Judge Brenda K. Sannes on 4/14/17. (rjb, ) (Entered: 04/14/2017)
83 MOTION (An Order pursuant to US NDNY Local Rule 83.13 sealing the records contained in Exhibits "B" to "J" to Defs' Opposition to Plt's Motion for Class Certification and allowing Exhibits "A", "E", "F" and "G" to Defs' Opposition to be redacted on ECF with un−redacted copies sent to Chambers and opposing counsel, together with such other and further relief that the Court deems just and proper.) Motion Hearing set for 6/1/2017 10:00 AM in Syracuse before Judge Brenda K. Sannes Response to Motion due by 5/15/2017 filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Memo of Law in Support of Sealing Documents, # 6 Certificate of Service) Motions referred to Daniel J. Stewart. (Bernstein, Jonathan) (Entered: 04/24/2017)
84 TEXT ORDER: On the basis that they contain personal identifying information and information about sensitive medical conditions, Defendants move 83 to seal Exhibits B and J, and redact Exhibits A, E, F, and G, of their opposition to Plaintiffs motion for class certification 73 . As Defendants are submitting the exhibits in opposition to Plaintiffs motion for class certification, they would certainly be relevant to the judicial function and useful to the judicial process in probing behind pleadings to determine whether the plaintiffs suit meets the special criteria set for in Rule 23 for class certification. Tropical Sails Corp., v. Yext, Inc., No. 14−Civ. 7582, 2016 WL 1451548, * 3 (S.D.N.Y. 2016). They are therefore judicial documents. Second Circuit precedent "indicate[s] that... a strong presumption of access attaches [to judicial documents], under both the common law and the First Amendment." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006). Further, the Court finds that the weight of the presumption of access to these documents is significant under both the common law and First Amendment analysis. Mark v. Gawker Media LLC, No. 13−CV−4347 (AJN), 2015 WL 7288641, at *2, 2015 U.S. Dist. LEXIS 154630, at *5 (S.D.N.Y. Nov. 16, 2015) (determining that the weight of the presumption of access to documents submitted in connection with motion for class certification to be significant.). Thus, the documents at issue should not remain under seal absent the most compelling reasons.'" Lugosch, 435 F.3d at 123 (quoting Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982)). Moreover, under "the more stringent First Amendment framework... continued sealing of the documents may be justified only with specific, on−the−record findings that sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim." Id. at 124. Examples of "higher values" may include law enforcement interest, the privacy of innocent third parties, United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995), and the attorney−client privilege, Lugosch, 435 F.3d at 125. The party seeking to maintain the judicial documents under seal bears the burden of showing that higher values overcome the presumption of public access. DiRussa v. Dean Witter Reynolds Inc.,

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05/05/2017

121 F.3d 818, 826 (2d Cir. 1997). Defendants seek to seal Exhibits B and J in their entirety and redact Exhibits A, E, F, and G, on the basis that they contain sensitive medical information and implicate the privacy interests of Plaintiff and several non−parties. (Dkt. No. 83−5, p. 6). Individual contact information and other personal identifying information may be redacted. See Mark v. Gawker Media LLC, No. 13−CV−4347 (AJN), 2015 WL 7288641, at *2 (S.D.N.Y. Nov. 16, 2015) (granting the parties' request to redact the highlighted portions of the supporting documents containing email addresses, telephone numbers). Further, [f]ederal law generally treats medical records as confidential. Hand v. N.Y. City Transit Auth., No. 11−CV−997 RRM MDG, 2012 WL 3704826, at *5, 2012 U.S. Dist. LEXIS 120701, at *18 (E.D.N.Y. Aug. 26, 2012) (citing Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L. 104191 (1996)). Given the limited scope of Defendants request to seal Exhibits B and G, and the narrowly tailored redactions from Exhibits A, E, F, and G, the Court finds that the privacy interests of the affected individuals outweigh the presumption of public access (see Amodeo, 71 F.3d at 1050 ("[t]he privacy interests of innocent third parties... should weigh heavily in a court's balancing equation.") (internal quotation marks omitted)), and that the sealing and redaction of these documents is essential to preserve higher values. United States v Erie Cnty., 763 F.3d 235, 239 (2d Cir. 2014). Accordingly, Defendants' motion 83 is GRANTED. SO ORDERED by Judge Brenda K. Sannes on 5/2/17. (rjb, ) (Entered: 05/02/2017)
85 STATUS REPORT Regarding Partial Sealing of Motion Filing, Reflecting Plaintiff's Consent and Asking for Specific Redactions by Perry Hill. (Keach, Elmer) (Entered: 05/02/2017)
TEXT NOTICE: The pending motions will be heard by Judge Sannes on submission of the papers. Counsel will be notified if oral argument is necessary. No appearances are required at this time. (rjb, ) (Entered: 05/04/2017)
86 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting Court to allow Defendant to file their Attorney Affidavit on ECF with redaction and provide the un−redacted version to Your Chambers and Plaintiff's counsel) submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Affidavit in Opposition (Redacted), # 2 Certificate of Service)(Bernstein, Jonathan) (Entered: 05/04/2017)
87 TEXT ORDER: Defendants' request 86 to file a redacted version of the affidavit in opposition to the motion for class certification is GRANTED because the redacted portion is narrowly tailored to information within the scope of the Court's May 2, 2017 Text Order authorizing sealing. SO ORDERED by Judge Brenda K. Sannes on 5/4/17. (rjb, ) (Entered: 05/04/2017)
88 AFFIDAVIT in Opposition re 73 MOTION to Certify Class filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I(1), # 10 Exhibit I(2), # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Memo of Law in Opposition, # 19 Certificate of Service)(Bernstein, Jonathan) (Additional attachment(s) added on 5/5/2017: # 20 Unredacted affidavit (Sealed), # 21 Sealed Exhibit B) (rjb, ). (Additional attachment(s) added on 5/5/2017: # 22 Sealed Exhibit J − Part 1 (pgs 1−100), # 24 Sealed Exhibit J − Part 1 (pgs 101−187)) (rjb, ). (Additional attachment(s) added on 5/5/2017: # 26 Sealed Exhibit J − Part 2 (pgs 1−100), # 27 Sealed Exhibit J − Part 2 (pgs 101−190), # 28 Sealed Exhibit J − Part 3 (pgs 1−100), # 29 Sealed Exhibit J − Part 3 (pgs 101−218), # 30 Sealed Exhibit J − Part 4 (pgs 1−100), # 31 Sealed Exhibit J − Part 4 (pgs 101−263), # 32 Sealed Exhibit J − Part 5 (pgs 1−100), # 33 Sealed Exhibit J − Part 5 (pgs 101−282), # 34 Sealed Exhibit J − Part 6 (pgs 1−150), # 35 Sealed Exhibit J − Part 6 (pgs 151−323), # 36 Sealed Exhibit J − Part 7 (pgs 1−110), # 37 Sealed Exhibit J − Part 7 (pgs 111−222)) (rjb, ). (Additional attachment(s) added on 5/5/2017: # 38 Sealed Exhibit J − Part 8, # 39 Sealed Exhibit J − Part 9) (rjb, ). (Entered: 05/05/2017)
CLERK'S CORRECTION OF DOCKET ENTRY. Clerk attached Attorney's Unredacted Affidavit and Exhibits B and J to Dkt. No. 88 pursuant to the Text Order at Dkt. No. 84. (rjb, ) (Entered: 05/05/2017)

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89 Letter Motion from Maria K. Dyson for Perry Hill requesting Extension of time to submit Reply submitted to Judge Brenda K. Sannes . (Dyson, Maria) (Entered: 05/12/2017)
90 TEXT ORDER granting 89 Letter Request for an extension of time to file a reply to the 73 MOTION to Certify Class : Reply to Response to Motion due by 5/22/2017. SO ORDERED by Judge Brenda K. Sannes on 5/16/17. (rjb, ) (Entered: 05/16/2017)
91 Letter Motion from Elmer Robert Keach, III for Perry Hill requesting Extension of time to submit Reply submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 05/19/2017)
92 TEXT ORDER granting 91 Letter Motion from Elmer Robert Keach, III for Perry Hill requesting Extension of time to submit Reply to the 73 MOTION to Certify Class . Reply to Response to Motion due by 5/30/2017. So Ordered by Judge Brenda K. Sannes on 5/22/17. (jlm) (Entered: 05/22/2017)
93 Letter Motion from Elmer Keach for Perry Hill requesting One Day Extension to File Reply Papers submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 05/31/2017)
94 TEXT ORDER granting 93 Letter Request for an extension of time to reply to the 73 MOTION to Certify Class : Reply to Response to Motion due by 5/31/2017. SO ORDERED by Judge Brenda K. Sannes on 5/31/17. (rjb, ) (Entered: 05/31/2017)
95 REPLY to Response to Motion re 73 MOTION to Certify Class filed by Perry Hill. (Attachments: # 1 Exhibit(s) W −− Washington Deposition, # 2 Exhibit(s) X −− Crouse Deposition, # 3 Memorandum of Law)(Keach, Elmer) (Entered: 06/01/2017)
96 CERTIFICATE OF SERVICE by Perry Hill re 95 Reply to Response to Motion (Keach, Elmer) (Entered: 06/01/2017)
97 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Writing to object to plaintiff attempting to submit evidence to the Court now that was not included in his initial motion papers for class certification) submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 06/02/2017)
98 TEXT ORDER: Plaintiff's counsel is directed to respond to Dkt. No. 97 no later than 7/5/2017. SO ORDERED by Judge Brenda K. Sannes on 6/27/17. (rjb, ) (Entered: 06/27/2017)
99 LETTER BRIEF Regarding Defendants' Opposition to the Submission of Supplemental Documentation by Perry Hill. (Keach, Elmer) (Entered: 07/05/2017)
100 ORDER that Defendants' letter motion (Dkt. No. 97 ) is DENIED and that Plaintiff's motion for class certification (Dkt. No. 73 ) is DENIED without prejudice to renewal upon briefing the identified issues. If Plaintiff seeks to renew his motion for class certification, he must file a brief, and any exhibits, on or before October 31, 2017. The brief may not exceed thirty pages and must address the identified issues. Plaintiff need not file a new motion for class certification, and may incorporate his prior motion papers. Defendants' response, and any exhibits, must be filed by November 14, 2017, and may not exceed thirty pages. Any reply is due by November 21, 2017. Signed by Judge Brenda K. Sannes on 9/29/17. (rjb, ) (Entered: 09/29/2017)
101 TEXT ORDER − Dispositive Motions to be filed by 12/22/2017. SO ORDERED by Judge Brenda K. Sannes on 10/4/17. (rjb, ) (Entered: 10/04/2017)
102 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time to File Motion for Renewed Class Certification, Which Will Include a Motion for Leave to Intervene submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 10/31/2017)
103 TEXT ORDER granting 102 Letter Request. Motion for Class Certification due November 14, 2017. SO ORDERED by Judge Brenda K. Sannes on 11/1/17. (rjb, ) (Entered: 11/01/2017)
104 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time to File Renewed Motion for Class Certification until November 21, 2017, On Consent

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submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 11/14/2017)
105 TEXT ORDER granting 104 Letter Request. Motion for class certification due 11/21/2017. No further extensions will be granted absent extraordinary circumstances. SO ORDERED by Judge Brenda K. Sannes on 11/15/17. (rjb, ) (Entered: 11/15/2017)
106 MOTION to Certify Class Supplemental Motion for Class Certification and Motion for Leave to file an Amended Complaint and to Intervene James Rogers as Plaintiff Motion Hearing set for 1/4/2018 10:00 AM in Syracuse before Judge Brenda K. Sannes Response to Motion due by 12/18/2017 Reply to Response to Motion due by 12/26/2017. filed by Perry Hill. (Attachments: # 1 Affirmation, # 2 Exhibit(s) A − Proposed Amended Complaint, # 3 Exhibit(s) B − Proposed Amended Complaint with redlines, # 4 Exhibit(s) C − Surveys from Prospective Class Members) (Dyson, Maria) (Entered: 11/21/2017)
107 MEMORANDUM OF LAW re 73 Motion to Certify Class, 100 Order on Motion to Certify Class,,, Order on Letter Request,, 106 Motion to Certify Class,, filed by Perry Hill. (Dyson, Maria) (Entered: 11/21/2017)
108 CERTIFICATE OF SERVICE by Perry Hill re 107 Memorandum of Law, 106 MOTION to Certify Class Supplemental Motion for Class Certification and Motion for Leave to file an Amended Complaint and to Intervene James Rogers as Plaintiff (Dyson, Maria) (Entered: 11/21/2017)
109 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting a 60 day extension to respond to plaintiff's motion for class certification and motion to inervene by James Williams Rogers) submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Attachment, # 2 Certificate of Service)(Bernstein, Jonathan) (Entered: 12/06/2017)
110 TEXT ORDER granting 109 Letter Request for an extension of time to respond to the 106 MOTION to Certify Class Supplemental Motion for Class Certification and Motion for Leave to file an Amended Complaint and to Intervene James Rogers as Plaintiff : Response to Motion due by 2/19/2018; Reply to Response to Motion due by 2/26/2018. The Dispositive Motion filing deadline is adjourned without date. SO ORDERED by Judge Brenda K. Sannes on 12/7/17. (rjb, ) (Entered: 12/07/2017)
111 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting that Exhibits G and H to Defendants' opposition to plaintiff's recent motion for class certification be sent directly to Chambers and not filed on ECF) submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/06/2018)
112 TEXT ORDER: Defendants' letter motion 111 is GRANTED in part and DENIED in part. To the extent that Defendants are seeking to have Exhibit H, and portions of Exhibit G filed under seal, for the reasons stated in Defendants' previously−filed motion to seal 83 , and in accord with the Court's May 2, 2017 text order and NDNY Local Rule 83.13, Defendants may submit a copy of Exhibit H, and an unredacted and redacted copies of Exhibit G to the Court for its in camera consideration. Defendants' letter motion is otherwise DENIED. SO ORDERED by Judge Brenda K. Sannes on 2/12/18. (rjb, ) (Entered: 02/12/2018)
113 AFFIDAVIT in Opposition re 106 MOTION to Certify Class Supplemental Motion for Class Certification and Motion for Leave to file an Amended Complaint and to Intervene James Rogers as Plaintiff filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J(1), # 11 Exhibit J(2), # 12 Exhibit J(3), # 13 Exhibit J(4), # 14 Exhibit J(5), # 15 Exhibit J(6), # 16 Memo of Law, # 17 Certificate of Service)(Bernstein, Jonathan) (Attachment 6 replaced on 2/13/2018) (rjb, ). (Attachment 10 replaced on 2/21/2018) (rjb, ). (Attachment 11 replaced on 2/21/2018) (rjb, ). (Attachment 12 replaced on 2/21/2018) (rjb, ). (Attachment 13 replaced on 2/21/2018) (rjb, ). (Attachment 14 replaced on 2/21/2018) (rjb, ). (Attachment 15 replaced on 2/21/2018) (rjb, ). (Additional attachment(s) added on 2/21/2018: # 18 Exhibit J7) (rjb, ). (Attachment 8 replaced on 4/2/2018) (rjb, ). (Attachment 7 replaced on 4/2/2018) (rjb, ). (Additional attachment(s) added on 4/2/2018: # 19 Unredacted Exhibit G) (rjb, ). (Entered: 02/13/2018)

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114 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting that the Court accept the attached version of Exhibit F, as the present copy filed is not clear. The attached version is clearer and easier to discern). submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Exhibit F, # 2 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/13/2018)
115 TEXT ORDER granting 114 Letter Request. The Clerk is directed to replace Exhibit F. SO ORDERED by Judge Brenda K. Sannes on 2/13/18. (rjb, ) (Entered: 02/13/2018)
120 Letter Request regarding Exhibits G and H to the 113 Response filed by Attorney Bernstein. (rjb, ) (Entered: 04/02/2018)
116 Letter Motion for Michael Amato, County of Montgomery, Michael Franko requesting (Respectfully requesting that attached Exhibit J replace previously filed Exhibit J on opposition papers) submitted to Judge Hon. Brenda K. Sannes . (Attachments: # 1 Exhibit J(1), # 2 Exhibit J(2), # 3 Exhibit J(3), # 4 Exhibit J(4), # 5 Exhibit J(5), # 6 Exhibit J(6), # 7 Exhibit J(7), # 8 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/16/2018)
117 NOTICE of Appearance by Chelsea E. Manocchi on behalf of Michael Amato, County of Montgomery, Michael Franko (Attachments: # 1 Certificate of Service)(Manocchi, Chelsea) (Entered: 02/16/2018)
118 TEXT ORDER granting 116 Letter Request. The Clerk is directed to replace Exhibit J. SO ORDERED by Judge Brenda K. Sannes on 2/21/18. (rjb, ) (Entered: 02/21/2018)
119 TEXT ORDER: The Court has reviewed Defendants' letter dated 2/13/2017, received on 2/13/2018, requesting to file: (1) portions of Exhibit G (Dkt. No. 113−7) under seal; and (2) Exhibit H (Dkt. No. 113−8), which contains medical and mental health records, under seal. The Court finds, for the reasons stated in its previous Text Order (Dkt. No. 84 ) entered on 5/2/2017, and which is incorporated herein, that: the contact information and other personal identifying information in Exhibit G may be redacted and that the redactions are narrowly tailored; that the privacy interests of the individual to whom the medical and mental health records in Exhibit H belong outweigh the presumption of public access to these judicial documents; and that the sealing and redaction of these documents is essential to preserve higher values. United States v Erie Cnty., 763 F.3d 235, 239 (2d Cir. 2014). Accordingly, Defendants' 2/13/2018 letter request is granted. The Clerk is directed to file the 2/13/2018 letter request and the redacted version of Exhibit G on the docket. SO ORDERED by Judge Brenda K. Sannes on 4/2/18. (rjb, ) (Entered: 04/02/2018)
CLERK'S CORRECTION OF DOCKET ENTRY. Attached Exhibits G and H to Dkt. No. 113 per the 119 Text Order. (rjb, ) (Entered: 04/02/2018)
121 TEXT ORDER: The Court has reviewed Defendants' memorandum of law (Dkt. No. 113 −16) in opposition to Plaintiff's motion for class certification, to amend the complaint, and to allow James Rogers to intervene as a class representative (Dkt. No. 106 ). In it, Defendants argue that under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, Rogers, who seeks "to relate his claim back to July 2014 when the action was filed and when he was incarcerated," was required to exhaust his administrative remedies, failed to do so, and therefore cannot serve as a class representative. (Dkt. No. 113 −16, at 11). Plaintiff is directed to file a letter brief by 4/20/2018, not to exceed five pages, responding to this argument. A motion hearing on the pending motion is scheduled for May 9, 2018 at 10:00 AM in Syracuse. Appearances are required. SO ORDERED by Judge Brenda K. Sannes on 4/6/18. (rjb, ) (Entered: 04/06/2018)
122 Letter Motion from Elmer Keach for Perry Hill requesting One Day Extension of Time to File Letter Brief on PLRA Exhaustion Issue submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 04/20/2018)
123 LETTER BRIEF Regarding PLRA Issues, Filed Pursuant to the Direction of the Court by Perry Hill. (Attachments: # 1 Exhibit(s) COC Appeals for Several Class Members)(Keach, Elmer) (Entered: 04/23/2018)
124 TEXT ORDER granting 122 Letter Request for an extension of time. SO ORDERED by Judge Brenda K. Sannes on 4/23/18. (rjb, ) (Entered: 04/23/2018)

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TEXT Minute Entry for proceedings held before Judge Brenda K. Sannes: Motion Hearing held on 5/9/2018 re: 106 MOTION to Certify Class. Appearances: Elmer Keach, III, Esq. and Maria Dyson, Esq. for Plaintiff; Jonathan Bernstein, Esq. for Defendants. Judge Sannes hears from Attorneys Keach and Bernstein on Plaintiff's pending motion to certify class. Plaintiff will file a brief on standing along with an amended complaint including a request for declaratory relief, and Defendant will file a brief regarding declaratory relief, by 5/11/2018 at 5:00PM. Responses to the briefs will be due by 5/16/2018 at 5:00PM. Plaintiff will also include in his brief what he is seeking if the Court finds that neither Rogers or Hill can seek injunctive relief. Judge Sannes has an off the record discussion with counsel regarding any possibility of settlement. A telephone conference will be scheduled after a ruling on the motion has been issued. (Court Reporter Hannah Cavanaugh; 10:16AM−11:33AM) (rjb, ) (Entered: 05/09/2018)
125 LETTER BRIEF (Submission to address issues raised by Court at Oral Argument on 5/9/18) by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 05/11/2018)
126 LETTER BRIEF Regarding Standing to Seek Injunctive Relief by Perry Hill. (Attachments: # 1 Exhibit(s) Proposed Amended Complaint, # 2 Exhibit(s) Proposed Amended Complaint, Redlined)(Keach, Elmer) (Entered: 05/11/2018)
127 LETTER BRIEF addressing issues raised by plaintiff in his May 11, 2018 submission (Docket No. 126) by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Affirmation Certificate of Service)(Bernstein, Jonathan) (Entered: 05/16/2018)
128 ORDER that the claim for injunctive and declaratory relief is DISMISSED without prejudice. Hill's motion for leave to file an amended complaint and Rogers' motion to intervene as a named plaintiff (Dkt. No. 106 ) are GRANTED for purposes of: (1) adding Rogers as a Plaintiff with a Fourteenth Amendment and Eighth Amendment conditions of confinement damages claim, reflecting his status as both a pretrial detainee and convicted prisoner at MCJ; and (2) clarifying Hill's status as a pretrial detainee; and (3) clarifying that Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4); Hill's motion for leave to file an amended complaint and Rogers' motion to intervene (Dkt. No. 106 ) are otherwise DENIED. Hill may, by June 12, 2018, file: either (1) an amended complaint, as discussed supra; or (2) a second motion to amend and to intervene for purposes of adding a plaintiff with standing to pursue a claim for injunctive and declaratory relief. If such a motion is filed, the Court will consider it, along with any response by Defendants, which must be filed by June 19, 2018, together with the pending motion for class certification. If Hill elects not to file such a motion, the Court will consider the motion for class certification based on the amended complaint and any further briefing. If Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4), Plaintiffs must file a letter brief addressing the requirements in Rule 23(b)(3), by June 19, 2018, and Defendants may file a letter brief in response by June 26, 2018. Signed by Judge Brenda K. Sannes on 5/29/18. (rjb, ) (Entered: 05/29/2018)
129 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time to File Letter Brief, Until June 26, 2018 submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 06/19/2018)
130 ORDER granting 129 Letter Request. Brief is due by 6/26/2018.Authorized by Judge Brenda K. Sannes on 6/20/18. (nas) (Entered: 06/20/2018)
131 LETTER BRIEF Regarding Import of Rule 23(b)(3) Requirements in Class Action Seeking Issue Certification Only under Rule 23(c)(4) by Perry Hill. (Keach, Elmer) (Entered: 06/26/2018)
132 Letter Motion from Jonathan M. Bernstein for Michael Amato, County of Montgomery, Michael Franko requesting an extension to respond to plaintiffs' letter brief submitted to Judge Brenda K. Sannes . (Bernstein, Jonathan) (Entered: 06/27/2018)
133 TEXT ORDER granting the 132 Letter Motion from Jonathan M. Bernstein for Michael Amato, County of Montgomery, Michael Franko requesting an extension to respond to plaintiffs' 131 letter brief. The response shall be filed on or before 7/13/18.

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10/02/2018 10/19/2018

SO ORDERED by Judge Brenda K. Sannes on 6/29/18. (jlm) (Entered: 06/29/2018)
134 RESPONSE TO LETTER BRIEF filed by Michael Amato, County of Montgomery, Michael Franko as to 131 LETTER BRIEF filed by Perry Hill . (Bernstein, Jonathan) (Entered: 07/13/2018)
135 TEXT ORDER: In the ORDER 128 entered on 5/29/2018, the Court, granted in part and denied in part the motions to amend and to intervene 106 and directed Plaintiff to (1) file an amended complaint in accordance with the guidance provided in the ORDER or (2) file a second motion to amend and to intervene for purposes of adding a plaintiff with standing to pursue a claim for injunctive and declaratory relief. The Court also directed further briefing on the certification issue. While Plaintiff filed additional briefing on the certification issue 129 he did not file an amended complaint or a second motion to amend/intervene. Thus, the original complaint is the operative pleading. The Court will, however, provide Plaintiff a brief extension to file an amended complaint; any amended complaint must comply with the guidance the Court provided in the prior Order 128 and must be filed by 8/2/2018. No further motions to amend or intervene will be considered. SO ORDERED by Judge Brenda K. Sannes on 7/26/18. (rjb, ) (Entered: 07/26/2018)
136 AMENDED COMPLAINT Filed with Leave of Court against All Defendants filed by Perry Hill.(Keach, Elmer) (Entered: 08/09/2018)
137 Letter Motion from Elmer Keach for Perry Hill requesting Leave of Court to File Amended Complaint Out of Time submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 08/09/2018)
138 TEXT ORDER granting 137 Letter Request to file the 136 amended complaint. SO ORCERED by Judge Brenda K. Sannes on 8/10/18. (rjb, ) (Entered: 08/10/2018)
139 ORDER granting 106 Motion to Certify Class. ORDER that Plaintiffs Perry Hill and James Rogers are appointed the class representatives and that Plaintiffs' attorneys of record are appointed class counsel. Signed by Judge Brenda K. Sannes on 8/20/18. (rjb, ) (Entered: 08/20/2018)
140 ANSWER to 136 Amended Complaint by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Affidavit)(Bernstein, Jonathan) (Entered: 09/11/2018)
141 TEXT ORDER: Counsel are directed to appear for a Status Telephone Conference in this matter on October 2, 2018 at 10:00 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. SO ORDERED by Magistrate Judge Daniel J. Stewart on 9/21/2018. (mab) (Entered: 09/21/2018)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Status Telephone Conference held on 10/2/2018. Appearances: Elmer Keach, Esq., Nicholas Migliaccio, Esq. for Plaintiffs; Jonathan Bernstein, Esq. for Defendants. The Court held a conference to address the status of this matter in light of the decision granting class certification. Counsel agree that this may be a good time to discuss settlement prior to moving forward with additional discovery. Plaintiffs' counsel is directed to provide a written settlement demand to Defendants by 10/8 with a copy to Chambers. Defendants are to advise the Court if a settlement conference would be productive by 10/16/18. The Court sets this matter down for a further status conference on 10/19/2018 at 1:00 PM. No deadlines are set at this time. (Court Reporter: Theresa Casal). (mab) (Entered: 10/02/2018)
142 TEXT ORDER: A Status Conference in this matter is set for October 19, 2018 at 1:00 PM before the undersigned. Counsel are directed to appear IN PERSON at the James T. Foley US Courthouse, 445 Broadway, 4th Floor, Room 409, Albany, NY on the scheduled date and time. SO ORDERED by Magistrate Judge Daniel J. Stewart on 10/2/2018. (mab) (Entered: 10/02/2018)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Status Conference held on 10/19/2018. Appearances: Elmer Keach, Esq., Maria Dyson, Esq. and Nicholas Migliaccio, Esq. for Plaintiffs; Jonathan Bernstein, Esq. for Defendants. The Court held discussions off the record with counsel to inquire as to the

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01/07/2019 01/17/2019

possibility of settlement. The Court then addresses on the record what remaining discovery needs to be completed. Defendants are to provide an updated class list to Plaintiffs on or before 11/19/2018. Class Notice to be prepared by counsel on or before 11/19/2018. Counsel agree that there are some remaining issues that they can confer and work out amongst themselves. A further status conference is set for 11/19/2018 at 11:00 AM by telephone. Deadlines will be set at the next conference. (TIME: 1:03PM−1:25PM). (mab) (Entered: 10/22/2018)
143 TEXT ORDER: A Telephone Status Conference is scheduled for November 19, 2018 at 11:00 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. SO ORDERED by Magistrate Judge Daniel J. Stewart on 10/22/2018. (mab) (Entered: 10/22/2018)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Status Telephone Conference held on 11/19/2018. Appearances: Elmer Keach, Esq. and Nicholas Migliaccio, Esq. for Plaintiffs; Jonathan Bernstein, Esq. for Defendants. The Court held a conference to address the status of the class list and class notice. Defendants advised that they have sent an updated class list to Plaintiffs. Plaintiffs request additional time to complete the class notice. The conference is adjourned and rescheduled for 12/17/2018 at 11:00 AM in− person. No deadlines set. (TIME: 11:02AM−11:07AM). (Court Reporter: Jacqueline Stroffolino) (mab) (Entered: 11/20/2018)
144 TEXT ORDER: A Status Conference in this matter is scheduled for December 17, 2018 at 11:00 AM before the undersigned. Counsel are directed to appear IN PERSON at the James T. Foley US Courthouse, 445 Broadway, 4th Floor, Room 409, Albany, NY on the scheduled date and time. SO ORDERED by Magistrate Judge Daniel J. Stewart on 11/20/2018. (mab) (Entered: 11/20/2018)
145 STATUS REPORT Regarding Class Notice Issues by Perry Hill, James Rogers. (Attachments: # 1 Proposed Long Form Notice, # 2 Proposed Short Form Notice)(Keach, Elmer) (Entered: 12/17/2018)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Status Conference held on 12/17/2018. Appearances: Elmer Keach, Esq., Maria Dyson, Esq. and Nicholas Migliaccio, Esq. for Plaintiffs; Jonathan Bernstein, Esq. for Defendants. The Court held a conference to address the status of the class notice and bell weather Plaintiffs. Defendants object to the use of a website on the notices. Counsel to confer and revise the notices. Plaintiffs provided Defendants with a list of 25 individuals. Defendants request the surveys to determine who needs to be deposed. Defendants to advise the Court as to how many depositions they would need. No deadlines set. A further conference is scheduled for 1/4/2019 at 9:00 AM. (TIME: 11:02AM−11:26AM). (Court Reporter: Theresa Casal) (mab) (Entered: 12/18/2018)
146 TEXT ORDER: A Telephone Status Conference in this matter is set for January 4, 2019 at 9:00 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. SO ORDERED by Magistrate Judge Daniel J. Stewart on 12/18/2018. (mab) (Entered: 12/18/2018)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Telephone Status Conference held on 1/4/2019. Appearances: Elmer Robert Keach, Esq. for Plaintiffs; Jonathan Bernstein, Esq. for Defendants. The Court inquires as to the status of the class notice. Counsel advise that there are still some remaining issues, but will continue to confer to work those issues out. Defendants advise that if the 2nd Circuit allows the appeal of the class certification they will move for a stay of this action. Parties will continue with discovery until such decision is rendered. Plaintiff to serve demands and Defendants will begin taking depositions. Defendants to file a Status Report by 1/25/2019. (TIME: 9:02AM−9:11AM). (Court Reporter: Jacqueline Stroffolino). (mab) (Entered: 01/07/2019)
147 TEXT ORDER: Defendants are directed to advise as to the status of this matter by January 25, 2019. SO ORDERED by Magistrate Judge Daniel J. Stewart on 1/7/2019. (mab) (Entered: 01/07/2019)
148 MANDATE of USCA ISSUED ON 1/16/19: Petitioners request, pursuant to Federal Rule of Civil Procedure 23(f), leave to appeal the district court's order granting the Respondents' motion for class certification. Upon due consideration, it is hereby

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ORDERED that the petition is DENIED because an immediate appeal is not warranted. (nas) (Entered: 01/17/2019)
149 TEXT ORDER: Counsel are directed to participate in a Status Telephone Conference on January 25, 2019 at 9:30 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. SO ORDERED by Magistrate Judge Daniel J. Stewart on 1/24/2019. (mab) (Entered: 01/24/2019)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Status Telephone Conference held 1/25/2019. Appearances: Elmer Keach, Esq., Maria Dyson, Esq. and Nicholas Migliaccio, Esq. The Court held a conference to address the status of this matter in light of the 2nd Circuit's decision. Counsel will submit a proposed Class Notice for approval within 2 weeks of this conference. Plaintiff to immediately serve a demand for booking sheets to Defendants. Defendants to advise the Court by 2/5/2019 as to what the process and procedure would be to obtain this information. Discovery is to be completed by 3/26/2019. Dispositive motions to be filed by 4/26/2019. No further extensions. (TIME: 9:32AM−9:49AM). (Court Reporter: Lisa Tennyson) (mab) (Entered: 01/25/2019)
Set Deadlines/Hearings: Status Report due by 2/5/2019. (nas, ) (Entered: 01/31/2019)
150 TRIAL ORDER − Final Pretrial Conference set for 8/15/2019 at 10:00 AM in Syracuse before Judge Brenda K. Sannes. Pretrial Submissions due by 7/29/2019. Responses to Motions in Limine due by 8/5/2019. Jury Trial set for 8/26/2019 at 09:30 AM in Syracuse before Judge Brenda K. Sannes. Signed by Judge Brenda K. Sannes on 2/4/2019. (rjb, ) (Entered: 02/04/2019)
151 STATUS REPORT by Michael Amato, County of Montgomery, Michael Franko. (Bernstein, Jonathan) (Entered: 02/05/2019)
152 Letter Motion from Elmer Robert Keach, III for Perry Hill requesting Discovery conference submitted to Judge Daniel J. Stewart . (Keach, Elmer) (Entered: 02/06/2019)
153 STATUS REPORT by Michael Amato, County of Montgomery, Michael Franko. (Bernstein, Jonathan) (Entered: 02/07/2019)
154 TEXT ORDER: On February 6, 2019, Plaintiffs filed a Letter Request seeking a conference to address outstanding discovery issues with regard to accessing booking records in this matter. Dkt. No. 152 . The request is GRANTED and a Discovery Hearing is scheduled for February 12, 2019 at 9:30 AM before the undersigned. Counsel are directed to appear IN PERSON at the James T. Foley US Courthouse, 445 Broadway, 4th Floor, Courtroom No. 2, Albany, NY on the scheduled date and time. Counsel for Defendants are directed to produce a representative of the Defendants with knowledge as to the discovery issues for the hearing. SO ORDERED by Magistrate Judge Daniel J. Stewart on 2/8/2019. (mab) (Entered: 02/08/2019)
155 Letter Motion from Elmer Keach for Perry Hill requesting Providing Proposed Class Notices to the Court for Approval submitted to Judge Brenda K. Sannes . (Attachments: # 1 Exhibit(s) Proposed Long Form Notice, # 2 Exhibit(s) Proposed Short Form Notice)(Keach, Elmer) (Entered: 02/08/2019)
156 TEXT ORDER: Defendants are directed to file a response to Dkt. No. 155 no later than 2/19/2019. SO ORDERED by Judge Brenda K. Sannes on 2/12/2019. (rjb, ) (Entered: 02/12/2019)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Discovery Conference held on 2/12/2019. Appearances: Elmer Keach, Esq. for Plaintiffs; Jonathan Bernstein, Esq. for Defendants; Megan Manning, Esq. and Robert Barbutti as representatives of the County of Mongtgomery. The Court held a conference to address outstanding issues with regard to Plaintiffs' request for booking sheets. Mr. Barbutti speaks as to the process of compiling the data requested by the Plaintiffs. The Court hears from both counsel. The Court RESERVES on a decision. Additional briefing to be submitted. (TIME: 9:33AM−10:32AM). (Court Reporter: FTR) (mab) (Entered: 02/14/2019)

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157 Letter Motion from Jonathan M. Bernstein for Michael Amato, County of Montgomery, Michael Franko requesting Response to Docket #155 submitted to Judge Brenda K. Sannes . (Bernstein, Jonathan) (Entered: 02/13/2019)
158 STATUS REPORT Updated by Michael Amato, County of Montgomery, Michael Franko. (Bernstein, Jonathan) (Entered: 02/13/2019)
159 STATUS REPORT Regarding Discovery of Booking Sheets, and Possible Production of Medical Records by Perry Hill. (Keach, Elmer) (Entered: 02/13/2019)
160 TEXT ORDER: The Court has reviewed the proposed long form class notice and short form class notice, (Dkt. No. 155 ). Defendants have no objection. (Dkt. No. 157 ). Rule 23(c)(2)(B) requires that a class notice state: "(i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3)." Fed. R. Civ. P. 23(c)(2)(B). Although the long form class notice provides the information required by Rule 23(c)(2)(B)(i)−(vi), it states that "all of the Court's orders will apply to you and legally bind you," and thus does not meet the requirements of Rule 23(c)(2)(B)(vii) because it does not advise class members of "the binding effect of a class judgment." Further, the short form notice, (Dkt. No. [155−2]), must be modified to indicate that a class members may hire and pay for an attorney at their own expense and specify the time and manner for requesting exclusion, as required by Rule 23(c)(2)(B)(iv)−(vi). Accordingly, Plaintiffs are directed to revise the notices accordingly, confer with defense counsel to determine whether there is any objection, and resubmit the proposed notices by 2/22/2019. Both notices should provide a 60−day exclusion period. Signed by Judge Brenda K. Sannes on 02/15/2019. (sr) (Entered: 02/15/2019)
161 ORDER: ORDERED that within 14 days of the date of this Order, Defendants shall produce the booking records as identified in this Order to Plaintiffs' counsel. Signed by Magistrate Judge Daniel J. Stewart on 2/21/19. (nas) (Entered: 02/21/2019)
162 Letter Motion from Elmer Keach for Perry Hill requesting Extension of Time to File Revised Class Notices Due to Defense Counsel's Absence from the District submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 02/22/2019)
163 TEXT ORDER granting 162 Letter Request. Revised class notices shall be filed no later than 3/1/19. Authorized by Judge Brenda K. Sannes on 2/25/19. (nas) (Entered: 02/25/2019)
164 STATUS REPORT Providing Proposed Class Notices by Perry Hill. (Attachments: # 1 Exhibit(s) Proposed Long Form Notice, # 2 Exhibit(s) Proposed Short Form Notice)(Keach, Elmer) (Entered: 03/01/2019)
165 Letter Motion from Jonathan Bernstein for Michael Amato, County of Montgomery, Michael Franko requesting until March 15, 2019 to supply plaintiff with the booking records submitted to Judge Daniel J. Stewart . (Bernstein, Jonathan) (Entered: 03/07/2019)
166 TEXT ORDER: Plaintiffs' proposed long form (Dkt. No. 164 −1) notice satisfies the requirements of Fed. R. Civ. P. 23(c)(2)(B). It is therefore approved. The proposed short form notice, (Dkt. No. 164 −2), however, fails to advise that "all of the Court's orders will apply to you and legally bind you," and thus does not meet the requirements of Rule 23(c)(2)(B)(vii). Accordingly, Plaintiffs are directed to revise the short form notice, confer with defense counsel to determine whether there is any objection, and resubmit the proposed notice by 3/15/2019. SO ORDERED by Judge Brenda K. Sannes on 3/11/2019. (rjb, ) (Entered: 03/11/2019)
167 TEXT ORDER granting 165 Letter Request. Defendants are granted an extension of time until 3/15/19 to provide plaintiff with the booking records. Authorized by Magistrate Judge Daniel J. Stewart on 3/11/19. (nas) (Entered: 03/11/2019)
168 STATUS REPORT Regarding Proposed Short Form Notice by Perry Hill. (Attachments: # 1 Exhibit(s) Proposed Short Form Notice)(Keach, Elmer) (Entered: 03/16/2019)

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169 TEXT ORDER: Plaintiffs' proposed short form notice (Dkt. No. [168−1]) satisfies the requirements of Fed. R. Civ. P. 23(c)(2)(B). It is therefore approved. Signed by Judge Brenda K. Sannes on 03/18/2019. (sr) (Entered: 03/18/2019)
170 Letter Motion from Elmer Keach for Perry Hill, James Rogers requesting Discovery Conference with the Court submitted to Judge Daniel J. Stewart . (Keach, Elmer) (Entered: 04/08/2019)
171 LETTER BRIEF Response to Plaintiff's April 8, 2019 correspondence to the Court by Michael Amato, County of Montgomery, Michael Franko. (Bernstein, Jonathan) (Entered: 04/08/2019)
172 TEXT ORDER: On April 8, 2019, Plaintiff filed a Letter Request seeking a conference to address outstanding discovery in this matter. Dkt. No. 170 . The request is GRANTED and counsel are directed to participate in a Discovery Telephone Conference on April 24, 2019 at 10:00 AM before the undersigned. The Court will issue a separate notice setting forth the instructions to connect to the conference call. SO ORDERED by Magistrate Judge Daniel J. Stewart on 4/17/2019. (mab) (Entered: 04/17/2019)
173 TEXT ORDER: The Discovery Telephone Conference in this matter is RESCHEDULED as to TIME ONLY and is now set for April 24, 2019 at 2:00 PM. Counsel are directed to use the instructions to connect to the conference call previously issued on April 17, 2019. SO ORDERED by Magistrate Judge Daniel J. Stewart on 4/23/2019. (mab) (Entered: 04/23/2019)
174 MOTION for Summary Judgment Motion Hearing set for 6/6/2019 10:00 AM in Syracuse before Judge Brenda K. Sannes Response to Motion due by 5/20/2019 Reply to Response to Motion due by 5/28/2019. filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Memorandum of Law, # 2 Rule 7.1 Statement of Undisputed Facts, # 3 Affidavit in Support, # 4 Exhibit(s) A, # 5 Exhibit(s) B, # 6 Exhibit(s) C, # 7 Exhibit(s) D, # 8 Exhibit(s) E, # 9 Exhibit(s) F, # 10 Exhibit(s) G, # 11 Exhibit(s) H, # 12 Exhibit(s) I, # 13 Exhibit(s) J1, # 14 Exhibit(s) J2, # 15 Exhibit(s) J3, # 16 Exhibit(s) K, # 17 Exhibit(s) L, # 18 Exhibit(s) M, # 19 Exhibit(s) N, # 20 Exhibit(s) O, # 21 Exhibit(s) P, # 22 Exhibit(s) Q, # 23 Exhibit(s) R, # 24 Exhibit(s) S, # 25 Exhibit(s) T, # 26 Exhibit(s) U, # 27 Exhibit(s) V, # 28 Exhibit(s) W, # 29 Exhibit(s) X, # 30 Exhibit(s) Y, # 31 Exhibit(s) Z, # 32 Exhibit(s) AA, # 33 Exhibit(s) BB, # 34 Exhibit(s) CC, # 35 Exhibit(s) DD, # 36 Exhibit(s) EE, # 37 Exhibit(s) FF, # 38 Exhibit(s) GG, # 39 Exhibit(s) HH, # 40 Exhibit(s) II, # 41 Exhibit(s) JJ, # 42 Exhibit(s) KK, # 43 Exhibit(s) LL, # 44 Exhibit(s) MM, # 45 Exhibit(s) NN, # 46 Exhibit(s) OO, # 47 Exhibit(s) PP, # 48 Exhibit(s) QQ, # 49 Exhibit(s) RR, # 50 Exhibit(s) SS, # 51 Exhibit(s) TT, # 52 Exhibit(s) UU, # 53 Exhibit(s) VV, # 54 Exhibit(s) WW, # 55 Exhibit(s) XX1, # 56 Exhibit(s) XX2, # 57 Exhibit(s) XX3, # 58 Exhibit(s) XX4, # 59 Exhibit(s) XX5, # 60 Certificate of Service) (Bernstein, Jonathan) (Entered: 04/23/2019)
TEXT NOTICE RE: 174 MOTION for Summary Judgment : MOTION IS ON SUBMISSION ONLY, NO PERSONAL APPEARANCES REQUIRED. Returnable on 6/6/19 before Judge Brenda K. Sannes. Response to Motion due by 5/20/2019, Reply to Response to Motion due by 5/28/2019. (nas) (Entered: 04/24/2019)
175 TEXT ORDER. For the reasons set forth during the telephone conference with counsel for the parties, held on April 24, 2019, Plaintiff's request for a further extension of the discovery deadline (Dkt. No. 170) is DENIED. SO ORDERED. Signed by Magistrate Judge Daniel J. Stewart on 4/24/2019. (Stewart, Daniel) (Entered: 04/24/2019)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Discovery Telephone Conference held on 4/24/2019. Appearances: Bob Keach, Esq. for Plaintiffs and Jonathan Bernstein, Esq. for Defendants. The Court held a conference to address Plaintiffs' request to extend discovery in this matter. Defendants object. After hearing from both counsel, the Court denies Plaintiffs' request. Discovery is closed. (TIME: 2:01PM−2:13PM). (Court Reporter: Theresa Casal). (mab) (Entered: 04/25/2019)
176 Letter Motion from Elmer Keach for Perry Hill, James Rogers requesting Extension of Time to File Response to Defendants' Motion for Summary Judgment Until May 24, 2019, and For Defendants to File Their Reply Papers Until June 6, 2019, On Consent

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submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 05/17/2019)
177 TEXT ORDER granting 176 Letter Request. Plaintiff is granted an extension of time to file a response to 174 MOTION for Summary Judgment : Response to Motion due by 5/24/2019. Reply papers, if any, are due by 6/6/2019. Authorized by Judge Brenda K. Sannes on 5/20/19. (nas) (Entered: 05/20/2019)
178 Letter Motion from Elmer Keach for Perry Hill, James Rogers requesting Extension of Time to Respond to Summary Judgment Motion Until May 29, 2019, and for Defendants to File a Reply on June 12, 2019 submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 05/23/2019)
179 TEXT ORDER granting 178 Letter Request. Plaintiff is granted an extension of time to file a response to 174 MOTION for Summary Judgment : Response to Motion due by 5/29/2019. Reply papers, if any, are due by 6/12/2019. Authorized by Judge Brenda K. Sannes on 5/24/19. {text order served via regular mail on plaintiff}(nas ) (Entered: 05/24/2019)
180 AFFIDAVIT in Opposition re 174 MOTION for Summary Judgment filed by Perry Hill, James Rogers. (Attachments: # 1 Exhibit(s) 1 −− Plaintiffs' Expert Report, # 2 Exhibit(s) 2 −− Deposition Transcript, Defendant Michael Amato, # 3 Exhibit(s) 3 −− Deposition Transcript, C. Ardizzone, # 4 Exhibit(s) 4 −− Deposition Transcript, C. Battisti, # 5 Exhibit(s) 5 −− Deposition Transcript, D. Canales, # 6 Exhibit(s) 6 −− Deposition Transcript, J. Chirico, # 7 Exhibit(s) 7 −− Deposition Transcript, K. Crouse, # 8 Exhibit(s) 8 −− Deposition Transcript, A. Cruz, # 9 Exhibit(s) 9 −− Deposition Transcript, L. Dumar, # 10 Exhibit(s) 10 −− Deposition Transcript, K. Edick, # 11 Exhibit(s) 11 −− Deposition Transcript, E. Engle, # 12 Exhibit(s) 12 −− Deposition Transcript, Defendant Michael Franko, # 13 Exhibit(s) 13 −− Deposition Transcript, Perry Hill, # 14 Exhibit(s) 14 −− Deposition Transcript, J. Hubschmidt, # 15 Exhibit(s) 15 −− Deposition Transcript, S. Ninan, # 16 Exhibit(s) 16 −− Deposition Transcript, E. Quendo, # 17 Exhibit(s) 17 −− Deposition Transcript, B. O'Shaughnessy, # 18 Exhibit(s) 18 −− Deposition Transcript, R. Pettit, # 19 Exhibit(s) 19 −− Deposition Transcript, D. Rivera, # 20 Exhibit(s) 20 −− Deposition Transcript, R. Staley, # 21 Exhibit(s) 21 −− Deposition Transcript, J. Strobel, # 22 Exhibit(s) 22 −− Deposition Transcript, R. Washington, # 23 Exhibit(s) 23 −− Deposition Transcript, G. Yesse, # 24 Exhibit(s) 24 −− Class Member Surveys, # 25 Exhibit(s) 25 −− 2011 MCJ Grievances, # 26 Exhibit(s) 26 −− 2012 MCJ Grievances, # 27 Exhibit(s) 27 −− 2013 MCJ Grievances, # 28 Exhibit(s) 28 −− 2014 MCJ Grievances, # 29 Exhibit(s) 29 −− 2015 MCJ Grievances, # 30 Exhibit(s) 30 −− Cycle Menus, # 31 Exhibit(s) 31 −− Nurtitional Spreadsheet, # 32 Exhibit(s) 32 −− Medical Emails, # 33 Exhibit(s) 33 −− 2012 COC Decision, # 34 Exhibit(s) 34 −− Daily Meal Plans, January − February 2013, # 35 Exhibit(s) 35 −− Michael Franko Grievance Memos, # 36 Exhibit(s) 36 −− Robert Pettit Grievances, # 37 Exhibit(s) 37 −− Photos of R. Reece, Class Member, # 38 Exhibit(s) 38 −− Plaintiffs' Amended Complaint, # 39 Exhibit(s) 39 −− Defendants' Answer to Amended Complaint, # 40 Exhibit(s) 40 −− Defendants' Interrogatory Responses, # 41 Exhibit(s) 41 −− Letter from T. Haynes, Class Member, # 42 Exhibit(s) 42 − Deposition Transcript, Plaintiff James Rogers)(Keach, Elmer) (Entered: 05/29/2019)
181 STATEMENT OF MATERIAL FACTS re 174 MOTION for Summary Judgment And Counter−Statement of Material Fact filed by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 05/29/2019)
182 Letter Motion from Elmer Keach for Perry Hill, James Rogers requesting Final One Day Extension of Time to Finish Memorandum of Law in Opposition to Motion for Summary Judgment until May 30, 2019, with Corresponding Extension of Reply Deadline submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 05/29/2019)
183 TEXT ORDER granting 182 Letter Request. Plaintiff is granted an extension of time until 5/30/19 to submit the memorandum of law in opposition to 174 MOTION for Summary Judgment . Reply papers, if any, are due by 6/13/2019. Authorized by Judge Brenda K. Sannes on 5/30/19. (nas) (Entered: 05/30/2019)
184 Letter Motion from Elmer Keach for Perry Hill, James Rogers requesting Leave to File an Overlength Brief of Thirty−Five Pages submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 05/30/2019)

05/30/2019 05/31/2019 06/13/2019 07/02/2019 09/24/2019
09/26/2019 10/02/2019
10/02/2019 10/02/2019
11/07/2019 01/13/2020 01/15/2020

185 MEMORANDUM OF LAW re 174 Motion for Summary Judgment,,,,,, Memorandum of Law in Opposition to Motion for Summary Judgment filed by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 05/30/2019)
186 TEXT ORDER granting 184 Letter Request. The 185 brief is accepted for filing. SO ORDERED by Judge Brenda K. Sannes on 5/31/2019. (rjb, ) (Entered: 05/31/2019)
187 REPLY to Response to Motion re 174 MOTION for Summary Judgment filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Response to Plaintiffs' Counter−Statement of Material Fact, # 2 Reply Affidavit in Support, # 3 Exhibit(s) A, # 4 Exhibit(s) B, # 5 Exhibit(s) C, # 6 Exhibit(s) D, # 7 Certificate of Service)(Bernstein, Jonathan) (Entered: 06/13/2019)
TEXT NOTICE: In light of the pending summary judgment motion, the trial currently scheduled for August 26, 2019, and all associated deadlines, are adjourned without date. (rjb, ) (Entered: 07/02/2019)
188 TEXT ORDER: A telephone conference is scheduled for 10/2/2019 at 11:00 AM to discuss the status of the class notification process, setting a trial date for the liability phase, and the parties' plan for a damages trial, if needed. Plaintiffs' attorney is directed to initiate the call and should contact chambers at (315) 234−8598 once all counsel are on the line. SO ORDERED by Judge Brenda K. Sannes on 9/24/2019. (rjb, ) (Entered: 09/24/2019)
189 Letter Motion from Jonathan Bernstein for Michael Amato, County of Montgomery, Michael Franko requesting that the Court refrain from setting a trial date during the October 2, 2019 telephone conference submitted to Judge Brenda K. Sannes . (Bernstein, Jonathan) (Entered: 09/26/2019)
TEXT Minute Entry for proceedings held before Judge Brenda K. Sannes: Telephone Conference held on 10/2/2019. Appearances: Elmer Keach, Esq., Maria Dyson, Esq. and Nicholas Migliaccio, Esq. for Plaintiffs; Jonathan Bernstein, Esq. for Defendants. Discovery is closed. The class notice is being mailed out on 10/11/2019. Judge Sannes hears from Mr. Bernstein on his 189 letter request. Counsel anticipate 2 weeks for trial and Attorney Keach anticipates calling as many as 30−40 class members to testify. Parties agree trial will be limited to liability but Plaintiffs' counsel would like damages determinations made. Counsel are directed to confer on the damages issue and notify the Court in their motions in limine if there is a dispute. Trial will be scheduled for 2/24/2020. (Court Reporter Hannah Cavanaugh; 11:04AM−11:21AM) (rjb, ) (Entered: 10/02/2019)
190 TEXT ORDER denying 189 Letter Request for the reasons discussed at the 10/2/2019 telephone conference. SO ORDERED by Judge Brenda K. Sannes on 10/2/2019. (rjb, ) (Entered: 10/02/2019)
191 TEXT ORDER RESETTING TRIAL DEADLINES: Final Pretrial Conference set for 2/10/2020 at 10:00 AM in Syracuse before Judge Brenda K. Sannes. Pretrial Submissions due by 1/27/2020. Responses to Motions in Limine due by 2/3/2020. Jury Trial set for 2/24/2020 at 09:30 AM in Syracuse before Judge Brenda K. Sannes. Counsel are directed to refer to the 150 Trial Order for this Court's trial procedures. SO ORDERED by Judge Brenda K. Sannes on 10/2/2019. (rjb, ) (Entered: 10/02/2019)
192 MEMORANDUM − DECISION AND ORDER that Defendants' objections are GRANTED in part and DENIED in part; that Defendants' motion for summary judgment (Dkt. No. 174 ) is DENIED; and that the Second Cause of Action is stricken from the Amended Complaint. Signed by District Judge Brenda K. Sannes on 11/7/2019. (sal ) (Entered: 11/07/2019)
TEXT NOTICE OF HEARING: Telephone Conference set for 1/15/2020 at 10:30 AM before Judge Brenda K. Sannes. Plaintiff's attorney is directed to initiate the call and should contact chambers at (315) 234−8598 once all counsel are on the line.(rjb, ) (Entered: 01/13/2020)
193 ***STRICKEN FROM THE RECORD BY DKT. NO. 194*** Letter Motion from Jonathan Bernstein for Michael Amato, County of Montgomery, Michael Franko requesting to admit counsel pro hac vice submitted to Judge Brenda K. Sannes . (Attachments: # 1 Motion To Admit Counsel Pro Hac Vice, # 2 Declaration Of Sponsor, # 3 New Attorney E−filing Registration Form, # 4 Petition For Admission To

01/15/2020
01/15/2020
01/15/2020 01/17/2020 01/22/2020 01/24/2020 01/27/2020 01/27/2020

Practice, # 5 Certificate Of Good Standing, # 6 Unsigned Order (for Judge to sign))(Bernstein, Jonathan) Modified on 1/15/2020 (nas, ). Modified on 1/15/2020 (rjb, ). (Entered: 01/15/2020)
TEXT Minute Entry for proceedings held before Judge Brenda K. Sannes: Telephone Conference held on 1/15/2020. Appearances: Elmer Keach, Esq., Maria Dyson, Esq. and Ashley Pileika, Esq. for Plaintiffs; Jonathan Bernstein, Esq. for Defendants. Judge Sannes hears from Attorneys Keach and Berstein on issue raised by Plaintiffs regarding trying to get Plaintiffs' entry weights. Counsel are directed to work together to get the records to Attorney Keach. Defense counsel will provide Plaintiffs' counsel with the names on the four incorrect authorization forms. Any issues regarding who from the class should testify at trial will be raised in the parties' motions in limine. Counsel are directed to meet and confer on a trial plan and submit it with the pretrial submissions. Attorney Bernstein will check with Montgomery County Jail on whether they will transport any Plaintiffs in their custody for trial. (Court Reporter Jodi Hibbard; 10:33AM−10:53AM) (rjb, ) (Entered: 01/15/2020)
194 TEXT ORDER: On January 15, 2020, Defendants' attorney filed a letter motion requesting the pro hac admission of William Mergner, Jr., Esq. (Dkt. No. 193 ). Because the motion was filed using the letter motion event, instead of the "Limited Admission Pro Hac Vice" event under the "Motions" category in CM/ECF, it cannot be properly processed by the Court and did not require payment of the $100 pro hac vice admission fee. Because the request cannot be properly processed as filed, the letter motion (Dkt. No. 193 ) is hereby stricken from the record and will not be considered by the Court. Counsel should re−file the motion using the proper event referenced above. SO ORDERED by Judge Brenda K. Sannes on 1/15/2020. (rjb, ) (Entered: 01/15/2020)
195 MOTION for Limited Admission Pro Hac Vice of Jonathan Bernstein Filing fee $100, receipt number ANYNDC−5001158. filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Motion To Admit Counsel Pro Hac Vice, # 2 Declaration of Sponsor, # 3 New Attorney E−filing Registration Form, # 4 Petition For Admission To Practice, # 5 Certificate Of Good Standing, # 6 Unsigned Order (for Judge to sign)) Motions referred to Daniel J. Stewart. (Bernstein, Jonathan) (Entered: 01/15/2020)
196 TEXT ORDER granting 195 Motion for Limited Admission Pro Hac Vice as to William Mergner, Jr.. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step−by−step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorney−admissions−nextgen. SO ORDERED by Judge Brenda K. Sannes on 1/17/2020. (rjb, ) (Entered: 01/17/2020)
197 NOTICE of Appearance by William H Mergner on behalf of All Defendants (Attachments: # 1 Affidavit)(Mergner, William) (Entered: 01/22/2020)
TEXT NOTICE OF HEARING: Telephone Conference set for 1/27/2020 at 11:30 AM before Judge Brenda K. Sannes. Defendants' attorney is directed to initiate the call and should contact chambers at (315) 234−8598 once all counsel are on the line. (rjb, ) (Entered: 01/24/2020)
TEXT Minute Entry for proceedings held before Judge Brenda K. Sannes: Telephone Conference held on 1/27/2020. Appearances: Elmer Keach, Esq., Maria Dyson, Esq., Nicholas Migliaccio, Esq. and Ashely Pileika, Esq. for Plaintiffs; Jonathan Bernstein, Esq. and William Mergner, Esq. for Defendants. Judge Sannes discusses rescheduling the trial in this matter due to a conflict with her trial schedule with counsel. Plaintiffs prefer to have the trial in Syracuse. The pretrial submissions deadline is extended to 5:00 PM on 2/3/2020. Trial is rescheduled for 3/4/2020 but may be moved again once the Court has a chance to look at the pretrial submissions. (Court Reporter Jodi Hibbard; 11:33AM−11:49AM) (rjb, ) (Entered: 01/27/2020)
198 TEXT ORDER RESETTING TRIAL DEADLINES: Final Pretrial Conference reset for 2/14/2020 at 02:00 PM in Syracuse before Judge Brenda K. Sannes. Pretrial Submissions due by 2/3/2020 at 5:00 PM. Responses to Motions in Limine due by

02/03/2020 02/03/2020
02/03/2020
02/03/2020
02/03/2020 02/03/2020 02/03/2020 02/03/2020 02/03/2020 02/03/2020 02/03/2020 02/03/2020 02/03/2020 02/03/2020
02/03/2020 02/03/2020 02/10/2020
02/10/2020
02/10/2020

2/10/2020 at 5:00 PM. Jury Trial reset for 3/4/2020 at 09:30 AM in Syracuse before Judge Brenda K. Sannes. Counsel are directed to refer to the 150 Trial Order for this Court's trial procedures. SO ORDERED by Judge Brenda K. Sannes on 1/27/2020. (rjb, ) (Entered: 01/27/2020)
199 Exhibit List by Michael Amato, County of Montgomery, Michael Franko. (Bernstein, Jonathan) (Entered: 02/03/2020)
200 MOTION in Limine filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Certificate of Service) (Bernstein, Jonathan) (Entered: 02/03/2020)
201 Proposed Jury Instructions by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/03/2020)
202 PROPOSED VERDICT FORM by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/03/2020)
203 TRIAL BRIEF by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/03/2020)
204 Proposed Voir Dire by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/03/2020)
205 TRIAL BRIEF by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 02/03/2020)
206 Court Ordered Voir Dire by Michael Amato, County of Montgomery, Michael Franko. (Bernstein, Jonathan) (Entered: 02/03/2020)
207 MOTION in Limine filed by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 02/03/2020)
208 Witness List by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/03/2020)
209 NOTICE by Perry Hill, James Rogers Notice of Filing of Trial Plan (Keach, Elmer) (Entered: 02/03/2020)
210 Witness List by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 02/03/2020)
211 Exhibit List by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 02/03/2020)
212 Letter Motion from Jonathan Bernstein for Michael Amato, County of Montgomery, Michael Franko requesting to accept Defendants' Trial Plan submitted to Judge Brenda K. Sannes . (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/03/2020)
213 Proposed Voir Dire by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 02/03/2020)
214 Court Ordered Voir Dire by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 02/03/2020)
215 TEXT ORDER: Plaintiffs are directed to file proposed jury instructions and a proposed verdict by February 13, 2020. SO ORDERED by Judge Brenda K. Sannes on 2/10/2020. (rjb, ) (Entered: 02/10/2020)
216 RESPONSE in Opposition re 207 MOTION in Limine filed by Michael Amato, County of Montgomery, Michael Franko. (Attachments: # 1 Certificate of Service)(Bernstein, Jonathan) (Entered: 02/10/2020)
217 TEXT ORDER: The Court has reviewed the parties' trial plans 209 , 212 , which raise several issues that the Court expects to address at the Final Pretrial Conference, and which may need additional briefing, including: 1) caselaw support for Plaintiffs' proposal to have the same jury that decides liability consider damages for only certain class members −− the class representatives and certain testifying class members −− when the Court has certified a liability class under Fed. R. Civ. P. 23(b)(3) and (c)(4); 2) support for the three time periods proposed by Plaintiffs; 3) the parties' positions

02/11/2020 02/13/2020 02/13/2020 02/14/2020 02/14/2020 02/14/2020
02/19/2020 02/19/2020 02/20/2020

regarding when the punitive liability issues should be determined if the first phase of the trial is to determine the common liability issues; and 4) verdict forms for a liability phase of the trial that make sufficiently detailed findings so that a jury empaneled to consider damages would not run afoul of the Seventh Amendment. Robinson v. Metro−N. Commuter R.R. Co., 267 F.3d 147, 169 n.13 (2d Cir. 2001); see Blyden v. Mancusi, 186 F.3d 252, 268−69 (1999). Signed by Judge Brenda K. Sannes on 02/10/2020. (sr) (Entered: 02/10/2020)
218 RESPONSE by Perry Hill, James Rogers re 200 MOTION in Limine Response by Plaintiffs to Motion in Limine (Attachments: # 1 Exhibit(s) A −− Redacted Booking Sheet)(Keach, Elmer) Modified on 2/11/2020 (nas, ). (Entered: 02/11/2020)
219 LETTER BRIEF by Michael Amato, County of Montgomery, Michael Franko. (Bernstein, Jonathan) (Entered: 02/13/2020)
220 Proposed Jury Instructions by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 02/13/2020)
221 PROPOSED VERDICT FORM by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 02/14/2020)
222 TEXT ORDER FOR SETTLEMENT CONFERERENCE: It is hereby ordered that this matter is set for a Settlement Conference before the undersigned on February 19, 2020 at 10:00 AM at the James T. Foley U.S. Courthouse, 445 Broadway, 4th Floor, Room 409, Albany, NY. The conference shall be attended IN−PERSON by counsel and a representative of the parties with full and final settlement authority. SO ORDERED by Magistrate Judge Daniel J. Stewart on 2/14/2020. (mab) (Entered: 02/14/2020)
TEXT Minute Entry for proceedings held before Judge Brenda K. Sannes: Final Pretrial Conference held on 2/14/2020. Appearances: Elmer Keach, Esq., Maria Dyson, Esq., Nicholas Migliaccio, Esq. and Ashley Pileika, Esq. for Plaintiffs; Jonathan Bernstein, Esq. and William Mergner, Esq. for Defendants. Judge Sannes hears from counsel on housekeeping issues, their proposed trial plans and the pending motions in limine and will issue a written decision. By 2/28/2020 − Plaintiffs will file a response to Defendants' 219 letter if they disagree, each side will file a proposal for the damages phase of the case, Plaintiffs will respond to Defendants' request to exclude evidence at the liability phase, Defendants will file a brief regarding the expert issue and Defendants will file amended special interrogatories. Plaintiffs will file a supplemental witness list by 2/25/2020. Defendants will notify Plaintiffs what criminal information they seek to introduce at trial before the trial. Counsel are directed to exchange any exhibits to be used during their case in chief. Attorneys will get 20 minutes each for voir dire and anticipate opening statements will be about 30 minutes each. Counsel anticipate trial will take about 2 weeks for the liability phase. The current trial date of 3/4/2020 is adjourned. Trial will be rescheduled for the end of May or later. Plaintiffs would like to call 30 class members during their case in chief and will have the list of names to Defendants by 2/25/2020. Counsel are directed to confer on the list of names by 3/3/2020. Plaintiffs' counsel will turn over medical records to Defendants' counsel when he gets them. Plaintiffs will file a response to Defendants' Rule 37(c) motion by 3/17/2020; Defendants may file a reply by 3/24/2020. (Court Reporter Jodi Hibbard; 2:04PM−4:14PM) (rjb, ) (Entered: 02/18/2020)
223 ORDER granting in part and denying in part the 200 and 207 Motions in Limine. Signed by Judge Brenda K. Sannes on 2/19/2020. (rjb, ) (Entered: 02/19/2020)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Settlement Conference held on 2/19/2020. Appearances: Elmer Keach, Esq., Maria Dyson, Esq., Nicholas Migliaccio, Esq. and Ashley Pileka, Esq. for Plaintiffs; Jonathan Bernstein, Esq. and William Mergner, Esq. for Defendants. The Court held settlement conference with the parties. After lengthy discussions, the parties were not able a resolution at this time, however, the parties will continue to negotiate with the assistance of the Court outside of the conference. (mab) (Entered: 02/25/2020)
224 TEXT ORDER RESETTING TRIAL DEADLINES − Jury Trial set for 7/20/2020 at 09:30 AM in Syracuse. Telephone Conference set for 7/10/2020 at 10:00 AM before Judge Brenda K. Sannes. Defendants' attorney is directed to initiate the call and should contact chambers at (315) 234−8598 once all counsel are on the line. SO ORDERED

02/28/2020
04/28/2020 05/05/2020 05/06/2020 05/14/2020 05/18/2020
06/01/2020 06/04/2020 06/05/2020 06/22/2020 06/23/2020 07/06/2020 07/08/2020

by Judge Brenda K. Sannes on 2/20/2020. (rjb, ) (Entered: 02/20/2020)
Text Minute Entry for proceedings held before Magistrate Judge Daniel J. Stewart: Settlement Conference held on 2/28/2020. Appearances: Elmer Keach, Esq., Maria Dyson, Esq. and Nicholas Migliaccio, Esq. for Plaintiffs; Jonathan Bernstein Esq. and William Mergner, Esq. for Defendants. The Court previously held a settlement conference in this matter on 2/19/2020. After that conference, the parties continued negotiations with the assistance of Magistrate Judge Stewart. The parties were able to reach a settlement and the terms of the settlement were placed on the record. Counsel confirm for the Court that they have approval from their clients to settle this matter based upon the terms placed on the record. Counsel will work to complete the settlement agreement within 30 days. Motion for Preliminary Approval of the Settlement to be filed before Judge Sannes within 45−days. (TIME: 10:37AM−10:56AM). (Court Reporter: Lisa Tennyson) (mab) (Entered: 03/02/2020)
225 TEXT ORDER: The motion for preliminary approval of the class action settlement in this case was due by April 13, 2020. Counsel are directed to file the motion for preliminary approval of the class action settlement, or a status report with a reasonable proposed due date for the motion, by May 5, 2020. SO ORDERED by Judge Brenda K. Sannes on 4/28/2020. (rjb, ) (Entered: 04/28/2020)
226 STATUS REPORT Regarding Status of Filing for Preliminary Approval of Settlement by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 05/05/2020)
227 TEXT ORDER: The Court has reviewed Dkt. No. 226 . The motion for preliminary approval of the settlement is due by June 1, 2020. SO ORDERED by Judge Brenda K. Sannes on 5/6/2020. (rjb, ) (Entered: 05/06/2020)
228 ***STRICKEN FROM THE RECORD BY DKT. NO. 229*** NOTICE filed by a non−party. (mailing envelope included) (meb) Modified on 5/18/2020 (rjb, ). (Entered: 05/15/2020)
229 TEXT ORDER TO STRIKE: The Court has received a notice from Thomas D'Angelo (Dkt. No. 228 ). The 228 Notice is hereby stricken from the record as only a party, or an attorney representing a party, may file papers in an action with the Court. Because the Notice is being stricken, it will not be considered by the Court. SO ORDERED by Judge Brenda K. Sannes on 5/18/2020 (served on Thomas D'Angelo via regular mail). (rjb, ) Modified on 5/18/2020 (rjb, ). (Entered: 05/18/2020)
230 STATUS REPORT Regarding Pending Settlement by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 06/01/2020)
231 TEXT ORDER: The Court has reviewed Dkt. No. 230 . Motion for preliminary approval of the settlement due by 6/22/2020. SO ORDERED by Judge Brenda K. Sannes on 6/4/2020. (rjb, ) (Entered: 06/04/2020)
TEXT NOTICE: In light of the pending settlement, the Jury Trial scheduled for 7/20/2020, and all associated deadlines, are hereby adjourned without date. (rjb, ) (Entered: 06/05/2020)
232 Letter Motion from Elmer Keach for Perry Hill, James Rogers requesting Providing the Court with the Status of Negotiations Regarding the Settlement Agreement, and Requesting an Additional Two Weeks to File Motion for Preliminary Approval submitted to Judge Brenda K. Sannes . (Keach, Elmer) (Entered: 06/22/2020)
233 TEXT ORDER: The Court has reviewed Dkt. No. 232 . Motion for preliminary approval of the settlement due by 7/6/2020. SO ORDERED by Judge Brenda K. Sannes on 6/23/2020. (rjb, ) (Entered: 06/23/2020)
234 STATUS REPORT with Notification to the Court That a Second Status Report will be filed on July 7, 2020 by Perry Hill, James Rogers. (Keach, Elmer) (Entered: 07/06/2020)
235 STATUS REPORT And Request for Telephone Conference With the Court by Perry Hill, James Rogers. (Attachments: # 1 District of Columbia Ethics Opinion)(Keach, Elmer) (Entered: 07/08/2020)

07/09/2020 07/10/2020

236 STATUS REPORT by Michael Amato, County of Montgomery, Michael Franko. (Bernstein, Jonathan) (Entered: 07/09/2020)
TEXT Minute Entry for proceedings held before Judge Brenda K. Sannes: Telephone Conference held on 7/10/2020. Appearances: Elmer Keach, Esq., Nicholas Migliaccio, Esq. and Ashley Pileika, Esq. for Plaintiffs; Jonathan Bernstein, Esq. and William Mergner, Esq. for Defendants. Judge Sannes hears from counsel on the issue regarding the settlement agreement raised in Dkt. Nos. 235 and 236 . Defendants' counsel will look at the case cited by the Court and file a status report by close of business 7/15/2020 regarding where Defendants are with respect to the settlement agreement. Attorney Keach will email Attorney Bernstein the current proposed settlement agreement today for review and advises the Court that the motion for preliminary approval can be filed within 48 hours of an agreement on the settlement terms. (Court Reporter Eileen McDonough; 3:00PM−3:19PM) (rjb, ) (Entered: 07/10/2020)

 
 Case 9:14-cv-00933-BKS-DJS Document 1 Filed 07/25/14 Page 1 of 14

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

____________________________________

:

PERRY HILL, both individually and on :

behalf of a class of others similarly situated, :

:

Plaintiff,

:

:

v.

:

:

COUNTY OF MONTGOMERY,

:

MICHAEL AMATO and MICHAEL

:

FRANKO,

:

:

Defendants.

:

____________________________________

COMPLAINT Civil Action No.
9:14-cv-933 (LKE/RFT) JURY TRIAL DEMANDED

INTRODUCTION

This is a class action brought to redress the deprivation by Defendants of rights secured

to the Plaintiff and proposed Class Members by the United States Constitution and the laws of

the United States of America. For the past several years, all individuals placed into the custody

of the Montgomery County Jail are strictly provided, upon information and belief, no more than

1,700 calories a day – an amount that is comparable with what concentration camp prisoners

received during World War II. Upon information and belief, active adult males need to consume

anywhere from 2,400 to 3,000 calories a day depending on their amount of physical exertion to

maintain their weight. As a result, and upon information and belief, all detainees admitted to the

Montgomery County Jail have suffered and will continue to suffer from symptoms and illnesses

associated with malnutrition.

This situation is further exacerbated given the organic contents of the food provided to

the detainees. The food provided at the Montgomery County Jail is largely soy-based and as a

result, contains minimal and/or inappropriate protein. Additionally, the fruits and vegetables

1

Case 9:14-cv-00933-BKS-DJS Document 1 Filed 07/25/14 Page 2 of 14
provided are almost always canned and/or preserved and as such, are devoid of appropriate vitamins and minerals. Therefore, it is not surprising that many individuals who leave the Montgomery County Jail, including the Plaintiff, have lost an enormous amount of weight and hair, develop skin conditions, and exhibit other symptoms and conditions caused by malnutrition, including, upon information and belief, scurvy.
A more abusive and inhumane environment is difficult to imagine. This is especially so given that Defendant Michael Amato, the Sheriff of Montgomery County, has recently bragged on the radio about allowing inmates to purchase extra food, and how this will generate new revenue for Montgomery County. Proper sustenance while held in a local jail is a right, and should not be subjected to the whim of municipal officials with a long history of misconduct. As such, the Plaintiff seeks monetary damages from Defendants for himself and each member of the Proposed Class, a ruling that Defendants’ policies and actions are unconstitutional, and an injunction precluding the Defendants from continuing to violate the rights of those placed into the custody of the Montgomery County Jail.
AND NOW, comes the Plaintiff, through counsel, and hereby states as follows:
JURISDICTION 1. This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. § 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the constitutionality of the policies of a local government.
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2. Venue is proper under 28 U.S.C. § 1391 (b)(2) because a substantial part of the events or omissions giving rise to Plaintiff’s and Class claims occurred within this judicial district.
PARTIES 3. Plaintiff Perry Hill is a citizen of the United States and resides in Montgomery County, NY. From October 2013 until March 2014, Mr. Hill was detained at the Montgomery County Jail for a parole violation. 4. At all times relevant herein, Defendant Michael Amato was and remains the dulyelected Sheriff of Montgomery County, with his principal place of business being 200 Clark Drive, Fultonville, NY 12072. 5. At all times relevant herein, Defendant Michael Franko was and remains the Jail Administrator of the Montgomery County Jail, with his principal place of business being 200 Clark Drive, Fultonville, NY 12072. 6. At all times relevant herein, Defendant County of Montgomery is a municipal entity organized under the laws of the State of New York. At all times relevant hereto, Montgomery County was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Montgomery County Jail and was responsible for the appointment, training, supervision and conduct of all jail personnel. Defendant County of Montgomery’s primary place of business is 64 Broadway, Fonda, NY 12068.
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CLASS ACTION ALLEGATIONS 7. Plaintiff brings this action pursuant to Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of himself and a Class of similarly situated individuals who were detained and not provided with proper sustenance at the Montgomery County Jail. 8. The Class that Plaintiff seek to represent is defined as follows:
All detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks. The class period commences on July 25, 2011, and extends to the date on which Montgomery County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of refusing to provide an appropriate amount of nutritional sustenance to all detainees admitted to the Montgomery County Jail. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees. 9. This action has been brought and may properly be maintained as a Class action under Federal law and satisfies the numerosity, commonality, typicality and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a). 10. The members of the Class are so numerous as to render joinder impracticable. Upon information and belief, there are hundreds of citizens who are placed into the custody of Montgomery County every month – almost all of whom are members of the Proposed Class. Upon information and belief, the size of the Proposed Class totals at least thousands of individuals, some of whom have had their civil rights violated on multiple occasions. 11. Upon information and belief, joinder of all these individuals is impracticable because of the large number of Class Members and the fact that Class members are likely dispersed over a large geographical area, with some members presently residing outside of New
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York and this Judicial District. Furthermore, upon information and belief, many members of the Class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
12. Common questions of law and fact exist as to all members of the Class, in that they all had their right to be free from cruel and unusual punishment violated by Defendants’ conduct in that members were refused adequate nutritional sustenance.
13. Plaintiff’s claims are typical of the claims of members of the Class. Plaintiff and all members of the Class sustained damages out of Defendants’ course of conduct. The harms suffered by the Plaintiff are typical of the harms suffered by members of the Class.
14. The representative Plaintiff has the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiff has no interests that are adverse to the interests of the Members of the Class.
15. Plaintiff has retained counsel with substantial experience in the prosecution of class actions and civil rights litigation, including successful litigation of civil rights cases. Plaintiff’s counsel has the resources, expertise, and experience to successfully prosecute this action against Montgomery County. Counsel for the Plaintiff knows of no conflicts among members of the Class or between counsel and members of the Class.
16. This action, in part, seeks injunctive relief. As such, the Plaintiff seeks Class Certification under Fed. R. Civ. P. 23(b)(2), in that all Members of the Proposed Class were subjected to the same policy in which detainees were provided inadequate sustenance. In short, Montgomery County personnel acted on grounds generally applicable to all members of the Class.
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17. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiffs seek certification under Rule 23(b)(3).
18. Common questions of law and fact exist as to all members of the Class and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendant’s written and/or de facto policy of providing inadequate substance to all Montgomery County detainees is a violation of the Eighth Amendment to the United States Constitution, and whether such a written and/or de facto policy existed during the Class Period.
19. A Class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all individual members of the Class is impracticable given the large number of members of the Class and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the Class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expenses to all parties and the court system. By contrast, maintaining this action as a Class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
20. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though upon information and belief, the Defendant has maintained its illegal practice for several years.
21. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiff also seeks partial certification under Fed. R. Civ. P. 23(c)(4).
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FACTS Facts applicable to the Class Generally 22. The Eighth Amendment of the United States Constitution prohibits Montgomery County Officials, such as Montgomery County jail personnel in this action, from subjecting detainees to cruel and unusual punishment. Failing to provide an adequate amount of food to detainees housed in the Montgomery County Jail is an obvious violation of the United States Constitution. 23. Upon information and belief, Montgomery County has instituted a written and/or de facto policy, custom or practice of refusing to provide detainees adequate food in that they provide not more than 1,700 calories per day to all detainees. Further, the scant amount of food that is provided is substantially devoid of the protein, minerals, and vitamins necessary to human survival. For the vast majority of detainees, this conduct has resulted in their losing substantial percentages of body weight and/or the development of symptoms and conditions associated with malnutrition. 24. The County knows that it may not institute, enforce, or permit enforcement of a policy or practice that results in the subjection of cruel and unusual punishment of detainees. The County’s policies, practices and customs, as addressed above, are both inhumane and unconscionable. Forcing detainees to live on an unsustainable diet, that results in the development of severe health conditions is blatantly illegal and is unacceptable in a civilized society. 25. The Defendants’ written and/or de facto policies, practices, and customs of refusing to provide detainees adequate nutritional sustenance have been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
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26. Pursuant to these written and/or de facto policies, each member of the Class, including the Plaintiff, was the victim of hunger and malnutrition caused by the provision of inadequate sustenance.
27. As a direct and proximate result of the written and/or de facto policies, the victims of the unlawful practices – each member of the Class, including the Plaintiff – has suffered or will suffer severe physical and psychological pain, suffering and mental anguish as a direct result of not being provided with proper sustenance.
Facts Applicable to the Named Plaintiff 28. Plaintiff Perry Hill resides in Montgomery County, New York. In or around October 2013, Mr. Hill was arrested for a probation violation and detained at the Montgomery County Jail until March 2014. 29. Upon information and belief, Montgomery County Jail has a strict policy of providing detainees no more than 1,700 calories a day. This amount is slightly more than concentration camp prisoners received during the latter part of World War II.1 However, Plaintiff maintains that on most days, he was provided substantially less than that. Typically, active adult males need to consume anywhere from 2,400 to 3,000 calories a day depending on their amount of physical exertion. The food in question also provided little-to-no protein, and little fresh fruit and vegetables. 30. Individuals who are placed on dietary restrictions, whether for religious or medical reasons, face an even worse situation. Upon information and belief, rather than provide
1 http://en.wikipedia.org/wiki/MauthausenGusen_concentration_camp#The_treatment_of_inmates_and_methodology_of_crime. In fact, the amount of calories provided in the Montgomery County Jail is actually less than that provided to concentration camp victims during the early part of World War II.
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substitute nutritional provisions, jail personnel are merely instructed to remove the undesired food and/or provide the detainees with a smaller meal as a punitive measure for “complaining” about the food. This obviously results in the detainees receiving a meal with a substantially reduced amount of calories and nutritional sustenance from an already meager fare.
31. Therefore, it is not surprising that Montgomery County Jail detainees suffered severe medical consequences as a result of being starved for prolonged periods of time. Upon information and belief, as a result of the above-mentioned policies, every Montgomery County detainee loses weight shortly after their admission to the jail. In many cases, the weight loss is substantial. For example, Plaintiff was approximately 160 pounds upon his admission to the jail. Upon his release approximately five months later, Plaintiff lost approximately 24 pounds, which, given his small Body Mass Index (“BMI”), was substantial.
32. Additionally, Plaintiff is aware of numerous other individuals who lost unbelievable amounts of weight – in some cases in excess of 90 pounds in less than six months. In fact, one individual was informed by medical staff that his prosthetic leg no longer fit and was unusable because he has lost so much weight, and then was forced to walk with crutches during the duration of his term in the Montgomery County Jail.
33. Plaintiff and other detainees also experienced other symptoms commonly associated with malnutrition. While in custody, Plaintiff lost a significant amount of hair, experienced loosening of his teeth, pain and bleeding in his gums, and his gum line began to recede. He also suffered constantly from intense pains associated with constant hunger. Plaintiff also suffered from skin rashes and routinely felt depressed, exhausted, dizzy, and faint. Plaintiff witnessed numerous other detainees experiencing similar symptoms. These are all symptoms of
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malnutrition and related medical conditions including scurvy, which is a medical condition caused by a lack of Vitamin C.
34. Plaintiff and numerous other detainees filed grievances regarding the lack of adequate food, some of which were directly addressed to the Sheriff, Defendant Michael Amato and the Jail Administrator, Defendant Michael Franko. Upon information and belief, all of these grievances were categorically denied and/or ignored. Plaintiff never received a response to the grievance he filed. Detainees also constantly complained to Corrections Officers about the inadequate food but were routinely informed that there was nothing any of the officers could do about it.
35. In limited situations, some detainees are permitted to work in the jail’s kitchen. This position is highly coveted because kitchen employees are sometimes given an opportunity to eat more food than other detainees. However, kitchen employees who attempt to put more food on the plates that are distributed to the general population are threatened with severe penalties.
36. Up until several years ago, detainees were permitted to purchase extra food items including ramen noodles, through the MCJ Commissary. Unfortunately, and until recently, Defendant Amato removed the Commissary and prohibited family members from sending detainees food packages. This decision obviously impacted detainees tremendously in that they had no other option then to starve. During the past few months, Amato has reversed course and allowed for additional food purchases, claiming that doing so will allow the County to make money off of their failure to provide detainees with sufficient food at the Montgomery County Jail.
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37. During his admission at the Montgomery County Jail, Plaintiff quickly learned that food dominates the culture of the jail. Almost all of the fights that occur at the jail are instigated by food, or the lack thereof. Oftentimes contraband in the form of food is smuggled into the jail, which causes serious fights because of the detainees’ desperate hunger. Most detainees resort to the humiliating and debilitating practice of eating non-edible substances to fill their stomach. On several occasions, Plaintiff was so hungry he consumed non-edible substances including toothpaste and coco-butter lotion. Plaintiff witnessed numerous other detainees eating the same or similar substances.
38. As a direct and proximate result of starving for nearly five months, Plaintiff has suffered and continues to suffer physical and psychological pain, humiliation, suffering and mental anguish.
CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
--Violation of Constitutional Rights Under Color of State Law – --Infliction of Cruel and Unusual Punishment—
39. Plaintiff incorporates by reference and realleges each and every allegation stated in Paragraphs 1 through 38.
40. The Eighth Amendment to the United States Constitution precludes prison officials from denying a detainee an appropriate amount of food as such conduct would constitute cruel and unusual punishment and/or a violation of the right to due process of law.
41. Defendants’ actions, detailed above, violated Plaintiff and Proposed Class Members’ rights under the United States Constitution. Simply put, it is not objectively
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reasonable, under any stretch of the imagination, to deny detainees an adequate amount of food necessary to basic human survival. It is difficult to imagine a more inhumane and abusive policy than subjecting individuals to malnutrition, either for financial reasons or because of wanton cruelty.
42. The denial of adequate food was conducted pursuant to the policy, custom or practice created by Defendants Amato and Franko as supervisory officials of the Montgomery County Jail and the Montgomery County Sheriff’s Department. As such, Montgomery County is directly liable for the damages of the Plaintiff and the members of the Class.
43. This conduct on the part of the Defendants represents a violation of 42 U.S.C. § 1983, given that the actions of the Defendants were taken under color of state law.
44. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and the Members of the Class have been irreparably injured.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS --Demand for Preliminary and Permanent Injunction –
45. Plaintiff incorporates by reference and realleges each and every allegation stated in Paragraphs 1 through 44.
46. The policies, customs and practices of the Defendants are clearly unconstitutional and violate detainees’ right to be free from cruel and unusual punishment. Specifically, refusing to provide detainees adequate food is unconstitutional.
47. The continuing pattern of providing inadequate food will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
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48. Wherefore, Plaintiff requests that unconstitutional conduct be prohibited in that Defendants should be immediately required to provide adequate food to detainees and seeks both a preliminary and permanent injunction from this Court ordering as much.
DEMAND FOR PUNITIVE DAMAGES 49. The actions of Defendants Michael Amato and Michael Franko described above are extreme, outrageous, and wantonly cruel. They also shock the conscience of a reasonable person. Therefore, an award of punitive damages is appropriate to punish the Defendants for their cruel and uncivilized conduct. The Plaintiff does not seek punitive damages against Montgomery County.
DEMAND FOR TRIAL BY JURY 50. The Plaintiffs hereby demand a trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Perry Hill, on behalf of himself and on behalf of others similarly situated, request that this Honorable Court grant him the following relief: 1. An order certifying this action as a Class Action pursuant to Fed. R. Civ. P. 23. 2. A judgment against Defendants Montgomery County, Michael Amato, and Michael Franko awarding compensatory damages to Plaintiff and each Member of the Proposed Class in an amount to be determined by a properly charged jury and/or the Court on both an individual and a Class-wide basis.
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3. A judgment against Defendants Montgomery County, Michael Amato, and

Michael Franko awarding punitive damages to Plaintiff and each Member of the Proposed Class

in an amount to be determined by a properly charged jury and/or the Court on both an individual

and a Class-wide basis.

4. A preliminary and permanent injunction enjoining the Defendants from

continuing to enforce its’ unconstitutional policies, customs and practices.

5. A monetary award for attorneys’ fees and the costs of this action, pursuant to 42

U.S.C. § 1988 and Fed. R. Civ. P. 23.

Respectfully Submitted By:

/s Elmer Robert Keach, III

Dated: July 25, 2014

_________________________ Elmer Robert Keach, III, Esquire Maria K. Dyson, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, PC One Pine West Plaza, Suite 109 Albany, NY 12205 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com

Nicholas Migliaccio, Esquire Member of the Bar, USDC, NYND WHITFIELD, BRYSON & MASON, LLP 1625 Massachusetts Avenue, NW Suite 605 Washington, DC 20036 Telephone: 202.429.2290 Telecopier: 202.429.2294 Electronic Mail: nmigliaccio@wbmllp.com

ATTORNEYS FOR PLAINTIFF PERRY HILL AND THE PROPOSED CLASS

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 Case 9:14-cv-00933-BKS-DJS Document 100 Filed 09/29/17 Page 1 of 20

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________
PERRY HILL, both individually and on behalf of a class of others similarly situated,
Plaintiff,
v.
COUNTY OF MONTGOMERY, MICHAEL AMATO and MICHAEL FRANKO,1
Defendants. ____________________________________________
Appearances:
For Plaintiff: Law Offices of Elmer Robert Keach, III, P.C. Elmer Robert Keach, III Maria K. Dyson One Pine West Plaza Suite 109 Albany, NY 12205
Migliaccio & Rathod LLP Nicholas A. Migliaccio Jason S. Rathod 412 H Street N.E. Suite 302 Washington, D.C. 20002
For Defendants: Goldberg Segalla LLP Jonathan M. Bernstein 8 Southwoods Boulevard, Suite 300 Albany, NY 12211

9:14-CV-933 (BKS/DJS)

1 Defendants note that Defendant Michael Franko has retired. (Dkt. No. 88-18, at 29). To the extent he is sued in his official capacity, his “successor is automatically substituted as a party.” Fed. R. Civ. P. 25(c). Claims against Defendant Franko in his individual capacity remain.

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Hon. Brenda K. Sannes, United States District Judge: MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION Plaintiff Perry Hill brings this proposed class action under 42 U.S.C. § 1983 against
Defendants County of Montgomery, Michael Amato, and Michael Franko. (Dkt. No. 1). Plaintiff advances a conditions of confinement claim, alleging that Defendants failed to provide adequate food and nutrition while he was detained at the Montgomery County Jail (“MCJ”) in Fultonville, New York, in violation of the Eighth Amendment. (Dkt. No. 1). Presently before the Court is Plaintiff’s motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. (Dkt. No. 73). Plaintiff asks the Court to certify as a class “[a]ll detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks” from July 25, 2011 to the present. (Id.). Defendants oppose the motion. (Dkt. No. 88). For the following reasons, Plaintiff’s motion for class certification is denied without prejudice to renewal with further briefing. II. BACKGROUND
In support of his motion for class certification, Plaintiff relies on the Complaint, his deposition, the depositions of five other MCJ inmates, the depositions of Defendants Amato and Franko, as well as the depositions of a number of MCJ staff who work in the kitchen and medical department, MCJ meal plans, a sample of inmate surveys, and the opinion of Heidi Jay Silver, an expert in the area of nutrition.2 Defendants have submitted expert reports by Katherine Streeter,
2 In his reply, Plaintiff indicated that he intended to submit for in camera review inmate grievances and additional surveys from inmates at MCJ. (Dkt. No. 95-3, at 8–9). In a letter motion following Plaintiff’s reply, Defendants objected to Plaintiff’s “attempt[] to submit evidence to the Court . . . that was not included in his initial motion papers for class certification.” (Dkt. No. 97). Defendants’ letter motion is denied as moot as Plaintiff did not submit this evidence or file a request for in camera review. (See Dkt. No. 99 (offering “to provide additional evidence to the Court.”)). In the event the parties wish to file additional evidence in support of any further briefing, they are free to do so.
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a registered dietitian, Martin Horn, an expert in the area of correctional facilities policies and procedures, and William Graber, M.D., who reviewed, inter alia, Plaintiff’s medical records. The Court has carefully considered all the evidence and outlines the evidence relevant to the disposition of the present motion.
A. Plaintiff Perry Hill According to the Complaint, Plaintiff was detained at MCJ from October 2013 to March 2014 for a “parole violation.” (Dkt. No. 1, ¶ 3). Plaintiff seeks to represent the following class: All detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks. The class period commences on July 25, 2011, and extends to the date on which Montgomery County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of refusing to provide an appropriate amount of nutritional sustenance to all detainees admitted to the Montgomery County Jail. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees. (Id. ¶ 8). Plaintiff asserts that “hundreds of citizens . . . are placed into the custody of Montgomery County every month” and that he believes “the size of the Proposed Class totals at least thousands of individuals.” (Id. ¶ 10). Plaintiff claims there are common questions of law and fact, including (1) “whether the Defendant’s written and/or de facto policy of providing inadequate [sustenance] to all [MCJ] detainees is a violation” of the Eighth Amendment; and (2) whether such a written and/or de facto policy existed during the Class Period.” (Id. ¶ 18). Plaintiff alleges that MCJ “instituted a written and/or de facto policy, custom or practice of refusing to provide detainees adequate food in that they provide not more than 1,700 calories per day to all detainees” and that the food provided “is substantially devoid of the protein, minerals, and vitamins necessary to human survival.” (Dkt. No. 1, ¶ 23). Consequently, the “vast majority of detainees” have lost “substantial percentages of body weight” or have developed symptoms of malnutrition. (Id. ¶ 23). Plaintiff stated that his meals at MCJ typically
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consisted of: oatmeal, a breakfast cake, or cereal for breakfast; a sandwich and vegetable, and maybe fruit for lunch; and a chicken patty or beef stroganoff and a vegetable for dinner. (Dkt. No. 75-6, at 36–37). He was “always” hungry. (Id. at 38). “On several occasions, Plaintiff was so hungry he consumed . . . toothpaste and coco-butter lotion” and observed “numerous other detainees eating the same or similar substances.” (Id. at 37).
Plaintiff suffered from constant hunger pains, skin rashes, depression, and exhaustion, and felt “dizzy and faint” as a result of the inadequate food at MCJ. (Id. ¶ 33). Plaintiff also lost “a significant amount of hair, experienced loosening of his teeth, pain and bleeding in his gums, and his gum line began to recede.” (Id. ¶ 33; Dkt. No. 75-6, at 55). Plaintiff witnessed a fight over a sandwich. (Id. at 58-59). Plaintiff weighed approximately 160 pounds upon admission to MCJ and lost twenty-four pounds during the five months of his incarceration there. (Dkt. No. 1, ¶ 31).
Plaintiff complained to corrections officers “[a]ll the time” and asked “why there was so little food” but received no response. (Dkt. No. 75-6, at 39). Plaintiff, and other detainees, filed grievances “regarding the lack of adequate food;” these grievances “were categorically denied and/or ignored” and Plaintiff never received a response. (Dkt. No. 1, ¶ 34).
B. Other Individuals Housed at MCJ In support of his motion, Plaintiff submitted the deposition testimony of two individuals who had been pretrial detainees at MCJ for more than two weeks during the proposed class period. (Dkt. No. 75-4 (Engle); Dkt. No. 75-10 (Pettit)). Eric Engle testified that the portions were “incredibly small and he was . . . extremely hungry.” (Dkt. No. 75-4, at 14). Engle testified that he complained but that “the only answers I was getting from the kitchen staff, most of the guards didn’t know that is what was decided by the jail administrator, it was enough
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calorie intake and you are not going to get any more.” (Dkt. No. 75-4, at 69). Robert Pettit testified that when he was in MCJ in 2012 and 2013,3 he lost hair due to “[l]ack of food,” he was hungry all day every day, and the meals did not fill him up. (Dkt. No. 75-10, at 46, 63). Plaintiff also submitted the testimony of Bruce O’Shaughnessy, Kenneth Crouse, and Robert Washington (Dkt. No. 95-1), who seem to have been convicted prisoners serving a sentence at MCJ, and who claim to have suffered as a result of the inadequate food. (Dkt. Nos. 75-9, at 5–6, 11; 75-22, at 6–7, 16; Dkt. No. 95-1, at 7, 17–18).
C. Montgomery County Jail Approximately 1,000 individuals enter MCJ every year and it has 177 beds. (Dkt. No. 75-5, at 45; Dkt. No. 75-2, at 36). Since 2010, Trinity Services Group has been MCJ’s food provider. (Dkt. No. 88-3, ¶ 2). The dietician provided by Trinity sets the menu at MCJ and serving size.4 (Dkt. No. 75-3, at 10, 58). Inmates at MCJ are supposed to receive, on average, 2,900 calories per day. (Dkt. No. 75-2, at 8). Trinity requires the jail to make a substitution if an item specified on the menu is unavailable—if milk has spoiled, for instance. (Id. at 56-57). The MCJ cook makes the decision to substitute an item on a menu. (Dkt. No. 75-2, at 144). Lynn Dunmar, who is employed as a cook at MCJ, explained that an item might be substituted if they were out of stock or it was winter and the food delivery truck did not arrive on time. (Dkt. No. 75-3, at 27). A vegetable is replaced with another type of vegetable and a starch is replaced with another starch. (Dkt. No. 75-3, at 27). Dunmar testified that a production sheet must be filled out for every meal and if there is a substitution it is usually noted on that sheet. (Dkt. No. 75-3, at 92).
3 Pettit appears to have been a pretrial detainee during some of the time he was at MCJ in 2012 and 2013. (Dkt. No. 75-10, at 8–9). 4 Amato testified that the MCJ kitchen staff and Trinity “put together” the diet. (Dkt. No. 75-2, at 56).
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Dunmar stated that she instructs the inmates to use specific utensils when working in the kitchen, explaining that if they are supposed to serve one cup of mashed potatoes, they use a onecup utensil to scoop the potatoes and level it off before placing it on the tray. (Dkt. No. 75-3, at 50). Crouse, an inmate who worked in the kitchen, testified that three or four times each week he was instructed to ladle out less than the prescribed amount of food because they were running low. (Dkt. No. 95-2, at 13). Inmates receive an extra meal as payment for working in the kitchen. (Dkt. No. 75-2, at 25).
D. Plaintiff’s Nutrition Expert – Heidi Jay Silver Heidi Jay Silver is a Research Associate Professor of Medicine in the Division of Gastroenterology, Hepatology, and Nutrition in the School of Medicine, Department of Medicine, at Vanderbilt University Medical Center, Nashville, Tennessee. (Dkt. No. 75-1, at 1). Plaintiff’s counsel asked Silver to analyze a number of documents, including among others, spreadsheets of Trinity Services Group’s menus and nutrient analysis of menus, Dunmar’s deposition, the Commission of Corrections’ investigatory materials about food substitutions, meal records from January to February 2013 and January to February 2014, and photographs of Plaintiff and R. Reece, who was housed at MCJ. (Dkt. No. 75-1, at 2). Silver opined that the inmates of MCJ “experienced clinically significant weight loss during the period of time in which they were incarcerated” because the calories they consumed at MCJ were “less than the energy requirements for maintaining their initial admission body weight.” (Id. at 3). After reviewing Trinity’s menus, Silver stated that she agrees “that the daily menus as planned are designed to provide” “a range of 2350-3065 calories per day.” (Id. at 3). After reviewing MCJ incident reports as well as the weight loss of fifteen inmates, Silver stated that in her opinion, it “is apparent that there are frequent occasions when substitutions are
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being made for food items that provide fewer calories and other nutrients than what was planned in the written cycle menus.” (Id. at 4–5). These substitutions created caloric and protein deficits as well as deficits in, among other nutrients, fiber, iron, calcium, potassium, Vitamin A, and Vitamin D. (Id. at 6).
Silver viewed facial photographs of Plaintiff and R. Reese, “for whom the reduction in body mass (loss of fat and muscle mass) is physically apparent” and opined that the weight loss is “clinically significant.” (Dkt. No. 75-1, at 7). Silver defined “clinically significant” as the loss of ten percent or more body weight in a six month period or five percent of body weight in a period of three months.” (Dkt. No. 75-1, at 3). According to Silver, hair loss may be caused by the inadequate intake of protein, Vitamin E, zinc, selenium, and biotin; bleeding gums may be caused by a Vitamin C deficiency; skin changes may be caused by a deficiency in Vitamin E, Vitamin A, and fatty acids; and a loss of menses may be caused by inadequate caloric intake and weight loss. (Dkt. No. 75-1, at 7). Additionally, Silver stated that “[w]ith hunger, there is an increased focus on finding other items to substitute for the inadequate food intake – the effect of hunger is consistent with the aberrant eating behaviors reported by counsel of inmates consuming toothpaste, cocoa butter and toilet paper to assuage their hunger.” (Id. at 8). III. MOTION FOR CLASS CERTIFICATION
For a matter to proceed as a class action, a plaintiff must first satisfy four requirements: 1) numerosity (“the class is so numerous that joinder of all members is impracticable”); 2) commonality (“there are questions of law or fact common to the class”); 3) typicality (“the claims or defenses of the representative parties are typical of the claims or defenses of the class”); and 4) adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class”). Fed. R. Civ. P. 23(a). In addition, the Second Circuit has
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“‘recognized an implied requirement of ascertainability in Rule 23,’ which demands that a class be ‘sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.’” In re Petrobras Sec., 862 F.3d 250, 260 (2d Cir. 2017) (quoting Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015)).
Assuming the requirements of Rule 23(a) are met, a class action may only be maintained if the Plaintiff also qualifies the proposed class under one of the categories in Rule 23(b). Fed. R. Civ. P. 23(b). Here, Plaintiff seeks to certify the class for purposes of injunctive relief under Rule 23(b)(2) and compensatory relief under Rule 23(b)(3), though limited to the issue of liability under Rule 23(c)(4), as damages will require an individualized inquiry. (Dkt. No. 69-1, pp. 19-29). Certification of a class under Rule 23(b)(2) is appropriate in cases where the defendant “has acted or refused to act on grounds generally applicable to the class,” thus entitling class members to “final injunctive relief.” Fed. R. Civ. P. 23(b)(2). The court may certify a Rule 23(b)(3) class if it “finds that 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)(3).
The party seeking class certification bears the burden of satisfying Rule 23’s requirements by a preponderance of the evidence. Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 317 F.R.D. 374, 384 (S.D.N.Y. 2016). Thus, “a court must ‘probe behind the pleadings before coming to rest on the certification question,’ satisfying itself that Rule 23 compliance may be demonstrated through ‘evidentiary proof.’” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 138 (2d Cir. 2015) (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)). “[T]his inquiry may sometimes overlap with merits issues, though the determination as
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to a Rule 23 requirement is not binding on the trier of fact in its determination of the merits.” Id. “Furthermore, in order to certify a class, the proponent of class certification need not show that the common questions ‘will be answered, on the merits, in favor of the class.’” Id. (quoting Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 459 (2013)). While the requirements “are to be applied liberally,” the court must still “conduct a rigorous analysis of the criteria set forth in Rule 23.” Friedman-Katz v. Lindt & Sprungli (USA), Inc., 270 F.R.D. 150, 153-54 (S.D.N.Y. 2010). “A district judge is to assess all of the relevant evidence admitted at the class certification stage and determine whether each Rule 23 requirement has been met, just as the judge would resolve a dispute about any other threshold prerequisite for continuing a lawsuit.” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 42 (2d Cir. 2006).
A. Section 1983 – Conditions of Confinement In this case, Plaintiff’s claim appears incongruous: he seeks to represent a class of “detainees” in connection with a conditions of confinement claim, but alleges a violation of the Eighth Amendment. (Dkt. No. 1, ¶¶ 8, 40). “A pretrial detainee’s claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight[h] Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); V.W. ex rel. Williams v. Conway, 236 F. Supp. 3d 554, 582 (N.D.N.Y. 2017) (“As a general matter, a convicted prisoner is obligated to pursue relief for allegedly unconstitutional conditions under the Cruel and Unusual Punishment Clause of the Eighth Amendment while a pre-trial detainee’s claim is properly brought under the Due Process Clause of the Fourteenth Amendment.”). Plaintiff testified that he was held at MCJ from October 2013 to March 2014 for a probation violation, but that there was no sentence because “they came to a determination that
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they were in the wrong.” (Dkt. No. 75-6, at 17). Although the parties appear to assume that Plaintiff is properly characterized as a pretrial detainee, rather than a convicted prisoner, the Complaint alleges a violation of the Eighth Amendment, which applies to convicted prisoners, and the parties have not briefed this issue.5 See, e.g., Weishaar v. County of Napa, No. 1:14-cv1352-LB, 2016 WL 7242122 at *6 (N.D. Cal. Dec. 15, 2016) (ruling that arrested probation violator was a pretrial detainee, whose claim for deliberate indifference to medical needs rests upon the Fourteenth Amendment, not a convicted prisoner whose claim rests upon the Eighth Amendment); Hamilton v. Lyons, 74 F.3d 99, 104–06 (5th Cir. 1996) (ruling that parolee arrested for subsequent crime “may establish a claim for unconstitutional conditions of confinement through direct evidence of an expressed intent by detention facility officers to punish him for the crime for which he has been charged but not convicted,” but may not prevail “merely because the government fails to come forward with evidence that the challenged condition is reasonably related to a legitimate government interest”).
Under both the Eighth and Fourteenth Amendments, a plaintiff must establish an objective element and a subjective element for a § 1983 conditions of confinement claim. Under both amendments, “to establish an objective deprivation, ‘the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health.’” Darnell, 849 F.3d at 30 (quoting Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013)). The Constitution requires “that prisoners be served ‘nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it’ [and] under certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension.” Robles v. Coughlin, 725
5The Court recognizes that Darnell, which distinguishes the mens rea element necessary for convicted prisoners, as opposed to pretrial detainees, in an unconstitutional conditions of confinement case was issued just days before Plaintiff’s motion for class certification.
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F.2d 12, 15 (2d Cir. 1983). “[C]onditions of confinement may be aggregated to rise to the level of a constitutional violation, but ‘only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.’” Walker, 717 F.3d at 125 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).
The subjective element requirement, however, differs between the two amendments. Under the Eighth Amendment, a defendant “‘cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Darnell, 849 F.3d at 32 (quoting Farmer v. Brennan, 511 U.S. 825 (1994)). The mens rea requirement for pretrial detainees under the Fourteenth Amendment, on the other hand, is defined objectively. Darnell, 849 F.3d at 35. A pretrial detainee must prove “that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 29, 35.
B. Rule 23(a) Requirements 1. Numerosity
Rule 23(a)(1) first requires that the proposed class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Plaintiff’s proposed class includes “[a]ll detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks.” (Dkt. No. 74, at 14). In general, “numerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Hyde Park, 47 F.3d 473, 483 (2d
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Cir. 1995). Here, Plaintiff claims that (1) “thousands of detainees were held within the MCJ during the class period;” and (2) more than a hundred individuals have contacted him indicating that they wish to be part of this lawsuit. (Dkt. No. 74, at 16). Additionally, Plaintiff has submitted the deposition testimony of at least two MCJ inmates who claim weight loss or malnutrition and hunger, ten surveys of MCJ inmates suffering malnutrition, hunger, or weight loss, a letter by an inmate, and a grievance. Plaintiff’s expert’s report contains a table of fourteen individuals, all of whom were at MCJ for longer than two weeks and lost weight. (Dkt. No. 751, at 4). Defendants contend that Plaintiff has failed to show numerosity because there is no evidence that “these thousands or even hundreds of people lost weight to an unhealthy point while at the jail.” (Dkt. No. 88-18, at 13).
Courts have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement. See, e.g., Barlow v. Marion Cty. Hosp. Dist., 88 F.R.D. 619, 625 (M.D. Fla. 1980) (as the bearers of the burden to show joinder is impracticable, “[p]laintiffs must show some evidence of or reasonably estimate the number of class members” but “need not show the exact number”); see also 1 Herbert B. Newberg, Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels § 3.05, at 139 (2d ed. 1985). Further, the numerosity inquiry is not “strictly mathematical.” Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014). Rather, it
must take into account the context of the particular case, 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) requests for injunctive relief that would involve future class members. Id.
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In this case, in view of the evidence that more than one thousand inmates pass through MCJ annually, the Court finds it is reasonable to conclude that there is a sufficient number of present and former MCJ detainees to satisfy the numerosity requirement. Further, as there may be well in excess of forty class members who are unlikely to have the financial resources to sue separately, judicial economy favors certification over joinder.
Defendants contend that a class cannot be certified because the individuals who are currently incarcerated must exhaust their administrative remedies first. (Dkt. No. 88-18, at 15). The exhaustion requirement under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), is inapplicable to Plaintiff because he was not incarcerated at the time this action was filed. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (“[L]itigants . . . who file prison condition actions after release from confinement are no longer ‘prisoners’ for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements.”). Moreover, “although a defense may arise and may affect different class members differently, this occurrence does not compel a finding that individual issues predominate over common ones.” In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 225 (2d Cir. 2006) (internal quotation marks and brackets omitted). “So long as a sufficient constellation of common issues binds class members together, variations in the sources and application of a defense will not automatically foreclose class certification.” Id. (quotation marks omitted and alterations incorporated). Thus, this defense is best considered in the context of predominance.
2. Commonality6 Next, a plaintiff seeking class certification must show “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “The critical inquiry is whether the common questions
6 The Second Circuit has observed that “[t]he commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3).” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997).
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are at the core of the cause of action alleged.” Friedman-Katz, 270 F.R.D. at 155 (quoting Labbate–D’Alauro v. GC Servs. Ltd. P’shp, 168 F.R.D. 451, 456 (E.D.N.Y. 1996)). “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.” Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992) (citing Port Auth. Police Benevolent Ass’n v. Port Auth., 698 F.2d 150, 153–54 (2d Cir. 1983)).
Even a single common question may suffice, but it “must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The common question(s) must generate “common answers apt to drive the resolution of the litigation.” Id. (citation omitted).
Plaintiff asserts that common questions in this case include: (1) “do County employees make changes to the menus that were approved by a qualified dietician, such that those changes provide . . . inadequate nutrition”: (2) “[a]re these menu changes made pursuant to a policy or practice implemented by Montgomery County”; and (3) “[h]ave detainees suffered injuries as a result of this practice.” (Dkt. No. 74, at 18). Defendants argue that “there are too many variables and factual scenarios to support commonality” and that Plaintiff cannot show “that the alleged malnutrition occurred on a class wide basis when there are inmates that gained weight or had their weight remain the same.” (Dkt. No. 88-18, at 16). Defendants further argue that Plaintiff “fails to account for those inmates that worked in the kitchen that obtained double portions,” (Id. at 17), and note that MCJ’s medical unit has the ability to order more food for a pregnant inmate, and that changes are made to meals to accommodate diabetics. (Dkt. No. 75-2, at 81).
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Plaintiff alleges that Defendants intentionally or recklessly employed a policy or practice of making changes to the menu designed by a Trinity dietitian to provide adequate calories and nutrition to inmates by substituting foods of insufficient caloric and nutritional value on a continual basis and at least twice weekly reducing portion sizes. The Second Circuit “has been reluctant to impose bright-line durational or severity limits in conditions of confinement cases, and has never imposed a requirement that pretrial detainees show that they actually suffered from serious injuries.” Darnell, 849 F.3d at 31 (citing Walker, 717 F.3d at 129); see also Willey, 801 F.3d at 68 (“[S]erious injury is unequivocally not a necessary element of an Eighth Amendment claim.”). Thus, the answers to the above questions go to the heart of this case—whether Defendants, through policy or practice of allowing calorically and nutritionally inadequate food to be served to inmates on a continuous basis, subjected Plaintiff and others to conditions that posed “an unreasonable risk or serious damage to [their] future health.” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012). Accordingly, commonality is satisfied. See, e.g., Butler v. Suffolk Cty., 289 F.R.D. 80, 98 (E.D.N.Y. 2013) (“Whether the County was aware of and deliberately indifferent to the conditions at the [jail] is a common question subject to class-wide resolution.”); McGee v. Pallito, No. 1:04-cv-00335, 2015 WL 5177770, at *4, 2015 U.S. Dist. LEXIS, at *15 (D. Vt. Sept. 4, 2015) (finding “common issue” of whether prison officials’ policy amounted to deliberate indifference and observing that “common questions” pertinent to the individual class members “frame the ultimate question of whether the Defendants’ policy violates the Constitution, such that they should be enjoined from implementing it”); V.W., 236 F. Supp. 3d at 575 (concluding that common questions included whether the defendants “applied a common course of unlawful conduct to the members of the class and subclass . . . acted with deliberate indifference to the substantial risk of serious harm posed by certain aspects of that common
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course of conduct,” and whether the defendants “have collectively deprived plaintiffs of the education, special services, and related procedural protections to which they are entitled” and that the “common answers to these questions will drive the resolution of the litigation”).7
3. Typicality Typicality “requires that the claims of the class representatives be typical of those of the class.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco Managed Care. L.L.C., 504 F.3d 229, 245 (2d Cir. 2007) (internal quotation marks omitted). This requirement is satisfied “when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A. ex rel. Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993) (citations omitted). “[T]he test for typicality is not demanding.” Pyke v. Cuomo, 209 F.R.D. 33, 42 (N.D.N.Y. 2002) (quotations and citations omitted). But here, the Court requires further briefing as to whether Plaintiff is best characterized as a pretrial detainee or a convicted prisoner, and whether the Eighth Amendment or Fourteenth Amendment applies to Plaintiff’s claims. Clarification is necessary because, although Plaintiff appears to maintain that the Eighth Amendment applies, he seeks to represent pretrial detainees, to whom the Fourteenth Amendment applies. Thus, in view of the questions as to Plaintiff’s own status and legal claim, the Court cannot conclude that he has shown that he and the class members share the same legal
7 See also Johnson, 780 F.3d at 140 (“We need not decide, however, whether each of plaintiffs’ ten issues are properly treated as common or individual. In the context of a Rule 23(b)(3) class certification, the issues raised by Nextel are more efficiently addressed in light of the predominance and superiority requirements of Rule 23(b)(3).”).
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arguments or that his claims are typical of the class. Cf. V.W., 236 F. Supp. 3d at 576 (finding that the plaintiff carried their burden on typicality, explaining that “the members of the class and subclass share the same legal arguments because their claims are based on the common application of certain challenged policies.”). Accordingly, the Court concludes that, at this time, Plaintiff has failed to show typicality.
4. Adequacy of Representation Plaintiff must also demonstrate that he “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Generally, adequacy of representation entails inquiry as to whether: 1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000). In other words, the plaintiff must be “prepared to prosecute fully the action and have no known conflicts with any class member.” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 253 (2d Cir. 2011). In this case, Plaintiff’s own status (as pretrial detainee or convicted prisoner) requires briefing. Additionally, it is unclear, based on Plaintiff’s assertion that the Eighth amendment applies, whether he seeks to represent pretrial detainees or convicted prisoners. Moreover, to the extent Plaintiff seeks to represent both, he must address whether he, in light of his own status, can adequately do so. Therefore, Plaintiff has not satisfied the adequacy requirement at this time.8
8 As to his attorneys, Plaintiff asserts the law firms representing him “possess extensive experience in litigating class actions, including those involving civil rights violations.” (Dkt. No. 74, at 20). Defendants do not dispute that Plaintiff’s counsel are capable of protecting the interests of the class.
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5. Ascertainability9 The Second Circuit recently clarified that “[t]he ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries.” In re Petrobras Sec., 862 F.3d at 264. “This modest threshold requirement will only preclude certification if a proposed class definition is indeterminate in some fundamental way.” Id. at 269. The Circuit expressly “decline[d] to adopt a heightened ascertainability theory that requires a showing of administrative feasibility at the class certification stage.” Id. at 265. Plaintiff asserts that the proposed class is “readily identifiable” and those individuals who remained in MCJ for more than two weeks can be identified through “booking records maintained at the MCJ.” (Dkt. No. 74, at 21–22). While it appears feasible to identify class members based on MCJ records, because Plaintiff’s own status is unclear and Plaintiff has not clearly identified which class of individuals (pretrial detainees or convicted prisoners) he seeks to represent, ascertainability does not save his motion. C. Summary Having found that Plaintiff has not met all of the preliminary requirements for certification under Rule 23(a) and that further briefing is required on several issues, the Court does not reach Rule 23(b). Accordingly, Plaintiff’s motion for class certification is denied without prejudice to renewal upon briefing the following issues: 1. Whether Plaintiff, while being detained at MCJ on a probation violation should be
characterized as a pretrial detainee or a convicted prisoner and whether the Eighth Amendment or Fourteenth Amendment applies; and
9 Citing, inter alia, Floyd v. City of New York, 283 F.R.D. 153, 172 (S.D.N.Y. 2012) (“It would be illogical to require precise ascertainability in a suit that seeks no class damages.”), Plaintiff asserts that because he primarily seeks injunctive relief, “the implied requirement of ascertainability” is inapplicable. Dkt. No. 74, at 21. As Plaintiff also seeks class certification under Rule 23(b)(3), though on liability only, as allowed by Rule 23(c)(4), the Court finds ascertainability relevant.
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2. Whether Plaintiff seeks to represent MCJ pretrial detainees or convicted prisoners, or both, and whether he is a proper representative for that class.
Additionally, the Court notes that Plaintiff seeks injunctive relief on behalf of the class, but that he appears to have been released from MCJ prior to filing this action. (Dkt. No. 1, ¶ 3; Dkt. No. 75-6, at 16). In the Second Circuit, “an inmate’s transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility.” Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). Although the relation-back doctrine “has unique application in the class action context, preserving the claims of some named plaintiffs for class certification purposes that might well be moot if asserted only as individual claims,” Amador v. Andrews, 655 F.3d 89, 100 (2d Cir. 2011), “it is the date of the complaint, not the date of the certification motion, that is relevant.” Butler, 289 F.R.D. at 100 n.5 (citing Mental Disability Law Clinic v. Hogan, No. 06–CV–6320, 2008 WL 4104460, at *10 (E.D.N.Y. Aug. 29, 2008). Accordingly, the parties are directed to brief whether Plaintiff has standing to pursue a claim for injunctive relief in this case. IV. CONCLUSION
For these reasons, it is ORDERED that Defendants’ letter motion (Dkt. No. 97) is DENIED; and it is further ORDERED that Plaintiff’s motion for class certification (Dkt. No. 73) is DENIED without prejudice to renewal upon briefing the above issues; and it is further ORDERED that if Plaintiff seeks to renew his motion for class certification, he must file a brief, and any exhibits, on or before October 31, 2017. The brief may not exceed thirty pages and must address the above-identified issues. Plaintiff need not file a new motion for class certification, and may incorporate his prior motion papers. Defendants’ response, and any
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IT IS SO ORDERED. Dated: September 29, 2017
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 Case 9:14-cv-00933-BKS-DJS Document 128 Filed 05/29/18 Page 1 of 17

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

PERRY HILL, both individually and on behalf of a class of others similarly situated,
Plaintiff,
v.
COUNTY OF MONTGOMERY, MICHAEL AMATO, and MICHAEL FRANKO,
Defendants.

9:14-cv-00933 (BKS/DJS)

APPEARANCES:
For Plaintiff: Law Offices of Elmer Robert Keach, III, P.C. Elmer Robert Keach, III Maria K. Dyson One Pine West Plaza, Suite 109 Albany, NY 12205 Migliaccio & Rathod LLP Nicholas A. Migliaccio Jason S. Rathod 412 H Street NE, Suite 302 Washington, DC 20002
For Defendants: Goldberg Segalla LLP Jonathan M. Bernstein 8 Southwoods Boulevard, Suite 300 Albany, NY 12211
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Perry Hill brings this proposed class action under 42 U.S.C. § 1983 against
Defendants County of Montgomery, Michael Amato, and Michael Franko. (Dkt. No. 1). In the

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Complaint, Hill advances a conditions of confinement claim, alleging that Defendants failed to provide adequate food and nutrition in violation of the Eighth Amendment while he was detained at the Montgomery County Jail (“MCJ”) in Fultonville, New York. (Id.). Presently before the Court are: (1) Hill’s supplemental briefing concerning whether he was a pretrial detainee or convicted prisoner at MCJ; (2) Hill’s supplemental briefing concerning whether he has standing to bring a claim for declaratory and injunctive relief; (3) Hill’s motion for leave to amend the Complaint under Rule 15; and (4) proposed intervenor James Rogers’ motion for leave to intervene, under Rule 24, as a named plaintiff and class representative. (Dkt. Nos. 73, 106, 107). Defendants oppose these motions. (Dkt. Nos. 88, 113). For the reasons that follow, the Court concludes that Hill was a pretrial detainee at MCJ, dismisses Hill’s claim for declaratory and injunctive relief as he lacks Article III standing, and grants in part and denies in part the motions to amend and intervene.1 II. PROCEDURAL HISTORY
On July 25, 2014, Hill filed the Complaint in this action. (Dkt. No. 1). On February 27, 2017, after conducting significant discovery, Hill moved for class certification. (Dkt. No. 73). It was unclear from his papers, however, whether Hill, who was held at MCJ in connection with a probation violation, was a pretrial detainee or a convicted prisoner. Hill v. County of Montgomery, No. 14-cv-933, 2017 WL 9249663, at *4–5, *9 (N.D.N.Y. Sept. 29, 2017).2 Plaintiff’s status governs whether his conditions of confinement claim is analyzed under the Eighth Amendment’s cruel and unusual punishment clause3 or the Fourteenth Amendment’s due
1 As described below, the Court will consider Hill’s pending motion for class certification (Dkt. No. 106) following Hill’s response to this Order. 2 Lexis citation unavailable. 3 The Eighth Amendment’s prohibition of cruel and unusual punishment has been incorporated against the states through the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 666–67 (1962).
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process clause, which require slightly different showings.4 Further, the Court found that, because
Hill had been released from MCJ before filing this action, his claim for injunctive relief was in
all likelihood moot and he did not have standing to seek such relief on behalf of the purported
class. Id. at *9. The Court therefore denied Plaintiff’s motion for class certification without
prejudice to renewal upon briefing these issues. Id. The Court addresses Hill’s briefing on these
two issues before turning to the motion to amend and intervene.
III. BACKGROUND
The Court assumes familiarity with the factual background of this case, as set forth in its
September 29, 2017 Decision. Hill, 2017 WL 9249663, at *1–3.
4 The Court previously explained: Under both the Eighth and Fourteenth Amendments, a plaintiff must establish an objective element and a subjective element for a § 1983 conditions of confinement claim. Under both amendments, “to establish an objective deprivation, ‘the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health.’” Darnell, 849 F.3d at 30 (quoting Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013)). The Constitution requires “that prisoners be served ‘nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it’ [and] under certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension.” Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983). “[C]onditions of confinement may be aggregated to rise to the level of a constitutional violation, but ‘only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.’” Walker, 717 F.3d at 125 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)). The subjective element requirement, however, differs between the two amendments. Under the Eighth Amendment, a defendant “‘cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Darnell, 849 F.3d at 32 (quoting Farmer v. Brennan, 511 U.S. 825 (1994)). The mens rea requirement for pretrial detainees under the Fourteenth Amendment, on the other hand, is defined objectively. Darnell, 849 F.3d at 35. A pretrial detainee must prove “that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 29, 35.
Hill, 2017 WL 9249663, at *5.
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IV. ADDITIONAL BRIEFING A. Pretrial Detainee or Convicted Prisoner Hill explains in his memorandum of law that before his release from MCJ he did not
receive a “hearing to determine whether he had violated his probation,” and that “it was eventually determined that the Plaintiff was not even on probation, but that there was a clerical error regarding the end date of his probation,” and he “was released from custody that same day.” (Dkt. No. 107, at 6). He maintains that his status at MCJ was that of pretrial detainee and that he seeks to advance his conditions of confinement claims under the Fourteenth Amendment.
Whether to classify an individual detained for a suspected probation violation as a pretrial detainee or a convicted prisoner is an “unresolved and difficult question.” Harry v. Suarez, No. 10-cv-6756, 2012 WL 2053533, at *2 n.3, 2012 U.S. Dist. LEXIS 79551, *6–8 n.3 (S.D.N.Y. June 4, 2012); see also Palmer v. Marion County, 327 F.3d 588, 592–93 (7th Cir. 2003) (“[T]he confusion about the constitutional predicate for Palmer’s claims arises from the uncertainty as to whether a detainee awaiting a hearing on a probation violation can be ‘punished’ under the Eighth Amendment.”).
Given Hill’s assertion that the alleged probation violation occurred after his term of probation expired, and thus was not actionable or based on a conviction or sentence, his claims are governed by the Fourteenth Amendment. “[T]he state does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). “The Eighth Amendment’s protection does not apply ‘until after conviction and sentence.’” United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (quoting Graham v. Connor, 490 U.S. 386, 392 n.6 (1989)); see also Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a [pretrial] detainee may not be punished prior to an adjudication of guilt in
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accordance with due process of law.”). Moreover, even if Hill’s probation had not expired prior to the alleged violation, because he had not yet had a hearing or been found guilty of the violation, his status is more akin to that of a pretrial detainee. See Chrisco v. Hayes, No. 17-cv72, 2017 WL 5404191, at *4, 2017 U.S. Dist. LEXIS 187935, at *11 (D. Colo. Nov. 14, 2017) (explaining that “pretrial detainees include incarcerated individuals awaiting trial on pending criminal charges and individuals awaiting adjudication on pending accusations that they have violated the terms of their probation or parole” but that the plaintiff “[i]nasmuch as he had been found guilty of a probation violation . . . was no longer a pretrial detainee”); Weishaar v. County of Napa, No. 14-cv-1352, 2016 WL 7242122, at *7, 2016 U.S. Dist. LEXIS 173833, at *17 (N.D. Cal. Dec. 15, 2016) (viewing the plaintiff’s claims as those of a detainee arising under the Fourteenth Amendment where “there was only an allegation that [the plaintiff] violated his terms of probation”); Ard v. Rushing, No. 13-cv-249, 2014 WL 12489978, at *2 n.3 (S.D. Miss. Feb. 10, 2014) (concluding that because the plaintiff “was in custody awaiting a probation revocation hearing . . . she was essentially a pretrial detainee”)5; but see Ford v. Grand Traverse County, No. 04-cv-682, 2005 WL 2572025, at *1 n.1 (W.D. Mich. Oct. 12, 2005)6 (“The Eighth Amendment and not the Fourteenth Amendment is the appropriate reference because Plaintiff was imprisoned in connection with a convicted offense (i.e., she was held for a suspected probation violation) and was not a pretrial detainee.”).
B. Mootness—Declaratory and Injunctive Relief In response to the Court’s request for further briefing as to whether Hill’s claims for injunctive relief are moot because he was released from MCJ prior to filing the Complaint, Hill “acknowledges that he likely does not have standing to bring a claim for injunctive relief given
5 Lexis citation unavailable. 6 Lexis citation unavailable.
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that he was not detained at the [MCJ] at the time the Complaint was filed.” (Dkt. No. 107, at 16). His release prior to filing is likewise fatal to his claim for declaratory relief.7
“It is well established that ‘[t]he Case or Controversy Clause of Article III, Section 2 of the United States Constitution limits the subject matter jurisdiction of the federal courts such that the parties must continue to have a personal stake in the outcome of the lawsuit.’” Tanasi v. New All. Bank, 786 F.3d 195, 198 (2d Cir. 2015) (alteration in original) (quoting United States v. Wiltshire, 772 F.3d 976, 978 (2d Cir. 2014)). “That is, ‘[w]hen the issues in dispute between the parties are no longer live, a case becomes moot.’” Id. (alteration in original) (quoting Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 84 (2d Cir. 2005)). “In this circuit, an inmate’s transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility.” Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (emphasis added).
Hill filed the Complaint on July 25, 2014. (Dkt. No. 1). He was released from MCJ in March 2014, several months prior to filing the Complaint. (Dkt. No. 1, ¶ 3). Consequently, the Court lacks Article III jurisdiction over Hill’s claims for declaratory and injunctive relief, and they are dismissed as moot. V. PROPOSED AMENDED COMPLAINT
The proposed amended complaint adds the following allegation: “From June 2014 until February 2015, Mr. Rogers was detained at the Montgomery County Jail. Mr. Rogers spent approximately four months as a pre-trial detainee and four months as a convicted detainee.” (Dkt. No. 126-2, ¶ 4). It further alleges that Rogers “was approximately 195 pounds upon his admission to the jail. Mr. Rogers lost approximately 15 pounds during his eight-month admission
7 During oral argument, Plaintiff’s counsel maintained that Hill’s release did not impact his standing to pursue a declaratory judgment claim. The Court invited further briefing on this issue but Plaintiff has not cited any case law to support this proposition.
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to the jail. Mr. Rogers weight loss was also substantial given he is 6’1, and is an extremely thin
man.” (Id. ¶ 34).
The proposed amended complaint defines a primary class and two subclasses. The
primary class consists of:
All detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks. The class period commences on July 24, 2011, and extends to the date on which Montgomery County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of refusing to provide an appropriate amount of nutritional sustenance to all detainees admitted to the Montgomery County Jail. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
(Id. ¶ 9). It defines the Pre-Trial Detainee Sub-Class as: “All members of the Primary Class but
who were housed as a Pre-Trial Detainee, in that they had not yet been convicted of their
charges.” (Id.). It defines the Post-Trial Detainee Sub-Class as: “All members of the Primary
Class, but who were housed as a Post-Trial Detainee, in that they had been convicted of their
charges, either by a plea or jury trial.” (Id.).
VI. MOTION TO INTERVENE
A. Standard of Review Federal Rule of Civil Procedure 24 provides for intervention as of right or by permission
of the court. Rule 24(a), which governs intervention as of right, provides:
On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal
statute; or (2) claims an interest relating to the property or transaction that
is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
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Fed. R. Civ. P. 24(a). Rule 24(b) governs permissive intervention and states: “On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b).
The Second Circuit has explained that before a court grants “intervention as of right or by permission, ‘an applicant must (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action.’” Floyd v. City of New York, 770 F.3d 1051, 1057 (2d Cir. 2014) (quoting “R” Best Produce, Inc. v. Shulman-Rabin Mktg. Corp., 467 F.3d 238, 240 (2d Cir. 2006)). The Circuit has “underscored that a ‘[f]ailure to satisfy any one of these four requirements is a sufficient ground to deny the application.’” Id. (quoting “R” Best Produce, 467 F.3d at 241)). “While accepting ‘as true the non-conclusory allegations of the motion[,]’ courts applying Rule 24 ‘must be mindful that each intervention case is highly fact specific and tends to resist comparison to prior cases.’” Kamdem-Ouaffo v. Pepsico, Inc., 314 F.R.D. 130, 134 (S.D.N.Y. 2016) (alteration in original) (quoting Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Ams., 262 F.R.D. 348, 352 (S.D.N.Y. 2009)).
B. Analysis of Factors Rogers seeks intervention as of right under Rule 24(a) on the grounds that Hill cannot adequately represent: (1) the class claim for injunctive and declaratory relief; or (2) an Eighth Amendment conditions of confinement claim on behalf of convicted prisoners. (Dkt. No. 107, at 13). Further, Rogers notes that, because he was both a pretrial detainee and a convicted prisoner at MCJ, he can represent both classes. Defendants do not dispute that Rogers’ motion to intervene is timely, nor do they contest that Rogers’ interest—as a convicted prisoner—is not adequately protected by Hill’s representation as Hill may only represent the interests of pretrial
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detainees. Accordingly, the Court turns to Rogers’ purported interest and whether it would be impaired by the disposition of this case.
“[F]or an interest to be ‘cognizable’ under Rule 24, it must be ‘direct, substantial, and legally protectable.’” Floyd v. City of New York, 770 F.3d 1051, 1060 (2d Cir. 2014) (quoting Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010)). Defendants argue that there is evidence that Rogers “admits he was not regularly eating what was given to him” and that he traded meals on multiple occasions while incarcerated at MCJ. (Dkt. No. 113-16, at 23–24). However, “[a]n interest that is otherwise sufficient under Rule 24(a)(2) does not become insufficient because the court deems the claim to be legally or factually weak.” Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 130 (2d Cir. 2001). In this case, it is the adequacy of the meals Rogers received as an inmate at MCJ that he seeks to contest through this action. The Court therefore concludes that he has shown a cognizable interest in this action. Further, where, as here, “a proposed intervenor’s interests are otherwise unrepresented in an action, the standard for intervention is no more burdensome than the standing requirement.” Brennan, 260 F.3d at 131. For the same reason, Rogers has sufficiently shown that “the interest may be impaired by the disposition of the action.” New York News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992). Thus, Rogers has shown he is entitled to intervene as of right in this action.
C. Futility Defendants argue that Rogers cannot intervene in this action because (1) he does not have standing to pursue a claim for injunctive or declaratory relief; and (2) he did not exhaust his administrative remedies. “Indeed, though not mentioned in the rule itself, ‘futility is a proper basis for denying a motion to intervene.’” Plumbers’ & Pipefitters’ Local No. 562 Supplemental Plan & Tr. v. J.P. Morgan Acceptance Corp. I, No. 08-cv-1713, 2011 WL 6182090, at *1,
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2011 U.S. Dist. LEXIS 152695, at *5 (E.D.N.Y. Dec. 13, 2011) (quoting In re Merrill Lynch & Co., Inc. Research Reports Secs. Litig., Nos. 02-1484, 02-8472, 2008 WL 2594819, *5, 2008 U.S. Dist. LEXIS 53923, at *13 (S.D.N.Y. Jun. 26, 2008)); see, e.g., United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 856 (2d Cir. 1998) (upholding district court’s denial of motion to intervene on futility grounds). “In determining whether the proposed intervention is futile, the court must view the application ‘on the tendered pleadings—that is, whether those pleadings allege a legally sufficient claim or defense and not whether the applicant is likely to prevail on the merits.’” In re Merrill Lynch, 2008 WL 2594819, at *5, 2008 U.S. Dist. LEXIS 53923, at *14 (quoting Williams & Humbert, Ltd. v. W. & H. Trade Marks, Ltd., 840 F.2d 72, 75 (D.C. Cir. 1988)).
1. Standing—Injunctive and Declaratory Relief Rogers seeks to intervene as a class representative and named plaintiff in order to advance a claim for injunctive and declaratory relief. Although Rogers is no longer incarcerated at MCJ, he argues that because he was incarcerated at the time the Complaint was filed, the relation-back doctrine preserves his (otherwise moot) claim for injunctive relief. (Dkt. No. 107, at 16). “Although the relation back doctrine is typically applied in the context of Rule 15, which governs a party’s amended pleadings, some courts have interpreted Rule 24 to ‘provide that an intervenor’s claim may relate back to the case’s original complaint for purposes of the statute of limitations.’” ACORN v. County of Nassau, 270 F.R.D. 123, 125–26 (E.D.N.Y. 2010) (emphasis added) (quoting Chen-Oster v. Goldman, Sachs & Co., 251 F. Supp. 3d 579, 590 (S.D.N.Y. 2017)); see also American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974) (holding that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to
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continue as a class action”). “[T]he usual case” requires “a live controversy at the time of the filing of the complaint and the class certification.” Amador v. Andrews, 655 F.3d 89, 100 (2d Cir. 2011) (citing Sosna v. Iowa, 419 U.S. 393, 398, 402 (1975)). However, as Rogers correctly notes, “the relation-back doctrine ‘has unique application in the class action context, preserving the claims of some named plaintiff for class certification purposes that might well be moot if asserted only as individual claims.’” (Dkt. No. 107, at 16 (quoting Amador, 655 F.3d at 100)). Indeed, “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980)). “In such cases, the ‘relation back’ doctrine is properly invoked to preserve the merits of the case for judicial resolution.” Id.
The parties appear to agree that the claims in this case, which involve pretrial detainees or inmates housed for varying, and often short, periods of time, qualify as “inherently transitory.” See, e.g., Butler v. Suffolk County, 289 F.R.D. 80, 91 (E.D.N.Y. 2013) (finding that the claims, which involved inmates who “were pretrial detainees or men serving sentences of one year or less” at the time the complaint was filed, were “inherently transitory,” and concluding that the relation-back doctrine prevented those claims from being rendered moot when the inmates were released). This does not end the inquiry, however, because unlike Butler and Amador, where the named plaintiffs’ claims became moot after the complaints were filed, see id. at 91; Amador, 655 F.3d at 101 (“All thirteen appellants were in DOCS custody when they commenced the action.”), Hill was not in custody at the time he filed the Complaint and his claim for injunctive relief was moot at the time of filing, thus the Court lacked jurisdiction over that claim at the outset. Indeed, the Second Circuit has held that the “Rule 15(c) ‘relation back’ doctrine does not permit
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members of a putative class, who are not named parties, to intervene in the class action as named parties in order to revive claims that were dismissed from the class complaint for want of jurisdiction.” Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 111 (2d Cir. 2013). Although Rogers was at all times a member of the putative class, he was not a named plaintiff, thus, his “ability to join the suit is foreclosed by the ‘long recognized’ rule that ‘if jurisdiction is lacking at the commencement of a suit, it cannot be aided by the intervention of a plaintiff with a sufficient claim.’” Id. (quoting Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 160 (2d Cir. 2012)). Thus, the relation back doctrine does not aid Rogers’ claim and he must demonstrate standing to pursue a claim for declaratory and injunctive relief. 8 See Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650– 51 (2017) (“[A]n intervenor of right must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing.”); Los Angeles v. Lyons, 461 U.S. 95, 105–106, and n.7 (1983) (ruling that a plaintiff who has standing to seek damages must also demonstrate standing to pursue injunctive relief).
“As the Second Circuit has made clear, an intervenor’s standing is determined as of the date the motion to intervene was filed.” Chen-Oster v. Goldman, Sachs & Co., 251 F. Supp. 3d 579, 589 (S.D.N.Y. 2017) (citing Comer v. Cisneros, 37 F.3d 775, 801 (2d Cir. 1994) (“[T]he intervenors certainly had standing at the time they filed their motions to intervene.”); Robidoux v.
8 The cases Hill and Rogers cite in support of their contention that the viability of Rogers’ claim should be determined based on the date the original complaint was filed, are inapposite or pre-date IndyMac MBS, Inc.8 See, e.g., In re Direxion Shares ETF Tr., 279 F.R.D. 221, 237 (S.D.N.Y. 2012); In re Initial Pub. Offering Sec. Litig., Nos. 21-mc-92, 01-cv-9741, 01-cv-10899, 2004 WL 3015304, 2004 U.S. Dist. LEXIS 26000 (S.D.N.Y. Dec. 27, 2004); Plumbers’ Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 894 F. Supp. 2d 144, 156 (D. Mass. 2012); In re Elscint, Ltd. Sec. Litig., 674 F. Supp. 374, 378 (D. Mass. 1987); Rose v. Ark. Valley Envtl. & Util. Auth., 562 F. Supp. 1180, 1192 (W.D. Mo. 1983). The only case Hill and Rogers cite that was issued after IndyMac MBS, Inc. addresses the issue of whether a named plaintiff has standing to assert claims relating to products he did not purchase—a different issue than the one presented here, where a proposed intervenor seeks to revive claims that were moot ab initio. Kacocha v. Nestle Purina Petcare Co., No. 15-cv-5489, 2016 WL 4367991, at *10, 2016 U.S. Dist. LEXIS 107097, at *37 (S.D.N.Y. Aug. 12, 2016).
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Celani, 987 F.2d 931, 938 (2d Cir. 1993) (“[T]he original plaintiff at the time the complaint was filed, and each intervenor at the time of her motion to intervene, was suffering . . . injury capable of being redressed by declaratory or injunctive relief.”)). Because Rogers was no longer incarcerated at MCJ as of November 21, 2017, the date he moved to intervene, any claim for injunctive or declaratory relief is moot and he lacks standing to pursue these claims. See ChenOster, 251 F. Supp. 3d at 590 (rejecting the plaintiffs’ argument in putative class action that under the relation-back doctrine the intervenors’ “standing should be evaluated at the time of the filing of the original complaint,” explaining that relation-back doctrine did “not apply to standing” and measuring “each intervenor’s standing from the date of her motion to intervene”). Accordingly, Rogers’ motion to intervene to seek declaratory and injunctive relief is denied.
2. PLRA Exhaustion of Administrative Remedies Rogers may, of course, bring a conditions of confinement claim for damages. Salahuddin, 467 F.3d at 272 (observing that although the plaintiff’s transfer from prison facility moots his declaratory and injunctive relief claims against officials of that facility, his “right to seek damages is not affected”). Defendants argue that the motion to intervene and amend should, however, be denied under the Prison Litigation Reform Act of 1995 (“PLRA”) (codified as amended at 42 U.S.C. § 1997e)) because he failed to exhaust his administrative remedies. (Dkt. No. 113-16, at 14–15). Rogers argues that, because he was no longer incarcerated at the time he moved to intervene, he was not subject to the PLRA’s exhaustion requirements. The PLRA “requires prisoners to exhaust prison grievance procedures before filing suit.” Jones v. Bock, 549 U.S. 199, 202 (2007) (citing 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(a)). The PLRA’s exhaustion provision provides: “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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
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exhausted.” 42 U.S.C. § 1997e(a). Thus, the PLRA “requires exhaustion of available administrative remedies before inmate-plaintiffs may bring their federal claims to court at all.” Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) (quoting Nussle v. Willette, 224 F.3d 95, 99 (2d Cir. 2000), rev’d sub nom. Porter v. Nussle, 532 U.S. 1065 (2002)).
Rogers was held at MCJ from June 2014 to February 2015. Thus he was a prisoner at MCJ on July 25, 2014, the date this action was filed, but was not a prisoner on November 21, 2017, the date Hill filed the motion to amend the complaint and he filed the motion to intervene. It is settled that “litigants . . . who file prison condition actions after release from confinement are no longer ‘prisoners’ for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements.” Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999). The issue is, therefore, whether the relevant date for PLRA purposes is the date Plaintiff filed the Complaint or the date Rogers sought to intervene as a plaintiff in this action. The Court concludes that it is the date Rogers becomes a party to this action that dictates when he filed suit for PLRA purposes. See Zimmerman v. Schaeffer, 654 F. Supp. 2d 226, 258 (M.D. Pa. 2009) (finding that the relevant date was the date the amended complaint was filed adding Sassaman as a party and holding that, because “at the time he joined the lawsuit, Sassaman was no longer a prisoner subject to the PLRA,” he was “not subject to the exhaustion requirement of the PLRA”); see also Johannes v. Washington, No. 14-cv-11691, 2016 WL 1253266, at *13, 2016 U.S. Dist. LEXIS 43165, at *41 (E.D. Mich. Mar. 31, 2016) (“Defendants have not cited any case applying the doctrine to hold that plaintiffs added to a lawsuit must exhaust their administrative remedies prior to the filing of the original complaint.”); Anderson v. Shelby Cty. Gov’t, No. 03-cv-2650, 2009 WL 3241676, at *5 n.5, 2009 U.S. Dist. LEXIS 90452, at *18 n.5 (W.D. Tenn. Sept. 30, 2009) (“All other plaintiffs, including plaintiff Butler, were former inmates at the time they became parties to the
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litigation, and thus the PLRA’s exhaustion requirement does not apply to them.”); Rahim v. Sheahan, No. 99-cv-0395, 2001 WL 1263493, at *6, 2001 U.S. Dist. LEXIS 17214, at *18 (N.D. Ill. Oct. 19, 2001) (“Since [certain plaintiffs] were not ‘prisoners’ at the time they joined the Fourth Amended Complaint, the exhaustion requirement does not apply to them.”). Accordingly, Rogers’ motion to intervene is granted to the extent he seeks to assert a conditions of confinement claim for damages.9 VII. MOTION TO AMEND
A. Standard of Review Rule 15 governs amendments and instructs that “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court may, however, deny “[l]eave . . . if the amendment would be futile.” Krys v. Pigott, 749 F.3d 117, 134 (2d Cir. 2014). “A proposed amendment to a complaint is futile when ‘it could not withstand a motion to dismiss.’” Balintulo v. Ford Motor Co., 796 F.3d 160, 164–65 (2d Cir. 2015) (quoting Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002)). “In assessing whether the proposed complaint states a claim, [courts must] consider ‘the proposed amendment[s] . . . along with the remainder of the complaint,’ accept as true all non-conclusory factual allegations therein, and draw all reasonable inferences in plaintiff’s favor to determine whether the allegations plausibly give rise to an entitlement to relief.” Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012) (second alteration in original) (citation omitted) (quoting Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 323 n.3 (2d Cir. 2010)).
9 In any event, “failure to exhaust is an affirmative defense under the PLRA,” therefore “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216.
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B. Analysis For the reasons discussed above, the motion to amend is denied to the extent it contains a claim for declaratory and injunctive relief. It is, however, granted for purposes of: (1) adding Rogers as a Plaintiff with a Fourteenth Amendment and Eighth Amendment conditions of confinement claim, reflecting his status as both a pretrial detainee and convicted prisoner at MCJ; and (2) clarifying Hill’s status as a pretrial detainee; and (3) clarifying that Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4).10 Plaintiffs shall revise the proposed amended complaint accordingly and file it within 14 days of the date of this order. Hill has indicated that he may seek to intervene a “putative class member who is presently incarcerated and who also exhausted . . . administrative remedies if given a modest period of time.” (Dkt. No. 126, at 4). Defendants object to any further delay in this action, which has been pending for nearly 4 years. (Dkt. No. 127, at 2). Indeed, the Court shares Defendants’ concern regarding the “[e]xtensive time and expense” that has gone into the litigation of this action. (Id.). However, as the intervention of a presently incarcerated putative class member as a named plaintiff may enable Hill to pursue a claim for declaratory and injunctive relief, the Court will provide Hill a short period of time, until June 12, 2018, to file a motion to amend and intervene. VIII. CONCLUSION For these reasons, it is
10 While Hill need not establish Rule 23(b)(3) predominance in the case as a whole, he must establish Rule 23(b)(3) predominance with respect to liability. See Augustin v. Jablonsky (In re Nassau Cnty. Strip Search Cases), 461 F.3d 219, 227 (2d Cir. 2006) (‘[We hold that a court may employ[Rule 23(c)(4)] to certify a class as to liability regardless of whether the claim as a whole satisfies Rule 23(b)(3)’s predominance requirement.”). Hill has not addressed this issue; Defendants assert that Hill has conceded he cannot satisfy Rule 23(b)(3). (Dkt. No. 125 at 3). To the extent Plaintiffs seek certification under Rules 23(b)(3) and 23(c)(4), they must address this issue.
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ORDERED that the claim for injunctive and declaratory relief is DISMISSED without prejudice; and it is further
ORDERED that Hill’s motion for leave to file an amended complaint and Rogers’ motion to intervene as a named plaintiff (Dkt. No. 106) are GRANTED for purposes of: (1) adding Rogers as a Plaintiff with a Fourteenth Amendment and Eighth Amendment conditions of confinement damages claim, reflecting his status as both a pretrial detainee and convicted prisoner at MCJ; and (2) clarifying Hill’s status as a pretrial detainee; and (3) clarifying that Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4); and it is further
ORDERED that Hill’s motion for leave to file an amended complaint and Rogers’ motion to intervene (Dkt. No. 106) are otherwise DENIED; and it is further
ORDERED that Hill may, by June 12, 2018, file: either (1) an amended complaint, as discussed supra; or (2) a second motion to amend and to intervene for purposes of adding a plaintiff with standing to pursue a claim for injunctive and declaratory relief. If such a motion is filed, the Court will consider it, along with any response by Defendants, which must be filed by June 19, 2018, together with the pending motion for class certification. If Hill elects not to file such a motion, the Court will consider the motion for class certification based on the amended complaint and any further briefing; and it is further
ORDERED that if Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4), Plaintiffs must file a letter brief addressing the requirements in Rule 23(b)(3), by June 19, 2018, and Defendants may file a letter brief in response by June 26, 2018.
IT IS SO ORDERED. Dated: May 29, 2018
Syracuse, New York
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 Case 9:14-cv-00933-BKS-DJS Document 136 Filed 08/09/18 Page 1 of 16

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

____________________________________

:

PERRY HILL and JAMES ROGERS,

:

both individually and on behalf of a class of :

others similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

COUNTY OF MONTGOMERY,

:

MICHAEL AMATO and MICHAEL

:

FRANKO,

:

:

Defendants.

:

____________________________________

AMENDED COMPLAINT Civil Action No.: 9:14-cv-00933 [BKS/DJS]
JURY TRIAL DEMANDED

INTRODUCTION

This is a class action brought to redress the deprivation by Defendants of rights secured to

the Plaintiffs and proposed Class Members by the United States Constitution and the laws of the

United States of America. For the past several years, all individuals placed into the custody of the

Montgomery County Jail are strictly provided, upon information and belief, no more than 1,700

calories a day – an amount that is slightly more than concentration camp prisoners received in

World War II. Upon information and belief, active adult males need to consume anywhere from

2,400 to 3,000 calories a day depending on their amount of physical exertion to maintain their

weight. As a result, and upon information and belief, all detainees admitted to the Montgomery

County Jail have suffered and will continue to suffer from symptoms and illnesses associated with

malnutrition.

This situation is further exacerbated given the organic contents of the food provided to the

detainees. The food provided at the Montgomery County Jail is largely soy-based and as a result,

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contains little-to-no protein. Additionally, the fruits and vegetables provided are almost always canned and/or preserved and as such, are devoid of appropriate vitamins and minerals. Therefore, it is not surprising that many individuals who leave the Montgomery County Jail, including the Plaintiffs, have lost an enormous amount of weight and hair, develop skin conditions, and exhibit other symptoms and conditions caused by malnutrition, including, upon information and belief, scurvy.
A more abusive and inhumane environment is difficult to imagine. This is especially so given that Defendant Michael Amato, the Sheriff of Montgomery County, has recently bragged on the radio about allowing inmates to purchase extra food, and how this will generate new revenue for Montgomery County. Proper sustenance while held in a local jail is a right, and should not be subjected to the whim of municipal officials with a long history of misconduct. As such, the Plaintiffs seek monetary damages from Defendants for themselves and each member of the Proposed Class, a ruling, in the form of a declaratory judgment, that Defendants’ policies and actions are unconstitutional, and an injunction precluding the Defendants from continuing to violate the rights of those placed into the custody of the Montgomery County Jail.
AND NOW, comes the Plaintiffs, through counsel, and hereby states as follows:
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JURISDICTION 1. This Court has jurisdiction over this action under the provisions of 28 U.S.C. §§ 1331, 1341 & 1343 because it is filed to obtain compensatory damages and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. § 1983. This Court also have jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the constitutionality of the policies of a local government. 2. Venue is proper under 28 U.S.C. § 1391 (b)(2) because a substantial part of the events or omissions giving rise to Plaintiff’s and Class claims occurred within this judicial district.
PARTIES 3. Plaintiff Perry Hill is a citizen of the United States and resides in Montgomery County, NY. From October 2013 until March 2014, Mr. Hill was detained at the Montgomery County Jail for a parole violation. Upon information and belief, Mr. Hill’s status was that of a pretrial detainee. 4. Plaintiff James Rogers is a citizen of the United States and resides in Montgomery County, NY. From June 2014 until February 2015, Mr. Rogers was detained at the Montgomery County Jail. Mr. Rogers spent approximately four months as a pre-trial detainee and four months as a post-trial detainee. 5. At all times relevant herein, Defendant Michael Amato was and remains the dulyelected Sheriff of Montgomery County, with his principal place of business being 200 Clark Drive, Fultonville, NY 12072.
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6. At all times relevant herein, Defendant Michael Franko was and remains the Jail Administrator of the Montgomery County Jail, with his principal place of business being 200 Clark Drive, Fultonville, NY 12072.
7. At all times relevant herein, Defendant County of Montgomery is a municipal entity organized under the laws of the State of New York. At all times relevant hereto, Montgomery County was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Montgomery County Jail and was responsible for the appointment, training, supervision and conduct of all jail personnel. Defendant County of Montgomery’s primary place of business is 64 Broadway, Fonda, NY 12068.
CLASS ACTION ALLEGATIONS 8. Plaintiffs bring this action pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure on behalf of themselves and a Class of similarly situated individuals who were detained and not provided with proper sustenance at the Montgomery County Jail. 9. The Class that Plaintiffs seek to represent is defined as follows: Primary Class
All detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks. The class period commences on July 24, 2011, and extends to the date on which Montgomery County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of refusing to provide an appropriate amount of nutritional sustenance to all detainees admitted to the Montgomery County Jail. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
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Pre-Trial Detainee Class All members of the Primary Class but who were serving as a PreTrial Detainee, in that they had not yet been convicted of their charges.
Post-Trial Detainee Class All members of the Primary Class, but who were serving as a PostTrial Detainee, in that they had been convicted of their charges, either by a plea or jury trial.
10. This action has been brought and may properly be maintained as a Class action under Federal law and satisfies the numerosity, commonality, typicality and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
11. The members of the Class are so numerous as to render joinder impracticable. Upon information and belief, there are hundreds of citizens who are placed into the custody of Montgomery County every month – almost all of whom are members of the Proposed Class. Upon information and belief, the size of the Proposed Class totals at least thousands of individuals, some of whom have had their civil rights violated on multiple occasions.
12. Upon information and belief, joinder of all these individuals is impracticable because of the large number of Class Members and the fact that Class members are likely dispersed over a large geographical area, with some members presently residing outside of New York and this Judicial District. Furthermore, upon information and belief, many members of the Class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
13. Common questions of law and fact exist as to all members of the Class, in that they all had their right to be free from cruel and unusual punishment violated by Defendants’ conduct in that members were refused adequate nutritional sustenance.
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14. Plaintiff’s claims are typical of the claims of members of the Class. Plaintiff and all members of the Class sustained damages out of Defendants’ course of conduct. The harms suffered by the Plaintiffs are typical of the harms suffered by members of the Class.
15. The representative Plaintiffs have the requisite personal interests in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to the interests of the Members of the Class.
16. Plaintiffs have retained counsel with substantial experience in the prosecution of class actions and civil rights litigation, including successful litigation of civil rights cases. Plaintiffs’ counsel has the resources, expertise, and experience to successfully prosecute this action against Montgomery County. Counsel for the Plaintiffs know of no conflicts among members of the Class or between counsel and members of the Class.
17. This action, in part, seeks injunctive and declaratory relief. As such, the Plaintiffs seek Class Certification under Fed. R. Civ. P. 23(b)(2), in that all Members of the Proposed Class were subjected to the same policy in which detainees were provided inadequate sustenance. In short, Montgomery County personnel acted on grounds generally applicable to all members of the Class.
18. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiffs seek issue certification under Rule 23(c)(4).
19. Common questions of law and fact exist as to all members of the Class and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendant’s written and/or de facto policy of providing inadequate substance to all Montgomery County detainees is a violation of the Fourteenth and Eighth Amendments to the
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United States Constitution, and whether such a written and/or de facto policy existed during the Class Period.
20. A Class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all individual members of the Class is impracticable given the large number of members of the Class and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the Class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expenses to all parties and the court system. By contrast, maintaining this action as a Class action in this District presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
21. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though upon information and belief, the Defendant has maintained its illegal practice for several years.
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FACTS Facts applicable to the Class Generally 22. The Eighth and Fourteenth Amendments of the United States Constitution prohibits Montgomery County Officials, such as Montgomery County jail personnel in this action, from subjecting detainees to cruel and unusual punishment. Failing to provide an adequate amount of food to detainees housed in the Montgomery County Jail is an obvious violation of the United States Constitution. 23. Upon information and belief, Montgomery County has instituted a written and/or de facto policy, custom or practice of refusing to provide detainees adequate food in that they provide not more than 1,700 calories to all detainees. Further, the scant amount of food that is provided is substantially devoid of the protein, minerals, and vitamins necessary to human survival. For the vast majority of detainees, this conduct has resulted in their losing substantial percentages of body weight and/or the development of symptoms and conditions associated with malnutrition. 24. The County knows that it may not institute, enforce, or permit enforcement of a policy or practice that results in the subjection of cruel and unusual punishment of detainees. The County’s policies, practices and customs, as addressed above, are both inhumane and unconscionable. Forcing detainees to live on an unsustainable diet, that results in the development of severe health conditions is blatantly illegal and is unacceptable in a civilized society. 25. The Defendant’s written and/or de facto policies, practices, and customs of refusing to provide detainees adequate nutritional sustenance have been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
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26. Pursuant to these written and/or de facto policies, each member of the Class, including the Plaintiffs, were the victim of hunger and malnutrition caused by the provision of inadequate sustenance.
27. As a direct and proximate result of the written and/or de facto policies, the victims of the unlawful practices – each member of the Class, including the Plaintiffs – have suffered or will suffer severe physical and psychological pain, suffering and mental anguish as a direct result of not being provided with proper sustenance.
Facts Applicable to the Named Plaintiffs 28. Plaintiff Perry Hill resides in Montgomery County, New York. In or around October 2013, Mr. Hill was arrested for a probation violation and detained at the Montgomery County Jail until March 2014. 29. Plaintiff James Rogers resides in Montgomery County, New York. In or around June 2014, Mr. Rogers was arrested for harassment in the 2nd degree and a violation of an order of protection. 30. Upon information and belief, Montgomery County Jail has a strict policy of providing detainees no more than 1,700 calories a day. This amount is slightly more than concentration camp prisoners received during the latter part of World War II.1 However, Plaintiffs maintain that on most days, they were provided substantially less than that. Typically, active adult males need to consume anywhere from 2,400 to 3,000 calories a day depending on their amount
1 http://en.wikipedia.org/wiki/MauthausenGusen_concentration_camp#The_treatment_of_inmates_and_methodology_of_crime. In fact, the amount of calories provided in the Montgomery County Jail is actually less than that provided to concentration camp victims during the early part of World War II.
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of physical exertion. The food in question also provided little-to-no protein, and little fresh fruit and vegetables.
31. Individuals who are placed on dietary restrictions, whether for religious or medical reasons, face an even worse situation. Upon information and belief, rather than provide substitute nutritional provisions, jail personnel are merely instructed to remove the undesired food and/or provide the detainees with a smaller meal as a punitive measure for “complaining” about the food. This obviously results in the detainees receiving a meal with a substantially reduced amount of calories and nutritional sustenance from an already meager fare.
32. Therefore, it is not surprising that Montgomery County Jail detainees suffered severe medical consequences as a result of being starved for prolonged periods of time. Upon information and belief, as a result of the above-mentioned policies, every Montgomery County detainee loses weight shortly after their admission to the jail. In many cases, the weight loss is substantial.
33. For example, Plaintiff Perry Hill was approximately 160 pounds upon his admission to the jail. Upon his release approximately five months later, Mr. Hill lost approximately 24 pounds, which, given his small Body Mass Index (“BMI”), was substantial.
34. Mr. Rogers was approximately 195 pounds upon his admission to the jail. Mr. Rogers lost approximately 15 pounds during his eight-month admission to the jail. Mr. Rogers weight loss was also substantial given he is 6’1 and an already extremely thin male.
35. Additionally, the Plaintiffs are aware of numerous other individuals who lost unbelievable amounts of weight – in some cases in excess of 90 pounds in less than six months. In fact, one individual was informed by medical staff that his prosthetic leg no longer fit and was
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unusable because he has lost so much weight, and then was forced to walk with crutches during the duration of his term in the Montgomery County Jail.
36. Plaintiffs and other detainees also experienced other symptoms commonly associated with malnutrition. While in custody, Plaintiffs lost a significant amount of hair, experienced loosening of his teeth, pain and bleeding in his gums, and their gum lines began to recede. He also suffered constantly from intense pains associated with constant hunger. Plaintiffs also suffered from skin rashes and routinely felt depressed, exhausted, dizzy, and faint. Plaintiffs witnessed numerous other detainees experiencing similar symptoms. These are all symptoms of malnutrition and related medical conditions including scurvy, which is a medical condition caused by a lack of Vitamin C.
37. Plaintiffs and numerous other detainees filed grievances regarding the lack of adequate food, some of which were directly addressed to the Sheriff, Defendant Michael Amato and the Jail Administrator, Defendant Michael Franko. Upon information and belief, all of these grievances were categorically denied and/or ignored. Plaintiffs never received an appropriate response to the grievance they filed. Detainees also constantly complained to Corrections Officers about the inadequate food but were routinely informed that there was nothing any of the officers could do about it.
38. In limited situations, some detainees are permitted to work in the jail’s kitchen. This position is highly coveted because kitchen employees are sometimes given an opportunity to eat more food than other detainees. However, kitchen employees who attempt to put more food on the plates that are distributed to the general population are threatened with severe penalties.
39. Up until several years ago, detainees were permitted to purchase extra food items including ramen noodles, through the MCJ Commissary. Unfortunately, and until recently,
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Defendant Amato removed the Commissary and prohibited family members from sending detainees food packages. This decision obviously impacted detainees tremendously in that they had no other option then to starve. During the past few months, Amato has reversed course and allowed for additional food purchases, claiming that doing so will allow the County to make money off of their failure to provide detainees with sufficient food at the Montgomery County Jail.
40. During their admissions at the Montgomery County Jail, Plaintiffs quickly learned that food dominates the culture of the jail. Almost all of the fights that occur at the jail are instigated by food, or the lack thereof. Oftentimes contraband in the form of food is smuggled into the jail, which causes serious fights because of the detainees’ desperate hunger. Most detainees resort to the humiliating and debilitating practice of eating non-edible substances to fill their stomach. On several occasions, Plaintiff Hill was so hungry he consumed non-edible substances including toothpaste and coco-butter lotion. Plaintiff Hill witnessed numerous other detainees eating the same or similar substances.
41. As a direct and proximate result of starving for nearly five months, Plaintiffs have suffered and continues to suffer physical and psychological pain, humiliation, suffering and mental anguish.
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CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
--Violation of Constitutional Rights Under Color of State Law – --Infliction of Cruel and Unusual Punishment—
42. Plaintiffs incorporate by reference and realleges each and every allegation stated herein.
43. The Eighth and Fourteenth Amendments to the United States Constitution preclude prison officials from denying a detainee an appropriate amount of food as such conduct would constitute cruel and unusual punishment and/or a violation of the right to due process of law.
44. Defendants’ actions, detailed above, violated Plaintiffs and Proposed Class Members’ rights under the United States Constitution. Simply put, it is not objectively reasonable, under any stretch of the imagination, to deny detainees an adequate amount of food necessary to basic human survival. It is difficult to imagine a more inhumane and abusive policy than subjecting individuals to malnutrition, either for financial reasons or because of wanton cruelty.
45. The denial of adequate food was conducted pursuant to the policy, custom or practice created by Defendants Amato and Franko as supervisory officials of the Montgomery County Jail and the Montgomery County Sheriff’s Department. As such, Montgomery County is directly liable for the damages of the Plaintiffs and the members of the Class.
46. This conduct on the part of the Defendants represents a violation of 42 U.S.C. § 1983, given that the actions of the Defendants were taken under color of state law.
47. As a direct and proximate result of the unconstitutional acts described above, Plaintiffs and the Members of the Class have been irreparably injured.
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AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS --Demand for Preliminary and Permanent Injunction Or, In the Alternative, for the
Issuance of a Declaratory Judgment – 48. Plaintiffs incorporate by reference and realleges each and every allegation stated herein. 49. The policies, customs and practices of the Defendants are clearly unconstitutional and violate detainees’ right to be free from cruel and unusual punishment. Specifically, refusing to provide detainees adequate food is unconstitutional. 50. The continuing pattern of providing inadequate food will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law. 51. Wherefore, Plaintiffs request that unconstitutional conduct be prohibited in that Defendants should be immediately required to provide adequate food to detainees and seeks both a preliminary and permanent injunction from this Court ordering as much. 52. In the alternative to the issuance of an injunction, the Plaintiffs seek the issuance of a declaratory judgment detailing that Montgomery County has failed to provide proper sustenance to detainees at the Montgomery County Jail during the proposed class period.
DEMAND FOR PUNITIVE DAMAGES 53. The actions of Defendants Michael Amato and Michael Franko described above are extreme, outrageous, and wantonly cruel. They also shock the conscience of a reasonable person. Therefore, an award of punitive damages is appropriate to punish the Defendants for their cruel and uncivilized conduct. The Plaintiffs do not seek punitive damages against Montgomery County.
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DEMAND FOR TRIAL BY JURY 54. The Plaintiffs hereby demand a trial by jury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and on behalf of others similarly situated, request that this Honorable Court grant them the following relief: 1. An order certifying this action as a Class Action pursuant to Fed. R. Civ. P. 23. 2. A judgment against Defendants Montgomery County, Michael Amato, and Michael Franko awarding compensatory damages to Plaintiffs and each Member of the Proposed Class in an amount to be determined by a properly charged jury and/or the Court on both an individual and a Class-wide basis. 3. A judgment against Defendants Montgomery County, Michael Amato, and Michael Franko awarding punitive damages to Plaintiffs and each Member of the Proposed Class in an amount to be determined by a properly charged jury and/or the Court on both an individual and a Class-wide basis. 4. A preliminary and permanent injunction enjoining the Defendants from continuing to enforce its’ unconstitutional policies, customs and practices. 5. A declaratory judgment detailing that the Defendants’ policies, customs and practices are unconstitutional. 6. A monetary award for attorneys’ fees and the costs of this action, pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 23.
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Dated: May 11, 2018

Respectfully Submitted By:
/s Elmer Robert Keach, III
_________________________ Elmer Robert Keach, III, Esquire Maria K. Dyson, Esquire LAW OFFICES OF ELMER ROBERT KEACH, III, PC One Pine West Plaza, Suite 109 Albany, NY 12205 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com
Nicholas Migliaccio, Esquire Member of the Bar, USDC, NYND WHITFIELD, BRYSON & MASON, LLP 1625 Massachusetts Avenue, NW Suite 605 Washington, DC 20036 Telephone: 202.429.2290 Telecopier: 202.429.2294 Electronic Mail: nmigliaccio@wbmllp.com
ATTORNEYS FOR PLAINTIFFS AND THE PROPOSED CLASS

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 Case 9:14-cv-00933-BKS-DJS Document 139 Filed 08/20/18 Page 1 of 35

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
PERRY HILL and JAMES ROGERS, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
COUNTY OF MONTGOMERY, MICHAEL AMATO, and MICHAEL FRANKO,1
Defendants.
APPEARANCES:
For Plaintiffs: Law Offices of Elmer Robert Keach, III, P.C. Elmer Robert Keach, III Maria K. Dyson One Pine West Plaza, Suite 109 Albany, NY 12205 Migliaccio & Rathod LLP Nicholas A. Migliaccio Jason S. Rathod 412 H Street N.E., Suite 302 Washington, DC 20002
For Defendants: Goldberg Segalla LLP Jonathan M. Bernstein 8 Southwoods Boulevard, Suite 300 Albany, NY 12211

9:14-cv-00933 (BKS/DJS)

1 Defendants note that Defendant Michael Franko has retired. (Dkt. No. 88-18, at 29). To the extent he is sued in his official capacity, his “successor is automatically substituted as a party.” Fed. R. Civ. P. 25(c). Claims against Defendant Franko in his individual capacity remain.

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Hon. Brenda K. Sannes, United States District Judge: MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION Plaintiffs Perry Hill and James Rogers bring this conditions-of-confinement case, and
proposed class action, under 42 U.S.C. § 1983 against Defendants County of Montgomery, Michael Amato, and Michael Franko. (Dkt. No. 136). Plaintiffs allege that Defendants failed to provide adequate nutritional sustenance while they were at the Montgomery County Jail (“MCJ”) in Fultonville, New York, in violation of the Eighth and Fourteenth Amendments. (Id.). Presently before the Court is Plaintiffs’ motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. (Dkt. No. 106). Acknowledging that the damages inquiry does not meet the predominance requirement because “the severity of the injuries will vary,” Plaintiffs seek certification of a liability class only. (Dkt. No. 74, at 24–25; Dkt. No. 106). Plaintiffs ask the Court to certify as a primary class “[a]ll detainees who have been or will be placed into the custody of the [MCJ] and were detained for at least two consecutive weeks” from July 25, 2011 to the present; Plaintiffs also seek certification of a pretrial detainee subclass (Fourteenth Amendment) and a convicted prisoner subclass (Eighth Amendment). (Dkt. No. 106). Defendants oppose the motion. (Dkt. Nos. 88, 113). For the following reasons, Plaintiffs’ motion for class certification is granted. II. PROCEDURAL HISTORY
On July 25, 2014, Hill filed the Complaint in this action. (Dkt. No. 1). On February 27, 2017, after conducting significant discovery, Hill moved for class certification. (Dkt. No. 73). The Court denied the motion without prejudice to renewal upon further briefing: (1) as it was unclear from his papers whether Hill, who was held at MCJ in connection with a probation
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violation, was a pretrial detainee or a convicted prisoner2; and (2) because Hill’s claim for injunctive and declaratory relief was in all likelihood moot as he had been released from MCJ before filing this action, and thus did not have standing to seek such relief on behalf of the purported class. Hill v. County of Montgomery, No. 14-cv-933, 2017 WL 9249663, at *4–5, *9 (N.D.N.Y. Sept. 29, 2017).3
On November 21, 2017, Hill filed a supplemental motion for class certification, briefing on the issues the Court identified, and a motion for leave to amend the Complaint under Rule 15. (Dkt. Nos. 106, 107). At the same time, James Rogers, who had been an inmate at MCJ as both a pretrial detainee and a convicted prisoner, filed a motion for leave to intervene, under Rule 24, as a named plaintiff and class representative. (Dkt. No. 106). Defendants opposed these motions. (Dkt. No. 113).
On May 29, 2018, following oral argument and additional briefing, (Dkt. No. 125, 126, 127), the Court dismissed the claim for declaratory and injunctive relief, granted the motion to amend the complaint and Rogers’ motion to intervene for purposes of: (1) adding Rogers as a Plaintiff with a Fourteenth Amendment and an Eighth Amendment conditions-of-confinement damages claim; (2) clarifying Hill’s status as a pretrial detainee; and (3) clarifying that Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4) for liability only. (Dkt. No. 128, at 17). The Court did not, at that time, address the renewed motion for class certification but directed further briefing on the predominance and superiority requirements of Rule 23(b)(3), which Plaintiffs had not specifically addressed in their motion papers. The parties subsequently
2 Hill’s status dictates whether his conditions-of-confinement claim falls under the Fourteenth Amendment’s due process clause (pretrial detainee) or the Eighth Amendment’s cruel and unusual punishment clause (convicted prisoner). 3 Lexis citation unavailable.
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briefed these requirements. (Dkt. Nos. 131, 134). On August 9, 2018, Plaintiffs filed an Amended Complaint. (Dkt. No. 136). III. BACKGROUND
In support of their motion for class certification, Plaintiffs rely on the Amended Complaint, their depositions, the depositions of five other MCJ inmates, the depositions of Defendants Amato and Franko, as well as the depositions of a number of MCJ staff who work in the kitchen and medical department, MCJ meal plans, a sample of inmate surveys, and the opinion of Heidi Jay Silver, an expert in the area of nutrition. Defendants have submitted expert reports by Katherine Streeter, a registered dietitian, and William Graber, M.D.4 The Court has carefully considered all the evidence and outlines the evidence relevant to the disposition of the renewed motion for class certification.
A. Montgomery County Jail Approximately 1,000 individuals enter MCJ every year; it is a 177-bed facility. (Dkt. No. 75-5, at 45; Dkt. No. 75-2, at 36). Since 2010, Trinity Services Group (“Trinity”) has been MCJ’s food provider. (Dkt. No. 88-3, ¶ 2). A Trinity dietitian sets the menu at MCJ and specifies the serving sizes.5 (Dkt. No. 75-3, at 10, 58). Inmates at MCJ are supposed to receive three meals per day and, on average, 2,900 calories per day. (Dkt. No. 75-2, at 8, 25). Trinity requires the jail to make a substitution if an item specified on the menu is unavailable—if milk has spoiled, for instance. (Id. at 56–57). The MCJ cook decides what to substitute for the unavailable menu item. (Id. at 144). In general, no one from Trinity reviews substitution decisions. (Id. at 93).
4 Defendants also submitted a report by Martin Horn, an expert in the area of correctional facilities policies and procedures, but do not appear to rely on it. 5 Amato testified that the MCJ kitchen staff and Trinity “put together” the diet. (Dkt. No. 75-2, at 56).
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Lynn Dumar, who is employed as a cook at MCJ, explained that an item might be substituted if they were out of stock or it was winter and the food delivery truck did not arrive on time. (Dkt. No. 75-3, at 27). Dumar stated that, generally, a vegetable is replaced with another type of vegetable and a starch is replaced with another starch. (Id.). Dumar testified that a production sheet must be filled out for every meal and that if there is a substitution it is usually noted. (Id. at 92).
Dumar testified that she takes inventory of the storage, dry storage, cooler, and freezer, and then places a food order via computer on a weekly basis. (Id. at 41). Dumar testified that her weekly orders often include fruit,6 canned fruit, frozen vegetables, potatoes, eggs, cottage cheese, and meats, (id. at 80–82), and that she orders dry goods such as pudding, Jell-O, KoolAid, and spices four times per year, (id. at 46). Dumar stated that a Trinity representative periodically visits MCJ to “check the line and make sure we are serving the right portions.” (Id. at 58).
Dumar stated that she instructs the inmates who work in the kitchen to use specific utensils, explaining that if they are supposed to serve one cup of mashed potatoes, they use a one-cup utensil to scoop the potatoes and level it off before placing it on the tray. (Id. at 50). Kenneth Crouse, an inmate who worked in the kitchen,7 testified that three or four times each week he was instructed to ladle out less than the prescribed amount of food because they were running low. (Dkt. No. 95-2, at 13).
6 Dumar stated that inmates generally receive fresh fruit once a week. (Id. at 44). Kenneth Crouse, a former MCJ inmate, testified that fresh fruit was never served. (Dkt. No. 75-22 at 39). 7 Inmates receive an extra meal as payment for working in the kitchen. (Dkt. No. 75-2, at 25).
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B. Plaintiff Perry Hill Hill was detained at MCJ from September 2013 to March 2014 for a parole violation. (Dkt. No. 75-6, at 16). Hill testified that he weighed approximately 160 pounds when he entered MCJ and 134 pounds when he left. (Id. at 72). Hill stated that his meals at MCJ typically consisted of: oatmeal, a breakfast cake, or cereal for breakfast; a sandwich and vegetable, and maybe fruit for lunch; and a chicken patty or beef stroganoff and a vegetable for dinner. (Id. at 36–37). Hill stated that he believed that the diet provided, including meat, was soy-based. (Id. at 79). He was “always” hungry. (Id. at 38). Hill testified that he complained “[a]ll the time” to corrections officers about there being “so little food” but that he never received a response. (Id. at 39). Hill testified that he ate cocoa butter sticks, vitamins that he purchased from the commissary, and toothpaste to supplement his diet. (Id. at 54). Hill testified that he had no medical conditions prior to entering MCJ. (Id. at 26). Hill testified that he was depressed about “being in” MCJ and “going through starvation.” (Id. at 80). Hill lost hair and experienced receding and bleeding gums, dizziness and nausea at MCJ. (Id. at 55–58). Hill witnessed “multiple fights” over food. (Id. at 48, 58–59). Hill testified that he “worked out his whole life” but stopped working out while at MCJ because “you can’t build muscle if you’re not eating.” (Id. at 62). Hill testified that he had difficulty sleeping because he was “hungry” and the “sleeping conditions” were “poor.” (Id. at 82). C. Plaintiff James Rogers Rogers was detained at MCJ from June 2014 to February 2015. (Dkt. No. 113-2, at 35). He was arrested in June 2014, pled guilty in November 2014, and remained at MCJ until February 2015. (Id. at 32–33). Upon admission to MCJ, Rogers weighed approximately 195 pounds. (Dkt. No. 136, ¶ 34). “Rogers lost approximately 15 pounds during his eight-month admission to the jail,” and asserts that this “weight loss was . . . substantial given he is 6’1, and is
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an extremely thin man.” (Id.). Rogers testified that he and others filed grievances “that the food wasn’t healthy enough.” (Dkt. No. 113-2, at 44). Rogers testified that he was hungry “most of the day” while at MCJ even though he received three meals per day. (Dkt. No. 113-2, at 57). Rogers suffered hair loss while at the jail. (Dkt. No. 113-2, at 65).
D. Other Detainees In support of their motion, Plaintiffs submitted the deposition testimony of several other individuals who had been at MCJ for more than two weeks during the proposed class period. (Dkt. Nos. 75-4 (Eric Engle); 75-10 (Robert Pettit); 75-9 (Bruce O’Shaughnessy); 75-22 (Kenneth Crouse); and 95-1 (Robert Washington)). Eric Engle testified that the portions were “incredibly small and he was . . . extremely hungry.” (Dkt. No. 75-4, at 14). Engle stated that he complained but that “the only answers I was getting from the kitchen staff, most of the guards didn’t know that is what was decided by the jail administrator, it was enough calorie intake and you are not going to get any more.” (Dkt. No. 75-4, at 69). Robert Pettit testified that when he was in MCJ in 2012 and 2013,8 the meals did not fill him up, he was hungry all day every day, he felt weak, and he lost hair due to “[l]ack of food.” (Dkt. No. 75-10, at 46, 63). Kenneth Crouse testified that he has been held at MCJ approximately 20 times. (Dkt. No. 75-22, at 51). He stated that he often worked in the MCJ kitchen, where he helped prepare meals. (Id. at 10). Crouse explained that he used a “scooping tool” to place food on trays, and that they were ladles that were either one-half cup or one cup in size. (Id. at 11). Crouse stated that the ladles were supposed to be filled but that three to four times per week “we were told to give less amounts because it was running low.” (Id. at 12). Crouse explained that when the food “started
8 Pettit appears to have been a pretrial detainee during some of the time he was at MCJ in 2012 and 2013. (Dkt. No. 75-10, at 8–9).
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getting low” he was instructed to “skimp it down” and give a half-cup ladle instead of a full-cup ladle. (Id. at 15). Crouse stated that when he was in the general population at MCJ, the food portions he received were small and he lost weight. (Id. at 17). Crouse stated that MCJ began making sandwiches available for purchase on certain nights. (Id. at 21–22). Crouse lost hair while at MCJ. (Id. at 23).
E. Defendant Michael Amato Defendant Michael Amato, the Sheriff of Montgomery County, testified that he was aware that inmates were complaining that “they wanted more food,” and that “they were hungry.” (Dkt. No. 75-2, at 9, 14). Corrections officers also told him that inmates were complaining that they wanted more food. (Dkt. No. 75-2, at 16). He stated that as of 2013 he was aware that inmates had complained about the portion sizes of the food at MCJ. (Dkt. No. 75-2, at 77). Amato believed, however, that the inmates were complaining about portion sizes because they wanted the commissary back, which had been removed. (Id. at 83). F. Defendant Michael Franko Michael Franko, the MCJ Jail Administrator, testified that he was aware that there were “a number of grievances about food” and that inmates were complaining that they did not like the food and that they were not getting enough. (Dkt. No. 75-5, at 8, 12). Franko stated that MCJ prepares “meals within a caloric range,” on average, 2,900 calories, but that “how much [inmates] actually eat is up to them.” (Dkt. No. 75-5, at 24–25). Franko explained that the menus are set through Trinity, and “the caloric intake is reviewed and approved by their dietician” and MCJ’s “recipes reflect that.” (Id. at 27).
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G. Plaintiff’s Expert – Heidi Jay Silver Heidi Jay Silver is a Research Associate Professor of Medicine in the Division of Gastroenterology, Hepatology, and Nutrition in the School of Medicine, Department of Medicine, at Vanderbilt University Medical Center, Nashville, Tennessee. (Dkt. No. 75-1, at 1). Silver analyzed a number of documents, including spreadsheets of Trinity’s menus and nutrient analysis of menus, Dumar’s deposition, the Commission of Corrections’ investigatory materials about food substitutions, meal records from January to February 2013 and January to February 2014, and photographs of Plaintiff and a second MCJ inmate. (Dkt. No. 75-1, at 2). Silver opined that the inmates of MCJ “experienced clinically significant weight loss during the period of time in which they were incarcerated” because the calories they consumed at MCJ were “less than the energy requirements for maintaining their initial admission body weight.” (Id. at 3). After reviewing Trinity’s menus, Silver stated that she agrees “that the daily menus as planned are designed to provide” “a range of 2350-3065 calories per day.” (Id.). After reviewing MCJ incident reports as well as the weight loss of fifteen inmates, Silver stated that in her opinion, however, it was “apparent that there are frequent occasions when substitutions are being made for food items that provide fewer calories and other nutrients than what was planned in the written cycle menus.” (Id. at 4–5). These substitutions, she believes, created caloric and protein deficits as well as deficits in, among others, fiber, iron, calcium, potassium, Vitamin A, and Vitamin D. (Id. at 6). Silver created a table (“Table A”) listing “the initial admission and discharge weights for several inmates” as well as “the amount of calories needed per day to maintain the initial admission weight, the amount of weight loss for each individual (based on the available evidence), the rate of weight loss per week, and the energy deficit (amount of calories not being consumed each day) that would provide this amount of weight loss.” (Id. at 3). Table A:
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(Id. at 4). Silver further stated that after reviewing the MCJ incident reports, the weight loss of the inmates in Table A, and the “per meal records from 2013 & 2014,” it is her opinion that “substitutions are being done on a regular basis” and “routinely result[] in a deficit of calories, protein and micronutrients (vitamins and minerals). (Id. at 5). Silver provided a second table (“Table B”) to show the caloric and protein deficits created by substitutions for scheduled menu items. (Id. at 6). Table B:
(Id.). 10

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Silver viewed facial photographs of Hill and a second inmate, “for whom the reduction in body mass (loss of fat and muscle mass) is physically apparent” and opined that the weight loss is “clinically significant.” (Id. at 7). Silver defined “clinically significant” as the loss of ten percent or more body weight in a six month period or five percent of body weight in a period of three months.” (Id. at 3).
Regarding the effects of an inadequate diet, Silver indicated that hair loss may be caused a deficit in protein, Vitamin E, zinc, selenium, and biotin; bleeding gums may be caused by a Vitamin C deficiency; skin changes may be caused by a deficiency in Vitamin E, Vitamin A, and fatty acids. (Id. at 7). Additionally, Silver stated that “[w]ith hunger, there is an increased focus on finding other items to substitute for the inadequate food intake – the effect of hunger is consistent with the aberrant eating behaviors reported by counsel of inmates consuming toothpaste, cocoa butter and toilet paper to assuage their hunger.” (Id. at 8).
H. Defendants’ Expert – Katherine Streeter Defendants submitted an expert report by Katherine Streeter, a clinical dietician and assistant director of nutrition services in long-term, transitional, and adult day care facilities. (Dkt. No. 88-1, at 6). In formulating her opinion, Streeter reviewed discovery materials, the Complaint, “Jail Policy,” MCJ meal records from 2011 to 2014, inmate grievance records, and deposition testimony. (Id. at 23–24). “To verify nutritional composition of menus,” Streeter “selected a 10% representation of meals in the 28-day cycle (a sample of three nonconsecutive days) to analyze.” (Id. at 13). To “ascertain what was actually prepared by the kitchen,” Streeter reviewed the meal records from October 2013 to March 2014. (Id.). Streeter noted that there were “notations on many days indicating when a substitution for part of the house or for the whole house needed to be made.” (Id.). In Streeter’s opinion, “[t]ypically, nutritionallyequivalent substitutions were made during that time,” including “oatmeal served instead of
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farina; rice served instead of potatoes, brownies instead of white cake.” (Id.). Streeter provided the following table containing her analysis9 of three days of the Trinity menu:
(Id. at 14). In a subsequent report, Streeter responded to Silver’s opinion that the substitutions were
creating nutritional deficits as follows: Silver’s calculations fail to account for instances when a substitution was made that provide more calories than the original item. During a brief look at menus from the time period she evaluated, I found at least a half-dozen such examples (below is not an exhaustive list, merely examples): o 1/2/13 lunch – mayo (118 kcal) instead of gravy (52 kcal) o 1/2/13 dinner – bologna (267 kcal) instead of turkey ham (142 kcal) o 1/4/13 dinner – cake (288 kcal) instead of sugar cookies (212 kcal) o 1/22/13 lunch – mayo (118 kcal) instead of BBQ sauce (58 kcal)
9 In her report, Streeter explained the table as follows: RDA range refers to the accepted range as detailed in the Generalized Nutrition Needs section above. Reference value is the numerical midpoint or target value within the RDA range, against which further calculations are compared. Trinity analysis is the numerical average of the three nonconsecutive sample days, as analyzed by the Trinity Health dietitian. Writer’s analysis is my evaluation of the nutritional composition of the same three days, as described above. In the Vs. RDA columns, I have noted whether the menu as analyzed fails to meet, meets, or exceeds the requirement.
(Dkt. No. 88-1, at 14).
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o 1/23/13 dinner – 8oz chili with 4oz macaroni instead of 4 oz chili with 8oz macaroni (38 calories more, increased protein, decreased carbohydrate)
o 1/30/13 lunch – peas (90 kcal) instead of steamed cabbage (48 kcal)
o 2/11/13 dinner – rice (298 kcal) instead of sugar cookies (212 kcal)
o 2/28/13 lunch – coleslaw (199 kcal) instead of tossed salad with dressing (17+100 kcal)
(Id. at 90 (internal citations omitted)). I. Defendants’ Expert William Graber, M.D. Defendants also submitted an expert report by William Graber, M.D., who examined
records concerning Hill, and six other inmates. (Dkt. No. 88-1, at 79–81). Dr. Graber opined that if these individuals “did have any weight loss [or malnourishment] it could be attributed to” a history of drug use or medical illness. (Id.). IV. MOTION FOR CLASS CERTIFICATION
A. Standard For a matter to proceed as a class action, a plaintiff must first satisfy four requirements: (1) numerosity (“the class is so numerous that joinder of all members is impracticable”); (2) commonality (“there are questions of law or fact common to the class”); (3) typicality (“the claims or defenses of the representative parties are typical of the claims or defenses of the class”); and (4) adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class”). Fed. R. Civ. P. 23(a). In addition, the Second Circuit has “‘recognized an implied requirement of ascertainability in Rule 23,’ which demands that a class be ‘sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.’” Univs. Superannuation Scheme Ltd. v. Petróleo Brasileiro S.A. (In re Petrobras Sec.), 862 F.3d 250, 260 (2d Cir. 2017) (quoting Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015)).
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Assuming the requirements of Rule 23(a) are met, a class action may only be maintained if the plaintiff also qualifies the proposed class under one of the categories in Rule 23(b). Fed. R. Civ. P. 23(b). Here, Plaintiffs seek to certify the class for purposes of compensatory relief under Rule 23(b)(3), though limited to the issue of liability under Rule 23(c)(4), as damages will require an individualized inquiry. (See generally Dkt. No. 131). The court may certify a Rule 23(b)(3) class if it “finds that 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)(3).
The party seeking class certification bears the burden of satisfying Rule 23’s requirements by a preponderance of the evidence. Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 317 F.R.D. 374, 384 (S.D.N.Y. 2016). Thus, “a court must ‘probe behind the pleadings before coming to rest on the certification question,’ satisfying itself that Rule 23 compliance may be demonstrated through ‘evidentiary proof.’” Johnson v. Nextel Commun. Inc., 780 F.3d 128, 138 (2d Cir. 2015) (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)). “[T]his inquiry may sometimes overlap with merits issues, though the determination as to a Rule 23 requirement is not binding on the trier of fact in its determination of the merits.” Id. “Furthermore, in order to certify a class, the proponent of class certification need not show that the common questions ‘will be answered, on the merits, in favor of the class.’” Id. (quoting Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 459 (2013)). While the requirements “are to be applied liberally,” the court must still “conduct a rigorous analysis of the criteria set forth in Rule 23.” Friedman-Katz v. Lindt & Sprungli (USA), Inc., 270 F.R.D. 150, 153–54 (S.D.N.Y. 2010). “A district judge is to assess all of the relevant evidence admitted at the class
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certification stage and determine whether each Rule 23 requirement has been met, just as the

judge would resolve a dispute about any other threshold prerequisite for continuing a lawsuit.”

Miles v. Merrill Lynch & Co. (In re Initial Pub. Offerings Sec. Litig.), 471 F.3d 24, 42 (2d Cir.

2006).

B. Proposed Classes Plaintiffs seek to certify a Primary Class and two Sub-Classes:

Primary Class

All detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks. The class period commences on July 24, 2011, and extends to the date on which Montgomery County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of refusing to provide an appropriate amount of nutritional sustenance to all detainees admitted to the Montgomery County Jail. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.

Pre-Trial Detainee Sub-Class

All members of the Primary Class but who were housed as a PreTrial Detainee, in that they had not yet been convicted of their charges.

Post-Trial Detainee Sub-Class

(Dkt. No. 106).10

All members of the Primary Class, but who were housed as a PostTrial Detainee, in that they had been convicted of their charges, either by a plea or jury trial.

10 “When appropriate, a class may be divided into subclasses that are each treated as a class under” Rule 23. Fed. R. Civ. P. 23(c)(5).
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C. Section 1983 – Conditions of Confinement The Constitution requires “that prisoners be served ‘nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it’ [and] under certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension.” Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983). Under both the Eighth and Fourteenth Amendments, a plaintiff must establish an objective element and a subjective element for a § 1983 conditions-ofconfinement claim. Under both amendments, “to establish an objective deprivation, ‘the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health.’” Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (quoting Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013)). “[C]onditions of confinement may be aggregated to rise to the level of a constitutional violation, but ‘only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.’” Walker, 717 F.3d at 125 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)). The subjective element requirement, however, differs between the two amendments. Under the Eighth Amendment, a defendant “cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Darnell, 849 F.3d at 32 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The mens rea requirement for pretrial detainees under the Fourteenth Amendment, on the other hand, is defined objectively. Id. at 35. A pretrial detainee must prove “that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to
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mitigate the risk that the condition posed to the pretrial detainee even though the defendantofficial knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 29, 35. V. ANALYSIS
A. Rule 23(a) Requirements 1. Numerosity
Rule 23(a)(1) first requires that the proposed class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The proposed class in this case includes “[a]ll detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks.” (Dkt. No. 136, ¶ 9). In general, “numerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Here, Plaintiffs claims that (1) “thousands of [individuals] were held within the MCJ during the class period;” and (2) more than a hundred individuals have contacted counsel indicating that they wish to be part of this lawsuit. (Dkt. No. 74, at 16). Additionally, Plaintiff has submitted the deposition testimony of several MCJ inmates who claim weight loss or malnutrition and hunger, more than twenty surveys of MCJ inmates claiming that they suffered malnutrition, hunger, or weight loss. Plaintiff’s expert’s report contains a table of fourteen detainees, all of whom were at MCJ for longer than two weeks and lost weight. (Dkt. No. 75-1, at 4). Defendants contend that Plaintiff has failed to show numerosity because there is no evidence that “these thousands or even hundreds of people lost weight to an unhealthy point while at the jail.” (Dkt. No. 88-18, at 13).
“[I]n assessing numerosity a court may make ‘common sense assumptions’ without the need for ‘precise quantification of the class.’” Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291, 295 (D. Conn. 2001) (quoting Pecere v. Empire Blue Cross & Blue Shield, 194 F.R.D. 66, 69
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(E.D.N.Y. 2000)); see also 1 Herbert B. Newberg, Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels § 3.05, at 139 (2d ed. 1985). Further, the numerosity inquiry is not “strictly mathematical.” Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014). Rather, it
must take into account the context of the particular case, 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) requests for injunctive relief that would involve future class members. Id. In this case, in view of the evidence that MCJ can house 177 individuals at any given time, and that the substitution and reduction policy has endured for a number of years, the Court finds it is reasonable to conclude that there are a sufficient number of present and former MCJ detainees to satisfy the numerosity requirement. Further, as there may be well in excess of forty class members who are unlikely to have the financial resources to sue separately, judicial economy favors certification over joinder. 2. Commonality Next, a plaintiff seeking class certification must show “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “A question of law or fact is common to the class if the question is capable of classwide resolution—which means that its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Johnson, 780 F.3d at 137 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)) (citations and internal marks omitted). The common question(s) must generate “common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc., 564 U.S. at 350 (internal quotation marks and emphasis omitted). “Where the same conduct or practice by the same defendant gives rise to the
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same kind of claims from all class members, there is a common question.” Johnson, 780 F.3d at 137 (quoting Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014)).
Plaintiffs assert that common questions in this case include: (1) “do County employees make changes to the menus that were approved by a qualified dietician, such that those changes provide detainees with inadequate nutrition”; (2) “[a]re these menu changes made pursuant to a policy or practice implemented by Montgomery County”; and (3) “[h]ave detainees suffered injuries as a result of this practice.” (Dkt. No. 74, at 18). Defendants argue that “there are too many variables and factual scenarios to support commonality” and that Plaintiffs cannot show “that the alleged malnutrition occurred on a class wide basis when there are inmates that gained weight or had their weight remain the same.” (Dkt. No. 88-18, at 16). Defendants further argue that Plaintiffs “fail[] to account for those inmates that worked in the kitchen that obtained double portions,” (id. at 17), and have presented evidence that MCJ’s medical unit has the ability to order more food for a pregnant inmate, and that changes are made to meals to accommodate diabetics. (Dkt. No. 75-2, at 81).
Plaintiffs allege that Defendants intentionally or recklessly employed a policy or practice of making changes to the menu designed by a Trinity dietitian to provide adequate calories and nutrition to inmates by substituting foods of insufficient caloric and nutritional value on a continual basis and at least twice weekly reducing portion sizes. The Second Circuit “has been reluctant to impose bright-line durational or severity limits in conditions of confinement cases, and has never imposed a requirement that pretrial detainees show that they actually suffered from serious injuries.” Darnell, 849 F.3d at 31 (citing Walker, 717 F.3d at 129 (Eighth Amendment)). The Court finds that the answers to the above questions go to the heart of this case—whether Defendants, through a policy or practice of allowing calorically and nutritionally inadequate food
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to be served to inmates on a continuous basis, subjected Plaintiffs, and other inmates, to conditions that posed “an unreasonable risk or serious damage to [their] future health.” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012). Accordingly, commonality is satisfied. Butler v. Suffolk County, 289 F.R.D. 80, 98 (E.D.N.Y. 2013) (“Whether the County was aware of and deliberately indifferent to the conditions at the [jail] is a common question subject to class-wide resolution.”); McGee v. Pallito, No. 04-cv-335, 2015 WL 5177770, at *4, 2015 U.S. Dist. LEXIS, at *15 (D. Vt. Sept. 4, 2015) (finding “common issue” of whether prison officials’ policy amounted to deliberate indifference and observing that “common questions” pertinent to the individual class members “frame the ultimate question of whether the Defendants’ policy violates the Constitution”); V.W. ex rel. Williams v. Conway, 236 F. Supp. 3d 554, 575 (N.D.N.Y. 2017) (concluding that common questions included whether the defendants “applied a common course of unlawful conduct to the members of the class and subclass . . . acted with deliberate indifference to the substantial risk of serious harm posed by certain aspects of that common course of conduct,” and whether the defendants “have collectively deprived plaintiffs of the education, special services, and related procedural protections to which they are entitled” and that the “common answers to these questions will drive the resolution of the litigation”).
3. Typicality Typicality “requires that the claims of the class representatives be typical of those of the class.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 245 (2d Cir. 2007) (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)). This requirement “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (quoting In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992)). “[T]he
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test for typicality is not demanding.” Pyke v. Cuomo, 209 F.R.D. 33, 42 (N.D.N.Y. 2002) (internal quotations marks and emphasis omitted).
Defendants argue that Hill cannot satisfy the typicality requirement because his weight loss and the weight loss of other inmates could have been caused by “varying factors such as inmates’ varying medical and substance abuse history and use of medications that effect weight.” (Dkt. No. 88-18, at 19). Defendants’ argument, however, overlooks Plaintiffs’ contention that Defendants’ ongoing policy or practice of serving nutritionally and calorically inadequate meals to inmates at MCJ caused them to suffer not only weight loss but also chronic hunger and malnutrition. “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936–37 (2d Cir. 1993). Here, Hill, and the other MCJ inmates who were pretrial detainees, are alleged to have suffered as a result of MCJ’s allegedly unlawful practice of regularly serving nutritionally and calorically inadequate meals. Thus, Hill has satisfied the element of typicality.
Defendants argue that Rogers’ claim is not typical “because he is trying to wear two hats,” “claiming a Fourteenth Amendment claim for his pre-trial time” from June 2014 to November 2014, and an “Eighth Amendment claim for his post-trial time” from November 2014 to February 2015. (Dkt. No. 113-16, at 19–20). Defendants also argue that Plaintiffs’ failure to indicate when, during his time at MCJ, Rogers lost weight (fifteen pounds) additionally complicates his status. (Id. at 20).
“When the same unlawful conduct was directed at or affected both the named plaintiffs and the prospective class, typicality is usually met.” Stinson v. City of New York, 282 F.R.D. 360,
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371 (S.D.N.Y. 2012). Thus, while the legal standard applicable to Rogers changes depending on the time period under consideration, because Plaintiffs allege that Defendants’ course of conduct of subjecting inmates to a nutritionally and calorically inadequate diet was the same throughout the duration of his incarceration at MCJ, his change in status does not render him atypical for class representation purposes. See V.W., 236 F. Supp. 3d at 576 (finding that the plaintiffs carried their burden on typicality, explaining that “the members of the class and subclass share the same legal arguments because their claims are based on the common application of certain challenged policies”). Although “the extent of class members’ exposure to the [alleged] conditions and the exact nature of their injuries will necessarily differ from those of the proposed class members, ‘[t]he representative claims need not be identical to the claims of every class member in order to meet the typicality requirement.’” Butler, 289 F.R.D. at 99 (quoting Marriott v. County of Montgomery, 227 F.R.D. 159, 172 (N.D.N.Y. 2005)) (certifying class of pretrial detainees and convicted prisoners in conditions-of-confinement action under Fourteenth and Eighth Amendments); see Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 565 (S.D.N.Y. 2014) (finding typicality where “the lead plaintiffs’ and other class members’ claims arise out of the same course of conduct by the defendant and are based on the same legal theories”). Thus, the Court concludes that Rogers, who was, like the other inmates at MCJ, exposed to the allegedly unconstitutional diet, satisfies the typicality requirement.
4. Adequacy of Representation Plaintiffs must also demonstrate that they “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Generally, adequacy of representation entails inquiry as to whether: 1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000). In other words, the
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plaintiff must be “prepared to prosecute fully the action and have no known conflicts with any class member.” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 253 (2d Cir. 2011).
Defendants argue that Hill “cannot adequately represent the class since he fails to proffer any medical proof that his alleged weight loss was due to the diet at the jail causing malnutrition.” (Dkt. No. 88-18, at 21). This argument is, however, unavailing because it goes to the merits of Hill’s case and does not, in any event, suggest that Plaintiff’s “interests are antagonistic to the interests of other members of the class.” Baffa, 222 F.3d at 60; see also Rodriguez v. It’s Just Lunch, Int’l, 300 F.R.D. 125, 146 (S.D.N.Y. 2014) (“Because the ultimate merits of Berkowitz’s claim are not relevant to determining whether Berkowitz is an adequate class representative, the Court does not—and indeed is prohibited from—evaluating the merits now.”).
Defendants assert that Rogers cannot adequately represent the class because he testified that on the Fourth of July, he received a “special meal” for lunch and dinner, including “something extra, like ice cream,” that on July 23, 2014, he stated to a MCJ staff member that he was “sleeping and eating well,” and that on Thanksgiving and New Year’s Day, he received special meals. (Dkt. No. 113-16, at 24–25). Defendants further assert there is evidence that Rogers missed meals and traded away food, and that this conduct created a calorie deficit that led to weight loss. (Id.). The allegations regarding Rogers’ food intake may impact any damages inquiry as to Rogers but do not show he is an inadequate class representative. See In re Frontier Ins. Grp., Inc. Sec. Litig., 172 F.R.D. 31, 47 (E.D.N.Y. 1997) (“Courts that have denied class certification based on the inadequate qualifications of plaintiffs have done so only in flagrant cases, where the putative class representatives display an alarming unfamiliarity with the suit,
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display an unwillingness to learn about the facts underlying their claims, or are so lacking in credibility that they are likely to harm their case.” (internal quotation marks and citations omitted)).
Plaintiffs’ contention is that they and all other individuals housed at MCJ for two weeks or more have been subject to an unconstitutional deprivation of food and nutrition as a result of Defendants’ alleged policy and practice of reducing portions and making calorically and nutritionally inadequate substitutions to the menu designed by the Trinity dietitian. Plaintiffs’ interests are therefore identical to those other inmates housed at MCJ during the relevant time period. See Stinson, 282 F.R.D. at 371 (finding adequacy of representation because the “Plaintiffs’ interests are identical to those of the putative class, as all plaintiffs have been allegedly injured by the same unconstitutional actions on the part of Defendants”). Moreover, there is no indication that Plaintiffs’ interests are antagonistic to other potential class members. Thus, the Court concludes that Hill and Rogers are adequate class representatives.
As to their attorneys, Plaintiffs assert that the law firms representing them “possess extensive experience in litigating class actions, including those involving civil rights violations.” (Dkt. No. 74, at 20). Defendants do not dispute that Plaintiffs’ counsel are capable of protecting the interests of the class. Therefore, Plaintiffs have satisfied the adequacy requirement.
5. Ascertainability The Second Circuit recently clarified that “[t]he ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries.” Petrobras, 862 F.3d at 264. “This modest threshold requirement will only preclude certification if a proposed class definition is indeterminate in some fundamental way.” Id. at 269. The Circuit expressly “decline[d] to adopt a heightened
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ascertainability theory that requires a showing of administrative feasibility at the class certification stage.” Id. at 265.
Plaintiffs assert that the proposed class is “readily identifiable” and those pretrial detainees and convicted prisoners who remained in MCJ for more than two weeks can be identified through “booking records maintained at the MCJ.” (Dkt. No. 74, at 21–22). Defendants argue that “it is impossible to tell who should be in the class without assessing each individual” and that heroin users who gained weight while in MCJ, individuals who worked in the kitchen and received double portions, and individuals who gambled away their meals should not be in the class. (Dkt. No. 88-18, at 22). Defendants attached more than a thousand pages of MCJ inmate medical records, which they claim the Court would have to review before determining whether a pretrial detainee “can legitimately claim unhealthy weight loss due to the diet at the jail.” (Id. at 23). However, “[a]scertainability does not directly concern itself with the plaintiffs’ ability to offer proof of membership under a given class definition, an issue that is already accounted for in Rule 23.” Petrobras, 862 F.3d at 269. The question is not how difficult or practical ascertaining class members will be, but rather whether doing so is “objectively possible.” Id. at 270. The Court concludes that the class definition contains only objective criteria: incarceration at the MCJ for two weeks or more during the relevant time period. Membership in the sub-classes is also governed by objective criteria: whether the individuals had been convicted of the charges against them at any point during their time at MCJ. See Charron v. Pinnacle Grp. N.Y. LLC, 269 F.R.D. 221, 229 (S.D.N.Y. 2010) (finding wrongful eviction class to be ascertainable and “defined by objective criteria,” where the class membership was dependent on “whether a given apartment [was] rent-regulated” and “owned by the [defendant corporation]; and whether the putative class member [was] a tenant on a fixed date”).
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6. Summary The Court finds that Plaintiffs have met all of the preliminary requirements for certification under Rule 23(a). Thus, the next question is whether Plaintiffs have satisfied the requirements to certify a class under Rule 23(b). B. Rules 23(b)(3) and (c)(4) For certification under Rule 23(b)(3), Plaintiffs must establish that “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)(3). Plaintiffs, acknowledging “that certification of a damages class will be difficult, given the lack of predominance of the proposed class members’ injuries,” seek certification under Rule 23(c)(4) only to determine “whether detainees were being denied adequate nutrition by virtue of the unapproved menu changes implemented by Montgomery County employees.” (Dkt. No. 74, at 24). Rule 23(c)(4) provides: “When appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). “Common issues—such as liability—may be certified, consistent with Rule 23, even where other issues—such as damages—do not lend themselves to classwide proof.” Johnson, 780 F.3d at 138. Thus, “a court may employ subsection (c)(4) to certify a class as to liability regardless of whether the claim as a whole satisfies Rule 23(b)(3)’s predominance requirement.” Augustin v. Jablonsky (In re Nassau Cty. Strip Search Cases), 461 F.3d 219, 227–30 (2d Cir. 2006) (employing predominance analysis in considering whether certification is warranted under Rule 23(c)(4)).11
11 Defendants argue that Plaintiffs “ha[ve] already admitted to the Court on several occasions that [they] cannot satisfy the requirements under Rule 23(b)(3).” (Dkt. No. 134, at 1). The Court does not understand Plaintiffs to have conceded that they cannot meet the requirements of Rule 23(b)(3) as to the issue of liability. In their initial class certification briefing, Plaintiffs acknowledged that “certification of a damages class will be difficult, given the lack of predominance of the proposed class members’ injuries.” (Dkt. No. 74, at 24–25; see id. at 15). Plaintiffs argued
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1. Predominance a. Standard
“A district court may only certify a class under Federal Rule of Civil Procedure 23(b)(3) if ‘questions of law or fact common to class members predominate over any questions affecting only individual members.’” Petrobras, 862 F.3d at 270. “This predominance requirement ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’” Langan v. Johnson & Johnson Consumer Cos., Inc., No. 17-1605, 2018 WL 3542624, at *6, 2018 U.S. App. LEXIS 20592, at *16 (2d Cir. July 24, 2018) (quoting Mazzei v. Money Store, 829 F.3d 260, 272 (2d Cir. 2016)). The predominance requirement is satisfied if: “(1) resolution of any material legal or factual questions can be achieved through generalized proof, and (2) these common issues are more substantial than the issues subject only to individualized proof.” Petrobas, 862 F.3d at 270 (internal quotations, citations, and formatting omitted). The distinction between individual and common questions is “central to the predominance analysis.” Id. The Supreme Court has explained that an “individual question is one where members of a proposed class will need to present evidence that varies from member to member, while a common question is one where the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (alteration in original) (internal quotation marks omitted). The predominance requirement is “far more demanding” than the commonality
that certification on the issue of liability was nevertheless appropriate “given the common core issue in this case— whether detainees were being denied adequate nutrition by virtue of the unapproved menu changes implemented” by MCJ. (Id.). It does not appear that Plaintiffs’ subsequent letter brief, conceding that they cannot satisfy the predominance and superiority inquiries, (Dkt. No. 123, at 3), refers to their inability to meet those requirements as to liability since Plaintiffs consistently sought class certification as to liability. And in this Circuit certification of particular issues is available under Rule 23(c)(4) regardless of whether the claim as a whole satisfies Rule 23(b)(3)’s predominance requirement. Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 108–09 (2d Cir. 2007). The Court therefore does not deem Plaintiffs to have admitted the absence of predominance or superiority as to liability.
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requirement under Rule 23(a), and it is not satisfied “simply by showing that the class claims are framed by the common harm suffered by potential plaintiffs.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997).
“Where individualized questions permeate the litigation, those ‘fatal dissimilarit[ies]’ among putative class members ‘make use of the class-action device inefficient or unfair.’” Petrobras, 862 F.3d at 270 (quoting Amgen Inc., 568 U.S. at 470). “The predominance inquiry mitigates this risk by ‘ask[ing] whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” Petrobras, 862 F.3d at 270 (quoting Tyson Foods, 136 S. Ct. at 1045). For this reason, courts must give “careful scrutiny to the relation between common and individual questions in a case.” Tyson Foods, 136 S. Ct. at 1045. “This analysis is more . . . qualitative than quantitative and must account for the nature and significance of the material common and individual issues in the case.” Petrobras, 862 F.3d at 271 (internal quotation marks and citation omitted). In undertaking this analysis, the Court is mindful of its “‘duty’ . . . to ‘take a close look’ at whether the common legal questions predominate over individual ones.” Langan, 2018 WL 3542624, at *7, 2018 U.S. App. LEXIS 20592, at *18 (quoting Comcast, 569 U.S. at 34).
b. Application Plaintiffs argue that “common evidence will be used to show that Defendants engaged in a common course of unlawful conduct by providing insufficient nutrition to detainees on a classwide basis, acting with indifference to the substantial risk posed by this conduct, and collectively depriving class members of sufficient nutrition and freedom from cruel and unusual punishment as safeguarded by the Eighth and Fourteenth Amendments.” (Dkt. No. 131, at 2). Defendants argue that individualized proof is necessary in a conditions-of-confinement case in order to
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comply with Darnell’s requirement that there be “a case by case assessment” and that class certification would therefore be improper. (Dkt. No. 125, at 4).
In Darnell, the Second Circuit ruled that the conditions of confinement for pretrial detainees held at a facility for less than twenty-four hours, without an actual serious injury or sickness, could rise to the level of a constitutional violation. Darnell, 849 F.3d at 36–38. Citing to Willey v. Kirkpatrick, 801 F.3d 51 (2d Cir. 2015), the Circuit noted that “unsanitary conditions of confinement must be assessed according to two components, severity and duration, on a caseby-case basis” and that, though “there are many exposures of inmates to unsanitary conditions that do not amount to a constitutional violation,” there was no “‘bright-line durational requirement for a viable unsanitary-conditions claim’ or a ‘minimal level of grotesquerie required’ before such a claim could be brought.” Darnell, 849 F.3d at 30–31 (quoting Willey, 801 F.3d at 66–68). The Circuit rejected “the defendants’ theory . . . that state officials are free to set a system in place whereby they can subject pretrial detainees awaiting arraignment to absolutely atrocious conditions for twenty-four hour periods (and perhaps more) without violating the Constitution so long as nothing actually catastrophic happens during those periods.” Id. at 37. The Circuit explained:
That is not the law. As the District Court aptly stated in denying the defendants’ motion to dismiss, “[o]ur Constitution and societal standards require more, even for incarcerated individuals, and especially for pretrial detainees who cannot be punished by the state.” Cano v. City of New York, 44 F. Supp. 3d 324, 333 (2d Cir. 2014). This Court’s cases are clear that conditions of confinement cases must be evaluated on a case-by-case basis according to severity and duration. Id. A “case-by-case” analysis is thus necessary because there is no “bright-line durational requirement” for endurance of deplorable conditions before the conditions amount to a constitutional deprivation.
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In this case Plaintiffs’ claims arise from the same core allegation—that MCJ’s practices and policies regarding meals posed an unreasonable risk of serious damage to their health—and the proposed class is limited to detainees who were incarcerated for at least two consecutive weeks. Accordingly, by considering the policy and practice MCJ employed in making menu substitutions and whether it regularly reduced portion sizes, and the frequency and impact such changes had on the diet it provided to inmates who had been incarcerated for at least two consecutive weeks at MCJ, the Court can comply with Darnell’s requirement that the conditions of confinement be assessed based on severity and duration. See, e.g., Langley v. Coughlin, 715 F. Supp. 522, 558 (S.D.N.Y. 1989) (rejecting argument for decertification of a class challenging the conditions of confinement in a Special Housing Unit (“SHU”) because “proof of the nature and severity of conditions on SHU over an extended period is obviously best done in a single proceeding.”)
Defendants argue that they were not deliberately indifferent to every inmate, citing to two inmates for whom they provided additional food. (Dkt. No. 88-18, at 28–29). Defendants have also noted that inmates who worked in the kitchen obtained double portions. (Id. at 17). However, the fact that Defendants may have individual defenses does not preclude a finding of predominance. “[A]lthough ‘a defense may arise and may affect different class members different, [this] does not compel a finding that individual issues predominate over common ones.’” Brown v. Kelly, 609 F.3d 467, 485 (2d Cir. 2010) (quoting In Re Nassau Cty. Strip Search Cases, 461 F.3d at 225) (affirming finding of predominance in class action challenging blanket strip search policy “[i]n light of the pervasive character of the common liability issues and the admittedly de minimis nature of individualized liability issues,” concerning whether the search of some of the plaintiffs was justified by reasonable suspicion)).
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Defendants next contend that a class cannot be certified because the individuals who are currently incarcerated must exhaust their administrative remedies first and the exhaustion issue is individualized and fact-specific, and thus is a basis to deny class certification. (Dkt. No. 88-18, at 15). However, the Prison Litigation Reform Act’s exhaustion requirement, codified at 42 U.S.C. § 1997e(a), is inapplicable to Hill because he was not incarcerated at the time this action was filed. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (“[L]itigants . . . who file prison condition actions after release from confinement are no longer ‘prisoners’ for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements.”). It is also inapplicable to Rogers because he was not incarcerated at the time he moved to intervene. (Dkt. No. 128, at 13–16). Moreover, “although a defense may arise and may affect different class members differently, [this occurrence] does not compel a finding that individual issues predominate over common ones.” In re Nassau Cty., 461 F.3d at 225 (alteration in original) (internal quotation marks omitted). “So long as a sufficient constellation of common issues binds class members together, variations in the sources and application of a defense will not automatically foreclose class certification.” Id. (internal quotation marks omitted).
The Second Circuit has noted that “where plaintiffs are ‘allegedly aggrieved by a single policy of the defendants’ and there is a ‘strong commonality of the violation and the harm,’ this ‘is precisely the type of situation for which the class action device is suited.’” Brown, 609 F.3d at 484 (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 146 (2d Cir. 2001)) (affirming district court’s determination that common issues predominated in class challenging the defendants’ continued enforcement of a loitering law that Second Circuit had found unconstitutional); MacNamara v. City of New York, 275 F.R.D. 125, 146 (S.D.N.Y. 2011) (finding that common liability issues predominate in claim based upon policy or practice of
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conducting mass arrests). In this case, the Court finds that the following questions are common to the proposed class: (1) whether the substitutions routinely made with respect to the meals provided to MCJ inmates were nutritionally and calorically adequate; (2) whether portions were routinely reduced; (3) whether the inadequacy of the meals was sufficiently serious so as to constitute objective deprivations in violation of the Eighth and Fourteenth Amendment; (4) whether, as required to establish a violation of the Eighth Amendment, Defendants were aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and drew that inference;12 (5) whether, as required to establish a violation of the Fourteenth Amendment, Defendants acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed even though they knew, or should have known, that the condition posed an excessive risk to health or safety; and (6) whether MCJ had a policy or practice of subjecting detainees to an unlawful condition of confinement in violation of the Eighth and Fourteenth Amendment. Resolution of these factual and legal issues will inform the analysis with respect to each class member, whether a pretrial detainee or convicted prisoner. The Court finds that these issues predominate over the issues requiring individualized proof, which will include, as Defendants argue, issues concerning each class member’s damages—“the different reaction that each inmate had to the diet at the jail” or whether there were “different reasons as to why someone lost weight (stress, medical conditions, drug use, etc.).” (Dkt. No. 125, at 4). See Butler, 289 F.R.D. at 102 (finding the question of whether the conditions at the jails were “cruel and inhuman in violation of the Eighth and Fourteenth Amendments” and whether the defendants “were deliberately indifferent
12 Although “deliberate indifference . . . must be assessed on an individualized basis with respect to each plaintiff,” Darnell, 849 F.3d at 38, the plaintiffs’ “effort to prove the defendants’ indifference will necessarily require each class member to rely on the same body of evidence . . . [and] adds a large body of common issues of both fact and law . . . thus further enhancing the appropriateness of class treatment.” Langley v. Coughlin, 715 F. Supp. 522, 560 (S.D.N.Y. 1989).
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predominate[d] over the issues subject to individualized proof—namely the extent of each class members’ damages”).
2. Superiority a. Standard
In order to certify a class under Rule 23(b)(3), the Court must determine whether “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In doing so, the Court considers factors including: (1) “the class members’ interests in individually controlling the prosecution or defense of separate actions”; (2) “the extent and nature of any litigation concerning the controversy already begun by or against members of the class”; (3) “the desirability or undesirability of concentrating the litigation in the particular forum”; and (4) “the likely difficulties in managing a class action.” Fed. R. Civ. P. 23(b)(3)(A)–(D). The Court concludes that these factors favor class certification.
b. Application First, there is no indication that potential class members have an interest in maintaining separate actions and, without class notification, they may not be aware of the existence of a claim in connection with the conditions of confinement that they experienced or continue to experience at the MCJ. Second, the parties have conducted extensive litigation in connection with this case as to liability. Third, it is highly desirable to concentrate the litigation into a single forum because it will “simplif[y] and streamline[] the litigation process.” In re Nassau Cnty., 461 F.3d at 230. Fourth, while some individualized inquiries may be required where class members have received different diets than that of the general population of detainees, the inquiries can be managed efficiently through objective measures by determining whether the detainee at any point was subject to the general diet for at least two weeks. Accordingly, the Court concludes that proceeding as a class action as to liability is “superior to other methods for fairly and
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efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). See In re Nassau Cnty., 461 F.3d at 230.
VI. CONCLUSION For these reasons, it is ORDERED that Plaintiffs’ motion for class certification (Dkt. No. 106) is GRANTED
as to a liability class under Rules 23(b)(3) and (c)(4) and that the following Primary Class and Sub-Classes are certified:
Primary Class All detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks. The class period commences on July 24, 2011, and extends to the date on which Montgomery County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of refusing to provide an appropriate amount of nutritional sustenance to all detainees admitted to the Montgomery County Jail. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
Pre-Trial Detainee Sub-Class All members of the Primary Class but who were housed as a Pre-Trial Detainee, in that they had not yet been convicted of their charges. Post-Trial Detainee Sub-Class All members of the Primary Class, but who were housed as a Post-Trial Detainee, in that they had been convicted of their charges, either by a plea or jury trial. It is further ORDERED that Plaintiffs Perry Hill and James Rogers are appointed the class representatives; and it is further
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 Case 9:14-cv-00933-BKS-DJS Document 192 Filed 11/07/19 Page 1 of 41

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
PERRY HILL and JAMES ROGERS, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
COUNTY OF MONTGOMERY, MICHAEL AMATO, and MICHAEL FRANKO,
Defendants.
APPEARANCES:
For Plaintiffs: Law Offices of Elmer Robert Keach, III, P.C. Elmer Robert Keach, III Maria K. Dyson One Pine West Plaza, Suite 109 Albany, NY 12205 Migliaccio & Rathod LLP Nicholas A. Migliaccio 412 H Street N.E., Suite 302 Washington, DC 20002
For Defendants: Goldberg Segalla LLP Jonathan M. Bernstein 8 Southwoods Boulevard, Suite 300 Albany, NY 12211

9:14-cv-00933 (BKS/DJS)

Case 9:14-cv-00933-BKS-DJS Document 192 Filed 11/07/19 Page 2 of 41
Hon. Brenda K. Sannes, United States District Judge: MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION Plaintiffs Perry Hill and James Rogers bring this conditions-of-confinement class action1
under 42 U.S.C. § 1983 against Defendants County of Montgomery, Michael Amato, and Michael Franko. (Dkt. No. 136). Plaintiffs allege that Defendants failed to provide adequate nutrition while they were in the Montgomery County Jail (“MCJ”) in Fultonville, New York, in violation of the Eighth and Fourteenth Amendments. (Dkt. No. 136). Presently before the Court is Defendants’ motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 174). Plaintiffs oppose the motion. (Dkt. Nos. 180, 181, 185). For the following reasons, Defendants’ motion is denied. II. FACTS2
A. Montgomery County Jail MCJ is a 177-bed facility that houses approximately 1,000 pretrial detainees and convicted prisoners each year. (Dkt. No. 174-12, at 46; Dkt. No. 174-7, at 37). Defendant Amato was the Sheriff of Montgomery County and in charge of the MCJ through 2018.3 (Dkt. No. 1747, at 111). “Any policy at the jail is set by the Sheriff.” (Dkt. No. 174-44, ¶ 2). There is a sign in the MCJ booking room that says: “Welcome to Hotel Amato. No thrills. No frills. Don’t come
1 On August 20, 2018, the Court granted Plaintiffs’ renewed motion for class certification and certified a primary class and pre-trial and post-trial detainee sub-classes under Rules 23(b)(3) and (c)(4). Hill v. Cty. of Montgomery, No. 14-cv-933, 2018 WL 3979590 (N.D.N.Y. Aug. 20, 2018); (Dkt. No. 139). The class period “commences on July 24, 2011, and extends to the date on which Montgomery County . . . ceases[ ] enforcing its policy . . . of refusing to provide an appropriate amount of nutritional sustenance to all detainees.” Hill, 2018 WL 3979590, at *14. The parties represent that the number of class members is in the thousands. 2 The facts have been drawn from Defendants’ statement of material facts, (Dkt. No. 174-2), Plaintiffs’ response, (Dkt. No. 181), and the attached exhibits and affidavits to these documents. The facts are taken in the light most favorable to Plaintiffs. 3 The current Sheriff of Montgomery County has not been named as a defendant in this case.
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back if you don’t like it.”4 (Dkt. No. 174-7 at 33). Defendant Franko was the jail administrator, and supervised MCJ through 2015. (Dkt. No. 174-12, at 65). Robert Barbuti, the MCJ jail administrator since 2016, is not a defendant in this case.5 (Dkt. No. 174-44, ¶ 1).
1. Trinity Services Group In 2010, MCJ contracted with Trinity Services Group (“Trinity”), a food service provider, (Dkt. No. 174-11, ¶ 2; Dkt. No. 174-12, at 131), which allowed MCJ access to Trinity’s food suppliers and better pricing. (Dkt. No. 174-12, at 208). Through Trinity, MCJ reduced the cost per meal from approximately $2.00 to $1.07 or $1.10. (Dkt. No. 174-12, at 133). Trinity also provided a dietician and worked with Franko and others at MCJ “in developing a program that worked for the jail.” (Dkt. No. 174-12, at 131). Franko had discussions with Trinity regarding “caloric intake,” which was set at approximately 2,900 calories per day. (Dkt. No. 17412, at 134, 26). Lynn Dumar, a cook at MCJ, testified that she did not think the food quality with Trinity “was any worse” and that it was “all still USDA approved” but that there were some differences—the hot dogs, for example, were “probably not the same quality that we got before.” (Dkt. No. 174-8, at 13–14).
2. Kitchen Staff and Menus Three full-time cooks, at least one part-time cook, and inmate workers staff the kitchen at MCJ. (Dkt. No. 180-9, at 11, 18–19). A Trinity dietitian sets the MCJ menu, which operates on a
4 Amato put the sign there “[s]o people know” “[t]hat they’re not going to get everything under the sun in this jail” and “understand when they come to the jail not to expect anything extra.” (Dkt. No. 174-7, at 34). 5 Barbuti submitted an affidavit in support of the motion for summary judgment stating that the Sheriff sets all policy at the jail, including policies concerning “meal production and operation of the kitchen,” and that “[t]he Jail Administrator does not set any policy at the jail.” (Dkt. No. 174-44, ¶ 2).
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four-week cycle, and specifies the serving sizes.6 (Dkt. No. 75-3, at 10, 58; Dkt. No. 180-30, Dkt. No. 180-6, at 23). Cooks or inmates cook the meals from scratch. (Dkt. No. 180-6, at 21).
MCJ provides inmates with three meals each day; breakfast is served at 6:30 a.m. or 7:00 a.m., lunch is served at noon, and dinner is served at 4:00 p.m. or 5:00 p.m. (Dkt. No. 175-37, at 36; Dkt. No. 180-6, at 34–35; Dkt. No. 190-6, at 34). Because of this schedule, inmates often go approximately 14 hours between dinner and breakfast the next day. In general, MCJ provides no snacks between meals and the commissary has not sold food since 2008. (Dkt. No. 174-7, at 36– 37). Thus, for many class members, daily meals were the only food source.7 (Dkt. No. 174-7, at 80).
MCJ food production records indicate that a typical breakfast consisted of oatmeal (1 cup) or cereal (1 cup), a breakfast cake or muffin, and a carton of 1% milk. (Dkt. No. 174-49, at 2; 174-51, at 17). Lunch consisted of a chicken patty, fruit sauce (1/4 cup),8 carrots (1/2 cup), rice (3/4 cup), a cookie, 2 ounces of margarine, 2 slices of white bread, and fruit punch (1 cup). (Dkt. No. 174-51, at 14). Dinner consisted of meat stroganoff (3/4 cup), pasta (1 cup), corn (1/2 cup), 2 slices of white bread, 1 ounce of margarine, pudding (1/2 cup), and fruit punch (1 cup). (Dkt. No. 174-49, at 4). Trinity requires the jail to substitute items where specific menu items are unavailable—if food has spoiled, for instance. (Dkt. No. 174-12, at 111). The MCJ “cooks are aware” that if substitutions are necessary, the substituted item must be the same type as the original—“that they have to trade a protein for a protein, and a starch for a starch.” (Dkt. No. 174-12, at 111). No one from Trinity reviews substitution decisions. (Dkt. No. 174-8, at 94). A
6 Amato testified that the MCJ kitchen staff and Trinity “put together” the diet. (Dkt. No. 75-2, at 56). 7 Sometime after the commencement of this action, MCJ began allowing inmates to purchase one sandwich twice per week. (Dkt. No. 174-7, at 80). 8 Dumar, one of the cooks at MCJ, acknowledged that while inmates were “allowed a half a cup portion of fruit,” there were days when no fruit was provided. (Dkt. No. 174-8, at 15).
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food production sheet is filled out for every meal, and if there is a substitution, it is usually noted. (Dkt. No. 174-8, at 93).
3. Edibility, Substitutions, and Portion Reductions There is evidence, however, that not all the food was edible, that substitutions were of inferior nutritional or caloric value, that sauces and gravies were watered down, and that three to four times per week, portions were reduced when the kitchen ran out of food. The chicken served at MCJ, for example, “was . . . mechanically separated chicken”— “frozen” “pink gel” that “[c]omes in a 40-pound box” labeled “for institutional use only.” (Dkt. No. 180-6, at 20, 75). And there were vegetables that, according to the box, “had no nutritional value to them.” (Dkt. No. 180-6, at 75; see also Dkt. No. 180-3, at 23–24 (inmate testifying that meat was rotten and that she “could see it was turning,” the salad was “[b]rown” and slimy, and the vegetables were rotten); Dkt. No. 174-39, at 19–20) (inmate testifying that the “[f]ood was not edible” and it made her “nauseous after [she] ate it”); Dkt. No. 174-39, at 21 (inmate testifying that she could not eat the “baloney” or “pastrami, or whatever it was” because “it was not edible, it did not taste well”); Dkt. No. 174-39, at 33 (inmate describing food as “inedible,” including “watered-down oatmeal with no sugar,” powdered milk, unsweetened Kool-Aid, “[p]ancakes, which aren’t pancakes, sometimes were cooked and others not,” “soy burgers,” and stating that “the baloney and salami” were the “worst”); Dkt. No. 174-38, at 14–15 (inmate testifying that the oatmeal had “no flavor” and the tacos were made out of “soy food” and did not look good)).9 Further, there is evidence that the kitchen at times failed to provide any substitution for planned menu items that became unavailable. (Dkt. No. 180-34, at 2, 31, 84, 86). For example,
9 Dumar stated that she believed that “the dairy drink” served to the inmates was soy-based, though that she was “not 100 percent sure on that,” but that none of the meat was soy-based. (Dkt. No. 174-8, at 44).
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according to the food production record from January 29, 2013, the lunch menu required a cookie, but it was crossed out and not served (Dkt. No. 180-34, at 2); (see also Dkt. No. 180-34 (February 7, 2013, dinner menu, cookie crossed out); Dkt. No. 180-34, at 84 (February 25, 2013, dinner menu, gravy crossed out)).
To portion the food on individual food trays, the kitchen used ladles in different sizes— a one-cup ladle for the main serving and a one-half cup ladle for vegetables. (Dkt. No. 180-7, at 12, 32). In general, the cook would instruct the inmates serving the food to fill the ladle “all the way up.” (Dkt. No. 180-7, at 13, 16). Three or four times a week, however, when the food the kitchen had prepared “was running low,” the cook would tell the inmates serving the food “to give less” and the inmates would fill the ladles halfway, instead of fully. (Dkt. No. 180-7, at 13, 16 (former inmate worker testifying that “instead of giving them one cup ladle,” when food ran low, he would “give them like a half a cup”); (Dkt. No. 180-6, at 15) (inmate worker testifying that three to four times each week, the kitchen would begin to run out of food and the cook would instruct the inmate workers to “skimp it down” and give a half-cup ladle instead of a fullcup ladle)).10 If the kitchen began to run out of a sauce or gravy during food service, which happened “two to three times a week,” the cook would instruct the inmate workers to add water to the sauces and gravies to “stretch it.” (Dkt. No. 180-6, at 64–66).
B. Plaintiff Perry Hill Hill was in MCJ from September 2013 to March 2014 for a parole violation. (Dkt. No. 174-26, at 17). Hill testified that he weighed approximately 160 pounds when he entered MCJ and 134 pounds when he left. (Dkt. No. 174-26, at 73). Hill stated that he believed that the diet
10 Kenneth Crouse, who worked in the kitchen as an inmate, stated that when the kitchen ran out of food, it would be because “[t]here wasn’t enough cooked” and that it was not because there was not enough food on the premises. (Dkt. No. 180-7, at 27).
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provided, including the meat, was soy-based. (Dkt. No. 174-26, at 80). He was “always” hungry. (Dkt. No. 174-26, at 39). Hill testified that he complained “[a]ll the time” to correctional officers about there being “so little food” but that he never received a response. (Dkt. No. 174-26, at 40). Hill testified that he ate cocoa butter sticks, vitamins that he purchased from the commissary, and toothpaste to supplement his diet. (Dkt. No. 174-26, at 55).
Hill testified that he had no medical conditions prior to entering MCJ. (Dkt. No. 174-26, at 27). Hill testified that he was depressed about “being in” MCJ and “going through starvation.” (Dkt. No. 174-26, at 81). Hill lost hair and experienced receding and bleeding gums, dizziness, and nausea at MCJ. (Id. at 56–59). Hill witnessed “multiple fights” over food. (Dkt. No. 174-26, at 49, 59–60). Hill testified that he “worked out his whole life” but stopped working out while at MCJ because “you can’t build muscle if you’re not eating.” (Dkt. No. 174-26, at 63). Hill testified that he had difficulty sleeping because he was “hungry” and the “sleeping conditions” were “poor.” (Dkt. No. 174-26, at 83).
C. Plaintiff James Rogers Rogers was in MCJ from February 2013 to October 2013 and June 2014 to February 2015. (Dkt. No. 174-27, at 19–20, 35). He was arrested in June 2014, pled guilty in November 2014, and remained at MCJ until February 2015. (Dkt. No. 174-27, at 32–33). Rogers could not recall what he weighed when he entered the jail. (Dkt. No. 174-27, at 18). He lost “[a] little bit” of weight while he was in MCJ; he did not know how much, but he was “thinner” and “felt a little weaker” when he left the jail. (Dkt. No. 174-27, at 21–22). Rogers, who worked in the kitchen, testified that one of the issues he had with the food was that the “meat in the goulash didn’t taste like meat” and that he knew from talking to the kitchen staff that the meat was soybased. (Dkt. No. 174-27, at 57). Rogers testified that he and others filed grievances “that the food wasn’t healthy enough.” (Dkt. No. 174-27, at 43). Rogers testified that he was hungry “most of
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the day” while at MCJ even though he received three meals per day. (Dkt. No. 174-27, at 56). Rogers suffered hair loss while at the jail. (Dkt. No. 174-27, at 64).
D. Other Inmates In support of their opposition to the motion, Plaintiffs submitted the deposition testimony of several other individuals (pretrial detainees and convicted prisoners) who spent more than two weeks in MCJ during the proposed class period.11 The Court briefly outlines that testimony below.
1. Kenneth Crouse Kenneth Crouse was in MCJ every year between 2011 and 2015. (Dkt. No. 180-7, at 9). Although he worked in the kitchen and was entitled to double portions, (Dkt. No. 180-7, at 11), when the kitchen ran out of food, he would not receive double portions and “got stuck eating” two “[p]eanut butter and jelly sandwiches most of the time.” (Dkt. No. 180-7, at 13–15). Crouse stated that in general, he would enter the jail weighing between 136 and 144 pounds and would weigh “120, 122” when he left. (Dkt. No. 180-7, at 18). Crouse testified that he would lose hair whenever he was in MCJ. (Dkt. No. 180-7, at 24). Crouse stated that was no fresh fruit or dairy products and that MCJ used “powdered creamer, soy creamer.” (Dkt. No. 180-7, at 39).
2. Joanne Strobel Joanne Strobel was in MCJ from 2012 to 2013 for ten months, (Dkt. No. 174-39, at 8–9), during which time, she estimates, she lost 50 pounds. (Dkt. No. 174-39, at 14). Strobel often did not eat breakfast because the “[f]ood was not edible” and it made her “nauseous after [she] ate it.” (Dkt. No. 174-39, at 19–20). At lunch, Strobel tried to eat everything on her tray, but she
11 While most class members testified to losing weight, there is evidence that some gained weight. Eduardo Oquendo, for example, was in MCJ as a sentenced prisoner in 2015 and gained approximately 20 pounds during his incarceration. (Dkt. No. 174-23, at 6–7, 10). He testified that he was a heroin user before entering jail and was not eating regularly. (Dkt. No. 174-23, at 19).
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could not eat the “baloney” or “pastrami, or whatever it was” because “it was not edible, it did not taste well.” (Dkt. No. 174-39, at 21). Strobel filed a “group grievance,” which described the food as “inedible,” and complained about the “watered-down oatmeal with no sugar,” powdered milk, unsweetened Kool-Aid, “[p]ancakes, which aren’t pancakes, sometimes were cooked and others not,” “soy burgers,” and “the baloney and salami.” (Dkt. No. 174-39, at 33). While she was in MCJ, Strobel “had no energy,” “was tired,” and “wanted to sleep.” (Dkt. No. 174-39, at 35). She ate toothpaste. (Dkt. No. 174-39, at 35).
3. Robert Pettit Robert Pettit testified that while he was in MCJ during 2012 and 2013,12 the meals did not fill him up, he was hungry all day every day, he felt weak, and he lost hair due to “[l]ack of food.” (Dkt. No. 75-10, at 46, 63). Pettit weighed approximately 250 pounds when he arrived at MCJ, began losing weight at “the end of 2012,” and by the time he left MCJ in early 2013, weighed approximately 198 pounds. (Dkt. No. 180-18, at 18, 20). Pettit “lost so much weight” that eventually his prosthetic leg no longer fit, and though he asked MCJ to purchase “stump socks,” which would have allowed the prosthetic to fit correctly, MCJ instead took the prosthetic away and put Pettit in the medical unit. (Dkt. No. 180-18, at 27–28). Pettit filed grievances concerning his weight loss. (Dkt. No. 180-36). In response, Pettit received Ensure and a peanut butter sandwich for “[a] couple days.” (Dkt. No. 180-18, at 33–34, 40). After that, he received “double meals” for three days, until Sheriff Amato stopped the double meals. (Dkt. No. 180-18, at 34–35). Pettit testified that a correctional officer informed him that Sheriff Amato was in the
12 Pettit appears to have been a pretrial detainee during some of the time he was at MCJ in 2012 and 2013. (Dkt. No. 75-10, at 8–9).
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kitchen and saw Pettit’s name on the bulletin board along with the double-meal designation, and that Sheriff Amato took Pettit’s name off the bulletin board. (Dkt. No. 180-18, at 35).
4. David Canales David Canales was in MCJ from 2012 to 2013. (Dkt. No. 174-38, at 9–11). Canales testified that the portions there were “small” and there were certain foods, like oatmeal, which had “no flavor,” that he would not eat. (Dkt. No. 174-38, at 14–15). Canales described the tacos as being made of “soy food.” (Dkt. No. 174-38, at 14–15). While he was there, he ate toothpaste and toilet paper because he was hungry. (Dkt. No. 174-38, at 34). Canales submitted a grievance complaining that he had lost approximately 20 pounds while in MCJ. (Dkt. No. 174-38, at 36). His grievance was denied. (Dkt. No. 178-38, at 38).
5. Carolyn Lee Ardizzone Carolyn Lee Ardizzone testified that she was in MCJ for two, two-week periods in 2013 for violations of probation. (Dkt. No. 180-3, at 12, 14). Ardizzone testified that she lost weight while in MCJ, but that she did not know how much,13 and that she lost weight because there “wasn’t enough food, and the food they gave us was pretty disgusting, so I didn’t eat most of the time.” (Dkt. No. 180-3, at 22). Ardizzone testified the meat was rotten and that she “could see it was turning,” the salad was “[b]rown” and slimy, and the vegetables were rotten. (Dkt. No. 1803, at 23–24). Ardizzone complained to the corrections officers. (Dkt. No. 180-3, at 24). Ardizzone testified that the portions on each tray were often different, and inmates would “fight over the bigger portions on the tray.” (Dkt. No. 180-3, at 26).
13 When pressed further, Ardizzone testified that she lost “roughly 60 pounds.” (Dkt. No. 180-3, at 29).
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6. Kyle Edick Kyle Edick testified that he was in MCJ in 2013 for four months, waiting “to get off parole,” and again for four months in 2014, before going to state prison. (Dkt. No. 180-10, at 9, 13, 15, 18). In 2013, Edick tried to go on a special diet because “every night [he] would go to bed hungry, starving” because “[t]hey served dinner too early there.” (Dkt. No. 180-10, at 25). Edick hoped that the jail would give him a “smoothie, because [h]e was losing weight and [he] was starving,” but he was unsuccessful. (Dkt. No. 180-10, at 25).
7. Andre Cruz Andre Cruz was in MCJ a number of times, including in 2013 and 2014. (Dkt. No. 17437, at 34). Cruz testified that: “The last meal was at maybe quarter to 5 there, 5 o’clock. We don’t eat again until the next day around 7. So, we ate toothpaste, we ordered Halls from commissary before they took that away just to kind of not starve.” (Dkt. No. 174-37, at 36). Cruz explained that the Halls cough drops and toothpaste “helped you make it get through to the next day. Just substance.” (Dkt. No. 174-37, at 40).
8. Robert Staley Robert Staley, who was in MCJ in 2014, testified that he “used to eat toothpaste, chew paper” in MCJ. (Dkt. No. 174-24, at 16, 18).
9. Eric Engle Eric Engle testified that he was in MCJ in 2015 for an eight-month sentence. (Dkt. No. 174-19, at 8). He worked in the kitchen while he was there, (Dkt. No. 174-19, at 8–9), but still found that the portions were “incredibly small and he was . . . extremely hungry.” (Dkt. No. 17419, at 15). Engle stated that he had his “wife put money in other people’s accounts” so that he could “buy their trays” but found that, even with two trays, he “wouldn’t get full.” (Dkt. No. 174-19, at 16). Engle testified that “everyone” complained about the portion sizes. (Dkt. No.
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174-19, at 35). He stated that, for example, breakfast might be a “very small scoop of oatmeal,” (Dkt. No. 174-19, at 18), and lunch was a “pretty small” serving of “mechanically processed chicken,” a “small vegetable,” a “small fruit,” bread, a glass of Kool-Aid, and “every now and then” a cookie. (Dkt. No. 174-19, at 19, 23). Engle stated that he complained but that “the only answers I was getting from the kitchen staff, most of the guards didn’t know that is what was decided by the jail administrator, it was enough calorie intake and you are not going to get any more.” (Dkt. No. 174-19, at 70).
10. Joseph Chirico Joseph Chirico testified that he was last incarcerated at MCJ in 2018 for eight months.14 (Dkt. No. 180-6, at 7–8, 10). Chirico worked in the kitchen as a cook’s helper. (Dkt. No. 180-6, at 14–15). According to Chirico, “80 percent of the time” the food was not edible. (Dkt. No. 1806, at 20). Chirico explained that this was because of “the type of food it was . . . mechanically separated chicken,” which he described as “frozen” “pink gel” that “[c]omes in a 40-pound box” labeled “for institutional use only.” (Dkt. No. 180-6, at 20, 75). Chirico spoke to one of the cooks, about “how bad the mechanically separated chicken was,” and stated that the cook agreed with him and “would not touch it” herself. (Dkt. No. 180-6, at 22). Chirico had access to the food packaging and the “calories and the nutritional value on the food” and “kept track” of his food intake at MCJ and estimated that he averaged 900–1,100 calories per day. (Dkt. No. 180-6, at 37–38). Chirico testified that when he checked the labels on the food packaging, he noticed that “[v]egetables had no nutritional value to them. They’d say it right on the box.” (Dkt. No. 180-6, at 75).
14 Chirico was in MCJ for “failure to pay a restitution fine.” (Dkt. No. 180-6, at 7–8, 10). On December 4, 2018, Chirico was sentenced to time served and released. (Id. at 31). The underlying charge—for which the restitution fine or surcharge was imposed—was petit larceny. (Dkt. No. 180-6, at 41). Chirico stayed in MCJ in lieu of paying the surcharge. (Dkt. No. 180-6, at 44).
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Even though Chirico worked in the kitchen and received double meals, “[a] lot of the times” he was hungry and drank “[a] lot of water” as a substitute for food. (Dkt. No. 180-6, at 14–15, 33). Chirico ate his last meal at 4:00 p.m., and was usually hungry by 8:00 p.m. (Dkt. No. 180-6, at 34). Chirico’s gums bled while he was in MCJ, he did not know whether it was attributable to the toothpaste, which did not have fluoride. (Dkt. No. 180-6, at 55).
Chirico weighed 250 or 260 pounds when he entered MCJ and 225 pounds when he left, eight months later. (Dkt. No. 180-6, at 13). “[T]hree or four different times,” Chirico submitted written requests to be weighed to the corrections officers assigned to his pod, but never received a response. (Dkt. No. 180-6, at 68–69). The corrections officers told him that his requests to be weighed were not being responded to “[b]ecause of this lawsuit” and that he could not “get weighed” there. (Dkt. No. 180-6, at 69). According to Chirico, correctional officers called MCJ “Mount Hungry” and told inmates they were “going to be put on the Montgomery County diet when you come into the jail.” (Dkt. No. 180-6, at 70).
E. Grievances Plaintiffs have presented evidence that between 2013 and 2015, MCJ inmates filed at least 39 grievances concerning food.15 (Dkt. Nos 180-27, 180-28, 180-29). In them, inmates complain: that “food portions are too small,” (Dkt. No. 180-27, at 2), of not being “fed properly” and having lost weight, (Dkt. No. 180-27, at 3), of needing “bigger portions of food” and stomach pain and that the “trays are under the state minimum,” (Dkt. No. 180-27, at 6), of going “to sleep really hungry” every night and being unable to sleep, (Dkt. No. 180-27, at 8), of the small portions and the 14-hour stretch between dinner and breakfast and waking up “many times
15 Plaintiffs have also submitted grievances from 2011 and 2012. (Dkt. Nos. 180-25, 180-26). As the grievances from 2013–2015 suffice to show Defendants were on notice about food complaints, the Court need not summarize the earlier grievances.
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through out the night hungry,” (Dkt. No. 180-27, at 9), that the “portions aren’t enough to feed a toddler,” (Dkt. No. 180-27, at 10), of losing “15 pounds,” (Dkt. No. 180-27, at 11), and requesting “more food portions . . . so we are not starving from meal to meal,” (Dkt. No. 180-27, at 12).
In response to the grievances, the grievance coordinator often cited “NYS Min. Std., section 7009.2 (A)(B).”16 (See, e.g., Dkt. No. 180-35, at 4, 7). For example, inmate Raymond Pinney filed a grievance requesting “more portions of food in this facility. Even four pieces of bread for lunch and dinner would be suffice [sic]. What’s next giving us bread and water?” (Dkt. No. 180-35, at 7). In response, the grievance coordinator wrote: “NYS Min Std, Section 7009.2 (A)(B).” (Dkt. No. 180-35, at 7). Franko reviewed “the grievance and the response” and deemed the grievance officer’s response “correct.”17 (Dkt. No. 180-35, at 5). Franko wrote that he “noticed that your description can only be construed as somewhat subjective and relates to your perception. Also, I can only assume that your question is rhetorical: To advise, there is no plan to change the menus at this time.” (Dkt. No. 180-35, at 5). Franko further advised that “if a meal is served that is obviously not at the proper temperature or a diminished (or increased) amount, you
16 This is a reference to the “Nutritional adequacy” regulation applicable to county jails, it states: (a) The food service program in each local correctional facility shall ensure that all prisoners are provided with an appropriate level of nutrients and calories. Such appropriate level of nutrients and calories shall be based upon current recommended dietary allowances of the Food and Nutrition Board of the National Academy of Sciences, National Research Council. (b) The person responsible for the supervision of the facility food service program shall plan and prepare written and dated menus. Such menus shall be reviewed at least annually by a nutritionist or dietician certified by the State Education Department to ensure that they provide an appropriate level of nutrients and calories.
9 N.Y.C.R.R. § 7009.2. 17 Franko only became involved in a grievance if the inmate “appealed it,” at which point he would “review the investigation done by the grievance officer’s response and they would appeal it to me.” (Dkt. No. 174-12, at 141).
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must notify staff immediately in an attempt to rectify the situation.” (Dkt. No. 180-35, at 5). Franko wrote nearly identical responses to other grievances. (See Dkt. No. 180-35, at 9–11).
In addition to responding to grievances, Franko sent a memorandum dated November 5, 2013, to kitchen and supervisory staff advising:
I have recently received several grievances in regard to issues with food. Merely as a reminder, should a situation occur regarding a meal, the CO should notify the Shift Supervisor immediately. The Supervisor should bring the meal to the attention of the Cook and together determine the course of action. Again, based on some of the Sheriff’s directives, meals are of great importance. Portion size, temperatures, and preparation methods need to be strictly adhered to. Should a problem arise that may not be solved easily, seal and save the meal in question for later review and replace to only the appropriate amount, if reasonable or necessary. The Shift Supervisor shall document all issues on their report or should there be a need, document all in an incident/blotter. (Dkt. No. 180-35, at 2). In a memorandum dated November 12, 2013, Franko wrote to the grievance coordinator regarding “Meal/Food Issues/Grievances” and stated that he had “responded to all of the above [grievances] and found to agree with your decision” and that “[e]xtra time was spent to investigate each and the Sheriff reviewed all info as well.” (Dkt. No. 180-35, at 3). F. Defendant Michael Amato Defendant Michael Amato, the Sheriff of Montgomery County, testified that when he was sheriff, Amato was in MCJ “probably every other day.” (Dkt. No. 174-7, at 15). Amato was aware as of 2013 that inmates had complained about the portion sizes of the food at MCJ. (Dkt. No. 174-7, at 78). Correctional officers also told him in 2013 that inmates were complaining that they wanted more food. (Dkt. No. 174-7, at 17). During his deposition, Amato testified that he knew that inmates were complaining that “they wanted more food,” that “they wanted the
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commissary back,” and that “they were hungry.” (Dkt. No. 174-7, at 10–11, 15). Amato stated that it was not a surprise that MCJ detainees were complaining about the food they were receiving because “they were asking for commissary after we had taken commissary away . . . They were asking for more food.”18 (Dkt. No. 174-7, at 19).
After the lawsuit was filed, Amato “made sure . . . the food portions were the right amount [and that] they were getting what they are required in calories every day.” (Dkt. No. 1747, at 20). He believed that New York regulations required inmates at MCJ to receive 2,200 calories per day, and that they received, on average, 2,900 calories per day. (Dkt. No. 174-7, at 9). Amato stated that the cooks are responsible for ensuring that detainees received appropriate portions. (Dkt. No. 174-7, ay 24). Amato also “double-checked with the jail administrator to make sure everything was done right.” (Dkt. No. 174-7, at 24). He did not go into the kitchen himself to ensure proper portion sizes and did not recall speaking to kitchen workers or corrections officers about this lawsuit. (Dkt. No. 174-7, at 24, 28). He “might have” talked to his medical staff. (Dkt. No. 174-7, at 54). Amato believed that the “state approved what we were doing.” (Dkt. No. 174-7, at 21). Amato stated that he also “had Trinity come to make sure everything was being done right.” (Dkt. No. 174-7, at 156).
Eventually, MCJ began selling sandwiches “[t]o offset [the] commissary fund,” which MCJ used “to pay for . . . TVs and the programming.” (Dkt. No. 174-7, at 80). Amato denied that the sandwiches had do with this lawsuit or detainees’ complaints of hunger. (Dkt. No. 174-7, at 81).
18 MCJ discontinued the commissary several years before the commencement of this action after inmates were found “hoarding food in their cells, causing ants and other bugs,” gambling with commissary items, and “stuffing the paper wrappings and other material between furniture, causing fire hazards.” (Dkt. No. 174-7, at 36).
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G. Defendant Michael Franko Michael Franko, the MCJ Jail Administrator, testified that he was aware that there were “a number of grievances about food” and that inmates were complaining that they did not like the food and that they were not getting enough. (Dkt. No. 174-12, at 9, 13). In response to the complaint, Franko “investigated where appropriate and when appropriate” but found no “great discrepancy” and not “a lot of substance to” the inmates’ complaints “that they didn’t have enough food.” (Dkt. No. 174-12, at 10). Prior to the lawsuit, MCJ contacted “the food services company . . . to make sure that . . . the menus were adequate and sufficient and more than the daily required amount that they’re supposed to get.” (Dkt. No. 174-12, at 85). Franko and Trinity “agreed that it was sufficient at the time, and we weren’t going to give them additional food.” (Dkt. No. 174-12, at 85). When inmates directly complained to Franko that they were not getting enough food and that they did not like the food, Franko generally responded that MCJ “utilize[d] the food service company who makes sure that there is adequate caloric intake and that we do our best to monitor both the cooking and the distribution.” (Dkt. No. 174-12, at 14).19 Franko was not aware that inmates were eating cocoa butter sticks, toothpaste, or toilet paper. (Dkt. No. 174-12, at 31–32). Franko stated that after learning a group of inmates had filed grievances complaining of weight loss, “we had them weighed by our medical staff” and “found that there was . . . no significant weight loss”—he did not consider “any of those losses” to be “substantial.” (Dkt. No.
19 Franko testified that price per meal prior to Trinity was “approaching $2 a meal,” but that with Trinity, it was “just above a dollar.” (Dkt. No. 174-12, at 133). Franko did not know whether there was a difference in the quality of the food once Trinity took over. (Dkt. No. 174-12, at 136). Franko explained that “One of the reasons we went with a food services company was because they had access to food suppliers and based upon the volume they were able to secure better pricing.” (Dkt. No. 174-12, at 208).
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174-12, at 142). According to Defendants, these inmates were weighed in 2014, six inmates were weighed and five lost weight; the weight loss ranged from 1 to 21 pounds. (Dkt. No. 88-1, at 72).
Franko stated that when he learned that Robert Pettit, an inmate, complained that he lost “around 90 pounds”—so much weight that he could not fit into his prosthetic leg, (Dkt. No. 17412, at 10–11), he had the medical staff “look and see” to determine “whether he actually did fit into his prosthetic.” (Dkt. No. 174-12, at 11). Franko’s discussions with Pettit concerned “mobility and [were] not necessarily about” weight. (Dkt. No. 174-12, at 149).
Franko runs many, “if not all,” decisions “past [Amato] first” because Amato “has the final say.” (Dkt. No. 174-12, at 177). Franko testified that at the time of his deposition, MCJ was feeding inmates the same amount of food and had no plans to change the amount of food. (Dkt. No. 174-12, at 187–88).
H. Defendants’ Experts 1. Katherine Streeter
Defendants submitted expert reports by Katherine Streeter, a clinical dietician and assistant director of nutrition services in long-term, transitional, and adult day care facilities. (Dkt. No. 88-1, at 6, 9, 62,85, 87; Dkt. No. 174-35, at 2; Dkt. No. 174-46, at 2). In formulating her opinion, Streeter reviewed, among other things, discovery materials, the Complaint, “Jail Policy,” MCJ meal records, recipes, and food production records, inmate grievance records, and deposition testimony. (Dkt. No. 88-1, at 23–24,75, 86, 92; Dkt. No. 174-35, at 8; Dkt. No. 17446, at 7–8). In her most recent report, Streeter discussed her analysis of menus and recipes “for menu cycle days 1–14” for the 2011–2015 and 2016–2018 time periods. (Dkt. No. 174-46, at 3– 4).20 Streeter calculated the calories and macronutrients (carbohydrate, protein, and fat) and the
20 Streeter noted that there “are two menus—one in effect from before 2011–2015, and a revision that took effect in 2016.” (Dkt. No. 174-46, at 3).
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nutritional value of the meals. (Dkt. No. 174-46, at 3). Streeter recognized that the “estimated
calorie needs for a group of males ages 25–50 is 2900 calories per day and females in the same
age group are estimated to need 2200 calories per day.” (Dkt. No. 174-46, at 4). Streeter’s
analysis indicated that the menu for 2011–2015 provided, on average 2,851 calories per day, and
that it provided carbohydrates, protein and fat within the recommended ranges. (Dkt. No. 174-46,
at 6). Her analysis of the menu for 2016–2018 indicated that the menu provided, on average,
2822 calories per day and that it provided carbohydrates, protein and fat within the
recommended ranges. (Dkt. No. 174-46, at 6). Streeter stated that, in her opinion,
“[s]ubstitutions, when made, were typically nutritionally equivalent.” (Dkt. No. 174-46, at 7).
Streeter noted that there were “notations on many days indicating when a substitution for part of
the house or for the whole house needed to be made.” (Dkt. No. 88-1, at 13). In Streeter’s
opinion, “[t]ypically, nutritionally-equivalent substitutions were made during that time,”
including “oatmeal served instead of farina; rice served instead of potatoes, brownies instead of
white cake.” (Dkt. No. 88-1, at 13)
In a subsequent report, Streeter responded to the opinion of Plaintiffs’ expert Heidi Jay Silver,21 (Dkt. No. 180-1), that the substitutions were creating nutritional deficits as follows:
Silver’s calculations fail to account for instances when a substitution was made that provide more calories than the original item. During a brief look at menus from the time period she evaluated, I found at least a half-dozen such examples (below is not an exhaustive list, merely examples):
o 1/2/13 lunch – mayo (118 kcal) instead of gravy (52 kcal) o 1/2/13 dinner – bologna (267 kcal) instead of turkey ham
(142 kcal)
21 Silver is a Research Associate Professor of Medicine in the Division of Gastroenterology, Hepatology, and Nutrition in the School of Medicine, Department of Medicine, at Vanderbilt University Medical Center, Nashville, Tennessee. (Dkt. No. 180-1). Silver opined that it was “apparent that there are frequent occasions when substitutions are being made for food items that provide fewer calories and other nutrients than what was planned in the written cycle menus.” (Dkt. No. 180-1, at 5–6). As discussed supra Section III, the Court has disregarded Silver’s report because it is unsworn.
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o 1/4/13 dinner – cake (288 kcal) instead of sugar cookies (212 kcal)
o 1/22/13 lunch – mayo (118 kcal) instead of BBQ sauce (58 kcal)
o 1/23/13 dinner – 8oz chili with 4oz macaroni instead of 4 oz chili with 8oz macaroni (38 calories more, increased protein, decreased carbohydrate)
o 1/30/13 lunch – peas (90 kcal) instead of steamed cabbage (48 kcal)
o 2/11/13 dinner – rice (298 kcal) instead of sugar cookies (212 kcal)
o 2/28/13 lunch – coleslaw (199 kcal) instead of tossed salad with dressing (17+100 kcal)
(Dkt. No. 88-1, at 90 (internal citations omitted)). Streeter stated that, in her experience, “[t]he elapsed period of fourteen hours between
breakfast and dinner the previous day is typical in institutional settings (including group homes, hospitals, and nursing homes).” (Dkt. No. 88-1, at 12).
In her September 30, 2016 report, Streeter reviewed the “weight information” MCJ Nurse Gina Yesse provided to Franko in connection with a grievance investigation. (Dkt. No. 88-1, at 72). This information concerned five individuals and provided their weight on entry to MCJ and their present weight. (Dkt. No. 88-1, at 72). The length of time the individuals had been in MCJ, with one unknown, ranged from just over one month to nine months. (Dkt. No. 88-1, at 72). Each of the five individuals lost weight—1, 5, 8, 9, and 21 pounds—but in Streeter’s opinion, “[n]one of the weight losses . . . meet the criteria for significant weight loss.” (Dkt. No. 88-1, at 72).
2. William Graber, M.D. Defendants also submitted an expert report by William Graber, M.D., who examined records concerning Hill and six other inmates. (Dkt. No. 88-1, at 79–81). Dr. Graber opined that
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if these individuals “did have any weight loss [or malnourishment] it could be attributed to” a history of drug use or medical illness. (Dkt. No. 88-1, at 79–81).22 III. OBJECTIONS
Defendants object to several exhibits Plaintiffs submitted in opposition to the motion for summary judgment on the ground that they are inadmissible. (Dkt. No. 187, at 6–7). The exhibits include, as relevant here, inmate grievances, (Dkt. Nos. 180-25, 180-26, 180-27, 180-28, 18029), a letter from “T. Hayes,” (Dkt. No. 180-41), class member surveys, (Dkt. No. 180-24), a 2012 grievance response from the Commission of Corrections, (Dkt. No. 180-33), a photograph of class member Robert Reece, (Dkt. No. 180-37), and Plaintiff’s expert report, (Dkt. No. 180-1). Defendants argue that they are inadmissible because “they are nothing more than unsworn statements” and have not been “attested to for the truthfulness of the assertions contained therein.” (Dkt. No. 187, at 6).
As the Court finds the letter from “T. Hayes,” (Dkt. No. 180-41), the class member surveys, (Dkt. No. 180-24), the 2012 grievance response from the Commission of Corrections, (Dkt. No. 180-33), and the photograph of class member Robert Reece, (Dkt. No. 180-37), are irrelevant to its analysis at this stage, Defendants’ objection to those exhibits is denied as moot. Accordingly, the Court considers Defendants’ objection to the inmate grievances and Plaintiffs’ expert’s report.
In general, even if evidence is not properly authenticated at the summary judgment stage, “so long as evidence ‘will be presented in admissible form at trial,’ it may be considered on
22 Defendants also rely on a letter by Martin F. Horn, (Dkt. No. 88-1, at 77), which Defendants filed previously in this case and which is incorporated by reference in Mr. Horn’s affidavit dated April 4, 2019. (Dkt. No. 174-43, at 2). He states he is “an expert in the area of Corrections.” (Dkt. No. 174-43, at 2). In Horn’s opinion, MCJ “has been diligent about providing adequate, nutritious and palatable food to the prisoners in its custody.” (Dkt. No. 88-1, at 77).
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summary judgment.” Harleysville Worcester Ins. Co. v. Wesco Ins. Co., 752 F. App’x 90, 93–94 (2d Cir. 2019) (Summary Order) (quoting Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001)); see also Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (“On a summary judgment motion, the district court properly considers only evidence that would be admissible at trial.”).
Here, the inmate grievances have not been presented in admissible form. That fault, however, may be cured easily upon proper authentication at trial. See, e.g., Lawson v. Homernuk, No. 15-cv-1510, 2018 WL 2081914, at *3, 2018 U.S. Dist. LEXIS 70820, at *9 (S.D.N.Y. Apr. 24, 2018) (noting that while the social worker’s unsworn letter was hearsay, “the improper form would be cured if she testifies at trial.”); see also Rosensaft v. Ashton Tech. Grp., Inc., No. 97 Civ. 3138, 1997 WL 749384, at *3, 1997 U.S. Dist. LEXIS 19216, at *8 (S.D.N.Y. Dec. 4, 1997) (noting that evidence “in an inadmissible form” may be considered at the summary judgment stage where it “can easily be rendered admissible at the trial stage”). Additionally, to the extent Defendants challenge the grievances as hearsay, the Court has considered them not for the truth of the statements they contain, but as evidence that Amato and Franko had notice that there were complaints about the food at MCJ. United States v. Dupree, 706 F.3d 131, 137 (2d Cir. 2013) (“We have repeatedly held that a statement is not hearsay where, as here, it is offered, not for its truth, but to show that a listener was put on notice.”). In any event, because Franko and Amato themselves testified that were aware of the grievances or inmates’ complaints regarding food, (Dkt. No. 174-7, at 78; Dkt. No. 174-12, at 81), even if the Court were to disregard the grievances, the outcome at this stage would be the same. Thus, Defendants’ objection to the inmate grievances are without merit.
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Silver’s expert report, however, must be disregarded. “Courts in this Circuit have uniformly held that unsworn expert reports do not satisfy the admissibility requirements of Fed. R. Civ. P. 56(e), and cannot be used [on] a motion for summary judgment without additional affidavit support.” Condoleo v. Guangzhou Jindo Container Co., No. 15-cv-4677, 2019 WL 2436214, at *5, 2019 U.S. Dist. LEXIS 69826, at *14–15 (E.D.N.Y. Apr. 23, 2019) (quoting Glowczenski v. Taser Int’l, Inc., No. 04-cv-4052, 2010 WL 1957289, at *2, 2010 U.S. Dist. LEXIS 47269, at*6 (E.D.N.Y. May 13, 2010) (collecting cases)), report and recommendation adopted, 2019 WL 2574605, 2019 U.S. Dist. LEXIS 105190 (E.D.N.Y. June 21, 2019). The Court therefore has not considered Silver’s report in determining whether Plaintiffs have raised a material issue of fact requiring trial. IV. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (summary judgment appropriate where
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the nonmoving party fails to “‘come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on’ an essential element of a claim” (quoting In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))).
If the moving party meets this burden, the nonmoving party must “set out specific facts showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, “[m]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)). V. DISCUSSION
A. Conditions of Confinement Claim Defendants seek summary judgment on the ground that the evidence fails to establish a “conditions of confinement violation.” (Dkt. No. 174-1, at 7). Plaintiffs oppose Defendants’ motion. (Dkt. No. 185, at 23). A convicted prisoner’s conditions of confinement claim is governed by the Cruel and Unusual Punishments Clause of the Eighth Amendment. Walker v. Schult, 717 F.3d 119, 125 (2d
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Cir. 2013). The Due Process Clause of the Fourteenth Amendment governs a pretrial detainee’s conditions of confinement claim. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (“A pretrial detainee’s claims are evaluated under the Due Process Clause because ‘[p]retrial detainees have not been convicted of a crime and thus may not be punished in any matter—neither cruelly and unusually nor otherwise.’” (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)).
To “establish a § 1983 claim for allegedly unconstitutional conditions of confinement” a plaintiff must show (1) that “objectively, the deprivation . . . suffered was ‘sufficiently serious that he was denied the minimal civilized measure of life’s necessities,’” Walker, 717 F.3d at 125 (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)); and (2) “that the officers acted with deliberate indifference to the challenged conditions.” Darnell, 849 F.3d at 29. Although the first—objective—prong is the same under the Eighth and Fourteenth Amendments, the second, “subjective” or “mens rea prong,” differs; it is defined subjectively under the Eighth Amendment, and objectively under the Fourteenth Amendment. Id.at 32, 35.
1. Objective Prong “Under both the Eighth and Fourteenth Amendments, to establish an objective deprivation, ‘the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health,’ which includes the risk of serious damage to ‘physical and mental soundness.’” Darnell, 849 F.3d at 30 (first quoting Walker, 717 F.3d at 125, second quoting LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)). The Constitution “requires ‘nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it.’” Willey v. Kirkpatrick, 801 F.3d 51, 69 (2d Cir. 2015) (quoting Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)). The Second Circuit has explained that “[t]here is no ‘static test’ to determine whether a deprivation is sufficiently serious; instead, ‘the conditions themselves
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must be evaluated in light of contemporary standards of decency.’” Darnell, 849 F.3d at 30 (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)). These standards require that prisoners “not be deprived of ‘their basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety’—and they may not be exposed ‘to conditions that pose an unreasonable risk of serious damage to [their] future health.’” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002)).
The Second Circuit “has been reluctant to impose bright-line durational or severity limits in conditions of confinement cases and has never imposed a requirement that [the plaintiffs] show that they actually suffered from serious injuries.” Darnell, 849 F.3d at 31 (citing Walker, 717 F.3d at 129); see also Willey, 801 F.3d at 68 (“Although the seriousness of the harms suffered is relevant to calculating damages and may shed light on the severity of an exposure, serious injury is unequivocally not a necessary element of an Eighth Amendment claim.”). “Bright-line limits are generally incompatible with [Eighth and] Fourteenth Amendment teaching that there is no ‘static’ definition of a deprivation, and the Supreme Court’s instruction that any condition of confinement can mutually enforce another, so long as those conditions lead to the same deprivation.” Darnell, 849 F.3d at 31 (citing Blissett, 66 F.3d at 537). For example, “[i]nadequate nutrition may be compounded by infestation” and an “overcrowded cell . . . may exacerbate the effect of unsanitary conditions.” Id. at 32. Consequently, “conditions of confinement cases involve fact-intensive inquiries,” Id. at 31, and “must be evaluated on a caseby-case basis according to severity and duration.” Id. at 37.
Here, Plaintiffs, all of whom were in MCJ for at least two weeks, have adduced evidence that three to four times per week, portions were halved, (Dkt. No. 180-7, at 13, 16), two to three times per week gravies and sauces were watered-down, (Dkt. No. 180-6, at 64–66), and that
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some of the food served regularly, including chicken and other meats, for example, was of such poor quality as to be inedible, that the vegetables lacked nutritional value, (Dkt. No. 180-6, at 20, 75), and that the kitchen at times failed to provide any substitution for planned menu items, (Dkt. No. 180-34, at 2, 31, 84, 86). Viewed in the light most favorable to Plaintiffs, a reasonable factfinder could further conclude that the hunger the inmates experienced as a result of the— frequently daily—nutritionally and calorically inadequate meals was exacerbated by the 14-hour time period between dinner and breakfast. (See Dkt. No. 180-10, at 25 (inmate testifying that “your last meal” was at “four or five o’clock” and “they don’t serve you enough” “[s]o . . . then by six, seven, your stomach is touching your ribs” and by 11:00 p.m., when “[y]ou . . . go to sleep,” he “would be starving”)). Indeed, there is evidence that the intensity of the hunger caused inmates, who had no access to food other than the meals MCJ provided, to consume non-food items, including cocoa butter and toothpaste, or large quantities of water to quiet their hunger. (Dkt. No. 174-26, at 55; Dkt. No. 180-6, at 33). This evidence is sufficient to raise a material issue of fact as to whether MCJ deprived the inmates at MCJ, including Hill and Rogers—the named Plaintiffs,23 of their basic human need for food. See Jabbar, 683 F.3d at 57; see also Willey, 801 F.3d at 57, 69 (finding allegation that the plaintiff was served “nothing more than a loaf of bread (usually stale) and dried-up cabbage” for one week was sufficient to raise an inadequate-nutrition claim); Robles, 725 F.2d at 15 (explaining that “under certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension”); Walker, 717 F.3d at 125 (“[P]rison officials violate the Constitution when they deprive an inmate
23 Both Hill and Rogers testified about the hunger they experienced at MCJ, the poor quality of the food, (Dkt. No. 174-26, at 39–40, 80, 82; Dkt. No. 174-27, at 44, 57), as well as the weight loss and other physical consequences, including hair loss, bleeding gums, dizziness, and nausea, they suffered at MCJ. (Dkt. No. 174-27, at 65; Dkt. No. 174-26, at 73, 56–59).
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of his ‘basic human needs’ such as food, clothing, medical care, and safe and sanitary living conditions.”).
Defendants argue that “Plaintiffs’ entire theory of . . . deliberate indifference is based off the false premise that the inmates were receiving 1,700 calories per day,” and that “inmates cannot claim that they are being withheld food when the records show that not to be the case.” (Dkt. No. 174-1, at 7, 9). Defendants also argue that there is evidence that a number of inmates gained weight while at MCJ, and that certain inmates chose not to eat the food provided. (Dkt. No. 174-1, at 11, 13). These arguments, however, demonstrate the presence of factual issues as to the food provided at MCJ. Under such circumstances, summary judgment is inappropriate.
2. Subjective (Mens Rea) Prong a. Eighth Amendment
To establish a violation of the Eighth Amendment, a plaintiff must show “the defendant official acted with ‘a sufficiently culpable state of mind . . . such as deliberate indifference to inmate health or safety.’” Walker, 717 F.3d at 125 (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)). “To meet the subjective element, the plaintiff must show that the defendant acted with ‘more than mere negligence.’” Walker, 717 F.3d at 125 (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)). “To constitute deliberate indifference, ‘[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety.’” Id. (quoting Jabbar, 683 F.3d at 57).
Plaintiffs have provided sufficient evidence to allow a reasonable factfinder to conclude that Amato, the Sheriff in charge of the jail, and Franko, who was jail administrator, were aware that the food provided to the inmates was inadequate, endangered their physical health, and deprived them of the basic human need for adequate sustenance. It is undisputed that both Amato and Franko knew, during the time periods Plaintiffs Hill (September 2013 to March 2014) and
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Rogers (February 2013 to October 2013 and June 2014 to February 2015), were in MCJ, (Dkt. No. 75-6, at 16; Dkt. No. 174-27, 19–20, 35), that they were complaining that the food portions were inadequate, that they wanted more to eat, and that they were hungry. (Dkt. No. 180-27 (food grievances dated April 22, 2013 to October 27, 2013); Dkt. No. 174-7, at 10–11, 15; Dkt. No. 174-12, at 9, 13; Dkt. No. 180-35, at 3 (noting Sheriff had reviewed food grievance issues and investigation)). There is also evidence that when Franko had five of the inmates who had complained of weight loss weighed by the medical staff, he learned that they had all lost weight—between 1 and 21 pounds; he deemed the weight loss not “significant.” (Dkt. No. 17412, at 142). Despite this evidence and multiple grievances and complaints over a period of years, Plaintiffs have presented evidence, that, if credited, shows that Amato did little more than “double-check” with Franko to make sure “everything was done right”; he performed no investigations of his own. (Dkt. No. 174-7, at 24). Although Franko “investigated” the complaints, and contacted Trinity to make sure the menus were adequate, he determined there was “not a lot of substance to what the inmates were saying” about the lack of food and, other than emphasizing to the kitchen staff the importance of uniform portions, made no changes. (Dkt. No. 174-12, at 10, 142, 85; Dkt. No. 180-35, at 2). This evidence, combined with ongoing complaints and grievances by inmates that the portions were too small, that they were hungry, and that they were losing weight, would permit a reasonable factfinder to conclude that that Sheriff Amato and Jail Administrator Franko were aware of the harm the inmates faced as a result of the meals served at the MCJ but disregarded the risk to inmate health. Walker, 717 F.3d at 125 (explaining that “[e]vidence that a 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.” (quoting Brock v. Wright, 315 F.3d 158, 164 (2d Cir. 2003)).
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b. Mens Rea – Fourteenth Amendment To establish the mens rea element of a conditions of confinement claim under the Fourteenth Amendment, “the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendantofficial knew, or should have known that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. As the Second Circuit has explained, “the ‘subjective prong’ (or ‘mens rea prong’) of a deliberate indifference claim is defined objectively.” Id. “A plaintiff must show ‘something more than mere negligence’ to establish deliberate indifference in the Fourteenth Amendment context.” Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)). As discussed above, there is evidence that Sheriff Amato and Jail Administrator Franko knew as early as 2013 that the inmates of MCJ were complaining that the portions were too small, that they were hungry, that they were losing weight, that they wanted more food, and that these complaints continued and persisted even after this action was filed. Although there is also evidence that Sheriff Amato checked with jail staff to ensure that the food portions were correct and the inmates were receiving “what they are required in calories every day,” (Dkt. No. 174-7, at 20, 24), and that Jail Administrator Franko contacted Trinity to make sure the menus were sufficient and reminded kitchen staff of the importance of uniform portions, (Dkt. No. 174-12, at 85), there is no evidence that the investigation went any further or that they made any changes. Indeed, Franko testified that he, together with Trinity, decided not to give the inmates “additional food.” (Dkt. No. 174-12, at 85). There are, therefore, material issues of fact as to whether Defendants acted intentionally in failing to provide adequate nutrition and calories to MCJ inmates, or to mitigate the risks the deficient diet posed to the inmates, even though they knew
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that inadequacies in the food provided posed “an excessive risk to the health or safety” of inmates who were completely dependent on the meals provided at MCJ for their nutritional sustenance.24
Thus, material issues of fact require trial with respect to the Eighth and Fourteenth Amendment conditions of confinement claims.
B. Defendants Amato and Frank 1. Personal Involvement
Defendants move for summary judgment dismissing the claims against Amato and Frank on the basis that they were supervisory officials and lacked personal involvement in the alleged constitutional violations. (Dkt. No. 174-1, at 13–15). “A supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort.” Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002). As the Second Circuit has explained, the personal involvement of supervisory personnel may be shown through evidence that they: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference by failing to act on information indicating that an unconstitutional act was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). “In addition to satisfying one of these requirements, a plaintiff must also establish that the supervisor’s actions were the proximate cause of the plaintiff’s constitutional deprivation.” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014).
24 Because the evidence reveals material issue of fact, which, if credited, would show that Amato and Franko failed to act, despite knowing that the conditions at MCJ posed an excessive risk to the inmates, the Court further concludes there are material issues of fact as to whether these Defendants “should have known that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35.
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Plaintiffs have introduced evidence that both Amato and Franko were aware of inmates’ complaints and grievances regarding the insufficient portions and hunger and that they failed to make any changes to the quantity or quality of the food provided at MCJ. Sheriff Amato was “in charge” of MCJ and present in the jail nearly every other day. Further, while Franko maintains that Amato had “the final say” on decisions concerning MCJ, there is evidence from which a factfinder could infer that he had supervisory authority over the kitchen staff and a direct line of communication with Trinity, which set the MCJ menu, and yet took no action to remedy the issue. This evidence raises a genuine issue of material fact as to whether, at a minimum, Amato and Franko “were ‘informed of the violation through report or appeal’ and ‘failed to remedy the wrong.’” Brandon v. Kinter, 938 F.3d 21, 37 (2d Cir. 2019). The evidence is also sufficient to show that these individual defendants participated directly in the alleged constitutional violation. Crediting Plaintiffs’ version of the facts, a reasonable factfinder could conclude that they knew of the complaints that the food was inadequate to sustain the inmates, and yet, they made a conscious decision to maintain the status quo after “double-checking” the menu and reminding the kitchen staff to serve uniform portions.
2. Qualified Immunity Amato and Franko argue that even if Plaintiffs can establish personal involvement, they are entitled to qualified immunity. (Dkt. No. 174-1, at 17–26). “Qualified immunity shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were ‘clearly established’ at the time.” Poe, 282 F.3d at 132 (quoting Vega v. Miller, 273 F.3d 460, 466 (2d Cir. 2001)); see Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam). To determine whether a defendant is entitled to qualified immunity, the Court must “assess whether ‘under clearly established law, every reasonable officer would have concluded that [the defendant’s]
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actions violated [the plaintiff’s constitutional rights] in the particular circumstances presented by the uncontested facts and the facts presumed in [the plaintiff’s] favor.’” Cugini v. City of New York, 18-1378, 2019 WL 5473618, at *8, 2019 U.S. App. LEXIS 32021, at *22 (2d Cir. Oct. 25, 2019) (quoting Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017)). “Qualified immunity is an affirmative defense on which the defendant has the burden of proof.” Outlaw v. City of Hartford, 884 F.3d 351, 367 (2d Cir. 2018). “While there does not have to be ‘a case directly on point,’ existing precedent must place the lawfulness of the particular arrest ‘beyond debate.’” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Ashcroft v. al– Kidd, 563 U.S. 731, 741 (2011)). Here, Defendants argue that: (i) without bright line limits for inadequate nutrition claims it is not clearly established that a constitutional violation exists when “each inmate at the jail reacted differently,” (Dkt. No. 174-1, at 20), (ii) the standard for deliberate indifference under the Fourteenth Amendment was not clearly established law in the Second Circuit until 2014, when Darnell was issued, (Dkt. No. 174-1, at 21), and (iii) because it is “an open issue in New York whether someone held at a jail for a parole violation qualifies as a pretrial detainee,” the standard applicable “to each class member in this case is not clearly established.” (Dkt. No. 174-1, at 24–25).
The right of prisoners and pretrial detainees to “nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it” has been clearly established since at least 1983. Willey, 801 F.3d at 69 (quoting Robles, 725 F.2d at 15). In view of the material issues of fact regarding the meals provided at MCJ and whether they were nutritionally adequate, the Court concludes that questions concerning inmates’ reaction to the diet go to the question of
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damages—not liability—and therefore do not provide a basis for qualified immunity.25 See Darnell, 849 F.3d at 30 (“[T]he proper lens through which to analyze allegedly unconstitutional . . . conditions of confinement is with reference to their severity and duration, not the detainee’s resulting injury.”); Willey, 801 F.3d at 68 (explaining that “serious injury is unequivocally not a necessary element of an Eighth Amendment claim” but “the seriousness of the harms suffered is relevant to calculating damages.” (citing Hudson v. McMillian, 503 U.S. 1, 4 (1992))).
Defendants argue that the standard for deliberate indifference under the Fourteenth Amendment was not clearly established law in the Second Circuit until 2014, when Darnell was decided, (Dkt. No. 174-1, at 21), and that they are therefore entitled to qualified immunity with respect to the Fourteenth Amendment claim. Plaintiffs acknowledge “for purposes of qualified immunity, that the conduct of Amato and Frank must be considered under the ‘old’ Eighth Amendment standard.” (Dkt. No. 185, at 35). The Court agrees. Prior to Darnell, to satisfy the subjective prong of the deliberate indifference inquiry, a plaintiff was required to show “that the government-employed defendants disregarded a risk of harm to the plaintiff of which the defendant was aware”—the standard applicable to Eighth Amendment deliberate indifference claims. Caiozzo v. Koreman, 581 F.3d 63, 71 (2d Cir. 2009) (emphasis added), overruled by Darnell, 849 F.3d 17. In Darnell, the Second Circuit held that a plaintiff can meet the subjective prong by showing “that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition
25 Defendants cite no legal authority for the proposition that qualified immunity applies in the absence of a bright line rule. The Second Circuit has cautioned against the use of bright-line rules in the context of the Fourteenth Amendment. See, e.g., Darnell, 849 F.3d 17, 31 (“Bright-line limits are generally incompatible with Fourteenth Amendment teaching that there is no ‘static’ definition of a deprivation.”). In any event, on this record, construing the facts in the light most favorable to the Plaintiffs, qualified immunity is not warranted.
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posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35 (emphasis added). As the Second Circuit has noted, “Darnell was decided in 2017 and thus could not have clearly established that reckless[ness] . . . amounts to deliberate indifference” under the Fourteenth Amendment, prior to 2017. Monaco v. Sullivan, 737 F. App’x 6, 15 (2d Cir. 2018) (Summary Order).
Here, however, viewed in the light most favorable to Plaintiffs, there is evidence that Defendants knew that the food being provided at MCJ was nutritionally and calorically inadequate and that the inmates were hungry and disregarded the risk that posed to Plaintiffs’ health and safety. As such evidence would be sufficient to show an Eighth Amendment violation, see supra Section V.A.2., and it has long been clearly established that “pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that . . . are enjoyed by convicted prisoners,” Bell v. Wolfish, 441 U.S. 520, 545 (1979), Defendants’ argument is unavailing.26 For the same reasons, unresolved issues regarding a class member’s status as a pretrial detainee or convicted prisoner does not warrant the application of qualified immunity. It was clearly established in 2013 that the Constitution “does require that prisoners be served ‘nutritionally adequate food that is prepared and served under conditions which do not
26 In Monaco, the plaintiff, who was a pretrial detainee during the relevant time period, alleged that the defendant psychiatrist was deliberately indifferent in violation of the Fourteenth Amendment by failing to prescribe Lithium. 737 F. App’x at 14. The district court, applying the Eighth Amendment standard then-applicable to Fourteenth Amendment deliberate indifference claims, concluded that the plaintiff failed to meet the subjective prong because there was “no evidence suggesting that [the defendant] knew that his failure to prescribe Lithium posed a threat to” the plaintiff. Id. at 15. On appeal, the plaintiff argued for reversal asserting that under Darnell “a jury could reasonably conclude that [the defendant] acted recklessly.” Id. The Second Circuit disagreed and explained that “[a]ssuming arguendo that [the plaintiff] is correct that [the defendant’s] failure to prescribe Lithium was reckless, [the defendant] would still be entitled to qualified immunity” because “Darnell was decided in 2017 and thus could not have clearly established that reckless medical treatment amounts to deliberate indifference at the time [the defendant] treated” the plaintiff. Id. Here—unlike Monaco where there was no evidence that the defendant was aware of the risk he posed to the plaintiff—there are material issues of fact regarding whether Amato and Franko knew of and disregarded a risk of harm to Plaintiffs.
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present an immediate danger to the health and well being of the inmates who consume it.’” Robles, 725 F.2d at 15 (quoting Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir. 1980)). Viewed in the light most favorable to Plaintiffs, the evidence indicates that Amato and Franko were aware of and disregarded the risk the diet at MCJ posed to inmates. Such conduct would violate both the Eighth, and consequently, the Fourteenth Amendment. See Darnell, 849 F.3d at 29 (“A detainee’s rights are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner.’” (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983))); see also Tolan v. Cotton, 572 U.S. 650, 656 (2014) (“‘[T]he salient question . . . is whether the state of the law’ at the time of an incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was unconstitutional.’” (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002))). Thus, an inmate’s status is irrelevant for purposes of qualified immunity at this stage of the litigation. Accordingly, Defendants’ motion for summary judgment on qualified immunity grounds is denied.
C. Municipal Liability Plaintiffs allege that Defendant Montgomery County is liable under 42 U.S.C. § 1983 for the allegedly unconstitutional conditions in MCJ. Defendants seek summary judgment dismissing the municipal liability claim, arguing that there is no evidence of a “formal policy at the jail or a specific action or decision by an official responsible for establishing final policy to not feed the inmates.” (Dkt. No. 174-1, at 15–17). Plaintiffs oppose summary judgment. (Dkt. No. 185, at 25–26). “For the purpose of Section 1983, a municipality is not vicariously liable for the acts of its employees,” Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)), but a municipality is liable when “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
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may fairly be said to represent official policy, inflicts the injury,” Monell, 436 U.S. at 694. “To hold a municipality liable in such an action, ‘a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.’” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).
A municipal policy or custom may be established where the facts show: (1) a formal policy, officially promulgated by the municipality, Monell, 436 U.S. at 690; (2) action taken by the official responsible for establishing policy with respect to a particular issue, Pembaur v. Cincinnati, 475 U.S. 469, 483–84 (1986); (3) unlawful practices by subordinate officials so permanent and widespread as to practically have the force of law, City of St. Louis v. Praprotnik, 485 U.S. 112, 127–30 (1988); or (4) a failure to train or supervise that amounts to “deliberate indifference” to the rights of those with whom the municipality’s employees interact, Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). “[A] municipal policy may be inferred from the informal acts or omissions of supervisory municipal officials.” Zahra, 48 F.3d at 685. Further, “municipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct.” Batista, 702 F.2d at 397; see also Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir. 1980) (holding that “where senior personnel have knowledge of a pattern of constitutionally offensive acts by their subordinates but fail to take remedial steps, the municipality may be held liable for a subsequent violation if the superior’s inaction amounts to deliberate indifference or to tacit authorization of the offensive acts”).
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Plaintiffs assert that “Montgomery County is liable both because its employees implemented the unconstitutional practice of denying detainees adequate nutrition, and because of the actions and inactions of [Amato and Franko,] its Chief Policy makers, who directed this misconduct.” (Dkt. No. 185, at 25–26). “[W]hen a subordinate municipal official is alleged to have committed the constitutional violation, municipal liability turns on the plaintiffs’ ability to attribute the subordinates’ conduct to the actions or omissions of higher ranking officials with policymaking authority.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (Sotomayor, J.). As the Second Circuit has explained, “[one means of doing so . . . is to establish that a policymaker ordered or ratified the subordinates’ actions.” Id. “Thus, where a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official’s inaction constitutes a ‘deliberate choice,’ that acquiescence may ‘be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.’” Id. (quoting City of Canton, 489 U.S. at 388).
Plaintiffs’ assert that Amato, as Sheriff, is the final policy maker for MCJ. Under New York law, “the sheriff of each county shall have custody of the county jail of such county.” N. Y. Corr. Law § 500-c(1). Further, there is evidence showing that Amato had the authority to make policy concerning all matters related to foodservice at the jail. See Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (“Where the contention is not that the actions complained of were taken pursuant to a local policy that was formally adopted or ratified but rather that they were taken or caused by an official whose actions represent official policy, the court must determine whether that official had final policymaking authority in the particular area involved.”). Amato testified that: (i) he was in charge of the jail, (ii) that he had “decided not to” allow the food commissary to remain in the jail because it “was a problem,” and (iii) he investigated the inmates’ complaints
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regarding inadequate food by ensuring the food portions were correct. (See Dkt. No. 180-2, at 111, 39, 20, 24). There is also evidence that Amato had issued directives indicating that “meals are of great importance.” (Dkt. No. 180-35, at 2).
There is also evidence, which, if credited, would establish that Amato, in his “failure to act . . . “exhibit[ed] deliberate indifference to constitutional deprivations caused by subordinates.’” Outlaw, 884 F.3d at 372 (quoting Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011)). “[A] plaintiff seeking to establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff’s rights must demonstrate that the municipal action was taken with deliberate indifference as to its known or obvious consequences.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997).
Viewed in the light most favorable to Plaintiffs, there is evidence that Amato was aware that the inmates at MCJ had complained, over a period of years, that they were hungry, that they wanted more food, and that the portions were too small, (Dkt. No. 174-7, at 10–11, 15, 78), and that he conducted a superficial investigation into the continuous complaints by talking to his staff, and checking with Franko, the jail administrator, “to make sure everything was done right.” (Dkt. No. 174-7, at 24, 53). There was also evidence that Amato was aware that at least five inmates had lost weight. (Dkt. No. 174-7, at 76). Thus, Plaintiffs have raised a material issue of fact as to whether Amato’s failure to act in response to the repeated complaints regarding inadequate portions and that the inmates in the jail were hungry, was done with deliberate indifference as to the known or obvious consequences chronic underfeeding would pose to the inmates at MCJ. Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (“Deliberate indifference to claims of such civil rights violations—tantamount to a custom or policy sufficient to support municipal liability under § 1983—may be inferred from a municipality’s lack of
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appropriate response to repeated complaints of such violations.”); see also Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) (“The inference that a [municipal] policy existed may . . . be drawn from circumstantial proof, such as . . . evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that police officers had used excessive force in violation of the complainants’ civil rights.”); Fiacco v. City of Rensselaer, 783 F.2d 319, 327 (2d Cir. 1986) (explaining that a municipality “should not take a laissez-faire attitude toward the violation by its peace officers of the very rights they are supposed to prevent others from violating”). Accordingly, Defendants’ motion for summary judgment dismissing the municipal liability claim against Montgomery County is denied. VI. INJUNCTIVE AND DECLARATORY RELIEF CLAIMS
Defendants note that the Court previously dismissed Plaintiffs’ claims for injunctive and declaratory relief (Second Cause of Action), (Dkt. No. 174-1, at 25; Dkt. No. 128), but that they are present in the Amended Complaint, which Plaintiffs filed after the Court’s dismissal. (Dkt. No. 136, at 14). Accordingly, Plaintiffs’ claims for injunctive and declaratory relief (Second Cause of Action) are stricken from the Amended Complaint. VII. CONCLUSION
For these reasons, it is ORDERED that Defendants’ objections are GRANTED in part and DENIED in part; and it is further ORDERED that Defendants’ motion for summary judgment (Dkt. No. 174) is DENIED; and it is further
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Date: November 7, 2019 Syracuse, New York
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