Case 5:18-cv-05170-MAK Document 338 Filed 01/15/20 Page 1 of 72

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

THERESA VICTORY, et al.

CIVIL ACTION

v.

NO. 18-5170

BERKS COUNTY, et al.

MEMORANDUM with Findings of Fact and Conclusions of Law

KEARNEY,J.

January 15, 2020

In 2010, Berks County announced its incarcerated residents classified as "Trusty" low risk

inmates would be moved from its Jail to a Community Reentry Center to meet touted goals of

reducing recidivism and promoting reentry to society. The Community Reentry Center provided

these Trusty inmates increased mobility with unlocked cells, access to privileges, visitation rights,

and, access to home furloughs aiding work release. But contrary to its 2010 goals for its residents,

Berks County chose to house only male Trusty inmate residents in the Reentry Center. It decided

to leave the women Trusty inmates in the Jail with substantially different conditions of

incarceration. Even after we repeatedly held over the past year its policy is unconstitutional, Berks

County vigorously defended its decision citing safety/security reasons and a logistical inability to

provide the same rights to women as men although it classified both as "Trusty" inmates. Berks

County opposed every effort by female Trusty inmates to ensure equal protection. It sought stays

of our injunctions and eventually never implemented court-ordered compliance. It denied the

female inmates's internal grievances and then successfully moved to dismiss cases when female

inmates did not exhaust administrative remedies before their shorter-term Trusty status sentences

expired. As late as October 2019, the Berks County Commissioners approved a six-figure contract

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to renovate the Community Reentry Center housing the male Trusty inmates. Berks County offered no sign of relenting in its view.
But on the business day before we started the jury trial on damages claims, Berks County told us it just moved all the male Trusty inmates out ofthe Reentry Center and into the Jail. It then immediately argued there is no more Equal Protection violation mooting a need for further prospective injunctive relief. The female inmates are not confident in the stability of this lastminute change by elected officials about to face a jury. In addition to damages awarded by the jury, a class of female Trusty inmates seek permanent injunctive relief believing Berks County's voluntary cessation of unconstitutional practices will not last without a permanent injunction Order.
After evaluating the credibility of witnesses in several hearings including three preliminary injunction hearings, four days of trial, and dozens of briefs leading to extensive opinions on motions to dismiss and summary judgment, we agree with the female Trusty inmates as to the need for a narrowly tailored permanent injunction to ensure Berks County does not change its mind once outside of our scrutiny. Given the timing of Berks County's reversal in policy and potential change absent contrary evidence, we may enter this prospective relief although we are not aware of a presently challenged violation of the Equal Protection Clause. Most of the requested relief is narrowly tailored, comports with the needs-narrowness-intrusive requirements of the Prison Litigation Reform Act, and otherwise satisfies the long-established elements necessary for permanent injunctive relief. Given today's specific findings and Berks County's apparent change of mind, we decline to enter declaratory reliefto address past violations. Our accompanying Order denies declaratory relief but enters permanent injunctive relief narrowly tailored to the specific harms challenged by the female Trusty inmates.
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I. Findings of Fact
After evaluating the credibility of several witnesses m three preliminary injunction hearings, a trial on prospective permanent relief, and studying the adduced evidence, we find:
1. In 2010, Berks County converted a juvenile detention center down the hill from its Jail into a "Community Reentry Center" managed by the same Berks County officials and correctional officers for the admitted "goal of reducing recidivism and !assisting residents in reestablishing themselves as productive members of our community." 1
2. Berks County's goals for its Reentry Center did not distinglJ!ish between male and female residents. 2
3. After opening the Reentry Center, Berks County began housing its most trustworthy male and female inmates, termed "Trusty" inmates, in different facilities based on their sex: Trusty men lived in the Reentry Center and Trusty women lived. in the F-Block of the Jail.3
4. Male Trusty inmates living in the Reentry Center lived in unlocked cells with the freedom to access to a communal dayroom with microwaves, showers, and telephones for eighteen hours a day and received visitors in the Reentry Center's gymnasium without a glass partition.4 Female Trusty inmates living on the Jail's F-Block lived in locked cells with .six hours ofrecreation per day and visitation from guests from behind a glass partition. 5
5. On January 28, 2018, Theresa Victory entered the custody of the Berks County Jail System after being sentenced to one to five years' imprisonment. Three days later, the Jail classified her a Trusty inmate.6 Unlike male Trusty inmates, it housed her in the Jail's F-Block.7
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Ms. Victory sues to challenge the housing policy. 6. On November 30, 2018, Ms. Victory sued to challenge Berks County's Trusty inmate housing policies, claiming male Trusty inmates' more favorable living conditions in the Reentry Center violated her Equal Protection rights under the Fourteenth Amendment.8 She sued Berks County, its Commissioners, Warden Janine Quigley, Deputy Warden Stephanie Smith, and other County employees.9 7. On December 11, 2018, Ms. Victory moved to preliminarily enjoin Berks County from denying female Trusty inmates housing in the Reentry Center on the basis of sex. 10 She argued "the Berks County policy of holding women with Trusty custody-level and/or Work Release designations in the Jail, even while otherwise similarly situated men reside in the [the Reentry Center] under substantially better conditions, violates the United States Constitution."11 8. On December 28, 2018, Berks County argued Ms. Victory had no reasonable likelihood of success on the merits because its housing policy served the important government interest of ensuring female Trusty inmates' safety, and the housing policy reasonably related to the safety interest because housing women inmates in the Reentry Center would raise significant safety concerns. 12 9. On January 10, 2019, we held a full-day hearing on Ms. Victory's motion for a preliminary injunction where Ms. Victory, Warden Quigley, Deputy Wl;lfden Smith, Captain Miguel Castro, Lieutenant Robert Mugar, and Commissioner Kevin S. Barnhardt testified. 13 Berks County argued: (1) female Trusty inmates on work release enjoy a similar amount of time outside their cells as male Trusty inmates living in unlocked cells in the Reentry Center; 14 (2) male and female Trusty inmates are similarly confined to a limited space; 15 and, (3) the safety objective of ensuring male and female prison populations be housed separately justifies the housing policy. 16
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We enjoined Berks County's unconstitutional treatment offemale Trusty inmates. 10. On January 15, 2019, we issued an Order and Memorandum with Findings of Fact granting Ms. Victory's motion for preliminary injunctive relief and ordered Berks County to implement a schedule providing Ms. Victory: the same liberty and freedom ofmovement provided to male Trusty inmates housed at the Community Reentry Center as of January 10, 2019, including (by way of example only) thirteen hours of each day (not including work release) outside of her cell, no lock on her cell in the evening hours, and direct access ~o rehabilitative programs she wishes to attend in the Community Reentry Center. 17 11. On January 17, 2019, Ms. Victory, joined by two additional plaintiffs-Amara Sanders and Samantha Huntington-filed an Amended Complaint. 18 12. On January 28, 2019, Warden Quigley swore to approval of a plan for compliance with our January 15, 2019 Order enjoining differential treatment. 19 Warden Quigley swore Ms. Victory "shall be housed in a single cell on F-Unit and the cell door lock shall remain in the unlocked position at all times [Ms.] Victory is in a trusty status[.]"20 Warden Quigley further swore "from 0430 HRS through 2300 HRS, [Ms.] Victory shall have access to dayroom privileges and services that are available during open dayroom periods such as television, microwave, telephone, shower, etc."21 13. Ms. Victory's one-year custodial sentence ended on January 28, 2019.22 14. The same day, Berks County moved under Rule 60(b) of the Federal Rules of Civil Procedure for relief from the preliminary injunction after releasing Ms. Victory from custody.23 15. We then dissolved the January 15 preliminary injunction and denied Mses. Sanders and Huntington's request for a preliminary injunction upon finding:
a. Mses. Victory and Huntington had been released from the custody of the Berks County Jail System; and,
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b. Ms. Sanders had not exhausted her administrative remedies.24 16. On April 5, 2019, we granted Berks County's Motion to dismiss the claims of Mses. Sanders and Huntington but denied the Motion to dismiss as to Ms. Victory, as she plead a claim for sex discrimination by alleging Berks County provided differential treatment to male Trusty inmates in the Community Reentry Center compared to female Trusty inmates in the Jail.25 17. On April 22, 2019, Ms. Victory, joined by another female Trusty inmate, Alice Velazquez-Diaz, filed a Second Amended Complaint.26 Ms. Velazquez-Diaz, serving an elevenand-a-half to twenty-three-month sentence, resided in the Jail's F-Block beginning in October 2018. Ms. Velazquez-Diaz joined Ms. Victory's Equal Protection challenge to Defendants' housing policy of Trusty inmates.27 Mses. Victory and Velazquez-Diaz sought a permanent injunctive and declaratory relief and compensatory damages.28 18. On April 24, 2019, Ms. Velazquez-Diaz moved for preliminary injunctive relief arguing she was "in all relevant respects similarly situated to Ms. Victory when the Court heard her motion for a preliminary injunction [in January 2019]."29 19. On May 7, 2019, Berks County responded arguing substantially equivalent living conditions between male Trusty inmates housed in the Reentry Center and female Trusty inmates housed in the Jail. Berks County further argued even if not substantially similar, Berks County's government interests in "providing [female Trusty inmates] adequate segregated housing, ensuring [their] safety within [Berks County Jail System], and limiting overpopulation concerns are ... served by the policy of housing all female inmates in F-Block."30 20. On May 15, 2019, we evaluated the credibility of witnesses and accepted evidence in support of Ms. Velazquez-Diaz's motion for a preliminary injunction.31 Berks County again argued safety concerns related to creating a female housing unit in the Reentry Center. But Berks
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County did not mention whether it considered closing the Reentry Center to address our detailed constitutional concerns.
We again enjoined Berks County's unconstitutional treatment offemale Trusty inmates. 21. On May 20, 2019, we granted Ms. Velazquez-Diaz's motion for preliminary
injunctive relief. 32 We found Ms. Velazquez-Diaz showed a likelihood of success on the merits of her Equal Protection claim complaining of differential treatment concerning freedom of movement and visitation conditions between male Trusty inmates in the Reentry Center and female Trusty inmates in the Jail. 33
22. In granting the preliminary injunction, we ordered "[o]n or before May 28, 2019, Berks County, through Warden Quigley, shall file a proposed plan to ensure compliance with the accompanying Memorandum allowing Ms. Velazquez-Diaz to have the freedom of movement provided to male Trusty inmates housed at the Community Reentry Center ... ; and, visitation without glass partition as afforded to male trusty inmates."34 We allowed Ms. Velazquez-Diaz to promptly comment upon or object to Berks County's plan.35
23. On May 23, 2019, Berks County appealed our May 20, 2019 Order and sought a stay of implementing the Order pending appeal.36 On June 3, 2019, we denied the stay and again explained, in extensive detail, why Berks County's longstanding different housing and services provided to Ms. Velazquez-Diaz violated the Equal Protection Clause.37
24. On June 3, 2019, Berks County moved for summary judgment again arguing substantially different treatment is justified by "[t]he important government interest of safety and security is served by housing female Trusty inmates on F-Unit [in the Jail]." 38 Berks County also argued security risks and concerns with building a female-only housing unit in the Reentry Center, including dangers of assaults on female inmates and overcrowding of the Reentry Center. Berks
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County did not adduce evidence showing it considered closing the Reentry Center as a housing unit. 39
25. On June 4, 2019, Berks County, through Warden Quigley, responded to our May 20, 2019 Memorandum and Order swearing "[b]ased upon my experience in corrections, management of the safety and security needs and the physical facilities at [Berks County Jail System], I believe ... we are providing equal housing and services to all inmates ... within the operational parameters and using our best judgment to manage and operate the [Berks County Jail System]."40 Warden Quigley swore, ifwe so ordered, she would move Ms. Velazquez-Diaz to the F-Block Overflow Unit, but she could not "make any other recommendations for the housing arrangements of [Ms.] Velazquez-Diaz" without sacrificing the Jail's safety and security.41
26. On June 4, 2019, Berks County moved for an emergency stay of the May 20, 2019 Order in our Court of Appeals.42
27. On June 6, 2019, Ms. Velazquez-Diaz timely responded to Warden Quigley's June 4, 2019 affidavit arguing Defendants failed to provide a plan and even if we considered the renewed idea of moving the female Trusty inmates into the overflow unit, this transfer would not meet the terms of our May 20, 2019 Order.43
28. On June 12, 2019, Mses. Victory and Velazquez-Diaz moved to enforce our preliminary injunction order and for contempt arguing Warden Quigley's affidavit did not propose a plan to comply with the preliminary injunction.44
29. On June 14, 2019, Berks County responded with Warden Quigley swearing to safety and security concerns concerning visitation conditions at the Jail and the Community Reentry Center but again failed to propose a method for providing similar visitation conditions for male and female Trusty inmates.45
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30. On June 20, 2019, our Court of Appeals denied Berks County's emergency motion for a stay. We scheduled a hearing on the pending motion for contempt for July 9, 2019.46
31. On July 1, 2019, Warden Quigley responded "Senior Staff at [Berks County Jail System] has routinely reviewed options to develop a Plan that would comply with this Court's Orders and have been continually reviewing all options to develop a Plan that would be as safe and secure as possible."47 She filed a plan proposal in which the Jail would repurpose the quarantine unit (in the Jail) to house female Trusty inmates with the same freedom of movement, no locked cells, a common area with tables for meals and recreation, barrier free visitation, and toilets with no lockouts.48 But Warden Quigley expressed significant safety and security concerns with this proposal.49 She did not mention anyone considering moving the male Trusty inmates to the Jail or closing the Reentry Center.
32. On July 8, 2019, we granted Berks County's Motion for summary judgment on all claims other than the Equal Protection claim. As to the Equal Protection claim, we found Mses. Victory and Velazquez-Diaz raised a genuine issue ofmaterial fact as to whether (1) female Trusty inmates were similarly situated to male Trusty inmates; (2) Berks Defendants provided substantially equivalent treatment to female Trusty inmates; and, (3) Berks County's differential treatment served important government objectives and the policy substantially related to the governmental objectives. so
33. In our June 8, 2019 Order and Memorandum, we granted Mses. Victory's and Velazquez-Diaz's Motion for class certification, certifying a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure of "[a]ll current and future female inmates committed to the Berks County Jail System who have the Trusty custody-level classification but denied assignment to the Community Reentry Center and denied access to the privileges and services available to
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men assigned to the [Community Reentry Center]."51 We certified Mses. Victory and VelazquezDiaz as class representatives.52 Mses. Victory and Velazquez-Diaz sought declaratory and

permanent injunctive relief for the Class.

34. Hours after we certified the Class, Mses. Victory and Velazquez-Diaz moved for a preliminary injunction on behalf of the Class.53

35. Also on July 8, 2019, Warden Quigley amended her affidavit and attached a memorandum titled "Housing and Schedule Changes for Female Inmates Classified as 'Trusty. "'54

Warden Quigley swore "[i]t was further my understanding from this Court's Order of May 20 that

my obligation was to provide the Court with safe and secure altematives."55 Warden Quigley

again outlined a proposed plan where the Jail would convert the quarantine unit to a female Trusty

inmate housing unit.

We raised the possible move ofmale Trusty inmates to the Jail.

36. On July 9, 2019, we held a hearing to determine whether Berks County failed to

comply with our May 20, 2019 Order. At the beginning of the hearing, we questioned counsel for

Berks County about whether the way to address the Class claims for injunctive relief would be to

move all male Trusty inmates to the Jail. Our inquiry appeared to be the first time Berks County

considered this option:

The Court: jail?

How about if I order all the men out of the CRC and back to

Mr. Connell: If Your Honor orders -

The Court:

Does that work for you guys? If the [Community Reentry

Center] is that incompetent to be able to put women in there unless they put a

monitor there and have them do the construction, why not order all the men back

to jail? You okay with that?

Mr. Connell:

I would have to discuss. I can't discuss -

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The Court:

Maybe we can shortcut all of this. The substantial[]

equivalen[ce] would be to move all the trusty back to the jail.

Mr. Connell: And put them under all the same current conditions.

The Court:

Same conditions as the women.

Mr. Connell: We could have done that, Your Honor. We would have contemplated that, but Your Honor precluded that, prohibited that, in your original order.

The Court:

Because I said they have to be treated substantially the same.

I ordered them to go to [the Community Reentry Center] or ordered them to go

to the equivalent status. But the question struck me as why don't they make them

equivalent status and move the men over?

Mr. Connell: Center].

Or they can just lock the doors at the [Community Reentry

The Court:

No, that's not the same.

Mr. Connell: No?

The Court:

No. Shut down the [Community Reentry Center], move the

men over. Why not?

Mr. Connell: I have to discuss that with my client. I don't know if they have the facilities to hold all of them. Can I - because I would need to speak to more than just the warden.

The Court:

Are the commissioners here today?

Mr. Connell: I have a commissioner.

The Court:

While you're putting on your witnesses, they can think about

it. Because that would be [a] way to make the[] [living conditions] substantially

equivalent. I'm not saying that Mr. Feldman agrees with me. I'm not saying he

does. But I've got to find a way to get them on the same parity, at least until I have a final order. 56

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37. We then heard testimony from Captain Miguel Castro who swore: a. Before submitting the June 4, 2019 Affidavit, he and other Berks County
Jail System officials, along with Warden Quigley and Berks County's counsel, discussed how to comply with our May 20, 2019 Order while still maintaining safety and security in the Jail System;
b. He talked to officers and lieutenants in the Jail System to determine a course of action;
c. Berks County officials believed they already provided similar conditions for female and male Trusty inmates before June 4, 2019, despite our May 20, 2019 Order and Findings detailing unequal treatment;
d. Berks County officials did not consider providing similar visitation conditions to female Trusty inmates in meetings leading up to Warden Quigley's June 4, 2019 Affidavit; and,
e. Although Warden Quigley swore she would be "prepared to move [Ms.] Velazquez-Diaz to the F-Unit Overflow Unit should it be so ordered," he admitted Berks County would need to make further adjustments to the overflow unit to comply with our May 20, 2019 Order, including adjustments to ensure the same freedom of movement offered to male Trusty inmates in the Community Reentry Center.57
38. On July 11, 2019, we granted Ms. Velazquez-Diaz's Motion for contempt against Berks County and Warden Quigley imposing compensatory sanctions of $500.00 to Ms. Velazquez-Diaz and $6,571.20 to Ms. Velazquez-Diaz's counsel. 58 We also ordered: (1) Warden Quigley to "e-mail Plaintiffs' counsel with a specific implementation schedule for moving only female Trusty inmates to the former quarantine unit of the Jail;"59 and, (2) Mses. Victory and
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Velazquez-Diaz to "either withdraw or file a status memorandum as to remaining issues on its pending Motion for preliminary injunction."60
39. On July 16, 2019, Berks County appealed the contempt and implementation order to our Court of Appeals.61 Berks County moved for an emergency stay of our implementation order. Our Court of Appeals granted the emergency Motion for stay.
40. On July 30, 2019, Mses. Victory and Velazquez-Diaz filed a status memorandum seeking the same injunctive relief for the Class as previously ordered for the individual plaintiffs, arguing "[t]he record .... before the Court when it heard the prior preliminary injunction motions has amply demonstrated that Defendants are violating the rights of all female Trusty prisoners, not just those of Ms. Victory and Ms. Velazquez-Diaz."62
41. On August 5, 2019, Berks County responded by arguing our implementation order (directing Berks County to move all female Trusty inmates to the quarantine unit consistent with the proposed plan) mooted the Class claim for injunctive relief. Even if ripe, Berks County argued the Class failed to meet four prerequisites of granting a preliminary injunction, incorporating arguments raised in earlier filings. 63
42. On August 7, 2019, we granted the Class Motion for a preliminary injunction but stayed implementation of the Order; we found "after three evidentiary hearings, the same likelihood of success and irreparable harm exist[ing] for female Trusty inmates as part of the Class as previously awarded to Plaintiff Alice Velazquez-Diaz under our May 20, 2019 Order."64
43. On September 16, 2019, the parties cross-moved for summary judgment on the Equal Protection Clause claim, with both sides repeating the same arguments addressed earlier.65 Berks County argued its housing policy served the important governmental interest of "operating
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a safe and secure facility" and then explained why creating a housing unit in the Reentry Center or Jail posed significant safety concerns for the Jail.66
44. On October 11, 2019, our Court of Appeals dismissed Berks County's challenges to the January 15 and May 20 preliminary injunctions and July 15 implementation order as moot under the Prison Litigation Reform Act.67 In dismissing the challenges, the Court of Appeals held the Plaintiffs did not meet required needs-narrowness-intrusiveness findings for entering preliminary prospective relief under the Prison Litigation Reform Act; without such evidence and subsequent findings, the Court of Appeals held the preliminary injunctions "w[ere] without legal effect."68 The Court of Appeals vacated our contempt order after finding we based the order on the May 20, 2019 preliminary injunction.69 In a later order, the Court of Appeals vacated the August 7, 2019 preliminary injunction (awarded to the Class) for reasons stated in its October 11, 2019 Opinion. 70
45. On October 17, 2019, we denied the summary judgment cross-motions finding genuine issues of material fact regarding access to furloughs, compensatory damages, and the scope of injunctive relief for the Class.71 While denying the relief sought in the parties' crossmotions, we held as a matter of law: (a) female and male Trusty inmates in the Berks County Jail System were similarly situated; (b) Berks County failed to provide substantially equivalent treatment to female Trusty inmates regarding freedom of mobility, access to privileges, and visitation when comparing the totality of living conditions of female Trusty inmates housed in the Jail to male Trusty inmates residing in the Community Reentry Center; and, (c) Berks County's housing policy did not serve an important governmental objective and the housing policy did not substantially relate to an important governmental objective. 72 We concluded "Berks County violated Mses. Victory's and Velazquez-Diaz's rights when it discriminated against them in
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disparate treatment as to freedom of mobility, access to privileges, and visitation on the basis of sex in violation of the Equal Protection Clause."73
46. We set trial on remaining liability and damages questions for November 12 through 15, 2019. We granted Berks County's Motion to bifurcate the trial and ordered the trial to proceed in three parts by first presenting the remaining liability question on the constitutionality of Berks County's furlough policy, then Ms. Victory's case for compensatory damages, and finally on the scope ofrequested prospective relief under 18 U.S.C. § 3626(a)(l).74 Phases one and two involved jury questions and phase three would involve evidence presented to the Court.
Berks County moves the Male Trusty inmates to the Jail the day before trial. 47. On November 8, 2019, the last business day before the first day oftrial, Defendants filed a "Notice to the Court" to "advise that the Berks County Board of Commissioners decided to move the inmates that have been housed at the Berks County Community Reentry Center to the Berks County Jail."75 "As of November 8, 2019, the [Community Reentry Center] is no longer a housing unit holding any inmates of the Berks County Jail System. All inmates, male and female, that are incarcerated at the Berks County Jail System are being housed at the Berks County Jail."76
Evidence adduced at trial resulting in jury verdicts on the damages issues. 48. On November 12 and 13, 2019, we held the first phase of the trial relating to unequal access to furloughs between male and female Trusty inmates. The adduced evidence established:
a. The Jail's policy made male Trusty inmates (housed in the Reentry Center) and female Trusty inmates (housed in the Jail) eligible for the Partial Confinement Reentry Program upon being classified as Trusty; 77
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b. The Partial Confinement Reentry Program (for both male and female Trusty

inmates) had two main aspects: work release and furlough; 78

c. Work release enabled Trusty inmates to gain employment in the community

while incarcerated79 and furlough provided a "temporary release of an inmate with court approval

for a predetermined amount oftime";80

d. Berks County offered different types of furloughs to Trusty inmates; one

furlough, called a "home furlough," allowed a Trusty inmate to leave the Jail for up to ten hours to

spend time with family; 81

e. Berks County required certain conditions be met before a Trusty inmate

could take a home furlough: (1) an Order from the inmate's sentencing judge (a Partial Confinement

Reentry Order);82 (2) a work release job or a job in the prison;83 and, (3) be taken within four months

of the minimum sentence date. 84

f.

Mses. Victory and Velazquez-Diaz, on behalf of the Class, argued Berks

County assisted male Trusty inmates obtain the Partial Confinement Reentry Order-a prerequisite

for furlough-but did not similarly assist female Trusty inmates:

1.

The Partial Confinement Order is a one-page document with certain

information fields at the top, including: the applicant name, inmate number, charge, minimum

sentence date, maximum sentence date, sentencing judge, and date initially eligible for program.85

The Order has a signature line for the inmate, Warden Quigley, and the sentencingjudge;86

n.

When male inmates obtained Trusty status, the Jail would host an

orientation in the Reentry Center;87

111.
given orientation;88

Typically, there would be ten to twenty male Trusty inmates in a

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1v.

The orientation involved information about the Reentry Center's

housing unit and about work release and obtaining furlough; 89

v.

During this orientation, Berks County staff provided each male

Trusty inmate a Partial Confinement Reentry Order with the information fields at the top of the

Order, such as inmate name and number, already filled out by Berks County to be signed by the

male inmate·,90

vi.

After the orientation, the Reentry Center sent each Order to Warden

Quigley and the sentencing judge for signatures;91

vu.

After the sentencing judge signed and returned the Order to the

Reentry Center, Berks County provided the male Trusty a copy of the completed Order and he

could use the Order to take a home furlough when the inmate became eligible for furlough; 92

vm.

The Jail's "Work Release Coordinator," Joanna Brown, testified the

Reentry Center provided completed forms to male Trusty inmates during orientation to be

submitted to sentencing judges for "efficiency" explaining "I can review them all at once. I can

get them all signed [all] at once. I can provide them to [Warden Quigley] at once. The Judges individually all at once;"93

1x.

The Jail did not host an orientation for female Trusty inmates, did

not issue already filled-out Partial Confinement Reentry Orders to female Trusty inmates, nor did

they advise female Trusty inmates they would need a Partial Confinement Reentry Order to take

furlough unless the female Trusty inmate requested the Order.94

g. Mses. Victory and Velazquez Diaz, on behalf of the Class, argued Berks

County assisted male Trusty inmates obtain work release jobs-another prerequisite for

furlough-but did not similarly assist female Trusty inmates:

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1.

Coordinator Brown "coordinate[d] the work that [was] brought to

the table by an inmate or an employer directly" by ensuring all necessary paperwork was

completed and the employer met program requirements;95

11.

Coordinator Brown did not affirmatively seek jobs for male or

female Trusty inmates;96

111.

Instead, the work release job must have been "brought to

[Coordinator Brown], the work either by an inmate directly because they had that job before they

came in, or the inmate spen[t] their time while incarcerated ... job searching, or an employer

would come to [Coordinator Brown] directly seeking out people";97

1v.

Coordinator Brown testified certain employers, such as Morgan

Truck Body, contacted the Jail seeking work release employees;98

v.

When an employer called seeking work release employees,

Coordinator Brown asked the employer if they were "interested in hiring male or females;"99

vi.

Once the employer indicated its hiring preference, Coordinator

Brown would advertise job openings either to male Trusty inmates in the Reentry Center or female

Trusty inmates in the Jail; 100

v11.

Coordinator Brown testified no employer expressed interest in

hiring female Trusty inmates until last October (right before our November trial) in which case

she posted a job memorandum for female Trusty inmates in the F-Block; 101

v111.

Male Trusty inmates regularly observed job memorandum and

postings on the bulletin board in the Reentry Center. 102

49. The jury concluded Berks County violated the Equal Protection Clause by refusing

to provide female Trusty inmates substantially equivalent access to furloughs as male Trusty

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inmates. 103 The jury concluded Berks County's furlough policy served an important government interest, but the policy did not substantially .relate to the important government interest. 104
50. During the second phase of the trial, the jury evaluated the testimony of: a. Ms. Victory who felt dehumanized and discriminated against after learning
only male Trusty inmates lived in the Reentry Center; 105 attended her work release job many times without showering because she would leave the Jail before female Trusty inmates could use the showers; 106 and, became nauseous and had increased stress when Berks County Jail staff could not release her for work release because of a lockdown or crisis in the F-Unit. 107
b. Ms. Jean Eckroth, a counselling volunteer at the Jail, who met with Ms. Victory during her incarceration and testified to Ms. Victory's "stressed out" condition and about Ms. Victory's "hopelessness and despair"; 108
c. Captain Castro, who testified to the day-to-day safety precautions and procedures as to the Jail permitting female Trusty inmates to leave the Jail for work release. 109
51. The jury found Berks County's Equal Protection Clause violation caused her to experience physical or emotional pain and awarded her $2,800 in compensatory damages. 110
Evidence adducedfor permanent prospective relief. 52. We proceeded to the third and prospective relief phase of the trial. Warden Quigley and Deputy Warden Smith testified about the new housing policies at the Jail after closing the Community Reentry Center as of November 15, 2019:11 1
a. There were approximately seventy-seven male Trusty inmates and thirteen female Trusty inmates; 112
b. Berks County no longer housed male Trusty inmates in the Reentry Center and had moved all male inmates housed in the Reentry Center to the A-Unit of the Jail;113
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c. Berks County still housed female Trusty inmates in the F-Unit of the Jail; 114

d. Berks County Commissioners decided to move male Trusty inmates to the

Jail and Warden Quigley counselled the Commissioners on the "pros and cons and the feasibility"

of the decision; 115

e. The Jail no longer issued pre-completed Partial Confinement Reentry

Orders to male Trusty inmates but instead staff assisted Trusty inmates (male and female) to obtain

orders once eligible to take furlough; 116

f.

Warden Quigley was not aware of any steps taken by the Jail to dismiss a

furlough Order held by a male Trusty prisoner; 117

g. Warden Quigley swore she has the authority to change the Inmate

Handbook but typically presents proposed changes to the Berks County solicitor before a final decision. 118

53. Following testimony, Mses. Victory and Velazquez-Diaz argued the Berks County

voluntarily ceased the constitutional violation and therefore Mses. Victory and Velazquez-Diaz

"should be entitled to discovery to the process by which [the changed housing policy] happened,

because the Supreme Court and the [Court of Appeals for the Third Circuit] have said that is

relevant to determining whether [the constitutional violation] will recur." 119 Berks County

responded by arguing we should not enter an injunction because "[a]t this point, there is no

irrevocable harm under the heightened standard for males and females because they are treated

nearly identically now" and argued "it is not a matter of cessation" because "the change [is not] because of this litigation." 120

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Post-trial status ofBerks County's treatment of Trusty inmates.

54. After the evidence and arguments from counsel, we ordered: (1) Berks County to

file a status report describing the change in housing and treatment of male Trusty inmates by

December 2, 2019; (2) Plaintiffs to "move to withdraw the request for prospective relief or submit

Memoranda ... describing how we may continue to entertain a request for prospective relief under

the Prison Litigation Reform Act given the noticed changes in the treatment of male and female

Trusty inmates in the Berks County Jail System with a responsive brief ... due no later than December 19, 2019."121

55. Defendants timely filed its status report December 2, 2019 and filed a supplemental status report on December 9, 2019. 122 According to the first status report:

a. Both female and male Trusty inmates: "are living in cells (A-Unit for males

and F-Unit for females) with two beds, a toilet, a sink and a desk;" "receive 6 [h]ours of [d]aily

[r]ecreation;" "have access to the dayroom which includes telephones, showers, microwaves, and

television" during indoor recreation periods; "have three designated visitation days per week;"

"may receive two visits per week from no more than three visitors at one time;" "use visitation

areas that have a glass partition between them and their visitor;" "carry their tray to their cell and eat their meal in the cell;" and, "will be eligible for furlough." 123

b. Concerning the Jail's furlough policy, Berks County attested:

1.

"Between November 25 and November 27, 2019 [the Berks County

Jail System's] Treatment Department Staffprovided information regarding general rules for Trusty

inmates and information regarding furloughs and work release. The information provided included

the presentation of slides 5, 10, and 11 of the former Orientation given to male Trusty inmates" before November 8, 2018; 124

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11.

Berks County Jail System "submitted a Partial Confinement Reentry

Order to the sentencing judge" for all agreeable female Trusty inmates; 125

111.

After November 11, 2019, "a Partial Confinement Reentry Order

will be submitted to the sentencing judge on a case by case basis after a given [T]rusty inmate

meets the criteria for and requests a home furlough;" 126

1v.

Once "a male or female inmate is classified as a Trusty, they are

advised of that classification by being provided a Review for Trusty Status Memorandum from

Treatment Staff at [Berks County Jail System]."127

c.

Defendants also modified the Inmate Handbook "to exclude all references

to the former Community Reentry Center."128

56. In its supplemental status report, Defendants stated they "modified its work release

program to allow male and female inmates to work on the same shift with the same employer" and

they "placed bulletin boards in[] the A-Unit and F-Unit [] where all job opportunities that come

to the Jail from outside employers are placed."129

57. On December 9, 2019, Plaintiffs filed a memorandum expressing they still seek a

permanent injunction despite the reported changes claiming such changes are only a "voluntary

cessation" of the adjudged unconstitutional conduct. The Plaintiffs' memorandum addresses the

availability of the requested prospective relief under the Prison Litigation Reform Act (18 U.S.C. § 3626(a)(l )(A)). 130 Plaintiffs seek to permanently enjoin Berks County to:

a. "Provide the same amount of time each day during which cell doors are

unlocked and prisoners are permitted to access the dayroom for all Trusty women and men, unless

there is a unit-wide lockdown or individual disciplinary action."131

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b. "Provide equal access to phones, microwaves, and showers to all Trusty women and men, allowing both Trusty women and men to access those amenities during all time periods when their cell doors are unlocked, unless there is a unit-wide lockdown or individual disciplinary action." 132
c. "Provide substantially equivalent visitation conditions for Trusty women and men, including the length of visits, the frequency of visits, and the presence or absence of a physical barrier between prisoners and their visitors."133
d. "Update the [Berks County Jail System] Inmate Handbook to reflect the current internal furlough policy, including a list of the eligibility requirements for each type of furlough." 134
e. "Provide a completed Partial Confinement Reentry Order (i.e. furlough order) (except for the prisoner's and judge's signatures) to all male and female Trusty prisoners upon their attaining the Trusty classification, and send the proposed furlough orders to the appropriate court or sentencingjudge."135
f. "Provide a written notice to all potential employers that contact [Berks County Jail System] to seek work release employees that [Berks County Jail System] has both male and female Trusty prisoners on work release who are available for employment."136
g. "Provide written notice, either individually or through public postings, to all male and female Trusty prisoners about all work release job opportunities that [Berks County Jail System] becomes aware of and meet [Berks County Jail System's] requirements."137
h. "File written status reports with the Court once every six months for two years, updating the Court and Class Members on the treatment of Trusty men and Trusty women in [Berks County Jail System] with respect to freedom of mobility, access to privileges, visitation
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conditions, and access to furloughs (including the number of men and women who have been approved for furloughs)." 138

58. Mses. Victory and Velazquez-Diaz added evidence:

a. An October 3, 2019 Commissioners' Board Meeting Minutes "[a]dopting a

resolution authorizing the award and the Director of Contracts & Procurement to execute as a result

of Invitation to Bid #19-21-GR, two (2) contracts for the [Community Reentry Center] Elevator Modernization Project as identified herein" 139:

Dolan Construction, Inc. 401 South 13th Street Reading, PA 19602
General Construction: Total Bid Not to Exceed Amount: $173,500.00

H.B. Frazer Company - Pennsylvania 3 Morgan Drive
Reading, PA 19608 Electrical Contractor: Total Bid Not to Exceed Amount: $30,976.00 140

b. A November 10, 2019 Reading Eagle article, entitled "Berks County officials close reentry center prior to federal trial," stating141 :

1.

"County solicitor Christine M. Sadler said Saturday that the county

[C]ommissioners' decision to shut down the [Community Reentry Center] had been a topic of

discussion long before the lawsuit was filed. She said the facility, which was opened in 2010, was a source of concern because it is considered inefficient and oversized;"142

factors;" 143

11.

"She said the decision was made now largely due to financial

111.

"[Solicitor] Sadler said the county received notification in late

summer that the state was terminating its contract to use the Berks County Prison to house state

prisoners with technical parole violations- a significant loss in revenue to the county. That change

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would also free up [fifty] beds and [fifty] spots in programs to help inmates reestablish themselves back into the community;"144

iv. court order;"145

"[Solicitor] Sadler said the county's action is based on an October

v.

"[Solicitor] Sadler said the county was precluded from making

changes to the program while the lawsuit was working its way through the court system based on

an order by U.S. District Judge Mark A. Kearney. But, she said, that order was overturned on [October 11, 2019];"146 and,

v1.

"When that happened, [Berks County's] Chief Financial Officer

Robert J. Patrizio brought a proposal to the [C]ommissioners. Sadler said he found that closing the

[Community Reentry Center] would save the county $1.4 million to $1.9 million in costs for maintenance, needed equipment upgrades and personnel costs over the next two years." 147

c. A November 21, 2019 Reading Eagle article stating: The Berks County

Commissioners "defended to [Berks County resident Jane Palmer] their decision to close the

Community Reentry Center and move the reentry program to the Jail. Commissioner Christian Y.

Leinbach said the facility needed work on its elevators, HVAC system, and cameras, and those

costs would be avoided with the decision. He added the reentry program would remain the same."148

59. On December 19, 2019, Defendants responded to Plaintiffs' memorandum

contesting the Plaintiffs' ability to seek prospective relief under 18 U.S.C. § 3626(a)(l)(A) and

traditional equitable principles given the changes to the housing policy and arguing the changes

render the request moot. Even if the request is not moot, Defendants argue the terms of the

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proposed permanent injunction fail to meet the requirements of a permanent injunction under 18 U.S.C. § 3626(a)(l)(A). 149
II. Conclusions of law
60. Congress, through the Prison Litigation Reform Act, does not bar prospective relief after Berks County moved the male Trusty inmates to the Jail and took steps to address Plaintiffs' specific challenges to its treatment of male and female Trusty inmates in substantially equivalent manner after our multiple Orders.
61. Berks County's last-minute changes do not moot Plaintiffs' request for permanent injunctive relief.
62. Plaintiffs meet their burden of establishing the four elements for permanent injunctive relief.
63. Plaintiffs' proposed prospective relief, in large part, satisfies the needs-narrownessintrusiveness requirements of the Prison Litigation Reform Act.
64. After carefully evaluating the substantial weight we afford to an adverse impact on public safety and the operations of the criminal justice system by the entry of proposed prospective relief, we enter permanent prospective relief under the Prison Litigation Reform Act.
65. Plaintiffs fail to show a basis for declaratory relief.
III. Analysis
Our remaining issue is whether Mses. Victory and Velazquez-Diaz may obtain prospective relief under the Prison Litigation Reform Act (18 U.S.C. § 3626(a)(l)(A)) and traditional principles of our equitable powers. 150 Is a permanent injunction mooted or barred by Defendants' trial eve changes, which seem to address the violations of female Trusty inmates' constitutional rights? If Plaintiffs' claim for prospective relief is not mooted or barred, we must then consider
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whether the terms of the proposed injunction meet the needs-narrowness-intrusiveness test for entering prospective relief under the Prison Litigation Reform Act and if Plaintiffs' request meets the traditional four-part test for entering a permanent injunction. Mses. Victory and VelazquezDiaz also move for declaratory relief.
A. Plaintiffs' request for prospective relief is not barred by the Prison Litigation Reform Act.
We first consider whether the Prison Litigation Reform Act bars the Class claim for prospective relief because Berks County recent decisions to cure the constitutional violation. After careful evaluation, we hold the Prison Litigation Reform Act does not bar entry of prospective relief for the Class against the Defendants under the unique last-minute political decisions at issue in this case.
The Prison Litigation Reform Act identifies the particular findings we must make before granting or approving certain remedies in actions challenging prison conditions:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. 151 As defined by Congress, "the term 'prospective relief means all relief other than compensatory monetary damages." 152 The Act mandates courts to terminate prospective relief "upon the motion of any party or intervener" two years after relief is entered (or one year after a previous attempt to terminate prospective relief) unless "the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation ofthe Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief
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is narrowly drawn and the least intrusive means to correct the violation."153 Congress provides a party or intervener seeking to terminate prospective relief may move at any time if "the relief was approved or granted in the absence of [needs-narrowness-intrusiveness] findings." 154 We refer to this aspect of the Act as the termination provision.
The question is whether we may enter an injunction under Section 3626(a)(l)(A) against Berks County and its officers after this Court and a jury adjudged them to have violated the constitutional rights of prisoners but Berks County then took steps to cure the unconstitutional conditions before entry of prospective relief. As it appears from the parties' briefing and our research, our Court of Appeals has not yet issued an opinion on this issue. But the parties direct us to a split of authority among circuit courts of appeals who considered the interplay between the mootness doctrine and entering prospective relief under the Prison Litigation Reform Act. The circuit split stems from divergent interpretations of the phrase "necessary to correct the violation of a Federal right" and whether Congress requires finding an ongoing violation of a Federal right before entry of prospective relief.
The earlier approach, taken in 2002 by the Court of Appeals for the Ninth Circuit in Hallett v. Morgan 155, interprets "necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs" as requiring an ongoing live constitutional violation. In Hallett, a class of women state prisoners moved to extend district court jurisdiction over a consent decree entered several years earlier in a case where the class alleged Eighth Amendment violations at a state prison for women. The motion to extend jurisdiction constituted prospective relief under Section 3626(a)(l)(A). After holding an evidentiary hearing, the district court concluded the prison cured the constitutional violations and, finding no "current and ongoing" violation, held it lacked authority to extend its jurisdiction over the consent decree.
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The prisoners appealed, arguing the district court applied the wrong standard by requiring proof of a "current and ongoing" violation-language used by Congress in the Act's termination provision-when entry of prospective relief under Section 3626(a)(l)(A) does not require a plaintiff to show a "current and ongoing" violation. The court of appeals denied the prisoners' argument, observing "[t]he quoted standard for termination does not differ materially from the standard to be applied in deciding whether prospective relief is proper" and Section 3626(a)(l)(A)-through stating relief must be "necessary to correct"- "requires the existence of constitutional 'violation' in need of correction."156
We compare this 2002 interpretation to the 2019 approach adopted by the Court ofAppeals for the Fourth Circuit in Porter v. Clarke 157 and shared by the Court of Appeals for the Eleventh Circuit in 2010. 158 These circuit courts do not read Congress (through Section 3626(a)(l)(A)) to require an active constitutional violation to enter prospective relief if the party seeking prospective relief can prove a reasonable prospect the violation will recur. In Porter, death row inmates sued the director of the Virginia Department of Corrections and the former warden of the state prison housing death row inmates alleging the conditions ofconfinement violated the Eighth Amendment. Between the time the death row inmates filed the case and entry of summary judgment in their favor, the director and warden improved the death row inmates' living conditions. The district court, finding the former conditions of confinement violated the Eighth Amendment as a matter of law, considered whether it possessed the authority to enter an injunction against the director. The district court concluded it had the authority to enter an injunction despite the changes, relying largely on traditional principles of equity and Congress's decision to insert "current and ongoing violation" in the termination section but not in the section authorizing an initial entry ofprospective
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relief. The district court enjoined the director from reimposing conditions adjudged to be violative of the Constitution.
The Court of Appeals for the Fourth Circuit affirmed the district court, relying on three main points in its reasoning. First, the court of appeals agreed Congress omitting "current and ongoing" from the entry of initial prospective relief is "strong evidence 'that Congress did not intend for the 'current and ongoing' standard to apply outside of termination. "'159 Second, the court of appeals closely considered the text of the termination provision-"relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right"-and found including both "necessary to correct the violation" as requiring "a current and ongoing violation" would make "redundant the phrase current and ongoing violation in Section 3626(b)(3), as that provision also requires that the court find the prospective relief necessary to correct."160 Third, the court invoked a separation of powers principle enunciated by the Supreme Court in Miller v. French: courts "should not construe a statute to displace courts' traditional equitable authority absent the clearest command or an inescapable inference to the contrary."161
Judge Niemeyer dissented in Porter, drawing on the Court of Appeals for the Ninth Circuit's decision in Hallett by interpreting the phrase "necessary to correct the violation of a Federal right" as requiring an ongoing violation. 162 Judge Niemeyer focused on the legislative history of the Prison Litigation Reform Act, noting "the [Prison Litigation Reform Act] attempt[ed] to eliminate unwarranted interference with the administration of prisons . . . by establish[ing] standards for the entry and termination of prospective relief in civil actions challenging prison conditions."163
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Mses. Victory and Velazquez-Diaz argue we should adopt the 2019 reasoning of the Court of Appeals for the Fourth Circuit in Porter, and Berks County argues we should apply the 2002 reasoning of the Court of Appeals for the Ninth Circuit's Hallett decision. Reviewing the arguments on how to best interpret "necessary to correct the violation ofa Federal right" in Section 3626(a)(l)(A), we conclude the Porter analysis accurately reflects Congress's purpose of not requiring an active violation of a Federal right to enter prospective relief.
We agree with the Porter majority's textual reading. Congress's use of "current and ongoing" in the termination provision but not in the entry of initial relief indicates Congress did not seek to mandate a party to show an ongoing violation before entry of prospective relief under Section 3626(a)(l)(A). This reading makes practical sense. A party seeking prospective relief under Section 3626(a)(l)(A) has likely only recently proven a defendant violated their Federal rights. Why should the plaintiff have to prove the violation again to be awarded prospective relief?
We are also persuaded the phrase relief "shall extend no further than necessary to correct the violation of the Federal right" cannot mean a "current and ongoing violation" when looking to the termination provision which includes both phrases. As the Court of Appeals for the Fourth Circuit reasoned, reading the "necessary to correct the violation" phrase to mean a "current and ongoing violation" would make one phrase redundant of the other. Also, the termination provision requires a court to issue "written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right [and] extends no further than necessary to correct the violation of the Federal right" 164- if they mean the same thing, why would Congress direct written findings as to each?
We also find convincing the separation of powers principle relied upon by the Court of Appeals for the Fourth Circuit: if Congress wants to strip the court of its equitable powers, it must
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do so expressly. There 1s no express language stripping our equitable powers in Section 3626(a)(l)(A).
Our reading also has a pragmatic benefit: it precludes a defendant who defends the constitutionality of a practice all the way through trial from avoiding the entry of prospective relief by changing the questioned policy (maybe even only on a temporary basis) before prospective relief can be entered. We cannot imagine the Prison Litigation Reform Act--enacted to address frivolous litigation filed by prisoners and to limit indefinite federal court involvement in prison litigation165-would diminish the ability of a prisoner or class of prisoners from obtaining prospective relief after proving a Federal right violation.
We find these reasons more persuasive than the reasoning in Hallett. The Court of Appeals for the Ninth Circuit in Hallett found "[Section 3626(a)(l)(A)], too, requires the existence of a constitutional violation in need of correction."166 But the Court of Appeals for the Ninth Circuit does not explain a situation where a court determines entry of prospective relief is still necessary even if a defendant acts to respond to an adverse ruling or verdict before the District Judge can enter prospective relief. 167 We find the Court of Appeals' reasoning in Porter more persuasive and adopt the approach of the Fourth Circuit. A plaintiff seeking prospective relief does not need to show a current and ongoing violation ofa Federal right to obtain prospective relief. Thus, Mses. Victory and Velazquez-Diaz are not barred by the Prison Litigation Reform Act in their request for prospective relief even if they currently fail to show a current and ongoing violation of the Federal rights of female Trusty inmates in the Berks County Jail System.
B. Plaintiffs' request for a permanent injunction is not moot under traditional equitable principles.
Finding the Prison Litigation Reform Act does not bar Plaintiffs from requesting a permanent injunction, we must then consider whether Berks County's changes to its prison policies
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moots Plaintiffs' claim under traditional principles of equity. Berks County, citing their decision to move male Trusty inmates back to the Jail on the last business day before trial and other assurances of remedying adjudged constitutional violations in two status reports, argue the request for injunctive relief is moot under traditional principles of equity. We do not agree.
Article III of the U.S. Constitution provides the "judicial Power shall extend to ... Cases . . . [and] to Controversies."168 Our Court of Appeals explained: "[t]his grant of authority embodies a fundamental limitation restricting the federal courts to the adjudication of 'actual, ongoing cases or controversies. "'169 A case "is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome."170 A "court's ability to grant effective relieflies at the heart of the mootness doctrine. That is, [i]f developments occur during the course of adjudication that eliminate a plaintiffs personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot."171
Generally, "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." 172 "But jurisdiction, properly acquired, may abate if the case becomes moot because (1) it can be said with assurance that there is no reasonable expectation ... that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation."173 It is only "[w]hen both [of these] conditions are satisfied ... that the case is moot." 174 Our Court of Appeals "articulated the burden for the party alleging mootness as 'heavy,' even 'formidable. '"175
Our Court of Appeals decision in DeJohn v. Temple University is useful for evaluating whether a defendant meets the heavy burden of proving an injunction request is moot. 176 In DeJohn, a graduate student alleged his university's sexual harassment policy violated the First
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Amendment. He sought injunctive relief to enjoin the university from continuing to use the policy. Less than three weeks before the deadline for filing dispositive motions, the university changed its policy, addressing the student's First Amendment concerns with its change. The student nonetheless moved for summary judgment arguing the original policy violated the First Amendment. The district court granted the student's summary judgment motion and enjoined the university from reimplementing or enforcing the original sexual harassment policy. The university appealed the injunction arguing the district court lacked jurisdiction to issue an injunction relating to the harassment policy because "the constitutionality of the former policy was rendered moot after [the university] voluntarily revised the policy." 177
Our Court of Appeals, looking at "the posture of this case," felt "no assurance" the university "would not reimplement its [earlier sexual harassment], absent an injunction, after th[e] litigation ha[d] concluded" and ruled the case was live. 178 Now-Chief Judge Smith, writing for the unanimous panel, felt no assurance because: (1) the university "did not change its sexual harassment policy for more than a year after the commencement of litigation and then only near the end of discovery, less than three weeks before the dispositive motions deadline in the case;" and, (2) "[m]ore importantly, [the university] defended and continues to defend not only the constitutionality of its prior sexual harassment policy, but also the need for the former policy."179 Judge Smith concluded "these two factors [are] significant in evaluating whether there is a 'reasonable expectation' that [the university] will reimplement its previous sexual harassment policy."1so
As Judge Smith reviewed the university's assurances in DeJohn, we now review the assurances from Berks County as to whether it will resort to the adjudged unconstitutional policies.
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We look at the timing of the change and whether the Berks County defended the constitutionality and need for the former policy.
We look first to the timing of Berks County's changes. Ms. Victory sued Berks County in December 2018 alleging the County's policy of housing male Trusty inmates in the Reentry Center and female Trusty inmates in the Jail violated the Equal Protection Clause. Ms. Victory promptly moved for preliminary injunction. Berks County responded by defending its housing policy. We held a full-day hearing in January 2019. Berks County again defended its housing policy at the hearing, arguing male and female Trusty inmates are similarly confined to a limited space. We issued a preliminary injunction one year ago ordering Berks County to provide "the same liberty and freedom of movement provided to male Trusty inmates housed at the Community Reentry Center."181 We eventually dissolved the injunction upon Ms. Victory's release from custody two weeks later.
On May 20, 2019, we granted Ms. Velazquez-Diaz's motion for a preliminary injunction ordering Berks County to submit a plan providing her the "the freedom of movement provided to male Trusty inmates at the Community Reentry Center."182 On July 1, 2019, Warden Quigley submitted a plan after "continually reviewing all options to develop a plan that would be as safe and secure as possible."183 We held a contempt hearing a week later. At the beginning of the hearing, we questioned counsel for Berks County about whether a way to address the Class claims would be to move the male Trusty inmates to the Jail. We directly asked Berks County's counsel: "How about if [we] order all the men out of the [Community Reentry Center] and back to jail?"184 Berks County's counsel stated he would discuss this decision with the Commissioners. We heard nothing.
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If Berks County's counsel discussed this policy with the Commissioners before the November Notice, it was not presented on the record. Berks County instead continued to represent it could redesign the Jail's quarantine unit into a housing unit for female Trusty inmates with substantially equivalent living conditions to male Trusty inmates despite Warden Quigley and Captain Castro repeatedly expressing security concerns with this approach. In briefing crossmotions for summary judgment, Berks County listed the significant security concerns if it created a female housing unit either in the Reentry Center or in the Jail. Berks County did not address moving male inmates out of the Reentry Center. On October 17, 2019, we ruled the totality of differences in the housing policy between male and female Trusty inmates violated the Equal Protection Clause as a matter of law with regards to freedom of movement, access to showers, telephones, microwaves and dayroom, and visitation. 185 We found issues of fact as to access to furloughs requiring a jury trial on this issue.
On November 8, 2019, the last business day before beginning the three phase trial, Berks County filed a one-page Notice to "advise that the Berks County Board of Commissioners decided to move the inmates that have been housed at the Berks Reentry Center to the Berks County Jail."186 The Notice did not explain why the Commissioners made the decision, nor did the Notice detail if the housing policy would be permanent.
While for slightly different reasons than DeJohn, we find the timing of Berks County's change does not assure us the violation will not recur. In contrast to DeJohn, where the university changed its policy three weeks before the dispositive motion deadline, Berks County changed its housing policy after we found the housing policy violated the Constitution as a matter oflaw. We cannot disparage Berks County for attempting to comply with the Constitution after we found its housing policy was unconstitutional as a matter of law. But we also cannot consider these changes
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are permanent when Berks County litigated the case for almost a year without proposing moving male inmates from the Reentry Center to the Jail and then moved male inmates out of the Reentry Center on the last business day before trial on the remaining issues. Berks County did not notify opposing counsel before filing the Notice. 187 We directly addressed this possible move during a July 2019 hearing. We find the timing of the change weighs against Berks County's mootness argument.
Our Court of Appeals next directs us whether Berks County defended and continues to defend the constitutionality of its earlier housing policy and the need for the housing policy. As addressed above, Berks County defended the constitutionality of its housing and furlough policies throughout the case-through three separate preliminary injunctions, a contempt hearing, multiple appeals to our Court of Appeals, two affirmative motions for summary judgment, defending a motion for summary judgment, and at trial. Berks County submitted affidavits defending the constitutionality of the policy after we issued a preliminary injunction making extensive findings the housing policy violated the Equal Protection Clause. 188 We have no reason to believe Berks County does not continue to defend the constitutionality of its earlier policy of housing male inmates in the Reentry Center. 189
Berks County, after the change, says it no longer needs to house male inmates in the Reentry Center to ensure safety and security. 190 But Berks County only avers this in briefing. We have no assurances from Berks County personnel. We question: What happens if there is a spike in prisoner population? Will Berks County need to reopen the Reentry Center? What happens after the contracted renovations to the Reentry Center? What happens if the voters remove the Commissioners who seemingly waited approximately ten months to make this decision after we found the policy unconstitutional and approximately one month after approving a contract for
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construction renovations to the Reentry Center? It is Berks County's "heavy" and "even formidable" burden to prove mootness. 191 Berks County offers no assurances it will not move men back to the Reentry Center if we do not enter an injunction. We cannot conclude there is no reasonable expectation the alleged violation will recur. Under DeJohn, Berks County fails to meet its burden.
Berks County argues this situation is unlike DeJohn and relies on the Court of Appeals for the Eleventh Circuit's decision in Jews for Jesus to argue injunctive relief is moot because it occurred only after Berks County's "substantial deliberation."192 In Jews for Jesus, a missionary organization sued an airport seeking injunctive and declaratory relief against the airport's policy prohibiting the distribution ofliterature at the airport. About one month after the organization filed its case, the airport lifted its prohibition on distributing literature. The organization, which could now lawfully distribute its literature in the airport, argued the airport's change did not moot the case because of the possibility of a return to the earlier policy. The Court of Appeals for the Eleventh Circuit disagreed. It found no reasonable expectation that the airport would return to its restrictive policy because the change (1) resulted from substantial deliberation by airport officials; and (2) had been consistently applied for three years.
We are not bound to follow the Court of Appeals for the Eleventh Circuit in Jews for Jesus. But even under the factors looked to by the Court of Appeals for the Eleventh Circuit, Berks County fails to meet its burden to show mootness. It adduced no evidence of substantial deliberation. Berks County argues "whether to make improvement[s] to the facility or shut the [Reentry Center] was a topic of discussion long before the litigation began."193 But our record defies this averment. Berks County did not raise the prospect of moving male inmates out of the Reentry Center during the January or May preliminary injunction hearings where Commissioners
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testified. In the July 2019 contempt hearing we asked Berks County's counsel if the solution would be to move the male inmates out of the Reentry Center, and counsel did not know whether this solution would work because of overcrowding concerns. It never mentioned this deliberation. It instead approved a six-figure expenditure of taxpayer funds to renovate the Reentry Center.
We are also persuaded by evidence submitted in the present briefing disproving substantial deliberation. Mses. Victory and Velazquez-Diaz attach a Commissioners' Board Meeting Minutes from October 3, 2019 where the Commissioners adopted a resolution authorizing the award of two contracts (for a combined value of $204,476) for the Community Reentry Center "Elevator Modernization Project."194 This evidence shows a month before Berks County filed its November Notice, its Commissioners approved bids to improve the Reentry Center. We cannot see why the Commissioners would agree to expend over $200,000 of taxpayer dollars to improve a facility while they also seriously considered shutting its doors to inmates. Berks County references the November 10, 2019 Reading Eagle article to show substantial deliberation. The article's author recounts County Solicitor Sadler's purported statements: the "decision to shut down the [Community Reentry Center] had been a topic of discussion long before the lawsuit was filed." 195 But then the article describes the financial calculation shifted because the Commonwealth notified Berks County it would terminate a contract late this past summer. 196 The article also states the Commissioners changed the policy because of a court order. 197 We are not convinced the somewhat conflicting hearsay statements made by the Solicitor to the Reading Eagle prove substantial deliberation.
Berks County must prove mootness. Berks County elected not to support its briefing with affidavits of the Commissioners or the County Solicitor describing the deliberations leading to
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closing the Reentry Center. It instead relies on bare assertions in the briefing. Its say-so is insufficient to meet a heavy burden.
Even if Berks County showed substantial deliberation, the court of appeals in Jews for Jesus also considered whether the policy has been consistently applied. Our record reveals Berks County has attempted to cure the adjudged constitutional violations through changes made in November and December and continues to act in accordance with the changes. But, unlike in Jews for Jesus, Berks County only changed its policies within the past two months and did not swiftly change the challenged policies as the airport did.
Berks County argues we must also consider the presumption of good faith afforded to government entities and officials even if we find it fails to meet its burden of proving mootness. We note although "'government officials are presumed to act in good faith,' courts have concluded that government actors must make a showing that they are entitled to such a presumption when they voluntarily cease allegedly unlawful conduct."198 We do not see-and Berks County does not cite-a decision from our Court of Appeals specifying the showing a government entity or official must make to receive the good faith presumption. But other courts of appeals considering whether the good faith presumption applies have looked to whether: (1) the decision is based on substantial deliberation; 199 (2) the policy has been consistently applied for a period oftime;200 (3) policy change is "broad in scope and unequivocal in tone;"201 (4) the policy "could be easily abandoned or altered in the future;"202 (5) defendant unambiguously terminated the unlawful conduct;203 and, (6) defendant swears to continue the new policy beyond the litigation.204
We are persuaded to apply this guidance from other courts of appeals to determine whether Berks County is entitled to a good faith presumption. We just considered the first two factors. For the reasons already stated, neither weighs in favor of granting a good faith presumption to Berks
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County. We are not convinced Berks County substantially deliberated in closing the Community Reentry Center and the policy has only been applied since November.
We next consider whether the policy changes are broad in scope and unequivocal in tone. The policy changes are rather broad: Berks County closed the Reentry Center, moved all male inmates to the Jail, and changed various facets of its furlough policies. Berks County submitted status reports detailing male Trusty inmates are now housed in similar living conditions to female Trusty inmates in the Jail. The status reports detail changes to the furlough program, including ceasing a male only orientation where Berks County staff provided male Trusty inmates with prefilled Partial Confinement Reentry Orders. The status reports are detailed. But we do not see an unequivocal tone the policy will continue. We are mindful Commissioners made the decision to move male Trusty inmates,205 and we have no unequivocal message from the Commissioners they will not again change the housing policy. The parties cite to a November 21, 2019 newspaper report of Commissioner Leinbach telling a Berks County citizen during a townhall that the Reentry Center "needed work on its elevators, HVAC system, and cameras, and those costs would be avoided with the decision."206 At least according to this article, Commissioner Leinbach did not state Berks County will not reopen the Reentry Center as a male-only housing facility because of the adjudged constitutional violations. Presumably, if the cost-calculation changes, the Commissioners could consider reopening the Reentry Center as an inmate housing unit.
We next consider whether the policy changes could be easily abandoned or altered in the future. This review is two-fold: we must consider the housing policy changes and the changes to the Jail's furlough policy. First, as demonstrated by the November 8, 2019 Notice to the Court, Berks County can rather easily move prisoners between the Jail and Reentry Center. The November decision did not seem subject to public input or extensive review by Jail personnel;
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Warden Quigley only counselled the Commissioners on the "pros and cons" and "feasibility" of moving prisoners.207 Absent an injunction, Berks County could rather easily move male prisoners back to the Reentry Center. Regarding furloughs, Berks County discontinued the male only orientation and changed the furlough policy to assist a Trusty inmate (male or female) to obtain a furlough on a case-by-case basis. This policy can also be undone rather easily if Berks County resumes offering male Trusty inmates with an orientation denied to female Trusty inmates.
The fifth factor-whether defendant unambiguously terminated the unlawful conduct-is contested by the parties. Berks County argues their changes address adjudged constitutional violations; Mses. Victory and Velazquez-Diaz argue the changes give rise to new constitutional concerns. Our review of the status reports and the November 15, 2019 permanent injunction transcript reveals the adjudged constitutional violations have been addressed but cannot say, based on the current record, Berks County has unambiguously terminated the unlawful conduct. Sixth, we look to sworn statements. We have no affidavit from Berks County swearing to continue the new policy beyond this litigation.
The balance of these factors compel our finding Berks County is not entitled to a good faith presumption. Berks County staunchly defended its housing policy throughout this case. In doing so, it did not propose closing the Community Reentry Center as a male housing unit, despite us raising this distinct possibility during a July 2019 hearing. Berks County appealed each injunction ruling to our Court of Appeals and did not change its housing policy until the last business day before our four-day trial. After over 300 docket entries, a four-day trial, and multiple injunction hearings, we cannot award a good faith presumption to Berks County for changing policies only after the policies were adjudged to be unconstitutional as matter of law.
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C. Plaintiffs meet traditional requirements for award of a permanent injunction. Mses. Victory and Velazquez-Diaz argue a permanent injunction is warranted to ensure Berks County does not resume its unconstitutionally discriminatory treatment of members of the Class by affording better treatment to Trusty men than Trusty women housed in the Jail. Berks County argues we should not enter an injunction because it is "an extraordinary remedy, which should be granted only in limited instances."208 In assessing whether injunctive relief is appropriate, we must consider whether:
(1) the moving party has shown actual success on the merits; (2) the moving party will be irreparably injured by the denial of injunctive relief; (3) the granting of the permanent injunction will result in even greater harm to the defendant; and (4) the injunction would be in the public interest.209 We review each element to determine whether Mses. Victory and Velazquez-Diaz meet their burden to prove the requirements of a permanent injunction.
1. Mses. Victory and Velazquez-Diaz show actual success on the merits. The first element is whether Mses. Victory and Velazquez-Diaz can prove actual success on the merits. Mses. Victory and Velazquez-Diaz argue they proved constitutional violations as a matter oflaw on summary judgment and to a jury on the issue ofaccess to furlough. Berks County concedes, for the purposes of this Motion only, Mses. Victory and Velazquez-Diaz succeeded on the merits. Mses. Victory and Velazquez-Diaz meet this element.
2. Mses. Victory and Velazquez-Diaz show irreparable injury. We next look to whether Mses. Victory and Velazquez-Diaz can show irreparable injury. Mses. Victory and Velazquez-Diaz, on behalf of the Class, established the pre-November 8, 2019 housing conditions and the pre-December 2, 2019 policies regarding access to furloughs violated the Equal Protection Clause and, as such, made a clear showing of irreparable harm if the conditions returned in whole or in part.
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Discrimination on the basis of sex demonstrates irreparable injury:
[T]he right to equal treatment guaranteed by the Constitution is not coextensive with any substantive rights to the benefits denied the party discriminated against. Rather, as we have repeatedly emphasized, discrimination itself, by perpetuating "archaic and stereotypic notions" or by stigmatizing members of the disfavored group as "innately inferior" and therefore as less worthy participants in the political community, can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.210
"Deprivation of constitutional right alone constitutes irreparable harm as a matter of law, and no further showing of irreparable harm is necessary."211
Berks County argues, because of the changes made since being adjudged to have violated
the Equal Protection Clause, Mses. Victory and Velazquez-Diaz can no longer show the Class
suffers irreparable harm. We extensively analyzed this argument above by finding Berks County
fails to show no reasonable probability ofrecurrence. We incorporate our analysis in finding Mses.
Victory and Velazquez-Diaz show a reasonable probability the constitutional violations could
recur. Given the possibility of recurrence, we conclude Mses. Victory and Velazquez-Diaz show irreparable injury.
3. Mses. Victory and Velazquez-Diaz show the granting of injunctive relief will not result in greater harm to the Berks County.
We next consider whether Mses. Victory and Velazquez-Diaz can show the balance of the
hardships weigh in favor of awarding injunctive relief. Mses. Victory and Velazquez-Diaz argue deprivations of their constitutional rights outweigh harm alleged by Berks County.212 Berks
County argues they will suffer greater harm than the Class if we order a permanent injunction
"which differs from the current treatment" because it would "require[] a new safety and security
evaluation and changes in policies and procedures already completed, or in the process of completion, by Berks Defendants."213 Berks County also argues a permanent injunction would
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cause hardship as it would require our intervention before "any changes regardless of whether those changes implicate a potential violation."214
The entered injunction does not compel Berks County to change the purported status quo. Berks County will not need to conduct new security evaluations. The injunction only prevents Berks County from returning to the pre-change conditions. We only order Berks County to remedy adjudged constitutional violations by providing substantially equivalent treatment. We also do not see why Berks County would have to propose any change to us; it would only have to bring to our attention any changes affecting the minimally intrusive injunction. While the injunction may impose minimal hardship to Berks County, female Trusty inmates would suffer great hardship if Berks County returned to adjudged unconstitutional living conditions. We find Mses. Victory and Velazquez-Diaz meet this element.
4. Mses. Victory and Velazquez-Diaz show an injunction is in the public interest.
The fourth element is whether the public interest is disserved by an injunction. Mses. Victory and Velazquez-Diaz argue the public interest "clearly favors the protection of constitutional rights."215 Berks County argues the public interest would be disserved because an injunction would require Berks County to "confer with the Court regarding any additional changes it seeks to make, thereby impeding the Court's other functions."216 The terms of the injunction meeting the needs-narrowness-intrusiveness requirements of the Prison Litigation Reform Act (as discussed in the next section) would largely only serve to prevent Berks County from reimposing pre-change conditions. Berks County is ordered to continue policies already in practice. We anticipate limited court involvement. Under the Prison Litigation Reform Act, Berks County can move to dissolve the injunction in two years. When we weigh the public interest in denying an injunction against the strong public interest in vindicating constitutional rights and preventing
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future constitutional violations, we find an injunction defined in the accompanying Order serves the public interest.
D. Prospective relief findings under 18 U.S.C. § 3626(a)(l)(A). Mses. Victory and Velazquez-Diaz seek a permanent injunction governed by the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(l)(A). Our Court of Appeals instructs we "cannot 'grant or approve any prospective relief unless [we] make the needs-narrowness-intrusiveness findings."217 Section 3626(a)(l)(A) also requires us to "give substantial weight to any adverse impact on public safety or the operations of a criminal justice system caused by the relief."218 We first consider whether the terms of the injunction proposed by Mses. Victory and Velazquez-Diaz meet the needs-narrowness-intrusiveness requirements. We then give substantial weight to any adverse impact on public safety or the operations a criminal justice system caused by any considered relief.
1. Prospective relief needs-narrowness-intrusiveness findings under 18 U.S.C. § 3626(a){l)(A).
Mses. Victory and Velazquez-Diaz propose an injunction containing eight different terms. The proposed terms address:
1. the adjudged constitutional violation regarding freedom of movement and access to privileges (terms (a) and (b)); 2. the adjudged constitutional violation concerning visitation (term (c)); 3. the adjudged constitutional violation regarding access to furloughs (terms (d) through (g)); and, 4. a reporting requirement for the Class to inspect constitutional compliance (term (h)). We must make findings as to the needs-narrowness-intrusive for each term of the proposed injunction.
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a. Proposed injunction terms as to freedom of movement and access to privileges.
The first two terms of the permanent injunction proposed by Mses. Victory and VelazquezDiaz request we order Berks County to:
a. Provide the same amount of time each day during which cell doors are unlocked and prisoners are permitted to access the dayroom for all Trusty women and men, unless there is a unit-wide lockdown or individual disciplinary action.219
b. Provide equal access to phones, microwaves, and showers to all Trusty women and men, allowing both Trusty women and men to access those amenities during all time periods when their cell doors are unlocked, unless there is a unit-wide lockdown or individual disciplinary action. 220 Mses. Victory and Velazquez-Diaz make similar arguments for why these two proposed terms meet the needs-narrowness-intrusiveness test, arguing the terms are: (1) necessary because our October 17, 2019 Memorandum found unconstitutional differences in the amount of time male Trusty inmates enjoyed out of their cell with access to privileges such as phones, microwaves, and showers compared to female Trusty inmates; (2) narrowly drawn because they are limiting the proposed term to the core unconstitutional findings; and, (3) the least intrusive means because the terms do not order Berks County to do anything beyond what they already say they are doing in its status reports. Berks County argues these terms are not the least intrusive means necessary because they require identical treatment rather than substantially equivalent treatment. As we explained throughout this litigation, Berks County does not need to treat male and female Trusty inmates identically.221 They must only treat similarly situated inmates substantially equivalent (or, "in parity"), unless there is a constitutionally permissible reason for the unequal treatment. To determine substantial equivalence, we are instructed to look to the totality of living conditions. For example, Berks County Jail could treat male and female Trusty inmates in parity even if men received more time out of their cells than women so long as women received a
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corresponding benefit such as providing more time for programming which the Jail did not offer to men. It is not appropriate to conduct a side-by-side comparison of an inmates' confinement to determine compliance with the Equal Protection Clause. But we did observe if the Jail offers lopsided freedoms for one sex, there must be a strong corresponding benefit offered to other sex for us to find parity.222 We found Berks County, which offered male Trusty inmates eighteen hours of time per day with an unlocked cell and access to a dayroom, phones, microwaves, and showers, did not offer any substantial corresponding benefits to female Trusty inmates who spent all but six hours in a locked cell in the Jail.223 We found these differences in living conditions violated the Constitution as a matter of law.224
We must make needs-narrowness-intrusiveness findings based on the extensive record before us. In other words, we cannot be blind to the reality ofliving conditions at the Berks County Jail when making these findings. The Berks County Jail consists of--or at least formerly consisted of-two facilities: the Reentry Center and the Jail. The Reentry Center, as currently constructed, requires inmate cells to remain unlocked for eighteen hours because of communal bathrooms. The unlocked cells also enable inmates to access the dayroom, phones, microwaves, and showers. Male Trusty inmates, however, no longer reside in the Community Reentry Center. Both male and female inmates reside in the Jail. Male and female Trusty inmates living conditions in the Jail are very similar, at least according to Berks County's status report. Our parity calculation is based on a situation where male and female Trusty inmates are similarly housed.
Based on this context, we agree with Berks County the language in proposed terms (a) and (b) are overly intrusive and not necessary to correct the violation of the female Trusty inmates Federal rights. If we were to require the "same amount of time each day" or "equal access," we
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would be ordering more than the Equal Protection Clause requires. We can only order substantial equivalence.
But we find if we replace "same amount of time each day" and "equal access" with "substantially equivalent," then the proposed terms meet the needs-narrowness-intrusiveness findings. 225 We find these terms necessary- female Trusty inmates submitted undisputed evidence they received significantly less freedom of movement and access to privileges than male Trusty inmates living in the Reentry Center. Enjoining Berks County from reimposing disparate treatment is necessary to correct the adjudged violation of female Trusty inmates' constitutional rights. The proposed terms are narrow; they are based on our findings in our October 17, 2019 Memorandum. They specifically identify conditions previously substantially unequal. The proposed terms are also minimally intrusive. The terms require the Berks County Jail to similarly schedule recreation time for male and female Trusty inmates. Berks County admits to already providing these terms to inmates, so it does not require novel safety or security studies or meetings. The proposed terms contemplate situations occurring in the Jail which would prevent the Jail from providing substantial equivalence-lockdowns or individual disciplinary action-because these circumstances (largely out of Berks County's control) could disproportionately affect recreation time of one sex.
Berks County's only specific objection to these proposed terms is language requiring identical treatment. We agree with this objection, but we find these proposed terms otherwise meet the Prison Litigation Reform Act's needs-narrowness-intrusiveness requirements. We enter prospective relief under 18 U.S.C. § 3626(a)(l)(A) on these proposed grounds, with slight modifications, in the accompanying Order.
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b. Proposed term regarding visitation. Mses. Victory and Velazquez-Diaz's proposed third term ofthe permanent injunction reads Berks County shall:
c. Provide substantially equivalent visitation conditions for Trusty women and men including the length of visits, the frequency of visits, and the presence or absence of a physical barrier between prisoners and their visitors. 226 Mses. Victory and Velazquez-Diaz argue this term meets the Prison Litigation Reform Act's needs-narrowness-intrusiveness standard because: (1) it is necessary to correct the unconstitutional differences in visitation conditions found as a matter of law in our October 17, 2019 Memorandum; (2) it is narrowly drawn to address the findings we made in ruling visitation conditions violated the rights of female Trusty inmates; and, (3) it is the least intrusive means because it does not order Berks County to do anything beyond what they are already doing. Berks County responds arguing this injunction addresses conditions of visitation, such as the "length of visits" and "frequency of visits," not part of this litigation. We again observe prospective relief must be "necessary to correct the violation of the Federal right."227 If the proposed term does not correct a violation, then we cannot enter prospective relief under Section 3626(a)(l)(A). We agree with Berks County we cannot prospectively order it to remedy a condition of visitation never deemed to be violative of a Federal right. In our October 17, 2019 Memorandum finding visitation conditions violated the Constitution as a matter of law, we cited male Trusty inmates received visits without glass barrier.228 We agree the Class did not raise, and we did not address, the "length of visits" and "frequency of visits" in our October 17, 2019 Memorandum. Otherwise omitting these conditions from the proposed term on visitation, we find the proposed term meets the needs-narrowness-intrusiveness requirement required for entry of
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prospective relief. The proposed term-mandating substantially equivalent visitation conditions-is necessary as a matter of law because of the adjudged violation of female Trusty inmates' constitutional rights. It is narrowly drawn. It only affects visitation conditions and specifically addresses physical barriers. It is the least intrusive means. Berks County states it is already offering substantially equivalent visitation conditions for male and female Trusty inmates. While we must omit the conditions "the length of visits" and "the frequency of visits," we find this term otherwise meets the needs-narrowness-intrusiveness findings of the Prison Litigation Reform Act and include the term in our accompanying Order.
c. Proposed terms regarding access to furlough. Mses. Victory and Velazquez-Diaz propose four terms addressing the unconstitutional access to furlough found by the jury during our November 2019 trial. The difficulty with determining the needs-narrowness-intrusiveness of these proposed terms is the jury decided the unconstitutionality of Berks County's access to furloughs. Of course, they did not issue specific findings as to why they reached this verdict. Nevertheless, we attempted to summarize the elicited facts during trial and determine whether the adduced evidence supports the proposed terms for the permanent injunction. Mses. Victory and Velazquez-Diaz first propose Berks County shall:
d. Update the [Berks County Jail System] Inmate Handbook to reflect the current internal furlough policy, including a list of the eligibility requirements for each type of furlough. 229 Mses. Victory and Velazquez-Diaz argue this term is: (1) necessary to correct a violation of federal rights regarding access to furloughs; (2) narrowly drawn because it is based on evidence presented at trial showing unequal information about furloughs; and, (3) minimally intrusive because Berks County is already revising the Inmate Handbook. Berks County argues this is not minimally intrusive because it requires Berks County to insert its furlough policy into the Inmate Handbook
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so, ifthere is ever a change to furlough, it will need to change, reprint, and redistribute many copies
of the Inmate Handbook. We agree with Berks County this term is overly intrusive and decline to
compel Berks County to revise the Inmate Handbook in this way.
We do, however, accept Mses. Victory and Velazquez-Diaz's argument the evidence
presented at trial showed male Trusty inmates received greater access to information about
furlough than female Trusty inmates. We agree Berks County must be compelled to provide
substantially equal information to both sexes. Berks County states in its status report:
At the time that a male or female inmate is classified as a Trusty, they are advised of that classification by being provided a Review for Trusty Status Memorandum from Treatment Staff at [Berks County Jail System]. This memorandum includes notification of the following information: 1. You are fully sentenced on all charges. If additional charges are brought
against you, your classification status will be reviewed and adjusted according! y. 11. You have been medically cleared to work and must accept any job assignment offered to you. If you are no longer medically cleared, your classification status will be reviewed and adjusted accordingly. 111. If recommended programming interferes with your job assignment, your program schedule takes priority. 1v. You may also be eligible for work release and furloughs. You may sign up to speak with your unit counselor about these issues. v. Formal misconduct citations may result in the loss of Trusty Classification. 230 We inspect whether this proposal meets the needs-narrowness-intrusiveness requirements to
determine whether to compel Berks County to continue to follow this system. We find it is
necessary to correct the violation of a Federal right. The evidence adduced at trial established
female Trusty inmates received less information about rights once obtaining Trusty status than
male Trusty inmates living in the Reentry Center. The term is narrowly drawn. It addresses the
demonstrated imbalance by compelling Berks County provide each Trusty inmate with a uniform
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Memorandum. It also minimally intrusive. We are mindful the adjudged constitutional violation

stemmed from unequal access to furlough. We cannot compel Berks County to offer furlough to

inmates. We can only compel Berks County, if it decides to continue to offer furlough, to provide

both sexes similar information about privileges within the Jail. This system notifies Trusty inmates

"they may also be eligible for work release and furloughs" and places the onus on the inmate to discuss those privileges with the unit counselor.231 Even if Berks County changes or abolishes its

furlough policy, the unit counselor can notify the Trusty inmate of this during the requested

meeting. The uniform Memorandum requires limited resources. In the accompanying Order, we compel Berks County to continue this policy.232

Mses. Victory and Velazquez-Diaz next seek to compel Berks County to:

e.

Provide a completed Partial Confinement Reentry Order (i.e.

furlough order) (except for the prisoner's and judge's signatures) to all male

and female Trusty prisoners upon their attaining the Trusty classification

and send the proposed furlough orders to the appropriate court or sentencing

judge.233

Mses. Victory and Velazquez-Diaz argue this term is: (1) necessary because the jury found Berks

County provided unequal access to furlough; (2) narrowly drawn because it is based on evidence

at trial showing Berks County assisted male Trusty inmates complete the Reentry Order but did

not similarly assist female Trusty inmates; (3) minimally intrusive because Berks County would

only have to collect orders and submit to the correct sentencing judge for the judge's signature.

Berks County argues this requirement is very intrusive. We agree with Berks County.

We find the minimally intrusive method of addressing this violation is again proposed in

Berks County's status report stating: "As ofNovember 11,201 [9], a [Partial Confinement Reentry

Order] will be submitted to the sentencing judge on a case by case basis after a given [T]rusty inmate meets the criteria for and requests a home furlough."234 This method is necessary to correct

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the violation of female Trusty inmates Equal Protection rights to receive substantially equivalent

treatment while in confinement. It is narrowly drawn because it only addresses trial evidence

showing Berks County assisted male Trusty inmates to obtain a Partial Confinement Reentry Order

and did not similarly assist female Trusty inmates. It requires Berks County to submit Reentry

Orders on a "case by case basis," precluding Berks County from reimposing male-only orientations

where inmates receive pre-filled Reentry Orders. It is minimally intrusive because all inmates, not

the Jail, must initiate the process to obtain a home furlough. Male Trusty inmates are not favored

under this new policy. In the accompanying Order, we compel Berks County to conform with this

policy.

Mses. Victory and Velazquez also propose Berks County shall:

f.

Provide a written notice to all potential employers that contact

[Berks County Jail System] to seek work release employees that [Berks

County Jail System] has both male and female Trusty prisoners on work

release who are available for employment.235

g. Provide written notice, either individually or through public
postings, to all male and female Trusty prisoners about all work release job
opportunities that [Berks County Jail System] becomes aware of and meet [Berks County Jail System]'s requirements.236

Mses. Victory and Velazquez-Diaz argue these terms are: (1) necessary because the jury found

Berks County provided unequal access to furlough; (2) narrowly drawn because of evidence

demonstrating a work release job is a prerequisite for a furlough and Trusty men were given more

information about potential job opportunities than Trusty women; and, (3) minimally intrusive

because it does not require Berks County do anything more than they are already doing. Berks

County responds these policies are not necessary because the evidence adduced at trial showed

Berks County already did both of these things before this litigation. We agree with Berks County.

The purpose of the injunction is to compel Berks County to remedy previously unconstitutional

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conditions of confinement, not to compel Berks County to continue policies treating the sexes substantially equivalent. We decline to enter either terms in the accompanying Order.
d. Proposed term regarding written notice.
The eighth proposed term in Mses. Victory and Velazquez-Diaz's request states: h. File written status reports with the Court once every six months
for two years, updating the Court and Class Members on the treatment of Trusty men and Trusty women in [Berks County Jail System] with respect to freedom of mobility, access to privileges, visitation conditions, and access to furloughs (including the number of men and women who have been approved for furloughs). 237
Mses. Victory and Velazquez-Diaz do not support this proposed term with the needs-narrownessintrusiveness in their briefing. Berks County argues this term does not correct the violation of a Federal right and is not narrowly drawn because it requires Berks County inform us of continued compliance.
We agree with Berks County. This reporting requirement does not directly remedy any of the adjudged constitutional violations. It is not necessary. It is also intrusive as it mandates Berks County keep track of approval for each Trusty inmate. The ordered injunction allows the Trusty
inmate to pursue a furlough after receiving substantially equivalent information. We decline to order Berks County to comply with this intrusive requirement.
2. Giving substantial weight to adverse impacts on public safety and the operation of the Berks County criminal justice system caused by the relief, we enter a permanent injunction under 18 U.S.C. § 3626(a)(l)(A).
As addressed above, we find the following injunction meets the needs-narrownessintrusiveness requirements to enter prospective relief under the Prison Litigation Reform Act:
Berks County and each Defendant shall: a. Provide a substantially equivalent amount of time each day
during which cell doors are unlocked and prisoners are permitted to access
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the dayroom for all Trusty women and men, unless there is a unit-wide lockdown or individual disciplinary action;
b. Provide substantially equivalent access to phones, microwaves, and showers to all Trusty women and men, if allowing both Trusty women and men to access those amenities during time periods when their cell doors are unlocked or during indoor recreation periods, unless there is a unit-wide lockdown or individual disciplinary action;
c. Provide substantially equivalent visitation conditions for Trusty women and men including the presence or absence of a physical barrier between prisoners and their visitors;
d. Notify a female or male Trusty inmate, at the time that a male or female inmate is classified as a Trusty, of that classification by providing a Review for Trusty Status Memorandum from Berks County Jail System Treatment Staff. This memorandum shall at least notify the inmate of the following:
1. You are fully sentenced on all charges. If additional charges are brought against you, your classification status will be reviewed and adjusted accordingly.
ii. You have been medically cleared to work and must accept any job assignment offered to you. If you are no longer medically cleared, your classification status will be reviewed and adjusted accordingly.
111. Ifrecommended programming interferes with your job assignment, your program schedule takes priority.
1v. You may also be eligible for work release and furloughs. You may sign up to speak with your unit counselor about these programs.
v. Formal misconduct citations may result in the loss of Trusty Classification.
e. For as long as Berks County continues to offer Trusty inmates eligibility for a home furlough, submit a Partial Confinement Reentry Order to a Trusty inmates' sentencing judge on a case by case basis after a given Trusty inmate meets the criteria for and requests a home furlough.
But we cannot enter this permanent injunction until we "give substantial weight to any adverse
impact on public safety or the operation of a criminal justice system caused by the relief.,ms
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Today's Order poses no adverse impact on public safety or the operation of Berks County's criminal justice system. In this injunction, we do not order Berks County to adopt a policy which it has significant public safety concerns, such as the expressed concerns with moving female Trusty inmates into the Reentry Center or repurposing the Jail's quarantine unit into a female Trusty housing unit. Throughout the litigation, Berks County argued the Jail is the most secure facility for female Trusty inmates. It now also houses male Trusty inmates in the Jail under similar conditions and is compelled to continue to offer substantially equivalent freedoms. Berks County does not alert us to safety concerns-Le., overcrowding-with the new policies. The ordered furlough requirements are all based on Berks County's status report. Berks County expressed no security concerns with these already enacted policies. We also do not see significant adverse impact on the operation of the Berks County Jail.
We only compel Berks County to follow policies already in place. These policies, while potentially offering less freedoms to certain inmates than before this litigation began, do not adversely impact the operation of Berks County's criminal justice system.
E. We deny the request of Mses. Victory and Velazquez for a declaratory judgment.
Mses. Victory and Velazquez-Diaz seek a declaratory judgment to discourage Berks County from reenacting similarly discriminatory practices relating to freedom of mobility, access to privileges and furlough, and visitation conditions. Berks County argues we should not enter a declaratory judgment because declaratory relief is prospective in nature and our declaration would be based on past prison conditions already found (by this Court or by a jury) to violate the Constitution.
Our Court of Appeals instructs because "a declaratory judgment is to declare the rights of litigants, it is 'by definition prospective in nature. "'239 A declaratory judgment "does not serve a
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purpose where the complained-of situation has changed."240 We agree with Berks County. We do not see why we would issue a declaratory judgment stating past prison conditions violate the Constitution when we, and a jury, held the conditions violated the Constitution as a matter of law. Mses. Victory and Velazquez-Diaz do not explain why our October 17, 2019 Memorandum or the jury's November 14, 2019 verdict do not sufficiently declare the rights of female Trusty inmates. We deny the request for declaratory judgment.
IV. Conclusion
Despite Berks County reporting significant changes in the manner in which it houses male Trusty inmates, Mses. Victory and Velazquez-Diaz are concerned, after over a year of contentious litigation, Berks County will resume deemed unconstitutional policies treating male Trusty inmates more favorably unless we enter a permanent injunction against the County. We consider whether the significant changes mooted Mses. Victory and Velazquez-Diaz's claim for a permanent injunction under the Prison Litigation Reform Act and traditional principles of equity. We find the Prison Litigation Reform Act does not require an active or ongoing constitutional violation to enter prospective relief, and we rule the claim is live under traditional principles of equity because of a reasonable probability of recurrence. We find Mses. Victory and VelazquezDiaz meet the four traditional requirements of a permanent injunction. We considered whether their requested injunction meets the needs-narrowness-intrusive requirements of entering prospective relief under the Prison Litigation Reform Act and hold certain proposed terms, with slight modifications, meet the needs-narrowness-intrusive requirements while others did not. We weighed whether terms meeting the needs-narrowness-intrusive requirements place any adverse impact on Berks County's public safety or the operations of its criminal justice system and find none. We deny Mses. Victory and Velazquez-Diaz's request for a declaratory judgment as our
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October 17, 2019 Memorandum and the jury's November 14, 2019 verdict already declare female Trusty inmates rights as matter of law. In the accompanying Order, we enter a permanent injunction against Berks County.
1 ECF Doc. No. 134 at ,i 43 (citing Pl.'s Prelim. Inj. Hrg. Ex. 2). 2 Pl.'s Prelim. Inj. Hrg. Ex. 2 (explaining "The Berks County Community Reentry Center is dedicated to improving the quality of our community by delivering effective and innovative inmate services that instill pro-social behavior, healthy life choices, and personal accountability, thereby reducing recidivism and its financial burden on the county" and stating the vision is to "deliver superior services with the highest level of integrity and professionalism thereby making a measurable difference in the lives of our clients, thereby positively affecting the well-being and safety of our community."). 3 ECF Doc. No. 38 at ,i 35. Berks County Jail System has a classification system assigning all prisoners, regardless of sex, to one of five custody levels: Administrative Segregation, Maximum, Medium, Minimum, and Trusty. ECF Doc. No. 329 at p. 27-28:24-4. 4 ECF Doc. No. 247 at p. 5. 5 Id. at pp. 3-4. 6 ECF Doc. No. 38 at 113-7; ECF Doc. No. 329 at p. 27:19-21.
8 We refer to the collective defendants as "Berks County" in this Memorandum. 9 ECF Doc. No. 1 at 11. 10 ECF Doc. No. 9. 11 ECF Doc. No. 13 at pp. 6-8. 12 ECF Doc. No. 21 at pp. 4-10. Berks County explained "[t]he resources needed to house Plaintiff in the [Reentry Center] include personnel resources of the jail, not just the financial ability of the jail to modify or build a new facility. [Berks County] is required by law to have at least one female correctional officer working in any facility that houses female inmates. Granting the injunction requested by [Ms. Victory] would require [Berks County] to have female correctional officers at
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the [Reentry Center] twenty-four hours a day, seven days a week. [Berks County] is currently understaffed with female correctional officers." Id at p. 10. 13 ECF Doc. No. 40. 14 ECF Doc. No. 221-2 (J.A. 0485) at p. 311:7-12. 15 ECF Doc. No. 221-2 (J.A. 0486) at p. 314:10-14 (arguing "the reality is that they are both confined within a space. And they both have opportunities within a space. And they both have opportunities to be out of that space. They both take advantage of the opportunities to be out of that space."). 16 Id (J.A. 0486) at p. 315: 12-14 ("The objective is to ensure the separation of the male population and the female population.").
17 ECF Doc. No. 39 at 11.
18 ECF Doc. No. 47. 19 ECF Doc. No. 64. 20 Id at p. 2. 21 Id Warden Quigley further swore "[i]f [Ms.] Victory expresses an interest in attending a rehabilitative program that is offered at the Community Reentry Center, she should be directed to the F Unit counselor who shall arrange for delivery of the program to [Ms.] Victory." Id. 22 Id. 23 ECF Doc. No. 63. 24 ECF Doc. No. 92. 25 ECF Docs. No. 108, 109. 26 ECF Doc. No. 114. 27 Id
29 ECF Doc. No. 115. 30 ECF Doc. No. 123 at p. 6. 31 ECF Doc. No. 131; ECF Doc. No. 165 (Transcript of Hearing).
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32 ECF Doc. No. 135. 33 Id. at p. 1. 34 Id. at 11. 35 In a May 28, 2019 Order, we granted an extension allowing Warden Quigley and Berks County to file a plan by June 4, 2019. ECF Doc. No. 140. 36 ECF Docs. No. 137, 142. 37 ECF Docs. No. 144, 145. 38 ECF Doc. No. 146 at p. 11. 39 Id. at pp. 12-15.
40 ECF Doc. No. 150 at 14.
41 ECF Doc. No. 157 at 111. 42 Victory v. Berks County, No. 19-2193 (3d Cir. Jun. 4, 2019). 43 ECF Doc. No. 152. 44 ECF Doc. No. 157. 45 ECF Doc. No. 160, Ex. A. 46 ECF Doc. No. 175.
47 ECF Doc. No. 178 at 1 4.
48 Id. 49 Id. at 19. 50 Id. at pp. 13-24. 51 ECF Doc. No. 187. 52 Id. 53 ECF Doc. No. 189. 54 ECF Doc. No. 188.
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55 Id. at ,rs.
56 See ECF Doc. No. 204 at pp. 13-15:21-12. 57 ECF Doc. No. 204 at pp. 41-58. 58 ECF Doc. No. 191.
59 ECF Doc. No. 193 at ,r l(a). 60 ECF Doc. No. 196 at ,r 3.
61 ECF Doc. No. 199. 62 ECF Doc. No. 207 at p. 4. 63 ECF Doc. No. 210. 64 ECF Doc. No. 213. 65 ECF Docs. No. 222,225. 66 ECF Doc. No. 222 at p. 16. 67 Victory v. Berks County, Nos. 19-1329, 19-2193, 19-2648, 19-2695, 2019 WL 5095755 (3d Cir. Oct. 11, 2019) ("Preliminary injunctive relief automatically expires '90 days after its entry, unless the court makes the findings required under subsection (a)(1) ... and makes the order final .... '") (quoting 18 U.S.C. § 3626(a)(2)). Because no party ever moved for a final order under 18 U.S.C. § 3626(a)(2), the relief expired ninety days after entry. 68 Id. at *4. 69 Id. 70 Victory v. Berks County, No. 19-3060 (3d Cir. Oct. 24, 2019). 71 ECF Doc. No. 246. 72 ECF Doc. No. 247. 73 Id. 74 ECF Doc. No. 297. 75 ECF Doc. No. 307.
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76 Id.
77 Community Reentry Center Orientation PowerPoint Presentation, Trial Ex. 82.
78 Id.; ECF Doc. No. 330 at p. 12: 19-22 (N.T. J. Brown) (agreeing "to be eligible for a work release job, an inmate would have to have what is known as Trusty status"); id. at p. 17:7-9 (N.T. J. Brown) (agreeing "furloughs . . . are allowed for inmates successfully participating in treatment programs").
79 Id. at p. 12: 14-18 (N.T. J. Brown) (agreeing "work release just means that the inmate is released from the Berks County Jail into the community to work that job and then comes back at the end of the shift").
°8 Community Reentry Center Orientation PowerPoint Presentation, Trial Ex. 82.
81 ECF Doc. No. 330 at p. 42-43:22-24 (N.T. J. Heckman).
82 Id. atp. 30-31:20-5 (N.T. J. Brown).
83 ECF Doc. No. 329 at p. 34:17-21 (N.T. J. Heckman); ECF Doc. No. 330 at p. 126:8-10 (N.T. S. Smith) (observing "[s]he was not on work release, so she would not qualify for any furlough to go home.").
84 Id. atp. 34:17-21 (N.T. J. Heckman).
85 Partial Confinement Reentry Order, Trial Ex. 33. The Partial Confinement Reentry Order stated the "purpose of furlough" is "work release, self-employment, seeking employment, attending an educational institute, vo[cational] tech[nical] training, securing medical treatment, or other appropriate purposes." ECF Doc. No. 329 at p. 33:9-11 (N.T. J. Heckman).
86 Partial Confinement Reentry Order, Trial Ex. 33.
87 ECF Doc. No. 329 at p. 31 :23-25 (N.T. J. Heckman).
88 ECF Doc. No. 330 at p. 65:17-21 (N.T. J. Brown).
89 ECF Doc. No. 329 at p. 31-32:23-12 (N.T. J. Heckman).
90 ECF Doc. No. 330 at p. 110:10-13 (N.T. S. Smith); ECF Doc. No. 329 at p. 33:21-24 (N.T. J. Heckman) (testifying, during his orientation as a male Trusty inmate in the Reentry Center, he received a Partial Confinement Reentry Order with "[his] sentence on it, the judge that sentenced [his], [his] minimum date, [his] maximum date, [his] name, the docket number, and [his Berks Jail System] number" to sign and submit to his sentencing judge).
91 ECF Doc. No. 330 at pp. 66-67:7-2 (N.T. J. Brown).
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92 Id at pp. 66-67:7-2 (N.T. J. Brown). Coordinator Brown testified it was the inmates's responsibility to know his or her eligibility date for taking a furlough. 93 Id at p. 66:1-6 (N.T. J. Brown). 94 ECF Doc. No. 329 at p. 85:2-21 (N.T. T. Victory). 95 ECF Doc. No. 330 at p. 8:15-18 (N.T. J. Brown). For example, Coordinator Brown testified it was her ''job as Work Release Coordinator [to] make sure" the sentencing judge signed an order allowing the inmate to take work release. Id at pp. 15-16:22-5 (N.T. J. Brown). 96 Id at p. 10:20-25 (N.T. J. Brown). 97 Id. at p. 10:20-25 (N.T. J. Brown). 98 Id. at p. 53:19-21 (N.T. J. Brown). 99 Id. at p. 53:21-22 (N.T. J. Brown). 100 Id. at pp. 53-54:21-2 (N.T. J. Brown). 101 Id. at p. 51 :12-14 (N.T. J. Brown). 102 ECF Doc. No. 329 at p. 36:18-19 (N.T. J. Heckman). 103 ECF Doc. No. 321. 104 Id. 105 ECF Doc. No. 331 at p. 77:8-24 (N.T. T. Victory). 106 Id. at p. 82: 12-23 (N.T. T. Victory). 107 Id. at p. 164:17-20 (N.T. T. Victory). 108 Id. at pp. 185-192:7-16 (N.T. J. Eckroth). 109 ECF Doc. No. 332 at pp. 21-22:5-7 (N.T. M. Castro). 110 ECF Doc. No. 323. 111 ECF Doc. No. 327. 112 ECF Doc. No. 332 at p. 107:9-16 (N.T. J. Quigley). 113 Id. at pp. 105-06:25-2 (N.T. J. Quigley).
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114 Id. at p. 105:21-22 (N.T. J. Quigley). 115 Id. at p. 119:16-17 (N.T. J. Quigley). 116 Id. at p. 112:15-19 (N.T. J. Quigley). 117 Id. at p. 121:1-4 (N.T. J. Quigley). 118 Id. at pp. 115-16:25-14 (N.T. J. Quigley). 119 Id. at p. 143:4-8. 120 Id. at pp. 143-44:25-14. 121 ECF Doc. No. 325. 122 ECF Doc. No. 328 (first status report); ECF Doc. No. 333 (supplemental status report). 123 ECF Doc. No. 328. 124 Id. 125 Id. One of the eleven female Trusty inmates refused to sign the Order. Id. 126 Id. 127 Id. The Trusty Status Memorandum notifies Trusty inmates they: (1) are fully sentenced on all charges; (2) have been medically cleared to work and must accept any job assignment; (3) must attend programming even if it interferes with job assignment; (4) may be eligible for work release and furlough and "may sign up to speak with [the] unit counselor about these issues;" and, (5) may lose Trusty status if they receive a misconduct citation. 128 Id. 129 ECF Doc. No. 333. 130 ECF Doc. No. 334. 131 Id. 132 Id. m Id. 134 Id.
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135 Id. 136 Id. 137 Id. 138 Id. 139 ECF Doc. No. 334-2, Ex. B. 140 Id. 141 ECF Doc. No. 334-2, Ex. C. 142 Id. 143 Id. 144 Id. 145 Id. 146 Id. 141 Id. 148 ECF Doc. No. 334-1, Ex. A. 149 ECF Doc. No. 337. 150 Mses. Victory and Velazquez-Diaz are no longer in Berks County custody but seek a permanent injunction as representatives of the Class of female Trusty inmates. We refer to the Class by naming the class representatives Mses. Victory and Velazquez-Diaz. 151 18 U.S.C. § 3626(a)(l)(A). 152 Id. § 3626(g)(7). 153 Id. § 3626(b)(l)(A), (b)(3) (emphasis added). 154 Id. § 3626 (b)(2). 155 Hallett v. Morgan, 296 F.3d 732 (9th Cir. 2002). 156 Id. at 743.
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157 Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019).
158 Thomas v. Bryant, 614 F.3d 1288, 1319-20 (11th Cir. 2010). The Court of Appeals for the Eleventh Circuit noted a "previous[] [Eleventh Circuit decision] recognized that the 'current and ongoing' requirement is distinct from the standard governing the initial entry of injunctive relief." Id. at 1320 (quoting Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir. 2000)). The Eleventh Circuit explained "there is no indication in the [Prison Litigation Reform Act], its legislative history, or the case law to suggest that the 'current and ongoing' requirement was intended by Congress to amend the well-established law that injunctive relief is available in the first instance 'to prevent a substantial risk of serious injury from ripening into actual harm,' i.e., to prevent future harm." Id. (quoting Farmer v. Brennan, 511 U.S. 825, 845 (1994)). The Court of Appeals for the Sixth Circuit also shares the view "the 'current and ongoing' language comes from § 3626(b)(3), governing the termination ofrelief, not from§ 3626(a), governing requirements for initial relief." Austin v. Wilkinson, 372 F.3d 346, 360 (6th Cir. 2004), aff'd in part, rev 'din part and remanded on other grounds, 545 U.S. 209 (2005).
159 Porter, 923 F.3d at 348 (citing Russello v. United States, 464 U.S. 16, 23 (1983)).
160 Id.
161 Id. (quoting Miller v. French 530 U.S. 327, 340 (2000)).
162 Id. at 374 (Niemeyer, J., dissenting).
163 Id. (quoting Miller, 530 U.S. at 331 ).
164 18 U.S.C. § 3626(b)(3).
165 See 141 Cong. Rec. S14408-01, 141 Cong. Rec. S14408-01, S14413, 1995 WL 568915. ThenSenate Majority Leader Bob Dole stated "this legislation is a new and improved version of S. 866, which I introduced earlier this year to address the alarming explosion in the number of frivolous lawsuits filed by State and Federal prisoners. It also builds on the stop-turning-out-prisoners legislation, championed by Senators Kay Bailey Hutchinson and Spencer Abraham, by making it much more difficult for Federal judges to issue orders directing the release of convicted criminals from prison custody." Id. Senator Abraham's remarks illustrate the concerns of judicial involvement in court-ordered remedies in prison conditions cases:
Under a series of judicial decrees resulting from Justice Department suits against the Michigan Department of Corrections, the Federal courts now monitor our State prisons to determine[:] First, how warm the food is; second, how bright the lights are; third, whether there are electrical outlets in each cell; fourth, whether windows are inspected and up to code; fifth, whether prisoners' hair is cut only by licensed barbers; and sixth, and whether air and water temperatures are comfortable.
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This would be bad enough if a court had ever found that Michigan's prison system was at some point in violation of the Constitution, or if conditions there had been inhumane. But that is not the case. To the contrary, nearly all of Michigan's facilities are fully accredited by the American Corrections Association. We have what may be the most extensive training program in the Nation for corrections officers. Our rate of prison violence is among the lowest of any State. And we spend an average of $4,000 a year per prisoner for health care, including nearly $1,700 for mental health services. Rather, the judicial intervention is the result of a consent decree that Michigan entered into in 1982-13 years ago-that was supposed to end a lawsuit filed at the same time. Instead, the decree has been a source of continuous litigation and intervention by the court into the minutia of prison operations.
Id. Senator Abraham later stated: "Our bill forbids courts from entering orders for prospective relief (such as regulating food temperatures) unless the order is necessary to correct violations of individual plaintiffs' Federal rights. It also requires that the relief be narrowly drawn and be the least intrusive means of protecting the Federal rights. And it directs courts to give substantial weight to any adverse impact on public safety or the operation ofthe criminal justice system caused by the relief." Senator Abraham concluded: "This is a balanced bill that allows the courts to step in where they are needed, but puts an end to unnecessary judicial intervention and micromanagement." Id. (emphasis added).
166 Hallett v. Morgan, 296 F.3d 732, 743 (9th Cir. 2002).
167 See 141 Cong. Rec. S14408-01, 141 Cong. Rec. S14408-01, S14413, 1995 WL 568915 (Senator Abraham noting the bill "allows the courts to step in where they are needed").
168 U.S. Const. Art. III § 2.
169 DeJohn v. Temple Univ., 537 F.3d 301, 309 (3d Cir. 2008) (quoting United States v. Gov't of Virgin Islands, 363 F.3d 276, 285 (3d Cir. 2004)).
170 Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir. 2003) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).
111 Id.
172 United States v. W T Grant Co., 345 U.S. 629,632 (1953).
173 DeJohn, 537 F.3d at 309 (quoting Los Angeles County v. Davis, 440 U.S. 625 (1979)) (internal citations omitted).
174 Id.
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175 Id. at 309 (quoting United States v. Gov't of Virgin Islands, 363 F.3d 276,285 (3d Cir. 2004)). 176 Id.
177 Id. at 308. 178 Id. at 309. 119 Id.
180 Id. Just five months after DeJohn, in Burns v. Pennsylvania Department of Corrections, our Court of Appeals again looked to "the timing and content" of a change explaining there the "[Defendant] Department of Corrections' assurances were provided exceedingly late in the game." Burns v. Pennsylvania Dept. ofCorr., 544 F.3d 279,284 (3d Cir. 2008).
181 ECF Doc. No. 39 at ,r 1. 182 ECF Doc. No. 135 ,r 1. 183 ECF Doc. No. 178 at ,r 4.
184 ECF Doc. No. 204 at pp. 13:21-23. 185 ECF Doc. No. 247. 186 ECF Doc. No. 307. 187 ECF Doc. No. 309.
188 ECF Doc. No. 150 at ,r 4.
189 ECF Doc. No. 337 at p. 6. 190 Id. (arguing "[d]efendants' need for its policy, safety and security restrictions based on limited staffing, is equally served under the current housing situation."). 191 DeJohn v. Temple Univ., 537 F.3d 301,309 (3d Cir. 2008) (quoting United States v. Gov't of Virgin Islands, 363 F.3d 276, 285 (3d Cir. 2004)). 192 Jews for Jesus, Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627 (11th Cir. 1998). 193 ECF Doc. No. 337 at p. 6. 194 ECF Doc. No. 334-2, Ex. B. 195 ECF Doc. No. 334-3, Ex. C.
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196 See id.
197 See id.
198 Roman v. Fed. Bureau ofPrisons, No. 15-2247, 2016 U.S. Dist. LEXIS 135434, at *33 (E.D. Pa. Sept. 30, 2016) (quoting Marcavage v. Nat'! Park Serv., 666 F.3d 856, 861 (3d Cir. 2012)).
199 Rich v. Florida Dep 't ofCorr., 716 F.3d 525, 531-32 (11th Cir. 2013).
200 Id.
201 Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014).
202 Id. at 971-72; see also Bell v. City ofBoise, 709 F.3d 890, 898-900 (9th Cir. 2013).
203 Rich, 716F.3dat531-32.
204 Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009); Beta Upsilon Chi Chapter ofthe Univ. ofFlorida v. Machen, 586 F.3d 908, 916-17 (11th Cir. 2009).
205 See ECF Doc. No. 307.
206 ECF Doc. No. 334-1, Ex. A.
207 ECF Doc. No. 332 at p. 119:16-17 (N.T. J. Quigley).
208 ECF Doc. No. 337 at p. 14 (quoting Instant Air Freight Co. v. CF Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989)). Berks County points to our Court of Appeals decision in Viropharma to argue Mses. Victory and Velazquez-Diaz must show injunctive relief is necessary. See ECF Doc. No. 337 at p. 9 (citing FT.C. v. Shire Viropharma, Inc., 917 F.3d 147, 156-57 (3d Cir. 2019)). Chief Judge Smith observed in Viropharma: "Although injunctive relief can survive discontinuance of the illegal conduct, 'the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive."' Shire Viropharma, 917 F.3d at 156-57 (quoting United States v. WT. Grant Co., 345 U.S. 629, 633 (1953)). Finding a cognizable danger of recurrence in our mootness analysis, we also assess whether Mses. Victory's and Velazquez-Diaz's proposed injunction is "necessary" to correct the violation of a Federal right, see 18 U.S.C. § 3626(a)(l)(A), and whether Mses. Victory and Velazquez-Diaz show irreparable harm. For reasons stated in these analyses, we find Mses. Victory and VelazquezDiaz meet their burden of showing the prospective relief is necessary. 209 Coffelt v. Fawkes, 765 F.3d 197, 201 (3d Cir. 2014) (quoting Shields v. Zuccarini, 254 F.3d 476,482 (3d Cir. 2001)). 210 Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).
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211 Beattie v. Line Mountain Sch. Dist., 992 F. Supp. 2d 384, 396 (M.D. Pa. 2014).
212 ECF Doc. No. 225-1 at p. 24 (citing NJ Retail Merchs. Ass'n v. Sidamon-Eristojf, 660 F.3d 374, 388-89 (3d Cir. 2012)) ("[T]he State does not have an interest in the enforcement of an unconstitutional law[.]").
213 ECF Doc. No. 337 at p. 15.
214 Id.
215 ECF Doc. No. 225-1 at p. 24 (citing Council ofAlt. Political Parties v. Hooks, 121 F.3d 876, 883-84 (3d Cir. 1997)) ("In the absence oflegitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights, ...").
216 ECF Doc. No. 337 at p. 16.
217 Victory v. Berks County, No. 19-1329, 2019 WL 5095755, at *3 (3d Cir. Oct. 11, 2019) (quoting 18 U.S.C. § 3626(a)(l)(A)). Our Court of Appeals noted: "Our sister circuits have held that, at a minimum, a district court's findings must be 'sufficient to allow a clear understanding of the ruling."' Id. at *4 (quoting Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010)).
218 18 U.S.C. § 3626(a)(l)(A).
219 ECF Doc. No. 334 at p. 15 ~ (a).
220 Id. at p. 15 ~ (b).
221 See, e.g., ECF Doc. No. 247 at p. 15.
222 Id. at pp. 15-17.
223 Id. at pp. 13-24.
224 Id.
225 We also must modify the phrasing to proposed term (b). As written, the term requires Berks County to allow Trusty inmates to access the dayroom, telephones, showers and microwaves during any time period whenever cells are unlocked. But Berks County states Trusty inmates "have access to the dayroom which includes telephones, showers, microwaves, and television" during indoor recreation periods but not during outdoor recreation periods. ECF Doc. No. 328. We must alter the wording slightly so as to not require Berks County to provide access to the dayroom during outdoor recreation periods (out of an abundance of caution that cells are unlocked during this period).
226 ECF Doc. No. 334 at p. 16 ~ (c).
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227 18 U.S.C. § 3626(a)(l)(A). 228 ECF Doc. No. 247 at p. 17. 229 ECF Doc. No. 334 at p. 16 ~ (d). 230 ECF Doc. No. 328 at p. 3. 231 Id. (emphasis added). 232 We change the word "issues"-as proposed by Berks County-to the word "program" because we feel it more accurately describes what Berks County seeks to accomplish through offering Trusty inmates eligibility for work release and furlough. 233 ECF Doc. No. 334 at p. 16 ~ (e). 234 ECF Doc. No. 328 at p. 3. 235 ECF Doc. No. 334 at p. 16 ~ (f). 236 ECF Doc. No. 334 at p. 16 ~ (g). 237 ECF Doc. No. 334 at p. 16 ~ (h). 238 18 U.S.C. § 3626(a)(l)(A). 239 Sherardv. Berks County, 576 F. App'x 66, 69-70 (3d Cir. 2014) (quoting CMR D.N Corp. & Marina Towers Ltd. v. City ofPhila., 703 F.3d 612,628 (3d Cir. 2013)). 240 Id.
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 Case: 5:18-cv-5170 As of: 06/11/2020 08:20 PM EDT 1 of 32
CLOSED,A/R,STANDARD
United States District Court Eastern District of Pennsylvania (Allentown) CIVIL DOCKET FOR CASE #: 5:18−cv−05170−MAK

VICTORY v. BERKS COUNTY et al Assigned to: HONORABLE MARK A. KEARNEY Referred to: MAGISTRATE JUDGE MARILYN HEFFLEY (Settlement) Case in other court: USCA, 19−01329
THIRD CIRCUIT, 19−02193
USCA, 19−02648
THIRD CIRCUIT, 19−02695
USCA, 19−03060 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 11/30/2018 Date Terminated: 04/07/2020 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner Petitions: Civil Rights Jurisdiction: Federal Question

THERESA VICTORY

represented by ANGUS R. LOVE Law Offices of Angus Love P.O. Box 521 Narberth, PA 19072 215−435−6345 Email: Anguslove76@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW A. FELDMAN PA INSTITUTIONAL LAW PROJECT 718 ARCH ST SUITE 304 SOUTH PHILADELPHIA, PA 19106 215−925−2966 Email: mfeldman@pailp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

SU MING YEH PA INSTITUTIONAL LAW PROJECT 718 ARCH STREET, SUITE 304S PHILADELPHIA, PA 19106 215−925−2966 Fax: 215−925−5337 Email: smyeh@pailp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

ALEXANDRA MORGAN−KURTZ PA INSTITUTIONAL LAW PROJECT 100 FIFTH AVE SUITE 900 PITTSBURGH, PA 15222 412−434−6175 Email: amorgan−kurtz@pailp.org ATTORNEY TO BE NOTICED

CORY WARD DECHERT LLP 2929 ARCH ST PHILADELPHIA, PA 19104 215−994−2051 Email: cory.ward@dechert.com ATTORNEY TO BE NOTICED

JAMES P. DAVY

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Plaintiff AMARA SANDERS TERMINATED: 04/05/2019
Plaintiff SAMANTHA HUNTINGTON TERMINATED: 04/05/2019
Plaintiff ALICE VELAZQUEZ−DIAZ

2362 E HAROLD STREET PHILADELPHIA, PA 19125 609−273−5008 Email: jimdavy@gmail.com TERMINATED: 02/15/2019
WILL W. SACHSE DECHERT, PRICE & RHOADS CIRA CENTRE 2929 ARCH STREET PHILADELPHIA, PA 19104 215−994−4000 Email: will.sachse@dechert.com ATTORNEY TO BE NOTICED
represented by MATTHEW A. FELDMAN (See above for address) TERMINATED: 04/05/2019 LEAD ATTORNEY
JAMES P. DAVY (See above for address) TERMINATED: 02/15/2019
represented by MATTHEW A. FELDMAN (See above for address) TERMINATED: 04/05/2019 LEAD ATTORNEY
JAMES P. DAVY (See above for address) TERMINATED: 02/15/2019
represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) TERMINATED: 04/05/2019 LEAD ATTORNEY
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALEXANDRA MORGAN−KURTZ (See above for address) ATTORNEY TO BE NOTICED
CORY WARD (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED

Case: 5:18-cv-5170 As of: 06/11/2020 08:20 PM EDT 3 of 32

Plaintiff
ANABELL DEALBA AND ALL OTHERS SIMILARLY SITUATED

represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) TERMINATED: 04/05/2019 LEAD ATTORNEY
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant BERKS COUNTY
Defendant KEVIN S. BARNHARDT BERKS COUNTY COMMISSIONERS
Defendant

represented by MATTHEW J. CONNELL MACMAIN CONNELL & LEINHAUSER LLC 433 WEST MARKET ST SUITE 200 WEST CHESTER, PA 19382 484−318−7803 Email: mconnell@macmainlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAURIE ANN FIORE MacMain, Connell & Leinhauser, LLC 433 W. MARKET STREET SUITE 200 WEST CHESTER, PA 19382 484−328−3987 Email: lfiore@macmainlaw.com ATTORNEY TO BE NOTICED
SAMANTHA RYAN THE MACMAIN LAW GROUP 433 W MARKET ST SUITE 200 WEST CHESTER, PA 19382 484−328−3984 Email: sryan@macmainlaw.com ATTORNEY TO BE NOTICED
represented by MATTHEW J. CONNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAURIE ANN FIORE (See above for address) ATTORNEY TO BE NOTICED
SAMANTHA RYAN (See above for address) ATTORNEY TO BE NOTICED

Case: 5:18-cv-5170 As of: 06/11/2020 08:20 PM EDT 4 of 32

CHRISTIAN Y. LEINBACH
Defendant ESQ. MARK C. SCOTT
Defendant WARDEN JANINE L. QUIGLEY
Defendant DEPUTY WARDEN STEPHANIE SMITH
Defendant CAPTAIN CASTRO TERMINATED: 04/22/2019

represented by MATTHEW J. CONNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAURIE ANN FIORE (See above for address) ATTORNEY TO BE NOTICED
SAMANTHA RYAN (See above for address) ATTORNEY TO BE NOTICED
represented by MATTHEW J. CONNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAURIE ANN FIORE (See above for address) ATTORNEY TO BE NOTICED
SAMANTHA RYAN (See above for address) ATTORNEY TO BE NOTICED
represented by MATTHEW J. CONNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAURIE ANN FIORE (See above for address) ATTORNEY TO BE NOTICED
SAMANTHA RYAN (See above for address) ATTORNEY TO BE NOTICED
represented by MATTHEW J. CONNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAURIE ANN FIORE (See above for address) ATTORNEY TO BE NOTICED
SAMANTHA RYAN (See above for address) ATTORNEY TO BE NOTICED
represented by MATTHEW J. CONNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SAMANTHA RYAN

Case: 5:18-cv-5170 As of: 06/11/2020 08:20 PM EDT 5 of 32

Defendant LIEUTENANT WEBER TERMINATED: 04/22/2019
Defendant SERGEANT SPOTTS TERMINATED: 07/08/2019
Defendant CORRECTIONAL OFFICER DROZACK (C.O.) TERMINATED: 04/22/2019
Defendant C.O. REICHART TERMINATED: 07/08/2019
Defendant C.O. ZERR TERMINATED: 07/08/2019
Defendant C.O. BROWN TERMINATED: 07/08/2019

(See above for address) ATTORNEY TO BE NOTICED
represented by MATTHEW J. CONNELL (See above for address) TERMINATED: 04/22/2019 LEAD ATTORNEY
SAMANTHA RYAN (See above for address) TERMINATED: 04/22/2019
represented by MATTHEW J. CONNELL (See above for address) TERMINATED: 07/08/2019 LEAD ATTORNEY
SAMANTHA RYAN (See above for address) TERMINATED: 07/08/2019
represented by MATTHEW J. CONNELL (See above for address) TERMINATED: 04/22/2019 LEAD ATTORNEY
SAMANTHA RYAN (See above for address) TERMINATED: 04/22/2019
represented by MATTHEW J. CONNELL (See above for address) TERMINATED: 07/08/2019 LEAD ATTORNEY
SAMANTHA RYAN (See above for address) TERMINATED: 07/08/2019
represented by MATTHEW J. CONNELL (See above for address) TERMINATED: 07/08/2019 LEAD ATTORNEY
SAMANTHA RYAN (See above for address) TERMINATED: 07/08/2019
represented by MATTHEW J. CONNELL (See above for address) TERMINATED: 07/08/2019 LEAD ATTORNEY
SAMANTHA RYAN (See above for address)

Case: 5:18-cv-5170 As of: 06/11/2020 08:20 PM EDT 6 of 32

Defendant C.O. BAUER TERMINATED: 04/22/2019
Defendant JOANNA BROWN TERMINATED: 04/22/2019
Defendant JOHN DOE CORRECTIONAL SERGEANT TERMINATED: 04/22/2019

TERMINATED: 07/08/2019
represented by MATTHEW J. CONNELL (See above for address) TERMINATED: 04/22/2019 LEAD ATTORNEY
SAMANTHA RYAN (See above for address) TERMINATED: 04/22/2019
represented by MATTHEW J. CONNELL (See above for address) TERMINATED: 04/22/2019 LEAD ATTORNEY
SAMANTHA RYAN (See above for address) TERMINATED: 04/22/2019

Date Filed 11/30/2018
11/30/2018
11/30/2018 11/30/2018 12/06/2018
12/07/2018 12/07/2018 12/07/2018

# Docket Text
1 COMPLAINT against KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR ( Filing fee $ 400 receipt number PPE188647.), filed by THERESA VICTORY, JURY DEMAND. (Attachments: # 1 CASE FORMS)(jl, ) Modified on 12/6/2018 (jl, ). (Entered: 12/03/2018)
15 Summons Issued as to KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. Forwarded To: ANGUS LOVE on 12/3/18 (jl, ) Modified on 12/6/2018 (afm, ). (Entered: 12/03/2018)
DEMAND for Trial by Jury by THERESA VICTORY. (jl, ) (Entered: 12/03/2018)
2 THERESA VICTORY. MOTION FOR CLASS CERTIFICATION, MEMORANDUM.(jl, ) (Entered: 12/03/2018)
3 ORDER THAT PLAINTIFF'S 2 MOTION FOR CLASS CERTIFICATION IS DENIED WITHOUT PREJUDICE TO BE RENEWED UNDER A SCHEDULING ORDER AFTER WE DEFINE THE ISSUES NECESSARY TO BE RESOLVED FOR TRIAL ON EITHER AN INDIVIDUAL OR CLASS BASIS. SIGNED BY HONORABLE MARK A. KEARNEY ON 12/6/18.12/6/18 ENTERED & E−MAILED.(fdc) (Entered: 12/06/2018)
4 MOTION for Preliminary Injunction filed by THERESA VICTORY.. (Attachments: # 1 Text of Proposed Order)(DAVY, JAMES) Modified on 12/10/2018 (afm, ). (STRICKEN PER ORDER 6 ) (Entered: 12/07/2018)
5 Memorandum in Support re 4 MOTION for Preliminary Injunction filed by THERESA VICTORY. (Attachments: # 1 Exhibit)(DAVY, JAMES) (Entered: 12/07/2018)
6 ORDER THAT PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOC. 4 ) IS STRICKEN WITHOUT PREJUDICE AS OUTLINED HEREIN. ETC.. SIGNED BY HONORABLE MARK A. KEARNEY ON 12/7/2018.12/7/2018 ENTERED AND COPIES E−MAILED.(sg, ) (Entered: 12/07/2018)

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12/11/2018

7 AFFIDAVIT of Service by Karl Perkins re: served Complaint, Class Certification Motion/Brief, Preliminary Injunction Motion/Brief upon Berks County, Joanna Brown, C.O. Bauer, C.O. Brown, C.O. Zerr, C.O. Reichart, C.O. Drozack, Lieutenant Spotts, Lieutenant Weber, Captain Castro, Deputy Warden Stephanie Smith, Warden Joanna Quigley, County Commissioner Mark Scott, County Commissioner Kevin Barnhardt, County Commissioner, Christian Leinbach by personal on December 10, 2018 (FELDMAN, MATTHEW) (Entered: 12/11/2018)

12/11/2018 8 MOTION for Leave to File Excess Pages filed by THERESA VICTORY.. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(FELDMAN, MATTHEW) (Entered: 12/11/2018)

12/11/2018 9 MOTION for Preliminary Injunction filed by THERESA VICTORY.. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(FELDMAN, MATTHEW) (Entered: 12/11/2018)

12/11/2018 10 Memorandum in Support re 9 MOTION for Preliminary Injunction filed by THERESA VICTORY. (Attachments: # 1 Exhibit, # 2 Certificate of Service)(FELDMAN, MATTHEW) (STRICKEN AS PER ORDER #12) (Entered: 12/11/2018)

12/11/2018 11 ORDERED THAT PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOC. NO. 8) IS DENIED. SIGNED BY HONORABLE MARK A. KEARNEY ON 12/11/18.12/11/18 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 12/11/2018)

12/11/2018 12 ORDERED THAT PLAINTIFF'S BRIEF (DOC. NO. 10) IS STRICKEN WITH LEAVE TO FILE A COMPLIANT MEMORANDUM IN SUPPORT OF HER MOTION FOR PRELIMINARY INJUNCTION (DOC. NO. 9) NO LATER THAN 12/13/18. SIGNED BY HONORABLE MARK A. KEARNEY ON 12/11/18. 12/12/18 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E−MAILED.(jpd, ) (Entered: 12/12/2018)

12/13/2018 13 Memorandum in Support re 9 MOTION for Preliminary Injunction filed by THERESA VICTORY. (Attachments: # 1 Exhibit, # 2 Certificate of Service)(FELDMAN, MATTHEW) (Entered: 12/13/2018)

12/14/2018 14 NOTICE of Appearance by MATTHEW J. CONNELL on behalf of KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR with Certificate of Service(CONNELL, MATTHEW) (Entered: 12/14/2018)

12/17/2018 15 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Telephone Conference held on 12/17/18 (jpd, ) (Entered: 12/17/2018)

12/17/2018 16 ORDERED THAT MOTION IN LIMINE DUE BY 1/7/2019., DEFENDANTS SHALL RSPOND TO THE MOTION (DOC. NO. 9) DUE BY 12/28/2018., A HEARING ON PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION IS SET FOR 1/8/2019 10:00 A.M. IN COURTROOM 6−B BEFORE HONORABLE MARK A. KEARNEY. SIGNED BY HONORABLE MARK A. KEARNEY ON 12/17/18. 12/18/18 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 12/18/2018)

12/19/2018 17 ORDERED THAT THE WARDEN OF BERKS COUNTY JAIL PRODUCE BEFORE THIS COURT PLAINTIFF THERESA VICTORY #2016−6253 ON 1/8/19 FOR AN INJUNCTION HEARING. SIGNED BY HONORABLE MARK A. KEARNEY ON 12/19/18. 12/20/18 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 12/20/2018)

12/27/2018 18 MOTION for Leave to File Excess Pages filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Certificate of Service.(CONNELL, MATTHEW) (Entered: 12/27/2018)

12/27/2018 19 ORDER GRANTING 18 MOTION FOR LEAVE TO FILE EXCESS PAGES AND THE DEFENDANTS MEMORANDUM IN SUPPORT OF A MOTION TO DISMISS DUE NO LATER THAN DECEMBER 31, 2018, MAY NOT EXCEED TWENTY−FIVE PAGES WITH ANY RESPONSE ALSO NOT EXCEEDING TWENTY−FIVE PAGES. SIGNED BY HONORABLE MARK A. KEARNEY ON 12/27/18. 12/28/18 ENTERED AND COPIES E−MAILED. (va, ) (Entered: 12/28/2018)

12/28/2018 20 RESPONSE in Opposition re 9 MOTION for Preliminary Injunction with Affirmative Defenses filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (CONNELL, MATTHEW)

Case: 5:18-cv-5170 As of: 06/11/2020 08:20 PM EDT 8 of 32
(Entered: 12/28/2018)
12/28/2018 21 Memorandum in Opposition re 9 MOTION for Preliminary Injunction in Support of Response filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (CONNELL, MATTHEW) (Entered: 12/28/2018)
12/28/2018 22 CERTIFICATE OF SERVICE by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR re 21 Memorandum, (CONNELL, MATTHEW) (Entered: 12/28/2018)
12/31/2018 23 MOTION to Dismiss Plaintiff's Complaint filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Certificate of Service.(CONNELL, MATTHEW) (Entered: 12/31/2018)
12/31/2018 24 Memorandum in Support of Motion to Dismiss re 23 MOTION to Dismiss Plaintiff's Complaint by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (Attachments: # 1 Certificate of Service) (CONNELL, MATTHEW) (Entered: 12/31/2018)
01/03/2019 25 MOTION to Continue filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Brief, Certificate of Service.(CONNELL, MATTHEW) (Entered: 01/03/2019)
01/03/2019 26 REPLY to Response to Motion re 9 MOTION for Preliminary Injunction filed by THERESA VICTORY. (Attachments: # 1 Exhibit)(FELDMAN, MATTHEW) (Entered: 01/03/2019)
01/04/2019 27 ORDER THAT THE BERKS COUNTY DEFENDANTS' 25 MOTION FOR A CONTINUANCE IS DENIED. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/4/19.1/4/19 ENTERED & E−MAILED.(fdc) (Entered: 01/04/2019)
01/04/2019 28 PRETRIAL MEMORANDUM by THERESA VICTORY Pre−Hearing Memo; Certificate of Service. (FELDMAN, MATTHEW) (Entered: 01/04/2019)
01/04/2019 29 Memorandum re 9 MOTION for Preliminary Injunction Hearing filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (CONNELL, MATTHEW) (Entered: 01/04/2019)
01/04/2019 30 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Telephone Conference held on 1/4/19 (jl, ) (Entered: 01/04/2019)
01/04/2019 31 ORDERED THAT THE WARDEN OF THE BERKS COUNTY JAIL SYSTEM SHALL PRODUCE BEFORE THIS COURT THE BODY OF THE PLAINTIFF IN THE ABOVE CAPTIONED CIVIL ACTION TO APPEAR BEFORE THE UNDERSIGNED FOR AN INJUNCTION HEARING SET TO COMMENCE ON 1/10/19 AT 10:00 A.M. THIS HEARING IS RESCHEDULED FORM 1/8/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/4/19. 1/7/19 ENTERED AND COPIES E−MAILED(jpd, ) (Entered: 01/07/2019)
01/04/2019 32 ORDERED THAT THE COURT'S ORDER DATED 12/17/18 IS AMENDED SOLEY TO REFLECT THTA THE HEARING FOR PRELIMINARY INJUNCTION IS SET FOR 1/10/2019 AT 10:00 A.M. IN COURTROOM 6−B BEFORE HONORABLE MARK A. KEARNEY.). SIGNED BY HONORABLE MARK A. KEARNEY ON 1/4/19. 1/7/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 01/07/2019)
01/07/2019 33 MOTION in Limine filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Memorandum of Law and Certificate of Service.(CONNELL, MATTHEW) (Entered: 01/07/2019)
01/08/2019 34 RESPONSE in Opposition re 33 MOTION in Limine filed by Defendants filed by THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 01/08/2019)

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01/08/2019 35 ORDERED THAT DEFENDANTS MOTION IN LIMINE (DOC. NO. 33) IS DENIED SUBJECT TO RENEWAL AT OUR HEARING, ETC. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/8/19.1/9/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 01/09/2019)

01/09/2019 36 NOTICE of Appearance by SAMANTHA RYAN on behalf of KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR with Certificate of Service(RYAN, SAMANTHA) (Entered: 01/09/2019)

01/14/2019 37 RESPONSE in Opposition re 23 MOTION to Dismiss Plaintiff's Complaint filed by THERESA VICTORY. (Attachments: # 1 Certificate of Service, # 2 Exhibit)(FELDMAN, MATTHEW) (Entered: 01/14/2019)

01/15/2019 38 FINDINGS OF FACTS AND CONCLUSIONS OF LAW. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/15/19. 1/16/19 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E−MAILED. (jpd) (Entered: 01/16/2019)

01/15/2019 39 ORDERED THAT PLAITNIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOC. NO. 9) IS GRANTED AS OUTLINED HEREIN SIGNED BY HONORABLE MARK A. KEARNEY ON 1/15/19. 1/16/19 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E−MAILED.(jpd ) (Main Document 39 replaced on 1/16/2019) (jpd, ). (Entered: 01/16/2019)

01/15/2019 40 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Motion Hearing held on 1/10/19 re 9 MOTION for Preliminary Injunction filed by THERESA VICTORY (jpd, ) (Entered: 01/16/2019)

01/16/2019 41 MOTION for Reconsideration filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Certificate of Service.(CONNELL, MATTHEW) (Entered: 01/16/2019)

01/16/2019 42 Memorandum in Support re 41 MOTION for Reconsideration by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit) (CONNELL, MATTHEW) (Attachment 6 replaced on 1/17/2019) (jpd, ). (Entered: 01/16/2019)

01/16/2019 43 MOTION to Seal Document filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Certificate of Service. (Attachments: # 1 Brief)(CONNELL, MATTHEW) (Entered: 01/16/2019)

01/16/2019 44 MOTION to Stay filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Certificate of Service. (Attachments: # 1 Brief)(CONNELL, MATTHEW) (Entered: 01/16/2019)

01/16/2019

The sum of $ $100.00 deposited into the Registry of the Court. (jpd, ) (Entered: 01/17/2019)

01/17/2019 45 RESPONSE to Motion re 43 MOTION to Seal Document filed by THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 01/17/2019)

01/17/2019 46 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Telephone Conference held on 1/17/2019 (amas) (Entered: 01/17/2019)

01/17/2019 47 AMENDED COMPLAINT against KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, JOHN DOE CORRECTIONAL SERGEANT, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR, filed by THERESA VICTORY, AMARA SANDERS, SAMANTHA HUNTINGTON, Jury Demand, Certificate of Service.(fdc) (Entered: 01/18/2019)

01/17/2019 48 ORDERED THAT DEFENDANTS MOTION TO STAY (DOC. NO. 44) IS GRANTED IN PART AND WE STAY THE OBLIGATIONS OF PARAGRAPH ONE(1) OF OUR 1/15/19 ORDER UNTIL FURTHER ORDER OF THE COURT. DEFENDANTS MOTION TO FILE A VIDEOTAPE UNDER SEAL (DOC. NO. 43) IS DENIED WITHOUT PREJUDICE TO BE

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RENEWED FOLLOWING CONFERRING WITH PLAINTIFF'S, ETC. WE WILL HEAR ARGUMENT AND TESTIMONY ON DEFENDANTS MOTION FOR RECONSIDERATION ON 1/23/19 AT 10:00 A.M.. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/17/19.1/18/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 01/18/2019)

01/17/2019

Set/Reset Deadlines as to 41 MOTION for Reconsideration . MOTION HEARING SET FOR 1/23/2019 10:00 AM IN COURTROOM BEFORE HONORABLE MARK A. KEARNEY. (jpd, ) (Entered: 01/18/2019)

01/18/2019 49 MOTION to Certify Class filed by SAMANTHA HUNTINGTON, AMARA SANDERS, THERESA VICTORY.Certificate of Service.(FELDMAN, MATTHEW) (Entered: 01/18/2019)

01/18/2019 50 Memorandum in Support re 49 MOTION to Certify Class filed by SAMANTHA HUNTINGTON, AMARA SANDERS, THERESA VICTORY. (Attachments: # 1 Exhibit)(FELDMAN, MATTHEW) (Entered: 01/18/2019)

01/18/2019 51 ORDER THAT DEFENDANTS' 23 MOTION TO DISMISS IS DENIED AS MOOT. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/18/19.1/18/19 ENTERED & E−MAILED.(fdc) (Entered: 01/18/2019)

01/18/2019 52 ORDER THAT PLAINTIFFS' RENEWED 49 MOTION FOR CLASS CERTIFICATION IS DENIED WITHOUT PREJUDICE TO BE RENEWED UNDER A SCHEDULING ORDER AFTER WE DEFINE THE ISSUES NECESSARY TO BE RESOLVED ON EITHER AN INDIVIDUAL OR CLASS BASIS BUT NOTHING IN THIS ORDER AFFECTS PLAINTIFFS' ABILITIES OR STANDING TO SEEK INJUNCTIVE OR DECLARATORY RELIEF AS TO THEIR STATUS. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/18/19.1/18/19 ENTERED & E−MAILED.(fdc) (Entered: 01/18/2019)

01/18/2019 53 MOTION for Preliminary Injunction filed by SAMANTHA HUNTINGTON, AMARA SANDERS.Certificate of Service.(FELDMAN, MATTHEW) (Entered: 01/18/2019)

01/18/2019 54 Memorandum in Support re 53 MOTION for Preliminary Injunction filed by SAMANTHA HUNTINGTON, AMARA SANDERS. (FELDMAN, MATTHEW) (Entered: 01/18/2019)

01/18/2019 55 ORDER THAT THE PARTIES MAY IMMEDIATELY COMMENCE WRITTEN INJUNCTION DISCOVERY WITH ALL WRITTEN DISCOVERY REQUESTS ANSWERED WITHIN FOUR DAYS OF ELECTRONIC SERVICE, ETC. DEFENDANTS SHALL ANSWER THE MOTION FOR A PRELIMINARY INJUNCTION NO LATER THAN FEBRUARY 4, 2019. MINDFUL WE EVALUATED EXTENSIVE EVIDENCE ON JANUARY 10, 2019, WE WILL HEAR PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION ON FEBRUARY 11, 2019 AT 9:30 A.M. EACH PARTY SHALL FILE A PRE−HEARING MEMORANDUM ON OR BEFORE FEBRUARY 5, 2019 NOT EXCEEDING 10 PAGES IDENTIFYING THE THEMES OF THEIR INJUNCTION PRESENTATION, PROPOSED WITNESS LIST WITH OFFERS OF PROOF, ADMISSIONS FROM THE JANUARY 10, 2019 HEARING AND DOCUMENTS THEY WISH TO INTRODUCE AT THE HEARING AND THE PARTIES MAY FILE MOTIONS IN LIMINE NO LATER THAN 6:00 PM EST ON FEBRUARY 7, 2019. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/18/19. 1/18/19 ENTERED AND COPIES E−MAILED.(td, ) Modified on 1/23/2019 (lvj, ). (Entered: 01/18/2019)

01/18/2019

Set/Reset Deadlines as to 53 MOTION for Preliminary Injunction .MOTION IN LIMINE DUE BY 2/7/2019. RESPONSES DUE BY 2/4/2019. MOTION HEARING SET FOR 2/11/2019 09:30 AM IN COURTROOM BEFORE HONORABLE MARK A. KEARNEY. (td, ) (Entered: 01/22/2019)

01/22/2019 56 RESPONSE in Opposition re 41 MOTION for Reconsideration filed by THERESA VICTORY. (Attachments: # 1 Exhibit)(FELDMAN, MATTHEW) (Entered: 01/22/2019)

01/22/2019 57 ORDER THAT THE WARDEN FOR BERKS COUNTY JAIL PRODUCE BEFORE THIS COURT THE BODY OF THERESA VICTORY, 2016−6253 ON MONDAY, 2/11/19 AT 9:30 A.M. BEFORE THE HONORABLE MARK A. KEARNEY TO APPEAR FOR AN INJUNCTION HEARING IN THE ABOVE−CAPTIONED MATTER IN THE U.S. DIST. COURT, 601 MARKET ST., PHILA., PA IN COURTROOM 6B, 6TH FLOOR, AND IMMEDIATELY UPON TERMINATION OF THE HEARING, SHE BE DELIVERED INTO THE CUSTODY OF THE WARDEN OF BERKS COUNTY JAIL.. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/22/19. 1/22/19 ENTERED AND COPIES E−MAILED TO COUNSEL.(pr, ) (Entered: 01/22/2019)

01/22/2019 58 ORDER THAT THE WARDEN FOR BERKS COUNTY JAIL PRODUCE BEFORE THIS COURT THE BODY OF AMARA SANDERS, 2017−6293 ON MONDAY, 2/11/19 AT 9:30 A.M.

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BEFORE THE HONORABLE MARK A. KEARNEY TO APPEAR FOR AN INJUNCTION HEARING IN THE ABOVE−CAPTIONED MATTER IN THE U.S. DIST. COURT, 601 MARKET ST., PHILA., PA IN COURTROOM 6B, 6TH FLOOR, AND IMMEDIATELY UPON TERMINATION OF THE HEARING, SHE BE DELIVERED INTO THE CUSTODY OF THE WARDEN OF BERKS COUNTY JAIL.. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/22/19. 1/22/19 ENTERED AND COPIES E−MAILED TO COUNSEL.(pr, ) (Entered: 01/22/2019)
01/22/2019 59 ORDER THAT THE WARDEN FOR BERKS COUNTY JAIL PRODUCE BEFORE THIS COURT THE BODY OF SAMANTHA HUNTINGTON, 2017−5744 ON MONDAY, 2/11/19 AT 9:30 A.M. BEFORE THE HONORABLE MARK A. KEARNEY TO APPEAR FOR AN INJUNCTION HEARING IN THE ABOVE−CAPTIONED MATTER IN THE U.S. DIST. COURT, 601 MARKET ST., PHILA., PA IN COURTROOM 6B, 6TH FLOOR, AND IMMEDIATELY UPON TERMINATION OF THE HEARING, SHE BE DELIVERED INTO THE CUSTODY OF THE WARDEN OF BERKS COUNTY JAIL.. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/22/19. 1/22/19 ENTERED AND COPIES E−MAILED TO COUNSEL.(pr, ) (Entered: 01/22/2019)
01/23/2019 60 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Motion Hearing held on 1/23/19 re (41) MOTION for RECONSIDERATION Court Reporter: SUZANNE WHITE. (jl, ) (Entered: 01/23/2019)
01/25/2019 61 ORDERED THAT DEFENDANTS MOTION FOR RECONSIDERATION (DOC. NO. 41) IS GRATNED IN PART AS OUTLINED HEREIN. ON OR BEFORE 1/28/19 6:00 P.M. EST BERKS COUNTY THROUGH WARDEN QUIGLEY SHALL COMPLY WITH THE OBLIGATIONS OF OUR 1/15/19 ORDER BY FILING A PLAN WITH THIS COURT DESCRIBING CONSTITUTIONAL PROTECTIONS DEFINED IN OUR 1/15/19 ORDER IT WILL PROVIDE MS. VICTORY AFTER HER DISCIPLINARY SEGREGRATION EXPIRES ON 1/29/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/25/19. 1/25/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 01/25/2019)
01/25/2019 62 AMENDED ORDER THAT DEFTS' MOTION FOR RELIEF (ECF NO. 41) IS GRANTED IN PART AND DENIED IN PART; DEFTS' MOTION FOR RELIEF IS GRANTED TO CORRECT OUR INACCURATE FINDING OF THE PUBLICATION DATAE OF THE NEWSPAPER ARTICLE CONCERNING PLFF'S LAWSUIT IN THE READING EAGLE; ON OR BEFORE 6:00 PM EST ON 1/28/19, BERKS COUNTY, THORUGH WARDEN QUIGLEY, SHALL COMPLY WITH THE OBLIGATIONS OF OUR 1/15/19 ORDER; DEFTS' MOTION FOR RELIEF (ECF DOC. NO. 41) IS OTHERWISE DENIED.. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/25/19. 1/25/19 ENTERED AND COPIES E−MAILED TO COUNSEL. (Entered: 01/25/2019)
01/28/2019 63 MOTION for Relief Under 60B filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 01/28/2019)
01/28/2019 64 AFFIDAVIT in Support re 62 Order,, by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (CONNELL, MATTHEW) (Entered: 01/28/2019)
01/29/2019 65 MOTION for Leave to File Excess Pages filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Certificate of Service.(CONNELL, MATTHEW) (Entered: 01/29/2019)
01/29/2019 66 ORDERED THAT DEFENDANTS MOTION FOR LEAVE (DOC. NO.65) IS GRANTED IN PART AND THE DEFENDANTS MEMORANDUM IN SUPPORT OF A MOTION TO DISMISS MAY NOT EXCEED TWENTY−FIVE(25) PAGES WITH ANY TIMELY RESPONSE ALSO NOT TO EXCEED TWENTY−FIVE(25) PAGES. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/29/19. 1/30/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 01/30/2019)
01/31/2019 67 RESPONSE in Opposition re 63 MOTION for Relief Under 60B filed by THERESA VICTORY. (Attachments: # 1 Exhibit)(FELDMAN, MATTHEW) (Entered: 01/31/2019)

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01/31/2019 68 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Memorandum of Law in Support and Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum, # 3 Certificate of Service)(CONNELL, MATTHEW) (Entered: 01/31/2019)
02/04/2019 69 RESPONSE in Opposition re 53 MOTION for Preliminary Injunction and Brief in Support Thereof filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(CONNELL, MATTHEW) (Entered: 02/04/2019)
02/05/2019 70 PRETRIAL MEMORANDUM by SAMANTHA HUNTINGTON, AMARA SANDERS Pre−Hearing Memo; Certificate of Service. (FELDMAN, MATTHEW) (Entered: 02/05/2019)
02/05/2019 71 PRETRIAL MEMORANDUM by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR Certificate of Service. (CONNELL, MATTHEW) (Entered: 02/05/2019)
02/06/2019 72 NOTICE OF APPEAL as to 61 Order on Motion for Reconsideration,, 39 Order (Memorandum and/or Opinion), by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. Copies to Judge, Clerk USCA, Appeals Clerk . (CONNELL, MATTHEW) Modified on 2/7/2019 (nd, ). (Entered: 02/06/2019)
02/06/2019 73 AMENDED DOCUMENT by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. Amendment to 72 Notice of Appeal, 61 Order on Motion for Reconsideration,, 39 Order (Memorandum and/or Opinion), . (CONNELL, MATTHEW) (RE−FILED USING CORRECT EVENT) Modified on 2/7/2019 (nd, ). (Entered: 02/06/2019)
02/06/2019 74 REPLY to Response to Motion re 53 MOTION for Preliminary Injunction filed by SAMANTHA HUNTINGTON, AMARA SANDERS. (Attachments: # 1 Exhibit, # 2 Exhibit)(FELDMAN, MATTHEW) (Entered: 02/06/2019)
02/06/2019 75 AMENDED NOTICE OF APPEAL by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. Copies to Judge, Clerk USCA, Appeals Clerk. (RE−FILED DOCUMENT 73 USING THE CORRECT EVENT)(nd, ) (Entered: 02/07/2019)
02/07/2019 76 MOTION in Limine to Preclude Evidence filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Memorandum, Certificate of Service.(CONNELL, MATTHEW) (Entered: 02/07/2019)
02/07/2019 77 MOTION in Limine filed by SAMANTHA HUNTINGTON, AMARA SANDERS.Certificate of Service. (Attachments: # 1 Memorandum)(FELDMAN, MATTHEW) (Entered: 02/07/2019)
02/08/2019 78 NOTICE of Docketing Record on Appeal from USCA re 75 Notice of Appeal, filed by REICHART, KEVIN S. BARNHARDT, STEPHANIE SMITH, WEBER, BERKS COUNTY, CHRISTIAN Y. LEINBACH, ZERR, CASTRO, JOANNA BROWN, BROWN, JANINE L. QUIGLEY, BAUER, DROZACK, MARK C. SCOTT, SPOTTS. USCA Case Number 19−1329 (dmc, ) (Entered: 02/08/2019)
02/08/2019 79 MOTION to Stay re 53 MOTION for Preliminary Injunction , 55 Order,,, filed by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.Memorandum, Certificate of Service.(CONNELL, MATTHEW) (Entered: 02/08/2019)
02/08/2019 80 Exhibit List Supplemental by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY,

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REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR.. Certificate of Service (CONNELL, MATTHEW) (Entered: 02/08/2019)

02/08/2019 81 RESPONSE in Opposition re 76 MOTION in Limine to Preclude Evidence filed by SAMANTHA HUNTINGTON, AMARA SANDERS. (DAVY, JAMES) (Entered: 02/08/2019)

02/08/2019 84 ORDERED THAT BERKS COUNTY DEFENDANTS MOTION TO STAY (DOC. NO. 79) IS DENIED. SIGNED BY HONORABLE MARK A. KEARNEY ON 2/8/19. 2/11/19 ENTERED AND COPIES MAILED AND E−MAILED.(jpd, ) (Entered: 02/11/2019)

02/08/2019 85 ORDER of USCA as to 72 Notice of Appeal, filed by REICHART, KEVIN S. BARNHARDT, STEPHANIE SMITH, WEBER, BERKS COUNTY, CHRISTIAN Y. LEINBACH, ZERR, CASTRO, JOANNA BROWN, BROWN, JANINE L. QUIGLEY, BAUER, DROZACK, MARK C. SCOTT, SPOTTS, 75 Notice of Appeal, filed by REICHART, KEVIN S. BARNHARDT, STEPHANIE SMITH, WEBER, BERKS COUNTY, CHRISTIAN Y. LEINBACH, ZERR, CASTRO, JOANNA BROWN, JANINE L. QUIGLEY, BROWN, BAUER, DROZACK, MARK C. SCOTT, SPOTTS. Re: Order that the above−entitled appeal(s) is (are) stayed pending disposition of the motion. The parties are directed to file written reports addressing the status of the pending motion on 3/11/19 and every thirty (30) days thereafter until the last motion is decided. The stay will automatically expire upon entry of the order disposing of the last post−decision motion. (fdc) (Entered: 02/11/2019)

02/11/2019 82 ORDERED THAT THE PLAINTIFF'S MOTION IN LIMINE (DOC. NO. 77) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 2/11/19. 2/11/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 02/11/2019)

02/11/2019 83 ORDERED THAT DEFENDANTS MOTION IN LIMINE (DOC. NO. 76) IS DENIED WITHOUT PREJUDICE TO MOVE TO PRECLUDE INQUIRY INTO AREAS UNRELATED TO MS. HUNTINGDON'S AND MS. SANDER'S REQUEST FOR INJUNCTIVE RELIEF. SIGNED BY HONORABLE MARK A. KEARNEY ON 2/11/19.2/11/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Main Document 83 replaced on 2/15/2019) (jpd, ). (Entered: 02/11/2019)

02/11/2019 86 CERTIFIED COPY OF ORDER FROM USCA #19−1329 THAT THE ABOVE ENTITLED APPEAL IS STAYED PENDING DISPOSITION OF THE MOTION PENDING IN THE DISTRICT COURT. THE PARTIES ARE DIRECTED TO FILE WRITTEN REPORTS ADDRESSING THE STATUS OF THE PENDING MOTION ON 3/11/19 AND EVERY THIRTY (30) DAYS THEREAFTER UNITL THE LAST MOTION IS DECIDED. THE STAY WILL AUTOMATICALLY EXPIRE UPON THE ENTRY OF THE ORDER DISPOSING OF THE LAST POST DECISION MOTION. (jpd, ) (Entered: 02/11/2019)

02/11/2019 87 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Motion Hearing held on 2/11/19 re 53 MOTION for Preliminary Injunction filed by SAMANTHA HUNTINGTON, AMARA SANDERS Court Reporter: SUZANNE WHITE. (jpd, ) (Entered: 02/12/2019)

02/12/2019

USCA Appeal Fees received $ 505 receipt number 192361 re 75 Notice of Appeal, filed by REICHART, KEVIN S. BARNHARDT, STEPHANIE SMITH, WEBER, BERKS COUNTY, CHRISTIAN Y. LEINBACH, ZERR, CASTRO, JOANNA BROWN, BROWN, JANINE L. QUIGLEY, BAUER, DROZACK, MARK C. SCOTT, SPOTTS (fdc, ) (Entered: 02/12/2019)

02/13/2019 88 Transcript of Preliminary Injunction Hearing held on 1/10/19, before Judge Kearney. Court Reporter/Transcriber Suzanne R. White, CM. (fdc) (Entered: 02/13/2019)

02/14/2019 89 RESPONSE in Opposition re 68 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by SAMANTHA HUNTINGTON, AMARA SANDERS, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service, # 3 Exhibit)(FELDMAN, MATTHEW) (Entered: 02/14/2019)

02/15/2019 90 MOTION to Withdraw as Attorney filed by SAMANTHA HUNTINGTON, AMARA SANDERS, THERESA VICTORY..(DAVY, JAMES) (Entered: 02/15/2019)

02/15/2019 91 ORDERED THAT PLAINTIFF'S MOTION TO WITHDRAW AS ATTORNEY IS (DOC. NO. 90)GRANTED AND ATTORNEY JAMES P. DAVY, ESQ., IS WITHDRAWN AS CONSEL. SIGNED BY HONORABLE MARK A. KEARNEY ON 2/15/19. 2/15/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 02/15/2019)

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02/15/2019 92 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 02/15/2019;. 02/15/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 02/15/2019)
02/15/2019 93 ORDER THAT PLAINTIFF SAMANTHA HUNTINGTON'S AND AMARA SANDERS' MOTION FOR A PRELIMINARY INJUNCTION (ECF DOC. NO. 53 ) IS DENIED. SIGNED BY HONORABLE MARK A. KEARNEY ON 02/15/2019;. 02/15/2019 ENTERED AND COPIES E−MAILED.(nd) (Entered: 02/15/2019)
02/15/2019 94 ORDER THAT THE DEFENDANTS' MOTION (ECF DOC. NO. 63 ) IS GRANTED; WE DISSOLVE THE JANUARY 15, 2019 MANDATORY INJUNCTION (ECF DOC. NO. 39 ), AS MODIFIED ON JANUARY 25, 2019 (ECF DOC. NO. 62 ) UPON THE DEFENDANTS AS IT RELATES TO THERESA VICTORY; THE CLERK OF COURT SHALL RETURN THE JANUARY 16, 2019 INJUNCTION BOND TO PLAINTIFF'S COUNSEL OF RECORD UPON THEIR APPEARNACE IN THE CLERK'S OFFICE ON OR AFTER FEBRUARY 19, 2019, ETC.. SIGNED BY HONORABLE MARK A. KEARNEY ON 02/15/2019;. 02/15/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 02/15/2019)
02/20/2019 95 SCHEDULING ORDER THAT A PRETRIAL CONFERENCE IS SET FOR 3/12/2019 AT 9:30 A.M. IN COURTROOM 6−B BEFORE HONORABLE MARK A. KEARNEY. SIGNED BY HONORABLE MARK A. KEARNEY ON 2/19/19. 2/21/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 02/21/2019)
02/21/2019 96 Transcript Purchase Order by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (CONNELL, MATTHEW) (Entered: 02/21/2019)
02/21/2019 97 Transcript Purchase Order by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (CONNELL, MATTHEW) (Entered: 02/21/2019)
02/21/2019 98 Transcript Purchase Order by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR. (CONNELL, MATTHEW) (Entered: 02/21/2019)
03/04/2019 99 ORDERED THAT WE WILL HEAR EVIDENCE RELATING TO MS. VICTORY'S EXHAUSTION OF RETALIATION CLAIM AND MS. HUNTINGDON'S AND MS. SANDERS' EXHAUTION OF THEIR EQUAL PROTECTION CLAIM AT THE PRETRIAL CONFERENCE SET FOR 3/22/2019 10:00 A.M. IN COURTROOM 6−B BEFORE HONORABLE MARK A. KEARNEY. WE AMEND OUR 2/19/19 ORDER TO RESCHEDULE ONLY THE INITIAL PRETIAL CONFERENCE TO 3/22/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 3/4/19. 3/5/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 03/05/2019)
03/07/2019 100 Transcript of Hearing held on 1/23/19, before Judge Kearney. Court Reporter/Transcriber Suzanne R. White, CM. (fdc) (Entered: 03/07/2019)
03/07/2019 101 Transcript of Preliminary Injunction Hearing held on 2/11/19, before Judge Kearney. Court Reporter/Transcriber Suzanne R. White, CM. (fdc) (Entered: 03/07/2019)
03/08/2019 102 Report Of Rule 26(f) Meeting by SAMANTHA HUNTINGTON, AMARA SANDERS, THERESA VICTORY. (Attachments: # 1 Appendix Stipulation of Undisputed Facts)(FELDMAN, MATTHEW) (Entered: 03/08/2019)
03/20/2019 103 PRETRIAL MEMORANDUM by KEVIN S. BARNHARDT, BAUER, BERKS COUNTY, BROWN, JOANNA BROWN, CASTRO, DROZACK, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, WEBER, ZERR Certificate of Service. (CONNELL, MATTHEW) (Entered: 03/20/2019)
03/20/2019 104 PRETRIAL MEMORANDUM by SAMANTHA HUNTINGTON, AMARA SANDERS, THERESA VICTORY Pre−Hearing Memo; Certificate of Service. (FELDMAN, MATTHEW) (Entered: 03/20/2019)
03/22/2019 105 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY. Rule 16 and Motion Hearing held on 3/22/19. Court Reporter: ESR. (fdc) (Entered: 03/22/2019)

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03/22/2019 106

SCHEDULING ORDER: THIS MATTER IS REFERRED TO MAGISTRATE JUDGE HEFFLEY FOR ALL SETTLEMENT PURPOSES. FINAL PRETRIAL CONFERENCE SET FOR 11/5/2019 08:45 AM BEFORE HONORABLE MARK A. KEARNEY. DISCOVERY DUE BY 8/23/2019. MOTIONS DUE BY 4/22/2019. MOTION IN LIMINE DUE BY 10/21/2019. MOTION FOR SUMMARY JUDGMENT DUE BY 5/24/2019. PLAINTIFF PRETRIAL MEMO DUE BY 10/18/2019. DEFENDANT PRETRIAL MEMO DUE BY 10/18/2019. TRIAL DATE SET FOR 11/12/2019 09:00 AM IN COURTROOM 6B BEFORE HONORABLE MARK A. KEARNEY. ETC.. SIGNED BY HONORABLE MARK A. KEARNEY ON 3/22/2019. 3/25/2019 ENTERED AND COPIES E−MAILED.(sg, ) (Entered: 03/25/2019)

03/25/2019 107 CONFERENCE ORDER THAT A SETTLEMENT CONFERENCE IN THE ABOVE CAPTIONED WILL BE HELD ON 8/13/19 AT 9:30 A.M.; ETC.. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 3/25/19. 3/25/19 ENTERED AND E−MAILED.(jl, ) (Entered: 03/25/2019)

04/05/2019 108 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/5/19. 4/5/19 ENTERED AND COPIES E−MAILED. (jpd,) (Entered: 04/05/2019)

04/05/2019 109

ORDER THAT THE DEFENDANT'S MOTION TO DISMISS (DOC. NO. 68) IS GRANTED IN PART AND DENIED IN PART AS OULTINED IN HEREIN. DEFENDANTS MOTION TO DISMISS (DOC. NO.68) IS GRANTED AS TO ALL CLAIMS INCLUDING DISMISSING SAMANTHA HUNTINGTON AND AMARA SANDERS FOR FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES; AND DEFENDANTS BERKS COUNTY, COMMISSIONERS BARNHARDT, LEINBACH AND SCOTT AND WARDEN QUIGLEY, DEPUTY WARDEN SMITH, SERGEANT SPOTTS AND OFFICERS REICHART, ZERR AND BROWN SHALL ALL ANSWER THE COMPLAINT AS TO THE REMAINING CLAIMS NO LATER THAN 4/19/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/5/19. 4/5/19 ENTERED AND COPIES MAILED AND E−MAILED.(jpd, ) (Entered: 04/05/2019)

04/08/2019 110 Transcript of Motion Hearing held on 3/22/19, before Judge Kearney. Court Reporter/Transcriber Hunt Reporting Company. (fdc) (Entered: 04/08/2019)

04/18/2019 111 STIPULATION regarding Second Amended Complaint by THERESA VICTORY. (Attachments: # 1 Exhibit, # 2 Exhibit)(FELDMAN, MATTHEW) Modified on 4/23/2019 (lvj, ). (FILED IN ERROR BY ATTORNEY; FORWARD TO JUDGE FOR APPROVAL) (Entered: 04/18/2019)

04/18/2019 112

ORDERED THAT PLAINTIFFS MAY FILE A SECOND AMENDED COMPLAINT NO LATER THAN 4/22/2019 AND NOTHING IN THIS ORDER AFFECTS THE PARTIES ONGOING OBLIGATIONS UNDER OUR 3/22/19 ORDER. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/18/19. 4/19/19 ENTERED AND COPIES E−MAILED(jpd, ) (Entered: 04/19/2019)

04/19/2019 113 ANSWER to 47 Amended Complaint, with Affirmative Defenses by KEVIN S. BARNHARDT, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR.(CONNELL, MATTHEW) (Entered: 04/19/2019)

04/22/2019 114

SECOND AMENDED COMPLAINT WITH CERTIFICATE OF SERVICE against KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR, filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY, ANABELL DEALBA.(amas) (Entered: 04/22/2019)

04/24/2019 115 MOTION for Preliminary Injunction filed by ANABELL DEALBA, ALICE VELAZQUEZ−DIAZ.Certificate of Service.(FELDMAN, MATTHEW) (Entered: 04/24/2019)

04/24/2019 116 Memorandum in Support re 115 MOTION for Preliminary Injunction filed by ANABELL DEALBA, ALICE VELAZQUEZ−DIAZ. (FELDMAN, MATTHEW) (Entered: 04/24/2019)

04/24/2019 117

ORDERED THAT ALL PARTIES SHALL FULLY PRESERVE ALL ELECTRONICALLY STORED INNFORMATION; THE PARTIES SHALL IMMEDIATELY COMMENCE WRITTEN DISCOVERY; DEFENDANTS MAY DEPOSE PLAINITFFS VELAZQUEZ−DIAZ AND DEALBA FOR NO MORE THAN FIVE (5) HOURS UPON FIVE (5) DAYS NOTICE REGARDING ISSUES IN THEIR MOTION; MOTION IN LIMINE DUE BY 5/14/2019., RESPONSES DUE BY 5/7/2019., A MOTION HEARING IS SET FOR 5/15/2019 AT 10:00 AM IN COURTROOM 6−B BEFORE HONORABLE MARK A. KEARNEY, MOTION IN LIMINE DUE BY 5/14/2019., PLAINTIFF PRETRIAL MEMO DUE BY 5/13/2019., DEFENDANT PRETRIAL MEMO DUE BY 5/13/2019. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/24/19. 4/25/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 04/25/2019)

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04/25/2019 118

ORDERED THAT THE WARDEN OF BERKS COUNTY JAIL SHALL PRODUCE BEFORE THSI COURT THE BODY OF ALICE VELAZQUEZ−DIAZ 20176164 ON 5/15/19 AT 10:00 A.M. TO APPEAR FOR A MOTION HEARING BEFORE THE UNDERSIGNED. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/25/19. 4/26/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 04/26/2019)

04/30/2019 119 NOTICE of Hearing on Motion 115 MOTION for Preliminary Injunction : MOTION HEARING SET FOR 5/15/2019 10:00 AM IN COURTROOM 6B, 6th Floor BEFORE HONORABLE MARK A. KEARNEY.(fdc) (Entered: 04/30/2019)

05/06/2019 120 ANSWER to 114 Amended Complaint, with Affirmative Defenses by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR.(CONNELL, MATTHEW) (Entered: 05/06/2019)

05/06/2019 121 Proposed Pretrial Order Stipulation and Order for Confidentiality by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 05/06/2019)

05/06/2019 122 ORDERED THAT THE REQUEST FOR COURT APPROVAL OF A PRIVATE STIPULATION OF CONFIDENTIALITY UNILATERALLY DEFINING TERMS GOVERNING PUBLIC ACCESS IS DENIEDSIGNED BY HONORABLE MARK A. KEARNEY ON 5/6/19. 5/7/19 ENTERED AND COPIES E−MAILED. (jpd,) (Entered: 05/07/2019)

05/07/2019 123 RESPONSE in Opposition re 115 MOTION for Preliminary Injunction filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 05/07/2019)

05/08/2019 124 MOTION to Compel Independent Medical Exam filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR.Certificate of Service.(CONNELL, MATTHEW) (Entered: 05/08/2019)

05/09/2019 125 STIPULATION of Dismissal by ANABELL DEALBA. (FELDMAN, MATTHEW) (Entered: 05/09/2019)

05/09/2019 126

ORDERED THAT THE STIPULATION (DOC. NO. 125) IS APPROVED AND ANABELL DEALBA'S CLAIMS IN THE SECOND AMENDED COMPLAINT (DOC. NO. 114) ARE DISMISSED WITH PREJUDICE UNDER AGREEMENT OF COUNSEL AND FRCP 41(a)(1)(A)(ii). SIGNED BY HONORABLE MARK A. KEARNEY ON 5/9/19. 5/9/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 05/09/2019)

05/09/2019 127 ORDERED THAT DEFENDANTS' MOTION TO COMPEL (DOC. NO. 124) IS DENIED WITHOUT PREJUDICE. SIGNED BY HONORABLE MARK A. KEARNEY ON 5/9/19. 5/10/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 05/10/2019)

05/13/2019 128 PRETRIAL MEMORANDUM by ALICE VELAZQUEZ−DIAZ Pre−Hearing Memo; Certificate of Service. (FELDMAN, MATTHEW) (Entered: 05/13/2019)

05/13/2019 129 Preliminary Injunction Memorandum by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR Certificate of Service. (Attachments: # 1 Exhibit A)(CONNELL, MATTHEW) Modified on 5/15/2019 (tjd). (Entered: 05/13/2019)

05/14/2019 130 REPLY to Response to Motion re 115 MOTION for Preliminary Injunction filed by ALICE VELAZQUEZ−DIAZ. (FELDMAN, MATTHEW) (Entered: 05/14/2019)

05/15/2019 131 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Motion Hearing held on 5/15/19 re 115 MOTION for Preliminary Injunction filed by ALICE VELAZQUEZ−DIAZ, ANABELL DEALBA (jpd, ) (Entered: 05/16/2019)

05/17/2019 132 Joint MOTION for Extension of Time to File Motions for Summary Judgment and Class Certification filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service.(FELDMAN, MATTHEW) (Entered: 05/17/2019)

05/17/2019

Set/Reset Scheduling Order Deadlines: MOTIONS DUE BY 6/3/2019. MOTION FOR SUMMARY JUDGMENT DUE BY 6/3/2019. (jpd, ) (Entered: 05/20/2019)

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05/20/2019 133

ORDERED THAT THE JOINT MOTION FOR EXTENSION OF TIME TO FILE (DOC. NO. 132) IS GRANTED AND WE AMEND OUR 3/22/19 ORDER SOLEY TO ALLOW MOTIONS FOR SUMMARY JUDGMENT ON THE NAMED PLAINTIFF'S CLAIMS AND MOTIONS FOR CLASS CERTIFICATION TO BE FILED NO LATER THAN 6/3/19 WITH RESPONSES NO LATER THAN 6/17/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 5/17/19.5/20/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 05/20/2019)

05/20/2019 134 FINDINGS OF FACT AND CONCLUSIONS OF LAW. SIGNED BY HONORABLE MARK A. KEARNEY ON 5/20/19. 5/21/19 ENTERED AND COPIES E−MAILED.(jpd ) (Entered: 05/21/2019)

05/20/2019 135

ORDERED THAT MS. VELAZQUEZ−DIAZ'S MOTION FOR PRELIMINARY INJUNCTION (DOC.NO. 115) IS GRANTED; ON OR BEFORE 5/28/19 THE BERKS COUNTY JAIL SHALL FILE A PROPOSED PLAN TO ENSURE COMPLAINCE WITH THE ACCOMPANYING MEMORANDUM. MS. VALEZQUEZ−DIAZ MAY RESPOND TO THE DEFENDANT'S PROPOSED PLAN NO LATER THAN 5/29/19 AND THE PRELIMINARY INJUNCTION IS EFFECTIVE UPON VELAZQUEZ−DIAZ POSTING A $100.00 BOND WITH THE CLERK OF THIS COURT. SIGNED BY HONORABLE MARK A. KEARNEY ON 5/20/19. 5/21/19 ENTERED AND COPIES E−MAILED.(jpd ) (Entered: 05/21/2019)

05/22/2019 136 ORDERED THAT WE AMEND PARAGRAPH FOUR (4)OF OUR 3/22/19 ORDER (DOC. NO.106) AS OUTLINED HEREIN.. SIGNED BY HONORABLE MARK A. KEARNEY ON 5/22/19. 5/22/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 05/22/2019)

05/23/2019 137 NOTICE OF APPEAL as to 135 Order,, by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. Filing fee $ 505. Copies to Judge, Clerk USCA, Appeals Clerk. (CONNELL, MATTHEW) Modified on 5/30/2019 (lvj, ). (Entered: 05/23/2019)

05/24/2019 138 NOTICE of Docketing Record on Appeal from USCA re 137 Notice of Appeal, filed by REICHART, KEVIN S. BARNHARDT, STEPHANIE SMITH, BERKS COUNTY, CHRISTIAN Y. LEINBACH, ZERR, BROWN, JANINE L. QUIGLEY, MARK C. SCOTT, SPOTTS. USCA Case Number 19−2193 (ke, ) (Entered: 05/24/2019)

05/24/2019 139 MOTION to Stay re 134 Findings of Fact & Conclusions of Law, 136 Order, 135 Order,, filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR.Memorandum, Certificate of Service.(CONNELL, MATTHEW) (Entered: 05/24/2019)

05/28/2019 140

ORDERED THAT DEFENDANTS MOTION FOR A SEVEN (7) DAY EXTENSION (DOC. NO. 139) IS GRANTED AND DEFENDANTS SHALL COMPLY WITH THE OBLIGATIONS OF OUR 5/20/19 ORDER (DOC. NO. 135) REGARDING FILING A PROPOSED PLAN TO COMPLY WITH OUR 5/20/19(DOC. NO. 135) NO LATER THAN 6/4/19 AND UPON CONFIRMING THE PLAINTIFFS NEVER RETRIEVED THE BOND THEY POSTED ON 1/16/19 UNDER OUR 1/15/19 ORDER (DOC. NO. 39) AND WITH PLAINTIFF'S CONSENT WE ACCEPT AND APPLY THE 1/16/19 BOND AS COMPLIANT WITH PARAGRAPH 3 OF OUR 5/20/19 ORDER (DOC. NO. 135) IGNED BY HONORABLE MARK A. KEARNEY ON 5/28/19.5/29/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 05/29/2019)

05/29/2019 141 MOTION to Stay Proceedings Pending Outstanding Appeals filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR.Memorandum, Certificate of Service.(CONNELL, MATTHEW) (Entered: 05/29/2019)

05/30/2019 142 MOTION to Stay re 135 Order,, filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR.Brief, Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(CONNELL, MATTHEW) (Entered: 05/30/2019)

05/31/2019 143 RESPONSE in Opposition re 142 MOTION to Stay re 135 Order,, , 141 MOTION to Stay Proceedings Pending Outstanding Appeals filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 05/31/2019)

06/03/2019 144 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 06/03/2019. 06/03/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 06/03/2019)

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06/03/2019 145 ORDER THAT UPON CONSIDERING DEFENDANTS' MOTIONS TO STAY (ECF DOC. NO. 144 , 142 ), IT IS ORDERED THAT THE MOTIONS TO STAY ARE DENIED. SIGNED BY HONORABLE MARK A. KEARNEY ON 06/03/2019. 06/03/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 06/03/2019)

06/03/2019 146 MOTION for Summary Judgment filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR.Memorandum, Certificate of Service.(CONNELL, MATTHEW) (Entered: 06/03/2019)

06/03/2019 147 Statement of Undisputed Facts of Defendants in Support of Their Motion for Summary Judgment by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 06/03/2019)

06/03/2019 148

AFFIDAVIT re 146 MOTION for Summary Judgment , 147 Statement, Appendix by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6, # 7 Appendix 7, # 8 Appendix 8, # 9 Appendix 9, # 10 Appendix 10, # 11 Appendix 11, # 12 Appendix 12, # 13 Appendix 13, # 14 Appendix 14, # 15 Appendix 15, # 16 Appendix 16, # 17 Appendix 17, # 18 Appendix 18, # 19 Appendix 19, # 20 Appendix 20, # 21 Appendix 21, # 22 Appendix 22, # 23 Appendix 23, # 24 Appendix 24, # 25 Appendix 25, # 26 Appendix 26, # 27 Appendix 27, # 28 Appendix 28, # 29 Appendix 29, # 30 Appendix 30, # 31 Appendix 31, # 32 Appendix 32, # 33 Appendix 33, # 34 Appendix 34, # 35 Appendix 35, # 36 Appendix 36, # 37 Appendix 37, # 38 Appendix 38, # 39 Appendix 39, # 40 Appendix 40, # 41 Appendix 41, # 42 Appendix 42, # 43 Appendix 43, # 44 Appendix 44, # 45 Appendix 45, # 46 Appendix 46)(CONNELL, MATTHEW) (Entered: 06/03/2019)

06/03/2019 149 MOTION to Certify Class filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix)(FELDMAN, MATTHEW) (Additional attachment(s) added on 6/7/2019: # 7 Appendix) (fdc, ). (Entered: 06/03/2019)

06/04/2019 150 AFFIDAVIT re 135 Order,, by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 06/04/2019)

06/04/2019 151 MOTION for Leave to File Supplemental Appendix Material in Support of Their Motion for Class Certification filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Appendix)(FELDMAN, MATTHEW) (Entered: 06/04/2019)

06/05/2019 152 Statement Response to Affidavit of Warden Janine L. Quigley by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 06/05/2019)

06/05/2019 153 ORDERED THAT PLAINTIFF'S MOTION FOR LEAVE TO FILE (DOC. NO. 151) IS DENIED WITHOUT PREJUDICE TO BE RENEWED WITH THE PARTIES OBLIGATIONS UNDER OUR COURT OF APPEALS DIRECTION. SIGNED BY HONORABLE MARK A. KEARNEY ON 6/5/19. 6/6/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 06/06/2019)

06/06/2019 154 MOTION for Leave to File Supplemental Appendix Material in Support of Their Motion for Class Certification filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Appendix)(FELDMAN, MATTHEW) (Entered: 06/06/2019)

06/07/2019 155

ORDER THAT PLAINTIFF'S 154 MOTION FOR LEAVE TO FILE SUPPLEMENTAL APPENDIX PAGES 849−854 IS GRANTED. AND THE CLERK OF COURT SHALL DOCKET THE DOCUMENTS ATTACHED TO THIS ORDER (APP. 849−854) AS AN ATTACHMENT TO THE APPENDIX 149 ; AND, EACH PARTY SHALL FILE A MEMORANDUM NOT EXCEEDING SEVEN PAGES FILED ON OR BEFORE 6/13/19 AGREEING TO REMOVE THE REMAINING REDACTED PAGES IN THE FILED APPENDICES (ECF DOC. NOS. 148,149−3,4,5,6) OR TO SHOW CAUSE AS TO WHY WE SHOULD NOT LIFT THE UNILATERALLY PLACED REDACTIONS ON VICTORY APP. 846−847 AND BERKS A0010,11,47,48,53,54,77,90,91,93,941−45,952,954,958,959,960,967−69,971,972,974−76, 978,985,990−93,995−1000,1002,1004,1008,1018−21,1023−28,1030,1032,1034,1038−42,1051−80, PROVIDING THE SPECIFICS REQUIRED BY IN RE AVANDIA MKTG., SALES PRACTICES & PROD. LIAB. LITIG. SIGNED BY HONORABLE MARK A. KEARNEY ON 6/7/19.6/7/19

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ENTERED & E−MAILED.(fdc) (Entered: 06/07/2019)

06/07/2019 156 Copy of TPO Form re 137 Notice of Appeal, : (jpd, ) (Entered: 06/10/2019)

06/12/2019 157 MOTION for Contempt and to Enforce Order filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 06/12/2019)

06/13/2019 158 Memorandum of Law re 155 Order on Motion for Leave to File,,, by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 06/13/2019)

06/13/2019 159 Memorandum Regarding Redactions in Filed Appendices Pursuant to ECF Doc. No. 155 by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 06/13/2019)

06/14/2019 160 RESPONSE to Motion re 157 MOTION for Contempt and to Enforce Order filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 06/14/2019)

06/17/2019 161 ORDERED THAT THE PARTIES SHALL ON OR BEFORE 6/21/19 SILE NEW APPENDICES WITHOUT REDACTING AS OUTLINED HEREIN SIGNED BY HONORABLE MARK A. KEARNEY ON 6/17/19. 6/17/19 ENTERED AND COPIES E−MAILED.(jpd ) (Entered: 06/17/2019)

06/17/2019 162 RESPONSE in Opposition re 149 MOTION to Certify Class filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (Attachments: # 1 Appendix Table of Contents, # 2 Appendix)(CONNELL, MATTHEW) (Entered: 06/17/2019)

06/17/2019 163 RESPONSE in Opposition re 146 MOTION for Summary Judgment filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 06/17/2019)

06/17/2019 164 Statement of Material Facts −− Response and Counterstatement by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix)(FELDMAN, MATTHEW) (Entered: 06/17/2019)

06/17/2019 165 Transcript of Preliminary Injunction Hearing held on 5/15/19, before Judge Kearney. Court Reporter/Transcriber Shannan Gagliardi, RDR, CRR. (fdc) (Entered: 06/18/2019)

06/18/2019 166 AMENDED DOCUMENT by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. Amendment to 149 MOTION to Certify Class Appendix #6: App. 846−47, pursuant to Court's Order of June 17, 2019, Doc. No. 161 . (FELDMAN, MATTHEW) Modified 6/18/19 (fdc). (Entered: 06/18/2019)

06/20/2019 167

AMENDED DOCUMENT by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. Amendment to 161 Order . (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix, # 7 Appendix, # 8 Appendix, # 9 Appendix, # 10 Appendix, # 11 Appendix, # 12 Appendix, # 13 Appendix, # 14 Appendix, # 15 Appendix, # 16 Appendix, # 17 Appendix, # 18 Appendix, # 19 Appendix, # 20 Appendix, # 21 Appendix, # 22 Appendix, # 23 Appendix, # 24 Appendix, # 25 Appendix, # 26 Appendix, # 27 Appendix, # 28 Appendix, # 29 Appendix, # 30 Appendix, # 31 Appendix, # 32 Appendix, # 33 Appendix, # 34 Appendix, # 35 Appendix, # 36 Appendix, # 37 Appendix, # 38 Appendix, # 39 Appendix, # 40 Appendix, # 41 Appendix, # 42 Appendix, # 43 Appendix, # 44 Appendix, # 45 Appendix, # 46 Appendix)(CONNELL, MATTHEW) (Entered: 06/20/2019)

06/20/2019 168

ORDER THAT WE WILL HEAR PLAINTIFFS THERESA VICTORY'S AND ALICE VELAZQUEZ−DIAZ'S MOTION TO ENFORCE ORDER AND FOR CONTEMPT (ECF DOC. NO. 157 ) ON TUESDAY 7/2/2019 11:00 AM IN COURTROOM 6B; EACH PARTY SHALL FILE A PRE−HEARING MEMORANDUM ON OR BEFORE JUNE 28, 2019 NOT EXCEEDING FIVE (5) PAGES WITH AN EXHIBIT LIST AND WITNESS LIST WITH OFFER OF PROOF FOR EACH PROPOSED WITNESS. SIGNED BY HONORABLE MARK A. KEARNEY ON 06/20/2019. 06/20/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 06/20/2019)

06/21/2019 169 MOTION for Writ of Habeas Corpus ad testificandum filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed

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Order)(FELDMAN, MATTHEW) (Entered: 06/21/2019)

06/24/2019 170 MOTION to Continue filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR.Memorandum, Certificate of Service.(CONNELL, MATTHEW) (Entered: 06/24/2019)

06/24/2019 171 REPLY to Response to Motion re 146 MOTION for Summary Judgment filed by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 06/24/2019)

06/24/2019 172 Statement of Material Facts − Response to Counterstatement by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 06/24/2019)

06/24/2019 173 REPLY to Response to Motion re 149 MOTION to Certify Class filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 06/24/2019)

06/24/2019 174 RESPONSE in Opposition re 170 MOTION to Continue filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(FELDMAN, MATTHEW) (Entered: 06/24/2019)

06/25/2019 175 ORDER THAT DEFENDANTS' MOTION FOR A CONTINUANCE (ECF DOC. NO. 170 ) IS GRANTED IN PART AS OUTLINED HEREIN; WE ADJOURN OUR JULY 2, 2019 HEARING UNTIL JULY 9, 2019 AT 2:00 PM. SIGNED BY HONORABLE MARK A. KEARNEY ON 06/25/2019.06/25/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 06/25/2019)

06/25/2019 176

ORDER THAT UPON CONSIDERATION OF PLAINTIFF ALICE VELAZQUEZ−DIAZ'S MOTION FOR WRIT OF HABEAS CORPUS (ECF DOC. NO. 169 ) TO ALLOW HER TO TESTIFY DURING OUR JULY 9, 2019 HEARING IS GRANTED; AND A WRIT FOR HER APPEARANCE IS BEING CONTEMPORANEOUSLY ISSUED. SIGNED BY HONORABLE MARK A. KEARNEY ON 06/25/2019.06/25/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 06/25/2019)

06/25/2019 177

ORDERED THAT THE WARDEN OF THE BERKS COUNTY JAILSHALL PRODUCE BEFORE THIS COURT THE BODY OF ALICE VELAZQUEZ−DIAZ #2017−6164 ON 7/9/19 AT 2:00 P.M. IN COURTROOM 6−B FOR A MOTION HEARING. SIGNED BY HONORABLE MARK A. KEARNEY ON 6/25/19. 6/26/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 06/26/2019)

06/28/2019

USCA Appeal Fees received $ 505 receipt number 199654 re 137 Notice of Appeal, filed by REICHART, KEVIN S. BARNHARDT, STEPHANIE SMITH, BERKS COUNTY, CHRISTIAN Y. LEINBACH, ZERR, BROWN, JANINE L. QUIGLEY, MARK C. SCOTT, SPOTTS (fdc, ) (Entered: 06/28/2019)

07/01/2019 178 AFFIDAVIT re 135 Order,, of Warden Janine L. Quigley by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 07/01/2019)

07/02/2019 179 Response re 175 Order on Motion to Continue, by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR. (CONNELL, MATTHEW) (Entered: 07/02/2019)

07/02/2019 180 Memorandum of Law re 157 MOTION for Contempt and to Enforce Order pursuant to ECF Doc. No. 175 filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Exhibit)(FELDMAN, MATTHEW) (Entered: 07/02/2019)

07/03/2019 181 Response re 135 Order,, to Affidavit of Warden Janine L. Quigley (ECF Doc. No. 178) by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 07/03/2019)

07/05/2019 182 MEMORANDUM by KEVIN S. BARNHARDT, BERKS COUNTY, BROWN, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, REICHART, MARK C. SCOTT, STEPHANIE SMITH, SPOTTS, ZERR Certificate of Service. (CONNELL, MATTHEW) Modified on 7/8/2019 (fb). (Entered: 07/05/2019)

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07/08/2019 183 PRETRIAL MEMORANDUM by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY Certificate of Service. (FELDMAN, MATTHEW) (Entered: 07/08/2019)

07/08/2019 184 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 7/8/19. 7/8/19 ENTERED AND COPIES MAILED AND E−MAILED.(jpd, ) (Entered: 07/08/2019)

07/08/2019 185

ORDERED THAT THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. NO. 146) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. WE DISMISS SGT. SPOTTS AND CORRECTIONAL OFFICERS REICHART, ZERR AND BROWN. SIGNED BY HONORABLE MARK A. KEARNEY ON 7/8/19. 7/8/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 07/08/2019)

07/08/2019 186 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 7/8/19. 7/8/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 07/08/2019)

07/08/2019 187 ORDERED THAT PLAINTIFF'S MOTION TO CERTIFY A CLASS ACTION UNDER RULE 23 (DOC. NO. 149) IS GRANTED AS OUTLINED HEREIN.. SIGNED BY HONORABLE MARK A. KEARNEY ON 7/8/19. 7/8/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 07/08/2019)

07/08/2019 188 AFFIDAVIT re 135 Order,, Modified Affidavit by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH, ZERR. (CONNELL, MATTHEW) (Entered: 07/08/2019)

07/08/2019 189 MOTION for Preliminary Injunction filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. Memorandum of Law, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(FELDMAN, MATTHEW) Modified on 7/9/2019 (tjd). (Entered: 07/08/2019)

07/09/2019 190 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Motion Hearing held on 7/9/19 re 189 MOTION for Preliminary Injunction filed by THERESA VICTORY, ALICE VELAZQUEZ−DIAZ Court Reporter: ANN MARIER MITCHELL. (jpd, ) (Entered: 07/10/2019)

07/11/2019 191 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 07/11/2019. 07/11/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 07/11/2019)

07/11/2019 192

ORDER THAT PLAINTIFF REQUEST TO ENFORCE (ECF DOC. NO. 157 ) IS MOOTED BY DEFENDANTS' JULY 8, 2019 FILING OF A PLAN COMPLIANT WITH OUR MAY 20, 2019 ORDER; PLAINTIFFS' MOTION FOR CIVIL CONTEMPT (ECF DO NO. [157) IS GRANTED IN PART AS OUTLINED HEREIN; DEFENDANTS BERKS COUNTY AND WARDEN QUIGLEY JOINTLY AND SEVERLY SHALL PAY, ON OR BEFORE JULY 24, 2019 $500.00 TO ALICE VELAZQUEZ−DIAZ AS COMPENSATORY DAMAGES AND ATTORNEYS FEES OF $6,571.20 PAYABLE TO HER COUNSEL.. SIGNED BY HONORABLE MARK A. KEARNEY ON 07/11/2019. 07/11/2019 ENTERED AND COPIES E−MAILED.(nd, ) Modified on 7/11/2019 (nd, ). (Entered: 07/11/2019)

07/11/2019 193

ORDER THAT BERKS COUNTY, THROUGH ITS WARDEN SHALL: NO LATER THAN 5:00 PM EST ON JULY 16, 2019, E−MAIL PLAINTIFFS' COUNSEL WITH A SPECIFIC IMPLEMENTATION SCHEDULE FOR MOVING ONLY FEMAL TRUSTY INMATES TO THE FORMER QUARANTINE UNIT OF THE JAIL CONSISTENT WITH OUR JULY 8, 2019 MEMORANDUM (ECF DOC. NO. 184 ); NO LATER THAN JULY 17, 2019, PROVIDE ACCESS TO PLAINTIFFS' COUNSEL FOR REVIEW OF THE SPECIFIC SITE IN THE JAIL'S PRESENT QUARANTINE UNIT FOR AT LEAST FORTY−FIVE MINUTES AT PLAINTIFFS' COUNSEL'S CONVENIENCE; NO LATER THAN JULY 18, 2019, PLAINTIFFS' COUNSEL MAY FILE SPECIFIC OBJECTIONS TO BERKS COUNTY AND THE WARDEN'S SPECIFIC IMPLEMENTATION SCHEDULE; ON OR BEFORE JULY 23, 2019 AND ABSENT FURTHER ORDER, MOVE EACH PRESENT AND FUTURE TRUSTY INMATE INTO UNITS IN THE FORMER QUARANTINE UNIT; PLAINTIFFS SHALL, ON OR BEFORE JULY 24, 2019, EITHER WITHDRAW OR FILE A STATUS MEMORANDUM AS TO REMAINING ISSUES ON ITS PENDING MOTION FOR PRELIMINARY INJUNCTION.. SIGNED BY HONORABLE MARK A. KEARNEY ON 07/11/2019. 07/11/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 07/11/2019)

07/11/2019 194 MOTION for Extension of Time to File Documents Described in ECF Doc. No. 187 and ECF Doc. No. 193 filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service.(FELDMAN, MATTHEW) (Entered: 07/11/2019)

07/15/2019 195 RESPONSE in Opposition re 194 MOTION for Extension of Time to File Documents Described in ECF Doc. No. 187 and ECF Doc. No. 193 filed by KEVIN S. BARNHARDT, BERKS COUNTY,

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CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 07/15/2019)

07/15/2019 196 ORDERED THAT CLASS COUNSEL'S MOTION TO AMEND OUR 7/8/19 AND 7/11/19 ORDERS IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 7/15/19. 7/16/19 ENTERED AND E−MAILED.(jpd, ) (Entered: 07/16/2019)

07/16/2019 197 NOTICE OF APPEAL as to 196 Order on Motion for Extension of Time to File by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. Filing fee not paid. Copies to Judge, Clerk USCA, Appeals Clerk. (CONNELL, MATTHEW) Modified on 7/16/2019 (fb). (Entered: 07/16/2019)

07/17/2019 198 NOTICE of Docketing Record on Appeal from USCA re 197 Notice of Appeal, filed by KEVIN S. BARNHARDT, STEPHANIE SMITH, JANINE L. QUIGLEY, BERKS COUNTY, CHRISTIAN Y. LEINBACH, MARK C. SCOTT. USCA Case Number 19−2648 (dmc, ) (Entered: 07/19/2019)

07/22/2019

USCA Appeal Fees received $ 505 receipt number 200745 re 197 Notice of Appeal, filed by KEVIN S. BARNHARDT, STEPHANIE SMITH, JANINE L. QUIGLEY, BERKS COUNTY, CHRISTIAN Y. LEINBACH, MARK C. SCOTT (fdc, ) (Entered: 07/22/2019)

07/22/2019 199

NOTICE OF APPEAL as to 192 Order (Memorandum and/or Opinion), by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. Filing Fee Not Paid. Copies to Judge, Clerk USCA, and Appeals Clerk. Certificate of Service. (CONNELL, MATTHEW) Modified on 7/22/2019 (tjd). (Entered: 07/22/2019)

07/22/2019 200 MOTION for Approval of Notice to the Class filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2)(FELDMAN, MATTHEW) (Entered: 07/22/2019)

07/22/2019 201

MOTION for Reconsideration re 185 Order (Memorandum and/or Opinion), 187 Order (Memorandum and/or Opinion) of Summary Judgment and Class Certification Rulings on Equal Rights Amendment Claims under the Pennsylvania Constitution filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Supplement, # 2 Memorandum)(FELDMAN, MATTHEW) (Entered: 07/22/2019)

07/23/2019 202

NOTICE of Docketing Record on Appeal from USCA re 199 Notice of Appeal, filed by KEVIN S. BARNHARDT, STEPHANIE SMITH, JANINE L. QUIGLEY, BERKS COUNTY, CHRISTIAN Y. LEINBACH, MARK C. SCOTT, 197 Notice of Appeal, filed by KEVIN S. BARNHARDT, STEPHANIE SMITH, JANINE L. QUIGLEY, BERKS COUNTY, CHRISTIAN Y. LEINBACH, MARK C. SCOTT. USCA Case Number 19−2695 (ke) (Entered: 07/24/2019)

07/25/2019

USCA Appeal Fees received $ 505 receipt number 201024 re 199 Notice of Appeal, filed by KEVIN S. BARNHARDT, STEPHANIE SMITH, JANINE L. QUIGLEY, BERKS COUNTY, CHRISTIAN Y. LEINBACH, MARK C. SCOTT (fdc, ) (Entered: 07/26/2019)

07/26/2019 203 Memorandum in Opposition re 200 MOTION for Approval of Notice to the Class filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 07/26/2019)

07/29/2019 204 Transcript of Hearing held on 7/9/19, before Judge KEARNEY. Court Reporter/Transcriber Ann Marie Mitchell, CRR, RDR, RMR. (fdc) (Entered: 07/29/2019)

07/29/2019 205 ORDER THAT THE SETTLEMENT CONFERENCE SCHEDULED FOR TUESDAY, 8/13/19 AT 9:30 AM IS RESCHEDULED TO 2:00 PM. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 7/29/19. 7/29/19 ENTERED & E−MAILED.(fdc) (Entered: 07/29/2019)

07/29/2019 206 ORDERED THAT PLAINTIFF'S MOTION FOR APPROVAL (DOC.NO 200) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 7/29/19. 7/30/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 07/30/2019)

07/30/2019 207 Memorandum re 189 MOTION for Preliminary Injunction filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 07/30/2019)

08/02/2019 208 NOTICE by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH re 206 Order on Motion for Approval Certificate of Compliance (CONNELL, MATTHEW) (Entered: 08/02/2019)

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08/05/2019 209

RESPONSE in Opposition re 201 MOTION for Reconsideration re 185 Order (Memorandum and/or Opinion), 187 Order (Memorandum and/or Opinion) of Summary Judgment and Class Certification Rulings on Equal Rights Amendment Claims under the Pennsylvania Constitution filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 08/05/2019)

08/05/2019 210 RESPONSE in Opposition re 189 MOTION for Preliminary Injunction filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 08/05/2019)

08/06/2019 211

NOTICE of Hearing: A TELEPHONE CONFERENCE REGARDING THE STATUS OF SETTLEMENT IS SET FOR TODAY, AUGUST 6, 2019 AT 2:00 P.M.BEFORE MAGISTRATE JUDGE MARILYN HEFFLEY. COUNSEL FOR PLAINITFFS IS DIRECTED TO INITIATE THE CALL. JUDGE HEFFLEY CAN BE REACHED AT 267−299−7420.(sah) (Entered: 08/06/2019)

08/07/2019 212 AMENDED CONFERENCE ORDER. ORDER THAT A SETTLEMENT CONFERENCE IS SET FOR 10/15/19 AT 2:00 PM BEFORE MAGISTRATE JUDGE MARILYN HEFFLEY.SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 8/7/19. 8/7/19 ENTERED & E−MAILED.(fdc) (Entered: 08/07/2019)

08/07/2019 213

ORDERED THAT SUBJECT TO POSTING OF A $100.00 BOND ON BEHALF OF THE CLASS MEMBERS WITH THE CLERK OF COURT, CLASS PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DCO. NO. 189) IS GRANTED TO COMPEL DEFENDANTS TO IMPLEMENT THEIR PROPOSED PLAN UNDER OUR 7/15/19 ORDER FOR ALL CLASS MEMBERS; BUT CONSISTENT WITH OUR COURT OF APPEALS 7/19/19 ODERS STAYING OUR 7/15/19 ORDER, WE STAY IMPLEMENTAION OF THIS ORDER UNTIL FURTHER ORDER. SIGNED BY HONORABLE MARK A. KEARNEY ON 8/7/19. 8/8/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 08/08/2019)

08/08/2019 214 Minute Entry for proceedings held before MAGISTRATE JUDGE MARILYN HEFFLEY. A Pretrial Conference was held on 8/6/19. (fdc) (Entered: 08/08/2019)

08/09/2019 215 ORDER THAT PLAINTIFFS' MOTION FOR RECONSIDERATION (DOC. NO. 201 ) IS DENIED. SIGNED BY HONORABLE MARK A. KEARNEY ON 8/9/2019.8/9/2019 ENTERED AND COPIES E−MAILED.(amas) (Entered: 08/09/2019)

08/16/2019

The sum of $ $100.00 deposited into the Registry of the Court. (jpd, ) (Entered: 08/16/2019)

09/03/2019 216 MOTION for Extension of Time to File Motion for Summary Judgment filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 09/03/2019)

09/04/2019 217

ORDERED THAT LEAD PLAINTIFF'S UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE (DOC. NO. 216) IS GRANTED AS OUTLINED HEREIN. DAUBERT MOTIONS TO BE FILED NO LATER THAN 9/16/19 WITH ALL RESPONSES DUE NO LATER THAN 9/30/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 9/4/19. 9/4/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 09/04/2019)

09/04/2019

Set/Reset Scheduling Order Deadlines: MOTIONS DUE BY 9/16/2019. MOTION FOR SUMMARY JUDGMENT DUE BY 9/16/2019. (jpd, ) (Entered: 09/05/2019)

09/05/2019 218 NOTICE OF APPEAL as to 213 Order,, by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. Filing fee $ 505, receipt number 0313−13777919. Copies to Judge, Clerk USCA, Appeals Clerk . (CONNELL, MATTHEW) Modified on 9/6/2019 (lvj, ). (Entered: 09/05/2019)

09/06/2019 219 NOTICE of Docketing Record on Appeal from USCA re 218 Notice of Appeal (Credit Card Payment), filed by KEVIN S. BARNHARDT, STEPHANIE SMITH, JANINE L. QUIGLEY, BERKS COUNTY, CHRISTIAN Y. LEINBACH, MARK C. SCOTT. USCA Case Number 19−3060 (dmc, ) (Entered: 09/10/2019)

09/16/2019 220 MOTION Decertify Class filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 09/16/2019)

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09/16/2019 221 EXHIBIT Joint Appendix by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH, ZERR.. (Attachments: # 1 Appendix Joint, # 2 Appendix Joint, # 3 Appendix Joint, # 4 Appendix Joint)(CONNELL, MATTHEW) (Entered: 09/16/2019)
09/16/2019 222 MOTION for Summary Judgment filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum, Certificate of Service.(CONNELL, MATTHEW) (Entered: 09/16/2019)
09/16/2019 223 Statement of Undisputed Material Facts by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 09/16/2019)
09/16/2019 224 Statement of Undisputed Material Facts by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 09/16/2019)
09/16/2019 225 MOTION for Partial Summary Judgment filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 09/16/2019)
09/20/2019 226 MOTION to Stay All Proceedings filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 09/20/2019)
09/30/2019 227 Consent MOTION for Extension of Time to File Response/Reply as to 222 MOTION for Summary Judgment , 223 Statement filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(YEH, SU MING) (Entered: 09/30/2019)
09/30/2019 228 ORDERED THAT THE MOTION FOR EXTENSION OF TIME (DOC. NO. 227) IS GRANTED AND RESPONSES TO THE MOTIONS FOR SUMMARY JUDGMENT SHALL BE FILED NO LATER THAN 10/3/2019. SIGNED BY HONORABLE MARK A. KEARNEY ON 9/30/19. 9/30/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 09/30/2019)
09/30/2019 229 RESPONSE in Opposition re 220 MOTION Decertify Class filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order)(YEH, SU MING) (Entered: 09/30/2019)
09/30/2019 230 RESPONSE in Opposition re 225 MOTION for Partial Summary Judgment filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (Attachments: # 1 Text of Proposed Order, # 2 Brief, # 3 Certificate of Service)(CONNELL, MATTHEW) (Entered: 09/30/2019)
10/03/2019 231 Statement of Material Facts, Response to Ds Statement of Undisputed Facts by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (YEH, SU MING) (Entered: 10/03/2019)
10/03/2019 232 RESPONSE in Opposition re 222 MOTION for Summary Judgment filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order)(YEH, SU MING) (Entered: 10/03/2019)
10/03/2019 233 EXHIBIT Supplemental Joint Appendix by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.. Certificate of Service (Attachments: # 1 Table of Contents, # 2 Certificate of Service)(YEH, SU MING) (Entered: 10/03/2019)
10/04/2019 234 RESPONSE in Opposition re 226 MOTION to Stay All Proceedings filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(YEH, SU MING) (Entered: 10/04/2019)
10/07/2019 235 REPLY to Response to Motion re 225 MOTION for Partial Summary Judgment filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 10/07/2019)
10/08/2019 236 NOTICE of Hearing: A TELEPHONE CONFERENCE REGARDING THE STATUS OF SETTLEMENT IS SET FOR TODAY, OCTOBER 8, 2019 AT 2:00 PM BEFORE MAGISTRATE JUDGE MARILYN HEFFLEY. COUNSEL FOR DEFENSE IS DIRECTED TO INITIATE THE CALL. JUDGE HEFFLEY CAN BE REACHED AT 267−299−7420.(sah) (Entered: 10/08/2019)
10/09/2019 237 Minute Entry for proceedings held before MAGISTRATE JUDGE MARILYN HEFFLEY Initial Pretrial Conference held on 10/8/19 Court Reporter: ESR. (jpd, ) (Entered: 10/09/2019)

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10/09/2019 238 ORDERED THAT THE SETTLEMENT CONFERENCE SET FOR 10/15/19 IS CANCELLED. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 10/9/19. 10/9/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 10/09/2019)
10/10/2019 239 REPLY to Response to Motion re 222 MOTION for Summary Judgment filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 10/10/2019)
10/10/2019 240 Statement Response to Plaintiffs' Counterstatement of Material Facts by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 10/10/2019)
10/15/2019 241 NOTICE of Appearance by LAURIE ANN FIORE on behalf of KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH with Certificate of Service(FIORE, LAURIE) (Entered: 10/15/2019)
10/15/2019 242 ORDERED THAT DEFENDANTS MOTION TO STAY (DOC. NO 226) IS DENIED. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/15/19. 10/15/19 ENTERED AND COPIES MAILED AND E−MAILED. (jpd ) (Entered: 10/15/2019)
10/15/2019 243 MOTION To Dissolve Preliminary Injunction re 213 Order,, filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(FELDMAN, MATTHEW) (Entered: 10/15/2019)
10/16/2019 244 ORDERED THAT PLAINTIFF'S MOTION TO DISSOLVE (DOC. NO. 243) IS DENIED. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/16/17. 10/17/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 10/17/2019)
10/17/2019 245 ORDER−MEMORANDUM THE DEFENDANTS' MOTION TO DECERTIFY (DOC. NO. 220) IS DENIED.SIGNED BY HONORABLE MARK A. KEARNEY ON 10/17/19. 10/17/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 10/17/2019)
10/17/2019 246 ORDER THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF DOC NO. 222 ) IS DENIED; AND PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF DOC. NO. 225 ) IS DENIED.. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/17/2019. 10/17/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 10/17/2019)
10/17/2019 247 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/17/2019. 10/17/2019 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 10/17/2019)
10/17/2019 248 Proposed Jury Instructions by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. Certificate of Service (CONNELL, MATTHEW) (Entered: 10/17/2019)
10/17/2019 249 Proposed Verdict Sheet by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.. Certificate of Service (CONNELL, MATTHEW) (Entered: 10/17/2019)
10/17/2019 250 Proposed Jury Instructions by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. Certificate of Service (YEH, SU MING) (Entered: 10/17/2019)
10/17/2019 251 Proposed Verdict Sheet by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.. Certificate of Service (YEH, SU MING) (Entered: 10/17/2019)
10/17/2019 252 Proposed Voir Dire by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. Certificate of Service (YEH, SU MING) (Entered: 10/17/2019)
10/18/2019 253 TRIAL BRIEF by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. Certificate of Service (CONNELL, MATTHEW) (Entered: 10/18/2019)
10/18/2019 254 PRETRIAL MEMORANDUM by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY, Certificate of Service, Exhibit List. (Attachments: # 1 Exhibit)(Filed per chambers instructions)(md) (Entered: 10/21/2019)
10/21/2019 255 Proposed Voir Dire by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. Certificate of Service (CONNELL, MATTHEW) (Entered: 10/21/2019)

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10/21/2019 256 MOTION to Bifurcate filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 10/21/2019)

10/21/2019 257 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 10/21/2019)

10/21/2019 258 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 10/21/2019)

10/21/2019 259 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 10/21/2019)

10/21/2019 260 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 10/21/2019)

10/21/2019 261 Objections by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY re 248 Proposed Jury Instructions . (FELDMAN, MATTHEW) (Entered: 10/21/2019)

10/21/2019 262 MOTION in Limine filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Memorandum, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum)(FELDMAN, MATTHEW) (Entered: 10/21/2019)

10/21/2019 263 MOTION in Limine filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Memorandum, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum)(FELDMAN, MATTHEW) (Entered: 10/21/2019)

10/21/2019 264 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum of Law, Certificate of Service.(CONNELL, MATTHEW) (Entered: 10/21/2019)

10/21/2019 265 Objections by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH . (CONNELL, MATTHEW) (Entered: 10/21/2019)

10/21/2019 266 MOTION in Limine filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(YEH, SU MING) (Entered: 10/21/2019)

10/21/2019 267 MOTION in Limine filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Memorandum, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum)(FELDMAN, MATTHEW) (Entered: 10/21/2019)

10/22/2019 268

EXHIBIT To Doc No. 265 by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.. (Attachments: # 1 Exhibit A, # 2 Exhibit A, # 3 Exhibit A, # 4 Exhibit A, # 5 Exhibit A, # 6 Errata A, # 7 Exhibit A, # 8 Exhibit A, # 9 Exhibit A, # 10 Exhibit A, # 11 Exhibit A, # 12 Exhibit A, # 13 Exhibit A, # 14 Exhibit A, # 15 Exhibit A, # 16 Exhibit B)(CONNELL, MATTHEW) (Entered: 10/22/2019)

10/24/2019 269

ORDER of USCA as to 218 Notice of Appeal (Credit Card Payment), filed by KEVIN S. BARNHARDT, STEPHANIE SMITH, JANINE L. QUIGLEY, BERKS COUNTY, CHRISTIAN Y. LEINBACH, MARK C. SCOTT THAT THE DISTRICT COURT'S ORDER DATED 8/8/19 IS VACATED. AS THE PARTIES ARE IN AGREEMENT, THE CLERK OF COURT SHALL ISSUE A CERTIFIED COPY OF THIS ORDER IN LIEU OF A FORMAL MANDATE FORTHWITH. (jpd, ) (Entered: 10/24/2019)

10/28/2019 270 MOTION for Writ of Habeas Corpus ad testificandum filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 10/28/2019)

10/29/2019 271 RESPONSE in Opposition re 262 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 10/29/2019)

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10/29/2019 272 RESPONSE in Opposition re 263 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 10/29/2019)

10/29/2019 273 RESPONSE in Opposition re 266 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 10/29/2019)

10/29/2019 274 RESPONSE in Opposition re 267 MOTION in Limine filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 10/29/2019)

10/29/2019 275 Response in Opposition to Designations re 253 Trial Brief Counter Designations by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 10/29/2019)

10/29/2019 276 RESPONSE in Opposition re 260 MOTION in Limine filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 10/29/2019)

10/29/2019 277 RESPONSE in Opposition re 264 MOTION in Limine filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 10/29/2019)

10/29/2019 278 RESPONSE in Opposition re 259 MOTION in Limine (Witnesses) filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(YEH, SU MING) (Entered: 10/29/2019)

10/29/2019 279 RESPONSE in Opposition re 257 MOTION in Limine filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(FELDMAN, MATTHEW) (Entered: 10/29/2019)

10/29/2019 280 RESPONSE in Opposition re 258 MOTION in Limine filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order)(YEH, SU MING) (Entered: 10/29/2019)

10/29/2019 281

ORDERED THAT PLAINTIFF'S MOTION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM (DOC. NO. 270) IS GRANTED. THE WARDEN FOR THE BERKS COUNTY JAIL SHALL PRODUCE THE BODIES OF MELINDA BATES #2019−2855, WHITNEY BECHTEL,#2016−6274, KATIE HOYER,#2019−3622, YELITZA MORENO−NEYRA,#2017−3944, TRICIA CONSUL,#2018−5921, HOLLY MILLER,#2015−4743, HOLLY SMITH,#2019−2750 AND JOSHUA HECKMAN,#2003−5090 ON 11/12/19 AND 11/13/19 AT 9:00 A.M. TO APPEAR AS WITNESSES FOR A JUEY TRIAL IN THE ABOVE CAPTIONED MATTER. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/29/19.10/30/19 ENTERED AND COPIES E−MAILED. (jpd ) (VACATED AS PER ORDER DATED 11/7/19 DOC. NO.304) (Entered: 10/30/2019)

10/30/2019 282 ORDERED THAT A FINAL PRETRIAL CONFERENCE IS SET FOR 11/5/2019 AT 9:00 A.M. IN COURTROOM 6−B. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/30/19. 10/30/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 10/30/2019)

10/30/2019 283

ORDERED THAT DEFENDANTS MOTION IN LIMINE (DOC. NO. 259) IS DENIED CONDITIONED UPON THE PLAINTIFFS PRODUCING EACH WITNESS THEY HOPE TO CALL AT TRIAL BUT NOT IDENTIFIED UNTIL THE PRE−TRIAL STATEMENT AND TIMELY NOTICED UNDER FRCP 30(b) FOR DEPOSITIION NOT EXCEEDING SIXTY (60) MINUTES AS TO EACH WITNESS TO BE HELD AT DEFENDNATS' COUNSEL'S OFFICE NO LATER THAN 11/7/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/30/19.10/30/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 10/30/2019)

10/30/2019 284

ORDERED THAT DEFENDANTS MOTION IN LIMINE (DOC. NO 257) IS DENIED CONDITIONED UPON HER APPEARING AT A TELEPHONIC DEPOSTITION IN RESPONSE TO A NOTICE OF DEPOSITION UNDER FRCP 30(b) FOR NO MORE THAN FORTY−FIVE (45) MINUTES TO BE HELD ON OR BEFORE 11/7/19 LIMITED TO HER DAMAGE CLAIM. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/30/19.10/30/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Main Document 284 replaced on 10/31/2019) (jpd, ). (Entered: 10/30/2019)

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10/31/2019 285 RESPONSE in Opposition re 256 MOTION to Bifurcate filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Text of Proposed Order)(FELDMAN, MATTHEW) (Entered: 10/31/2019)

10/31/2019 286 ORDERED THAT DEFENDANTS' MOTION IN LIMINE (DOC. NO.258) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/31/19. 10/31/19 ENTERED AND COPIES E−MAILED. (jpd) (Entered: 10/31/2019)

10/31/2019 287 ORDERED THAT DEFENDANTS MOTION IN LIMINE (DOC. NO. 262) IS GRANTED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/31/19.10/31/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 10/31/2019)

10/31/2019 288 ORDERED THAT PLAINTIFF'S MOTION IN LIMINE (DOC. NO. 263) IS GRANTED IN PART AS OUTLINED HEREIN.. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/31/19.10/31/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 10/31/2019)

10/31/2019 289 ORDERED THAT THE DEFENDANTS MOTION IN LIMINE (DOC. NO. 264) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/31/19. 10/31/19 ENTERED AND COPIES E−MAILED. (jpd ) (Entered: 10/31/2019)

10/31/2019 290 ORDERED THAT PLAINTIFF'S MOTION IN LIMINE (DOC. NO. 266) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/31/19. 10/31/19 ENTERED AND COPIES MAILED AND E−MAILED. (jpd ) (Entered: 10/31/2019)

10/31/2019 291 ORDERED THAT THE PLAINTIFF'S MOTION IN LIMINE (DOC. NO. 267) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/31/19. 10/31/19 ENTERED AND COPIES MAILED AND E−MAILED.(jpd ) (Entered: 10/31/2019)

10/31/2019 292 PRETRIAL MEMORANDUM by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY Amended Pretrial Memorandum; Certificate of Service. (FELDMAN, MATTHEW) (Entered: 10/31/2019)

11/04/2019 293

ORDER OF USCA THAT ON CONSIDERATION WHEREOF, IT IS NOW ORDERED AND ADJUDGED BY THIS COURT THAT THAT APPEAL OF THE DISTRICT COURT ORDER ENTERED 1/16/19 IN APPEAL NUMBER 19−1329 IS DISMISSED ; THE APPEAL OF THE DISTRICT COURT ORDER ENTERED ON 5/21/19 IN APPEAL NUMBER 19−CV−2193 IS DISMISSED; THE APPEAL OF THE DISTRICT COURT ORDER ENTERED ON 7/16/19 IN APPEAL 19−2648 IS DISMISSED AND THE ORDER OF THE DISTRICT ACOURT ENTERED ON 7/11/19 IN APPEAL 19−2695 IS REVERESED. THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WIT TGE OPINIONM FILED HEREWITH. ALL OF THE ABOVE IN ACCORDANCE WITH THE OPINION OF THIS COURT. COSTS SHALL NOT BE TAXED. (jpd, ) (Entered: 11/04/2019)

11/04/2019 294 NOTICE of Appearance by WILL W. SACHSE on behalf of ALICE VELAZQUEZ−DIAZ, THERESA VICTORY with Certificate of Service(SACHSE, WILL) (Entered: 11/04/2019)

11/05/2019 295 NOTICE of Appearance by ALEXANDRA MORGAN−KURTZ on behalf of ALICE VELAZQUEZ−DIAZ, THERESA VICTORY with Certificate of Service(MORGAN−KURTZ, ALEXANDRA) (Entered: 11/05/2019)

11/05/2019 296 NOTICE of Appearance by CORY WARD on behalf of ALICE VELAZQUEZ−DIAZ, THERESA VICTORY with Certificate of Service(WARD, CORY) (Entered: 11/05/2019)

11/05/2019 297 ORDERED THAT DEFENDANTS' MOTION TO BIFURCATE (DOC. NO. 256) IS GRANTED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/5/19.11/6/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/06/2019)

11/05/2019 298 ORDERED THAT DEFENDANTS' MOTION IN LIMINE (DOC. NO. 260) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/5/19.11/6/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/06/2019)

11/05/2019 299 ORDERED THAT ON OR BEFORE 5:00 P.M. ON 11/6/19 THE PARTIES SHALL EXCHANGE A LIST OF TRIAL WITNESSES WITH AN OFFER OF PROOF FOR EACH PHASE OF TRIAL AS TO FURLOUGH LIABILITY, INDIVIDUAL DAMAGES AND PROSPECTIVE RELIEF, ETC. ON OR BEFORE 10:00 ON 11/7/19 PLAINTIFF COUNSEL SHALL FILE A NOTICE OF

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WITNESS FOR WHOM IT SEEKS A WRIT TO COMPEL THEIR APPEARANCE AT TRIAL, ETC. ON OR BEFROE 3:0 P.M. ON 11/8/19 THE PARTIES SHALL EACH FILE MEMORANDA NOT EXCEEDING FIFTEEN (15) PAGES AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/5/19. 11/6/19 ENTERED AND COPIES E−MAILED. (jpd,) (Entered: 11/06/2019)

11/05/2019 300 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Final Pretrial Conference held on 11/5/19 (jpd, ) (Entered: 11/06/2019)

11/06/2019 301 NOTICE by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY regarding writs to compel appearance at trial (FELDMAN, MATTHEW) (Entered: 11/06/2019)

11/07/2019 302 MOTION in Limine to Preclude Testimony from Plaintiffs' Witness Joel Mankoski and of Proposed Exhibit 50 filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH.Memorandum and Certificate of Service.(CONNELL, MATTHEW) (Entered: 11/07/2019)

11/07/2019 304

ORDERED THAT WE VACATE OUR 10/29/19 ORDER GRANTING WRITS OF HABEAS CORPUS (DOC. NO. 281) THE WARDEN OF BUCKS COUNTY JAIL SHALL PRODUCE BEFORE THIS COURT THE BODIES OF TRICIA CONSUL #2018−5921 AND JOSHUA HECKMAN #2003−5090 ON 11/12/19 AT 9:00 A.M., TO APPEAR AS WITNESSES FOR A JURY TRIAL IN THE ABOVE CAPTIONED CIVIL ACTION. ON 11/13/19 THE WARDEN SHALL PRODUCE THE BODY OF TRICIA CONSUL #2018−5921 TO APPEAR AS A WITNESS FOR A JURY TRIAL IN THE ABOVE CAPTIONED CIVIL ACTION. ON 11/14/19 THE EARDEN OF BUCKS COUNTY JAIL SHALL PRODUCE THE BODY OF MELINDA BATES #2019−2855 TO APPEAR AS A WITNESS FOR A JURY TRIAL IN THE ABOVE CAPTIONED CIVIL ACTION. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/7/19. 11/8/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/08/2019)

11/08/2019 303 Pretrial Memorandum Supplemental by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH, Certificate of Service. (CONNELL, MATTHEW) Modified on 11/12/2019 (fb). (Entered: 11/08/2019)

11/08/2019 305 Memorandum of Law re 299 Order,, by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 11/08/2019)

11/08/2019 306 NOTICE by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH (CONNELL, MATTHEW) (Entered: 11/08/2019)

11/08/2019 307 NOTICE by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH Amended (CONNELL, MATTHEW) (Entered: 11/08/2019)

11/08/2019 308 Memorandum of Law re 299 Order,, by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 11/08/2019)

11/08/2019 309 NOTICE by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY re 307 Notice (Other) (FELDMAN, MATTHEW) (Entered: 11/08/2019)

11/08/2019 313

ORDERED THAT DEFENDANTS MOTION IN LIMINE (DOC. NO. 302) IS DENIED WITHOUT PREJUDICE TO BE RENEWED TO PRECLUDE THE EXHIBIT AND STRIKE TESTIMONY SHOULD THE PLAINTIFFS NOT ADDUCE A SUFFICENT FOUNDATION OF PUBLIC RECORD AND THE TRUSTWORTHINESS OF THE UNDERLYING DOCUMENTS.. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/8/19.11/12/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/12/2019)

11/08/2019 314

ORDERED THAT PLAINTIFF ADDUCED EVIDENCE OF PHYSICAL INJURY EBYOND DE MINIMIS HARM, INCLKUDING NAUSEA, VOMITING AND BACK PAIN UNDER 42 U.S.C. SEC 1997e(e) AND MAY PROCEED ON HER COMPENSATORY DAMAGE CLAIM; MS. VELASQUEZ−DIAZ DID NOT ADDUCE EVIDENCE OF PHYSICAL INJURY AND MAY NOT PROCEED ON A COMPENSATORY DAMAGE CLAIM; PLAINTIFF MAY TESTIFY AS TO HER RATIONAL PERCEPTION OF HER CONDITIONS OF CONFINEMENT AND HER RATIONAL PERCEPTION OF PHYSICAL OR EMOTIONAL HARM, ETC. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/8/19. 11/12/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/12/2019)

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11/11/2019 310 MOTION in Limine Re Ds' Supplemental Exhibits & Notice of Criminal Convictions filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Brief, Certificate of Service. (Attachments: # 1 Brief, # 2 Text of Proposed Order, # 3 Exhibit 1−9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibit 12−20)(YEH, SU MING) (Entered: 11/11/2019)

11/11/2019 311 Proposed Jury Instructions by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. Certificate of Service (FELDMAN, MATTHEW) (Entered: 11/11/2019)

11/11/2019 312 RESPONSE in Opposition re 310 MOTION in Limine Re Ds' Supplemental Exhibits & Notice of Criminal Convictions filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(CONNELL, MATTHEW) (Entered: 11/12/2019)

11/12/2019 315 ORDERED THAT PLAINTIFF'S SUPPLEMENTAL MOTION (DOC. NO. 310) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/12/19. 11/13/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/13/2019)

11/13/2019 316

ORDERED THAT WE VACATE PARAGRAPH THREE (3) OF OUR 11/7/19 ORDER GRANTING WRITS OF HABEAS CORPUS (DOC. NO. 304) AND THE WARDEN OF BERKS COUNTY JAIL IS NOT REQUIRED TO PRODUCE MELINDA BATES #2019−2855 ON 11/14/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/13/19. 11/14/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/14/2019)

11/13/2019 317

ORDERED THAT WE VACATE PARAGRAPH TWO(2) ONLY OF OUR 11/7/19 ORDER GRANTING WRITS OF HABEAS CORPUS (DOC. NO. 304) AND THE WARDEN OF BERKS COUNTY JAIL IS NOT REQUIRED TO PRODUCE TRICIA CONSUL #201−5921 ON 11/13/19. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/13/19. 11/14/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/14/2019)

11/13/2019 318 ORDERED THAT THE CLERK OF COURT FOR THE EASTERN DISTRICT OF PA. BE AND SHE IS HEREBY DIRECTED TO FURNISH LUNCH FOR EIGHT (8)JURORS ENGAGED IN THE ABOVE ENTITLED CASE. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/13/19. 11/14/19 ENTERED. (jpd ) (Entered: 11/14/2019)

11/13/2019 319 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY. Jury Trial Day 1 held on 11/12/19 Court Reporter: LYNN GLIGOR. (jpd ) (Entered: 11/14/2019)

11/14/2019 320 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Jury Trial Day 2 held on 11/13/2019. Court Reporter: LYNN GLIGOR. (jpd, ) (Entered: 11/14/2019)

11/14/2019 321 VERDICT. (jpd, ) (Entered: 11/14/2019)

11/14/2019 322 ORDER THAT THE CLERK OF COURT FOR THE EASTERN DISTRICT OF PA BE AND SHE IS HEREBY DIRECTED TO FURNISH LUNCH FOR JURORS ENGAGED IN THE ABOVE ENTITLED CASE. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/14/19. 11/15/19 ENTERED.(jpd, ) (Entered: 11/15/2019)

11/15/2019 323 VERDICT. (jpd, ) (Entered: 11/15/2019)

11/15/2019 324 ORDER THAT THE CLERK OF COURT FOR THE EASTERN DISTRICT OF PA BE AND SHE IS HEREBY DIRECTED TO FURNISH LUNCH FOR JURORS ENGAGED IN THE ABOVE ENTITLED CASE. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/15/19. 11/8/19 ENTERED.(jpd, ) (Entered: 11/18/2019)

11/15/2019 325

ORDERED THAT ON OR BEFORE 12/2/19 DEFENDANTS COUNSEL SHALL FILE A STATUS REPORT AS OUTLINED HEREIN. ON 12/9/19 PLAINTIFF'S MAY MOVE TO WITHDRAW THE REQUEST FOR PROTECTIVE RELIEF AS OUTLIEND HEREIN, ETC.. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/15/19. 11/18/19 ENTERED AND COPIES E−MAILED.(jpd, ) (Entered: 11/18/2019)

11/15/2019 327 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Bench Trial Completed completed on 11/15/19. Court Reporter: Lynn Gligor. (jpd, ) (Entered: 11/19/2019)

11/19/2019 326 Minute Entry for proceedings held before HONORABLE MARK A. KEARNEY Jury Trial held on 11/14/19. Court Reporter: Lynn Gligor. (jpd, ) (Entered: 11/19/2019)

12/02/2019 328 STATUS REPORT Pursuant to the November 15th Order (Doc No. 325) by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK

Case: 5:18-cv-5170 As of: 06/11/2020 08:20 PM EDT 31 of 32

C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 12/02/2019)

12/09/2019 329 Transcript of Jury Trial − Day 1 held on 11/12/19, before Judge Kearney. Court Reporter/Transcriber Lynn Gligor. (fdc) (Entered: 12/09/2019)

12/09/2019 330 Transcript of Jury Trial − Day 2 held on 11/13/19, before Judge Kearney. Court Reporter/Transcriber Lynn Gligor. (fdc) (Entered: 12/09/2019)

12/09/2019 331 Transcript of Jury Trial − Day 3 held on 11/14/19, before Judge Kearney. Court Reporter/Transcriber Lynn Gligor. (fdc) (Entered: 12/09/2019)

12/09/2019 332 Transcript of Jury Trial − Day 4 held on 11/15/19, before Judge Kearney. Court Reporter/Transcriber Lynn Gligor. (fdc) (Entered: 12/09/2019)

12/09/2019 333 Supplemental Written STATUS REPORT by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) Modified on 12/12/2019 (tjd). (Entered: 12/09/2019)

12/09/2019 334 Memorandum Regarding Prospective Relief by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. Certificate of Service (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(FELDMAN, MATTHEW) Modified on 12/12/2019 (tjd). (Entered: 12/09/2019)

12/20/2019 335 Memorandum in Opposition by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (STRICKEN AS PER ORDER #336) (Entered: 12/20/2019)

12/20/2019 336 ORDERED THAT THE DEFENDANTS' BRIEF (ECF DOC. NO. 335) IS STRICKENWITH LEAVE TO FILE A COMPLIANT MEMORANDUM NOT EXCEEDING TWENTY PAGES NO LATER THAN DECEMBER24, 2019. SIGNED BY HONORABLE MARK A. KEARNEY ON 12/20/19. 12/23/19 ENTERED AND COPIES E−MAILED. (jpd) (Entered: 12/23/2019)

12/24/2019 337 Memorandum in Opposition to Plaintiff's Memorandum Regarding Prospective Relief by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (CONNELL, MATTHEW) (Entered: 12/24/2019)

01/15/2020 338 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 01/15/2020. 01/15/2020 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 01/15/2020)

01/15/2020 339

ORDER THAT PLAINTIFFS' REQUEST FOR A DECLARATORY JUDGMENT IS DENIED;PLAINTIFFS' REQUEST FOR A PERMANENT INJUNCTION UPON THE ENTRY OF JUDGMENT IS GRANTED AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 01/15/2020. 01/15/2020 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 01/15/2020)

01/15/2020 340

ORDER THAT PARTIES ARE GRANTED LEAVE TO FILE POST−TRIAL MOTIONS ON OR BEFORE FEBRUARY 10, 2020 WITH A RESPONSE DUE ON OR BEFORE FEBRUARY 24, 2020; PLAINTIFFS MAY PETITION FOR REASONABLE ATTORNEY'S FEES AND COSTS CONSISTENT WITH 42 U.S.C. § 1997E(D) NO LATER THAN MARCH 2, 2020 WITH A RESPONSE DUE ON OR BEFORE MARCH 16, 2020; AND, WE WILL ENTER JUDGMENT AFTER RESOLVING POST−TRIAL MOTIONS AND A POSSIBLE AWARD OF REASONABLE ATTORNEY'S FEES AND COSTS. SIGNED BY HONORABLE MARK A. KEARNEY ON 01/15/2020. 01/15/2020 ENTERED AND COPIES E−MAILED.(nd, ) (Entered: 01/15/2020)

03/02/2020 341 BILL OF COSTS by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(FELDMAN, MATTHEW) (Entered: 03/02/2020)

03/02/2020 342 PETITION for Attorney Fees filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(FELDMAN, MATTHEW) Modified on 3/19/2020 (lvj, ). (Entered: 03/02/2020)

03/02/2020 343 Memorandum in Support re 342 MOTION for Attorney Fees filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(FELDMAN, MATTHEW) (Entered: 03/02/2020)

03/03/2020 344 ORDER THE PLAINTIFFS SHALL, ON OR BEFORE MARCH 6, 2020, SUPPLEMENT THEIR MEMORANDUM 343 WITH: ONE EXHIBIT DETAILING THE CUMULATIVE AND CHRONOLOGICAL REPORTING OF TIME FOR ALL BILLING PROFESSIONALS

Case: 5:18-cv-5170 As of: 06/11/2020 08:20 PM EDT 32 of 32

PROVIDED ON A DAY−TO−DAY BASIS TO ALLOW US TO BETTER EVALUATE THE INDIVIDUAL EFFORT BY EACH PROFESSIONAL AS PART OF A COORDINATED AND PROPERLY MANAGED REPRESENTATION; AND, ATTACHING THE AGREEMENT GOVERNING THE PLAINTIFFS' RETENTION AND PAYMENT OF FEES TO COUNSEL FROM DECHERT LLP, AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 3/3/2020. 3/3/2020 ENTERED AND COPIES E−MAILED.(ka, ) (Entered: 03/03/2020)

03/05/2020 345 RESPONSE in Support re 342 MOTION for Attorney Fees Pursuant to the Court's Order of March 3, 2020 (ECF No. 344) filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 03/05/2020)

03/16/2020 346 RESPONSE in Opposition re 342 MOTION for Attorney Fees filed by KEVIN S. BARNHARDT, BERKS COUNTY, CHRISTIAN Y. LEINBACH, JANINE L. QUIGLEY, MARK C. SCOTT, STEPHANIE SMITH. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(CONNELL, MATTHEW) (Entered: 03/16/2020)

03/23/2020 347 REPLY to Response to Motion re 342 MOTION for Attorney Fees filed by ALICE VELAZQUEZ−DIAZ, THERESA VICTORY. (FELDMAN, MATTHEW) (Entered: 03/23/2020)

04/07/2020 348 MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/7/2020. 4/7/2020 ENTERED AND COPIES E−MAILED.(ka, ) (Entered: 04/07/2020)

04/07/2020 349

ORDER PLAINTIFFS' MOTION 342 IS GRANTED IN PART AND DENIED IN PART AND WE AWARD PLAINTIFFS REASONABLE ATTORNEY'S FEES AND COSTS OF $507,330.61, CONSISTING OF $503,939.20 IN ATTORNEY'S FEES AND $3,399.41 IN UNDISPUTED COSTS AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/7/2020. 4/7/2020 ENTERED AND COPIES E−MAILED.(ka, ) (Entered: 04/07/2020)

04/07/2020 350 JUDGMENT. ORDER THAT JUDGMENT OF $510,139.61, PLUS POST−JUDGMENT INTEREST, IS ENTERED IN FAVOR OF PLAINTFFS AND AGAINST BERKS COUNTY. CLERK OF COURT SHALL CLOSE THIS CASE. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/7/20. 4/7/20 ENTERED & E−MAILED.(fdc) (Entered: 04/07/2020)

 
 Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 1 of 23

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IN THt] 1UNl'FEITSTATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THERESA VICTORY,

:18 51 tl 0

Plaintiff,

v.
BERKS COUNTY, BERK COUNTY COMMISSIONERS KEVIN S. BARNHARDT, CHRISTIAN Y. LEINBACH AND MARK C. SCOTT, ESQ., WARDEN JANINE L. QUIGLEY, DEPUTY WARDE:S STEPHANIE SMITH, CAPTAIN CASTRO, LIEUTENANT WEBER, LIEL'TENANT SPOTTS, CORRECTIONS OFFICER (C.0.) DROZACK, C.O. REICHART, C.O. ZERR, C.O. BROWN, C.O. BAUER, JOA1''NA BROWN, JOHN DOE CORRECTIONAL SERGEANT,

CIVIL ACTION NO. - - -
COMPLAINT -- CLASS ACTION

Defendants.

JURY DEMANDE

COMPLAINT I. STATEMENT OF THE CASE
1. This is a civil rights action brought under 42 U.S.C. § 1983, the Cnited States Constitution, and the Pennsylvania Constitution concerning Defendants' refusal to provide Plaintiff Theresa Victory and other female prisoners with "Trusty" custody-level classification and/or Work Release status the same housing and services as similarly situated male prisoners, solely on the basis of sex, and Defendants' subsequent retaliation against Ms. Victory for complaining to staff and filing grievances about this issue. By denying otherwise eligible female prisoners access to housing and services provided to male prisoners in the Berks County Jail System's Community Reentry Center ("CRC"), Defendants discriminate on the basis of sex in

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 2 of 23
violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Pennsylvania Equal Rights Amendment, Art. I,§ 28 of the Pennsylvania Constitution. By retaliating against Ms. Victory for filing grievances and threatening punishment if she files additional grievances, Defendants violated the First Amendment to the U.S. Constitution. II. JURISDICTION
2. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331. Jurisdiction for declaratory and other relief is invoked pursuant to 28 U.S.C. §§ 220l(a) and 2202 and Rule 57 of the Federal Rules of Civil Procedure.
3. This court has supplemental jurisdiction over the state Equal Rights Amendment claim pursuant to 28 U.S. Code§ 1367.
4. Venue is proper pursuant to 28 C.S.C. § 139l(a) as all of the claims arise in and the Defendants are located in the Eastern District of Pennsylvania. III. PARTIES
5. Plaintiff Theresa Victory resides in Pennsylvania and is incarcerated in Berks County Jail in Leesport, Pennsylvania.
6. Defendant Berks County is responsible for the operation of the Berks County Jail System, which includes the Berks County Jail and Berks County Community Reentry Center, and has offices at 63 3 Court Street, Reading, PA 19601.
7. Defendant Kevin S. Barnhardt is a Commissioner on the Berks County Board of Commissioners, which constitutes the chief governing body of the County and has offices at 63 3 Court Street, 13th Floor, Reading, PA 19601. Defendant's responsibilities include serving on the Prison Board. He is sued in his individual and official capacities.
2

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 3 of 23
8. Defendant Christian Y. Leinbach is a Commissioner on the Berks County Board of Commissioners, which constitutes the chief governing body of the County and has offices at 633 Court Street, 13th Floor, Reading, PA 19601. Defendant's responsibilities include serving on the Prison Board. He is sued in his individual and official capacities.
9. Defendant Mark C. Scott, Esq. is a Commissioner on the Berks County Board of Commissioners, which constitutes the chief governing body of the County and has offices at 633 Court Street, 13th Floor, Reading, PA 19601. Defendant's responsibilities include serving on the Prison Board. He is sued in his individual and official capacities.
10. Defendant Janine Quigley is and was employed as the Warden in the Berks County Jail System at all times relevant to this complaint. She is sued in her individual and official capacities.
11. Defendant Stephanie Smith is and was employed as a Deputy Warden in the Berks County Jail System at all times relevant to this complaint. She is sued in her individual and official capacities.
12. Defendant Captain Castro is and was employed as a correctional captain in the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
13. Defendant Lieutenant Weber is and was employed as a correctional lieutenant in the Berks County Jail System at all times relevant to this complaint. He is sued in his individual capacity.
14. Defendant Lieutenant Spotts is and was employed as a correctional lieutenant in the Berks County Jail System at all times relevant to this complaint. He is sued in his individual capacity.
3

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 4 of 23
15. Defendant Corrections Officer Drozack is and was employed in the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
16. Defendant Corrections Officer Reichart is and was employed by the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
17. Defendant Corrections Officer Zerr is and was employed by the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
18. Defendant Corrections Officer Brown is and was employed by the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
19. Defendant Corrections Officer Bauer is and was employed by the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
20. Defendant Joanna Brown is and was employed as the Work Release Coordinator in the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
21. Defendant John Doe Correctional Sergeant is and was employed by the Berks County Jail System at all times relevant to this complaint. He is sued in his individual capacities. IV. CLASS ACTION ALLEGATIONS
22. Plaintiff Victory brings this action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2) on behalf of herself and the following class:
All current and future female inmates committed to the Berks County Jail System who have the Trusty custody-level classification and/or Work Release status but have been denied assignment to the Community Reentry Center ("CRC") and denied access to the privileges, services, and programs available to men assigned to the CRC.
4

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 5 of 23
23. All class members are aggrieved persons under federal and state civil rights law as a result of Defendants' actions, policies, customs, and practices.
24. On information and belief, there are currently approximately 15 women committed to the Berks County Jail System who satisfy the criteria for class membership.
25. On information and belief, numerous other women enter the facility throughout the year who satisfy the criteria for class membership.
26. This matter is properly maintainable as a class action pursuant to Fed. R. Civ. P. 23(a)(l) in that joinder of all members of the proposed class is not only impracticable, but also impossible, because the class includes a shifting prison population whose identities are incapable of being known at the present time.
27. The proposed class meets the requirements of Fed. R. Civ. P. 23(a)(2) because there are questions of law and fact common to the class members, including, but not limited to, the following:
(1) Whether Defendants' disparate treatment of men and women with Trusty custody-level classification and/or Work Release status is a sex-based classification;
(2) Whether the Defendants violate the Fourteenth Amendment Equal Protection rights of the Proposed Class members by housing them in the Jail rather than in the CRC;
(3) Whether the Defendants violate the Fourteenth Amendment Equal Protection rights of the Proposed Class members by denying them the privileges, services, and programs provided to male prisoners housed in the CRC;
5

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 6 of 23
(4) Whether the Defendants have a genuine and exceedingly persuasive justification for their failure to treat the Proposed Class members and similarly situated men equally;
(5) Whether the Defendants' failure to treat the Proposed Class members and similarly situated men equally serves important governmental objectives;
(6) Whether the Defendants' denial of CRC housing and its concomitant privileges, services, and programs to the Proposed Class members is substantially related to the achievement of important governmental objectives;
(7) Whether the Defendants violate the rights of the Proposed Class members under the Pennsylvania Equal Rights Amendment, Art. I, § 28 of the Pennsylvania Constitution.
28. The proposed class representative satisfies Fed. R. Civ. P. 23(a)(3) because her claims are typical of those of the proposed class in that the representative is being denied access to the same reentry housing and the benefits accompanying the reentry housing based solely on sex.
29. The proposed class representative will fairly and adequately protect the interests of the class pursuant to Fed. R. Civ. P. 23(a)(4) because she will prosecute this action vigorously in order to obtain remedies for the all members of the class, whose interests she shares. V. FACTUAL ALLEGATIO:SS Berks County Jail System
30. At all times relevant to this Complaint, individual Defendants were acting under color of state law, within the scope and course of their employment, and under the direct control and supervision of Berks County.
6

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 7 of 23
31. The Berks County Jail System ("Jail System") includes two facilities, located in close proximity to each other: the Berks County Jail ("Jail") and the Berks County Community Reentry Center ("CRC").
32. The Jail is a secure custodial facility with prisoners of both sexes and all security levels, located at 1287 County Welfare Road, Leesport, PA 19533.
33. The CRC is a separate facility located close to the Jail at 1261 County Welfare Road, Leesport, PA 19533, that is, in Berks County's own words, "dedicated to improving the quality of our community by delivering effective and innovative inmate services that instill prosocial behavior, healthy life choices, and personal accountability, thereby reducing recidivism and its financial burden on the county." Welcome to Berks County Community Reentry Center, COCNTY OF BERKS PENNSYLVANIA, http://www.co.berl5.s.pa.us/Dept/J~il/CRC/Pages/defa,µJt.asfil (last visited Nov. 26, 2018).
34. The CRC "opened its doors in May of 2010 with the goal of reducing recidivism and assisting residents in re-establishing themselves as productive members of our community. Through a collaborative effort with other local government agencies, non-profit agencies, community-based agencies and faith-based organizations, [the CRC] strive[s] to provide the guidance and resources necessary to enable reintegration back into the community. These agencies deliver services both pre- and post-release and provide a continuum of care for up to three years after release. The partnership among these aforementioned agencies seeks to enhance public safety by utilizing evidence based practices which support positive choices, constructive behavior and accountability, thereby reducing criminal actions and financial burden upon the county." About the Community Reentry Center, CocNTY OF BERKS PENNSYLVANIA,
7

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 8 of 23
http://www.co.berks.pa.us/Dept/Jail/CRC:/Page~;\bout-the-CRC.aspx (last visited Nov. 26, 2018).
35. As of September 2018, the total prisoner population in the Berks County Jail
System was 1,115, with 105 prisoners in the CRC. Berks County Prison Board .Minutes, Sept.
12, 2018, available at http://www.co.berks.pa.us/Dept/Jail/Prison Board/Prison Board Minutes 2018-9.pdf.
36. The CRC has capacity for 136 resident prisoners. STATEWIDE ADOPTION AJ\.1) PER.\1ANENCY NETWORK LEGAL SERVICES l~ITIATIVE (SWAN LSI), INCARCERATION RESOURCE MANUAL 29 (2018), available at http;//~,diakon-s:wan.org/media/uploads/final draft lsi: 1rm second edition.pd[.
37. The Jail System has a classification system that assigns prisoners to one of five custody levels: Administrative Segregation, Maximum, Medium, Minimum, and Trusty. Trusty is the least restrictive custody level. BERKS Co~TY JAIL SYSTEM INMATE HA:'<DBOOK (Eff. Apr. 1, 2016) 31, available at htjp://www.co.berks.pa,us/De_pt/Jail/Documents/l:N'M_ATE%20IIA~QBOOK%202016%20: %20PDF%20version%2004-01-16.pdf.
38. Classification is determined based on: • Reports from law enforcement agencies • Medical or psychiatric condition and history • Jail records of conduct and adjustment • Records of prior incarceration • Length of time in present classification status • Criminal charges 8

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 9 of 23
• Existence of detainers • Adjudication status • Program participation Id. 39. The Jail System has four categories of housing. Three are located in the Jail: Quarantine, General Population, and Restricted Ilousing (administrative or disciplinary segregation). Id. 40. The fourth housing category is Reentry, which "includes Trusty or work release." . Reentry housing, also known as the CRC, is outside the secure perimeter of the jail and affords more freedom and less direct supervision. Id. 41. According to the Inmate Handbook, "[a prisoner's] housing assignment [is] based upon the results of the classification process." Id. 42. The Inmate Handbook says that "[r]eentry housing is assigned to those who meet a number of criteria" but does not state what those criteria are. Id. at 33. 43. Prisoners are not eligible for reentry housing if they: • Are in an administrative segregation status • Are in quarantine status • Ever escaped or attempted to escape from custody in the last eight (8) years • Have a detainer from another jurisdiction lodged against the prisoner • Ilave a custody level assignment of minimum, medium, or maximum until
reviewed and approved by the ICC • Have a risk assessment level of medium high, or high
9

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 10 of 23
• Refuse to participate in specific treatment programs or fail to demonstrate improvement
• Have a prior work release failure in the last three years • Have received a formal misconduct in the past sixty (60) days Id at 34. 44. The Work Release Program "provides an opportunity for [prisoners] to become employed in the community." Id. at 29. 45. To be eligible for Work Release, a prisoner must meet the criteria for Trusty custody level classification and attend or be involved in all recommended programming. Id. at 30. Discrimination against Women in the Berks County Jail System 46. On information and belief, male prisoners with Trusty custody-level classification and/or Work Release status are housed in the CRC, and male prisoners with higher custody levels than Trusty are housed in the Jail. 47. All women committed to the Berks County Jail System -regardless of assigned custody level- --are housed in the Jail, including those with Trusty classification and those on Work Release. 48. On information and belief, men with Trusty custody level-who are housed in the CRC--have access to job fairs and other services that enable them to acquire jobs and get approved for Work Release. 49. On information and belief, women with Trusty custody level-who are housed in the Jail- do not have comparable access to job fairs or other services that would enable them to acquire jobs and get approved for Work Release.
10

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 11 of 23
50. On information and belief, the Jail is far more restrictive than the CRC.
51. On information and belief, the Jail offers far fewer programs than the CRC. See SWAN LSI RESOURCE MA;-.;UAL, supra 136, at 30. 1
52. On information and belief, prisoners in the CRC live in "dorms," the doors of
which remain unlocked all day.
53. Jail prisoners are confined to "cells" that remain locked for most of the day.
54. On information and belief, prisoners in the CRC are allowed out of their dorms
for approximately 13 hours a day.
55. Prisoners in the Jail are limited to a maximum of 6 hours out of their cells daily,
during recreation hours- -8:30-10:30 a.m., 2: 15-4: 15 p.m., and 7-9 p.m.--and sometimes they
get even less time out of their cells.
56. Prisoners in the CRC have full and flexible access to laundry, showers, television,
telephone, recreational facilities, and a microwave during their approximately 13 hours out of
their dorms each day.
57. Prisoners in the Jail only have access to phones, a microwave, and showers during
the 6 hours (and sometimes less) that they are allowed out of their cells each day for recreation.
1 The SWAN Resource Manual lists only ten Jail-based programs-(}) Stress and anger management, (2) Values clarification, (3) Choices and Consequences, (4) Parenting, (5) Sex offender treatment, (6) GED classes, (7) Healthy Lifestyles, (8) Interpersonal Communication, (9) Back on Track, (10) Batterers' Intervention-and 22 CRC-based programs-(1) Cognitive behavioral programming, (2) Walking the Line, (3) Volunteer mentoring, (4) Treatment services, (5) Forensic services, (6) GED classes, (7) Computer lab, (8) Work release, (9) Interviewing skills, (I 0) Clothing bank, (11) One-on-one job related assistance and counseling, (12) Staff from collaborative agencies providing multiple workshops, (13) New Road Ministry, (14) Father's Voice, (15) Employment programming, (16) Domestic relations cases, (17) Substance abuse and mental health recovery, (18) Housing assistance, (19) Family and community restoration, (20) Prevention Partnership of Berks County, (21) Immediate Post-Release Needs, (22) HelpLink/COMPASS.
11

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 12 of 23
58. On information and belief, prisoners in the CRC are able to have visitors on days when they are not working and are able to sit at a table with their visitors, without any physical barrier between them.
59. When female Trusty and/or Work Release prisoners in the Jail receive visitors, they must sit in a room with other prisoners and are separated from their visitors by a glass barrier, through which they must talk without the benefit of a phone or other means of amplification.
60. On information and belief, prisoners in the CRC are entitled to take furloughs after they have been there for one month, while women with Trusty custody-level classifications and/or Work Release status are not.
61. On information and belief, CRC prisoners have unfettered access to laundry equipment to wash their work clothes, from approximately 10 a.m. till 11 p.m. seven days a week.
62. Prisoners in the Jail are dependent on jail staff to launder their work clothes and must ask them to do it on Sundays.
63. On information and belief, the CRC is never subject to lockdowns. 64. The Jail General Population prisoners are subject to frequent lockdowns, during which prisoners are locked in their cell for the entire lockdown time. Lockdowns last anywhere from a few hours to several days. See, e.g, Berks County Prison on Lockdown until Further Notice, READING EAGLE (Aug. 31, 2018), https://www.readingeagle.com/news/article/berkscounty-_prison-on-lockdown-until_::_fµrther-noti_c;~. 65. Male and female prisoners on Work Release- -including Ms. Victory-are charged $50 per week for room and board, but male prisoners on Work Release receive all the
12

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 13 of 23
benefits and privileges associated with being housed in the CRC, while female prisoners on Work Release--including Ms. Victory-do not. Discrimination and Retaliation Against Theresa Victory
66. On January 24, 2018, Theresa Victory entered a guilty plea in the Court of Common Pleas of Berks County pursuant to a negotiated plea agreement, the terms of which guaranteed that she would be immediately eligible for Work Release.
67. This guarantee of immediate eligibility for Work Release was a major factor in Ms. Victory's decision to accept the plea agreement and plead guilty, as it would enable her to continue to work, pay her bills, and keep her apartment.
68. As part of those negotiations, Ms. Victory understood that her participation in Work Release would be accompanied by housing separate from the main jail.
69. Ms. Victory reported to Berks County Jail on January 27, 2018. 70. On January 31, 2018, Berks County issued a document reflecting Ms. Victory's approval for Trusty custody level and specifically stated that her placement in the CRC was contingent on her participation in a drug and alcohol group. 71. Ms. Victory was put on Work Release and works as a server at Route 61 Diner. She works eight-hour shifts, five days a week, and is paid $7.85 per hour. 72. Ms. Victory participated in and completed the drug and alcohol group, and she has complied with all requirements of the program throughout her time at the Berks County Jail. 73. Throughout her confinement, Ms. Victory has been classified as a Trusty and approved for Work Release. 74. At no point during her confinement has Ms. Victory been in any of the disqualifying categories for reentry housing (i.e., housing in the CRC). See supra,-: 43.
13

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 14 of 23

75. Despite this, Ms. Victory was assigned to General Population in the Jail instead of

the CRC. 76.

When Ms. Victory first arrived at the Jail, she was placed in an "overflow'' unit of

the Jail that houses 45 female prisoners in "dormitory" housing rather than in locked cells.

77. Shortly after her arrival at the Jail, Ms. Victory and, upon information and belief,

other female prisoners with Trusty custody level and/or Work Release status, filed grievances in

which they complained about not being housed in the CRC and requested the same services and

privileges that male prisoners with Trusty custody level received.

78. Shortly after filing these grievances, Ms. Victory and other female prisoners with

Trusty classification and/or Work Release status were moved from the dormitory-style overflow

housing unit to F Block in General Population in the Jail, where they were housed in locked

cells.

79. Defendant C.O. Bauer said she moved Ms. Victory and the other female Trusty

prisoners out of the overflow housing and in to General Population in the Jail because, in her

words, they were "too demanding."

80. Upon information and belief, C.O. Bauer received authority to move .Ms. Victory

and the other female Trusty-classified prisoners from Defendants Warden Quigley and Deputy

Warden Smith.

81. Ms. Victory has been subjected to lockdowns in the Jail-periods when she was

not permitted to leave her cell for long periods of time-at least 8 times since July 2018, as well

as on multiple occasions prior to that, including multiple times for 19 hours straight.

82. Laundry services are unreliable and erratic in the Jail, causing Ms. Victory to

have to wear the same dirty clothing to work day after day.

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83. On or around July 15, 2018, Ms. Victory asked Defendant C.O. Drozack to do her laundry and told her that she had no clean underwear.
84. When it was time for Ms. Victory to leave for work on July 15, 2018 and Defendant C.O. Drozack still had failed to do Ms. Victory's laundry, C.O. Drozack told Ms. Victory to go to work with no underwear on.
85. On May 31, 2018, Ms. Victory filed a grievance complaining about the failure of the Jail System to assign her to housing and services in the CRC and complaining about the disparities in treatment and privileges between her and other women with Trusty classification and/or Work Release status (all of whom are housed in the Jail) and men with Trusty classification and/or Work Release status (all of whom are housed in the CRC) ("CRC grievance").
86. On or about July 24, 2018, Ms. Victory filed an appeal of the unanswered CRC gnevance.
87. On or about August 14, 2018, Ms. Victory asked her counselor about the status of her CRC grievance and appeal, and her counselor found a response to the appeal, dated July 26, 2018, in Ms. Victory's file. Ms. Victory had not previously received a copy of this response.
88. In the response, Defendant Captain Castro claimed not to have received the initial grievance, treated the appeal as a grievance, and denied the grievance.
89. In her denial of Ms. Victory's CRC grievance, Captain Castro stated: "Due to the small size of the female prisoner population, in comparison to the male population, the physical design of the jail prohibits dedicating a housing unit for trusty status females. Even our smallest housing unit would maintain nearly 90% unoccupied beds if we were to attempt to create a
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female trusty unit. This would be a tremendous waste of valuable bedspace and resources. The CRC is not a co-ed building."
90. On or about August 14, 2018, Ms. Victory filed an appeal of the denial of her CRC grievance.
91. On August 17, 2018, Defendant Deputy Warden Stephanie Smith denied Ms. Victory's appeal of her CRC grievance, claiming that, Trusty Status, CRC, and Work Release were unrelated and that Ms. Victory was not entitled to CRC housing and benefits based on her Work Release and Trusty status.
92. On July 24, 2018, Ms. Victory submitted a furlough request. 93. On or about August 17, 2018, Defendant Deputy Warden Smith denied Ms. Victory's request for a furlough. 94. On or about August 18, 2018, :\1s. Victory filed a grievance complaining about the denial of her request for a furlough ("furlough grievance"), explaining that she felt it was unfair that men with Trusty classification and/or Work Release status were routinely granted furloughs but women with the same status were not.
95. On or about August 30, 2018, Defendant Lieutenant Weber denied Ms. Victory's furlough grievance and wrote in his response, "You have already filed an appeal to your grievance. This exhausts the steps of the grievance process. Future communication on this topic will be considered harassment and discipline will follow."
96. Since filing her grievances and appeals, Ms. Victory has been repeatedly subjected to interference with her Work Release employment and threats to terminate her Trusty custody level and her Work Release status.
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97. On or around July 14, 2018, Defendants C.O. Drozack and C.O. Bauer refused to release Ms. Victory when she was scheduled to leave for work, causing her to arrive at work late.
98. When she explained that she was scheduled to leave for work, C.O. Drozack and C.O. Bauer responded derisively, and Defendant Lieutenant Spotts said, "You will go to work when I tell you to. If you keep it up, you will not go at all."
99. On or around September 4, 2018, Ms. Victory was scheduled to go to work, but Defendants C.O. Zerr and C.O. Brown refused to let her leave because they said she was not listed as being scheduled to work that day.
100. When Ms. Victory explained that she could lose her job if she was absent and asked C.O. Zerr to check with Work Release Coordinator Joanna Brown, C.O. Zerr told her that if she continued to ask about it, she would send her to "the hole" (i.e., Restrictive Housing).
101. When Ms. Victory told C.O. Brown she needed to go to work and asked C.O. Brown to call Work Release Coordinator Joanna Brown, C.O. Brown replied, "If you ask me one more time, I'm going to put you in the hole today."
102. Ms. Victory's fiance and her boss both called Defendant Joanna Brown multiple times that day but got no response, and Ms. Victory ended up missing the entire day of work.
103. On or around September 12, 2018 at approximately 1: 10 p.m., Ms. Victory knocked on her cell door because it was time for her to be released to go to work.
104. Defendant C.O. Reichart then told Ms. Victory, "Knock on your door one more time, and you'll lose your job."
105. On or around September 13, 2018, Ms. Victory was released late from her unit to go to work.
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106. Defendant C.O. Reichart said to Ms. Victory, "It's jail. We cannot help it if you are late for work."
107. On or around September 26, 2018, Ms. Victory was released late from her unit to go to work because Defendant C.O. Drozack refused to allow her to leave at the proper time.
108. Defendant C.O. Drozack told Ms. Victory, referring to getting released to go to
work, "It's not a priority.... I don't care. I will get to it when I get around to it."
109. On or around September 26, 2018, as well as on multiple other days, Defendant C.O. Drozack interfered with Ms. Victory's ability to get to work on time by requiring her fiance, who drives her to work, to check in inside the Jail before C.O. Drozack would permit Ms. Victory to leave; when other C.O.'s are on duty, Ms. Victory's fiance is not required to do this.
110. On or around October 18, 2018, Ms. Victory was late to work because Defendants C.O. Zerr and C.O. Reichart failed to let her out of her cell on time.
111. On or around November 19, 2018, Defendant C.O. Brown searched Ms. Victory's cell and accused her of having an extra towel, an extra bed sheet, and prohibited correspondence from another inmate.
112. The allegedly prohibited correspondence from another inmate was actually a poem that Ms. Victory's former cellmate, who had been released from the Jail, had written and left in the cell.
113. C.O. Brown told Ms. Victory she could either accept an "informal" punishment of 10 days locked in her cell or go through the formal discipline process, which would mean time in "the hole" and the possible loss of her Work Release status; Ms. Victory chose the former option.
114. Defendant John Doe Correctional Sergeant approved Ms. Victory's punishment of 10 days locked in her cell.
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115. The intimidation and threats by correctional officers have caused Ms. Victory severe depression and anxiety about getting to work late, losing her Trusty custody level, and losing her Work Release employment.
116. Ms. Victory has suffered from frequent nightmares as a result of her anxiety. 117. Ms. Victory has experienced nausea and vomiting several mornings each week as a result of her anxiety, ever since the intimidation and threats by correctional officers began. 118. In September 2018, medical staff prescribed Ms. Victory medication for her depression and prescribed an increased dosage of medication for her anxiety. 119. On or around October 3, 2018, Ms. Victory was diagnosed with a muscle spasm in her back, a condition that was caused and/or exacerbated by her having to sleep on a hard metal bedframe, a lack of exercise, and insufficient time out of her cell. VI. LEGAL CLAIMS Count I - Sex Discrimination in Violation of the Fourteenth Amendment to
the US Constitution. Plaintiff Victory and Class against Berks County, County Commissioner
Defendants, Warden Quigley, and Deputy Warden Smith
120. Plaintiff repeats and re-alleges all of the paragraphs of this Complaint as if fully set forth herein.
121. Defendants' policy, custom, and practice of refusing to assign female prisoners who are on Work Release and/or have Trusty custody-level classifications to the CRC and denying to them the benefits of such assignment discriminates against Plaintiff and the class she represents on the basis of sex, in violation of their right to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.
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122. The sex-based classification used by Defendants in making housing assignments for prisoners with Trusty custody-level classification or Work Release status is not substantially related to the achievement of any important governmental objectives.
Count II - Retaliation for Asserting First Amendment Rights Plaintiff Victory against Correctional Staff Defendants
123. Plaintiff repeats and re-alleges all of the paragraphs of this Complaint as if fully set forth herein.
124. Plaintiff Victory engaged in protected First Amendment activity when she filed grievances and made informal complaints to prison staff.
125. Defendants took adverse actions against Plaintiff Victory- -including transferring her to different housing, verbally threatening to punish her, and interfering with her employment-sufficient to deter an ordinary prisoner from engaging in further protected speech.
126. Plaintiff Victory's protected First Amendment speech was a motivating factor in Defendants' decisions to threaten and take other adverse actions Plaintiff Victory.
127. These actions were undertaken intentionally, with malice, and/or with reckless disregard for Plaintiff Victory's rights. Count III - Sex Discrimination in Violation of the Pennsylvania Equal Rights Amendment,
Art. I, § 28 of the Pennsylvania Constitution
Plaintiff Victory and Class against Berks County, County Commissioner Defendants, Warden Quigley, and Deputy Warden Smith
128. Plaintiff repeats and re-alleges all of the paragraphs of this Complaint as if fully set forth herein.
129. Defendants' policy, custom, and practice of refusing to assign female prisoners who are on Work Release and/or have Trusty custody-level classifications to the CRC and denying to them the benefits of such assignment discriminates against Plaintiff and the class she
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represents on the basis of sex, in violation of their right to equal protection of the laws guaranteed by the Pennsylvania Equal Rights Amendment, Art. I, § 28 of the Pennsylvania Constitution. VII. JURY DEMAND
Plaintiff hereby demands that this matter be tried by jury. VIII. RELIEF WHEREFORE, Plaintiff requests that this Court grant:
A. A preliminary and permanent injunction: (1) Prohibiting Defendants from assigning female prisoners on Work Release and/or with Trusty custody-level classification to any housing other than the CRC or an alternative with the exact same privileges, programs, and services as the CRC; (2) Ordering Defendants to immediately move Theresa Victory and all other members of the Proposed Class currently in the Berks County Jail System to the CRC or an alternative with the exact same privileges, programs, and services as the CRC; (3) Prohibiting Defendants from retaliating against Ms. Victory for complaining about sex discrimination and retaliation.
B. A declaratory judgment under 28 U.S.C. § 2201 that the Defendants violated the the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Pennsylvania Equal Rights Amendment.
C. An award of compensatory damages to Ms. Victory. D. An award of punitive damages to Ms. Victory.
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E. An award of reasonable attorneys' fees and costs. F. Such other and further relief as may appear just and appropriate.

Dated:

Respectfully submitted,
Isl Su ~ing Yeh Su Ming Yeh PA Attorney No. 9511
Isl Angus Love Angus Love PA Attorney No.
Isl Jim Davy Jim Davy PA Attorney :\Jo. 321631
Isl ~_qtthew A. Feldman Matthew A. Feldman PA Attorney No. 32627
PEl''<:'JSYLVANIA INSTITUTIONAL LAW PROJECT
718 Arch St., Suite 304S Philadelphia, PA 19106 Tel: 215-925-2966 smyeh@pailp.org alove@pailp.org jdavy@pailp.org mfeldman@pailp.org
Counsel for Plaintiffand Proposed Class Members
:\Jovember 30, 2018

22

... ..._

Case 5:18-cv-05170-MAK Document 1 Filed 11/30/18 Page 23 of 23

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

THERESA VICTORY, Plaintiff,
V.
BERKS COUNTY, et al. Defendants.

CIVIL ACTION NO.

CERTIFICATION
I, the undersigned, Theresa Victory, have read Plaintiffs Complaint and found it to be true and correct to the best of my knowledge.

 
 Case 5:18-cv-05170-MAK Document 92 Filed 02/15/19 Page 1 of 17

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

THERESA VICTORY

CIVIL ACTION

v.

NO. 18-5170

BERKS COUNTY, et al.

MEMORANDUM

KEARNEY,J.

February 15, 2019

As we described in our January 15, 2019 Memorandum, Berks County admits treating

women inmates classified at the lowest security risk known as "trusty" different than male inmates

with the same trusty custody classification. It houses the trusty women in jail cells in the F Block

with limited liberty from the locked cells. It houses the trusty men in a separate building known

as the Community Reentry Center which is designed to provide substantially more liberty for the

men in unlocked cells. Berks County manages the trusty women in the jail through its "custody"

department but manages the trusty men in the Community Reentry Center through its "treatment"

department. We fully described Berks County's disparity in the liberty rights of trusty inmates

based on their gender in our January 15, 2019 Memorandum. After we granted Theresa Victory

preliminary injunctive relief, she plead guilty to prison offenses, ended up in disciplinary

segregation status, and Berks County released her from custody as scheduled by the trial judge.

We now address two more women trusty inmates seeking injunctive relief. Neither qualify for

injunctive relief today: one is now released from custody as scheduled by the trial judge and the

other woman never grieved her complaints and does not presently show grounds to excuse her

need to exhaust administrative remedies. We cannot cavalierly ignore exhaustion requirements.

In the accompanying Orders, we deny the present motion for injunctive relief and dissolve the

injunction affecting Theresa Victory's rights as a trusty inmate.

Case 5:18-cv-05170-MAK Document 92 Filed 02/15/19 Page 2 of 17
I. Background Formerly incarcerated Theresa Victory began this action on November 30, 2018 seeking
injunctive and declaratory relief and damages arising from alleged violations of her rights to equal protection as a female inmate classified with trusty status and for retaliation. She promptly moved for mandatory injunctive reliefrequiring the Defendants "immediately move [her from the F Block in the Jail] to the [Community Reentry Center] or an alternative with the exact same privileges, programs, and services."1 After expedited discovery and an extensive January 10, 2019 preliminary injunction hearing, we granted Ms. Victory's motion for a preliminary injunction on January 15, 2019. 2 We required the Berks County Warden and her agents to provide Ms. Victory with "the same liberty and freedom of movement provided to male Trusty inmates housed at the Community Reentry Center as of January 10, 2019, including (by way of example only) thirteen hours of each day (not including work release) outside of her cell, no lock on her cell in the evening hours, and direct access to rehabilitative programs she wishes to attend in the Community Reentry Center."3
Before we entered the preliminary injunction, Ms. Victory plead guilty to two offenses in the Jail resulting in her losing her trusty custody status until January 29, 2019. As a result, we stayed "Berks County's obligations to provide Ms. Victory with equal treatment of male Trusty inmates until the January 29, 2019 lifting of her disciplinary segregation" and required Berks County, through Warden Quigley, to file a plan describing the constitutional protections defined in our January 15, 2019 Order" which it would provide Ms. Victory after her disciplinary segregation expired on January 29, 2019.4 Possibly consistent with her sentence, Berks County released Ms. Victory from its custody at 12:01 A.M. on January 28, 2019. Berks County promptly moved to dissolve the January 15, 2019 injunction. 5 Compliant with our Order, the Berks County
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Warden filed an affidavit describing how Berks County would provide Ms. Victory with equal protection in the F Block of the Jail should she return to trusty status before being released. 6
While we addressed Ms. Victory's custodial status, she filed an amended complaint along with Amara Sanders and Samantha Huntington who Berks County also classified in "trusty" status. They also sought injunctive and declaratory relief and damages. Ms. Sanders and Ms. Huntington moved for a preliminary injunction requiring the Berks County Defendants move them to the Community Reentry Center or an alternative with the exact same privileges, programs, and services. We allowed expedited discovery and set the injunction hearing. Amara Sanders and Samantha Huntington testified, as well as three witnesses from the Jail, at our February 11, 2019 preliminary injunction hearing.
After evaluating the credibility of testimony, we find 21-year-old Ms. Sanders is presently classified in trusty custody status in the Berks County Jail but resides in the F Block of the Jail. The Jail classified her as trusty status beginning October 3, 2018. She initially resided in the Jail's overflow area with much more liberty than provided in a cell on the F Block. She now resides with a cellmate with a bunk bed, desk and toilet. Her cell door locks and she is limited in her rec time. She has been in approximately five or six different jail cells in her tenure. She shared a cell with Theresa Victory for approximately one month in either November or December 2018. She works in the Jail's laundry facilities from 2:15 P.M. to approximately 9:00 P.M. each day. She learned about the Community Reentry Center from Theresa Victory and heard a Berks County correctional officer describe the cells in the Community Reentry Center not locking during lockdowns. Ms. Sanders never requested any programming. She never asked anybody about programming. Working in a pizza shop before her jail sentence, she hopes to go to school upon release. She has never sought job training inside or outside of the Jail. While aware of a grievance
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system, she never filed a grievance and has never talked to anyone about a fear of being retaliated against. The Defendants never disciplined her. While she never filed a grievance, she is aware a coworker in the laundry filed a grievance. She also saw the correctional officers treat Ms. Victory more harshly after she complained, including searching her cell more than other women inmates. She thought she could not grieve the differing treatment of women trusty inmates because Ms. Victory had already done so.
Ms. Huntington is a 21-year-old woman presently living with her parents in Bethel, Pennsylvania. Berks County released her from custody on February 2, 2019 after entering custody on April 25, 2018. The Jail classified her in trusty status since May 2018. The Jail originally housed her in the overflow unit for approximately two months before she was moved to a cell on the F Block. She preferred the overflow unit as it provides more freedom of movement, offers lockers to protect things and allows her to eat away from her toilet. She never learned or heard anything about the Community Reentry Center other than a correctional officer describe the open floorplan with no locks on the door.
II. Analysis A. Ms. Victory's and Ms. Huntington's release renders their individual claims for preliminary injunctive relief moot. The Berks County Defendants argue Ms. Victory and Ms. Huntington's claims for
preliminary injunctive reliefare now moot because oftheir recent discharge from the Berks County Jail. It is not disputed Berks County discharged Theresa Victory on January 28, 2019,7 and Samantha Huntington on February 2, 2019.8 Both are now on parole. Ms. Victory and Ms. Huntington's claims for preliminary injunctive relief are now moot because their release from the Berks County jail renders us unable to compel Defendants to grant their requested relief.
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"[A] case is moot if 'developments occur during the course of adjudication that eliminate a plaintiffs personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief. "'9 "A case that becomes moot at any point during the proceedings is 'no longer a "Case" or "Controversy" for purposes of Article III,' and is outside the jurisdiction of the federal courts." 10 "Generally, courts have held that an inmate's release from a correctional institution makes his or her claims for injunctive relief moot. " 11
As particularly relevant here, courts in our circuit hold an inmate's individual claims for injunctive relief moot upon an inmate's release for parole. In Nelson v. State of New Jersey Department of Corrections, for example, our Court of Appeals dismissed as moot a plaintiffs appeal from the district court's denial of his motion for injunctive relief. 12 To redress injuries sustained in prison, 13 the plaintiff "requested the injunctive relief of removal from the custody of the New Jersey Department of Correction, protection from the defendants, and a blood test and medical care from a federal medical provider."14 But after the district court denied the plaintiffs motion for a preliminary injunction, the plaintiff "was released on parole" and was therefore "no longer in the custody of the New Jersey Department of Corrections or the individual defendants."15 Our Court of Appeals dismissed the appeal as moot, finding "none of the relief [plaintiff] has requested can be provided by the defendants."16
Judge Caldwell's decision in Herder v. Biesh is also instructive. 17 The plaintiff in Herder, after suffering an injury in prison, alleged the "defendants were deliberately indifferent to his serious medical needs" and sought "an injunction in the form of medical care from an unbiased medical practitioner so that his serious medical needs would be diagnosed."18 Judge Caldwell found the claim moot because "[t]he only relief [the plaintiff] seeks in this case is a consultation with and evaluation by an unbiased physician," and "[h]is release on parole from [Department of
5

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Corrections] custody moots this request as the DOC no longer has custody or control over him."19 Judge Caldwell also found "[w]hile it is possible that [the plaintiff] could at some point in the future return to DOC custody, the mere possibility of that occurring is too speculative to overcome the mootness of his claim."20
Judge Kugler made a similar finding of mootness in Ortiz v. New Jersey. 21 In Ortiz, the plaintiff sued various defendants for claims stemming from his fall from his jail cell's top bunk and from a separate incident allegedly involving the administration of an insulin shot.22 The plaintiff sought "monetary damages as well as prospective and injunctive relief on his claims"23 but during the pendency ofthe litigation was released from prison and began parole. Judge Kugler found the plaintiffs "release from prison on parole moots his claim for injunctive relief against the State Defendants."24 Other authorities are also in accord.25
Ms. Victory and Ms. Huntington argue despite their release from the Berks County Jail, their claims are not moot because they are "challenging conduct that is 'capable of repetition yet evading review. "'26 "A dispute qualifies for that exception only 'if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. "'27 Even if Ms. Victory and Ms. Huntington could demonstrate the challenged action is too short in duration to be fully litigated, they cannot show "a reasonable expectation" they will again return to the Berks County Jail and be subjected to the same treatment.28
Judge Joyner's finding of mootness in Hontz v. Berks County Prison29 is also persuasive. In Hontz, the plaintiff sued the Berks County Prison, the Warden, and various County commissioners, among other defendants, alleging claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Fourteenth Amendment's Equal Protection Clause
6

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stemming from Berks County Prison's refusal to permit him to work in the kitchen because of his Hepatitis C.30 Among other remedies, the plaintiff sought "declaratory judgment and injunctive relief for the alleged denial of food service work due to Hepatitis C."31 But "[t]he [p]laintiffwas transferred to state prison"32 and the Berks County defendants argued the inmate's transfer to a state facility rendered the claims for declaratory and injunctive relief moot.33 The plaintiff argued in response the claims "are capable of repetition yet evading review" because "he is likely to be returned to Berks County Prison if he violates the terms of his parole in the future, and therefore the alleged constitutional violations could reoccur."34
Judge Joyner "decline[d] to accept the [p]laintiffs argument that his case is capable of repetition yet evading review because of the likelihood that he will violate parole and be returned to Berks County Prison."35 Judge Joyner dismissed as moot the plaintiffs claims for declaratory and injunctive relief, finding the plaintiffs reliance on the potential prospect of a parole violation to be "conjecture."36
Ms. Victory and Ms. Huntington dispute characterizing a potential parole violation as conjectural. They rely on our Court of Appeals' decisions in Parkell v. Danberg37 and Mick/us v. Carlson38 to distinguish their status as parolees from those inmates "completely released from the system through expiration of a sentence or acquittal upon retrial."39 In Mick/us v. Carlson, the district court "concluded that mootness prevented the complaint from stating a claim for injunctive relief because [the plaintiff] had been paroled from his [Youth Corrections Act (YCA), 18 U.S.C. §§ 5005-5026] sentence after the complaint had been filed."40 Our Court of Appeals found error in this determination because the statute set a "low standard for reincarceration. "41 "[A] committed youth offender who has been conditionally discharged from YCA custody," our Court of Appeals
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found, "may be recommitted if the U.S. Parole Commission (Commission) determines that he would benefit from recommittal. "42
And more recently in Parkell v. Danberg, our Court of Appeals reversed in part the district court's grant of summary judgment to the state defendants after the district court found the plaintiffs transfer out of a prison building in which he was subjected to repeated visual bodycavity searches mooted his claim for injunctive relief.43 Our Court of Appeals held although such a transfer would generally moot a claim for injunctive relief, the capable of repetition yet evading review "exception to the mootness doctrine could potentially apply."44 Our Court of Appeals acknowledged the "difficult and fact-intensive" mootness inquiry necessary "when the plaintiff is still connected to the system."45 Although our Court of Appeals found the plaintiffs point "welltaken that, as a general matter, confinement of inmates in isolation units is hardly unusual, which we have acknowledged in other contexts," it cautioned the plaintiff "must present more than generalities; he must establish a reasonable expectation that he, specifically, will again be subjected to the unconstitutional search practices carried out in [the] isolation units."46 Our Court of Appeals did not definitively resolve the issue, however, as it remanded for the district court to conduct the requisite mootness analysis in the first instance.47 We are unable to study the district court's analysis on remand, however, as the case settled after remand.48
Ms. Victory and Ms. Huntington argue they are substantially likely to return to the Berks County Jail because they could commit another crime and be reincarcerated or-even more likely--commit a technical violation of their parole resulting in reincarceration. Ms. Victory and Ms. Huntington argue the high percentage of Pennsylvania prison admissions stemming from parole violations permits us to reasonably conclude such a result is likely here. Such evidence, however, does not appear to depart the realm of the "generalities" our Court of Appeals described
8

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in Parkell. 49 And we are also not persuaded the hypothetical prospect ofreoffending or committing a parole violation-an act entirely within an individual's control---can defeat mootness in these circumstar1ces. We are particularly cautious of such an assertion following the Supreme Court's 2018 decision in United States v. Sanchez-Gomez,50 in which the Court rejected the respondents' invocation of the capable of repetition yet evading review exception to mootness, despite their argument they could again break the law and be subjected to the unlawful pretrial restraints. The Supreme Court emphasized it has "consistently refused to 'conclude that the case-or-controversy requirement is satisfied by' the possibility that a party 'will be prosecuted for violating valid criminal laws. "'51 The Court also found unpersuasive the inmates' reliance on civil cases applying the exception, because those "cases rested on the litigants' inability, for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct."52
Ms. Victory and Ms. Huntington present no such circumstances beyond their control. They possess the free will to comply with law as well as the terms of their parole. Ms. Victory's and Ms. Huntington's claims for injunctive relief are moot. Ms. Huntington moved for a preliminary injunction requiring Berks County immediately move her to Community Reentry Center or an alternative with the exact same privileges, programs and services. 53 As her counsel conceded at the hearing, she no longer seeks this relief; she now lives at home with her parents. Ms. Victory is also released. She no longer seeks the same treatment as male inmates classified in the trusty custody status. We have no basis other than her counsel's cynical speculation she may someday return to trusty status in the Berks County Jail. We trust not. And we have no reason to believe these young women will be back.
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We deny Ms. Huntington's request for a mandatory injunction as she is no longer seeking equal protection as a female inmate. We also dissolve our January 15, 2019 injunction as it related solely to Ms. Victory's rights to equal protection while classified in trusty custody status. As of our January 25, 2019 Order-and today-she is no longer in this status. Considering Ms. Victory's change in status renders her claim for preliminary injunctive relief moot, dissolution is the appropriate remedy. s4
B. We deny Ms. Sanders preliminary injunctive relief for failing to exhaust.
Ms. Sanders' claims are governed by the Prison Litigation Reform Act (Act). The Act requires an inmate exhaust available administrative remedies before bringing an action relating to prison conditions.ss Exhaustion is a gateway issue. If Ms. Sanders does not carry her burden of showing exhaustion, she cannot demonstrate a likelihood of success on the merits of her claims6 and we may not issue a preliminary injunction. s7 Ms. Sanders candidly testified she never filed a single grievance during her time as an inmate; while she never testified to a desire to grieve, her counsel argues her failure to exhaust administrative remedies must be excused because the grievance processes detailed in the Inmate Handbook were unavailable to her. Ms. Sanders is correct the Act's exhaustion rule "contains one significant qualifier: the remedies must indeed be available to the prisoner."ss At this preliminary injunction stage, however, she does not carry her burden of demonstrating the remedies detailed in the Inmate Handbook were unavailable to her, even if discovery could ultimately yield contrary evidence.
In its 2016 decision Ross v. Blake, the Supreme Court articulated "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief."s9 First, an administrative remedy is not available when "it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved
10

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inmates."60 Second, an administrative remedy is unavailable when the scheme is "so opaque that it becomes, practically speaking, incapable of use. "61 And third, an administrative remedy is unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation."62 Ms. Sanders fails to demonstrate any of these circumstances apply.
Ms. Sanders argues two provisions of Berks County's Inmate Handbook deem her claim non-grievable.63 Ms. Sanders first relies on the provision of the Inmate Handbook prohibiting the filing of grievances "about any matter that is in the process of litigation."64 A matter is "in the process of litigation," according to the Inmate Handbook, "when someone communicates an intent/threat to a member of our staff or upon receipt of a 'notice' from the court."65 Ms. Sanders argues she joined this case through an amended complaint filed on January 17, 2019, after Ms. Victory's complaint had already been served on the Defendants.66 The policy, she contends, plainly instructs her not to grieve the issue because of Ms. Victory's pending litigation. The Supreme Court in Ross instructed when "[w]hen an administrative process is susceptible of multiple reasonable interpretations, Congress has determined that the inmate should err on the side of exhaustion."67 While Ms. Sanders reads the policy as prohibiting any inmate from filing a grievance so long as another inmate in the jail has already done so, this is not the only plausible interpretation of the provision. An inmate could also plausibly read the policy as preventing the filing of grievances by only the inmate litigating, or threatening to litigate, an issue.
The same logic applies to Ms. Sanders' reliance on the provision of the Inmate Handbook warning discipline may result for "[a]buse of the grievance process," which includes, among other conduct, submitting grievances "that have previously been addressed and answered by staff' or "[s]ubmitting repetitive grievances on the same issue(s)."68 Ms. Sanders again reads this policy
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language as precluding any inmate from filing a grievance about any issue another inmate has already grieved. But, as above, another equally plausible interpretation is apparent: a reasonable inmate could read this provision as prohibiting only the filing of duplicative grievances by the same inmate.
Captain Castro credibly testified Ms. Sanders' reading of the policy language is incorrect. Captain Castro testified he individually responds to grievances filed by a group of inmates about a prison condition such as a lack of heat. Such a reading of the policy also makes practical sense, as the prison could not reasonably punish an inmate for grieving an issue he or she is not aware another inmate already grieved. And it would be quite impractical to require confined inmates to collectively coordinate who among the many will file a grievance about issues affecting, for example, an entire cell block. We are not finding whether his interpretation is correct. But on this preliminary record, we cannot agree with Ms. Sanders' interpretation as being the rule.
Even if Ms. Sanders' reading of the Inmate Handbook is reasonable, we confront a policy subject to two reasonable interpretations. Ms. Sanders did not err on the side of exhaustion here. She did not once ask a prison guard or other official about whether, and if so, how, she could file a grievance.
Ms. Sanders appeared to invoke another exception to exhaustion during her testimony on February 11. Ms. Sanders testified she perceived correctional officers disciplining Ms. Victory harsher than other inmates for minor infractions. But we do not find Ms. Sanders presents any evidence demonstrating she received threats rendering administrative remedies unavailable. Our Court of Appeals recently held to "[t]o defeat a failure-to-exhaust defense" based on threats or intimidation, "an inmate must show (1) that the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance and (2) that the
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threat actually did deter this particular inmate."69 Ms. Sanders testified she perceived Berks County prison officials discipline Ms. Victory more severely than other inmates for minor infractions, such as taking food from the cafeteria. Ms. Sanders testified she witnessed Ms. Victory's cell being searched, but she did not testify she heard a correctional officer make a threat during the searches of Ms. Victory's cell. While Ms. Victory may yet present credible testimony based on individual knowledge as to retaliation, Ms. Sanders has not presented evidence to show jail personnel threatened or intimidated Ms. Sanders. She failed to make the requisite showing of conduct sufficient to "deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance" and conduct which "actually did deter" her from lodging a grievance. 70
Ms. Sanders has not established an exception to her exhaustion requirement on this preliminary record. She has not exhausted her rights to grieve her treatment as a female trusty inmate for purposes of injunctive relief today. We must deny her request for injunctive relief.
III. Conclusion In the accompanying orders, we deny Plaintiffs Samantha Huntington and Amara Sanders' Motion for a preliminary injunction and grant the Berks County Defendants motion to dissolve the January 15, 2019 mandatory injunction affecting the treatment of Theresa Victory, as modified on January 25, 2019.
1 ECF Doc. No. 9-1. 2 ECF Doc. No. 39. 3 Id. 4 ECF Doc. No. 61. 5 ECF Doc. No. 63.
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6 ECF Doc. No. 64. 7 ECF Doc. No. 63 at 12-17. 8 Defs.' Ex. No. 28. 9 Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996)). 10 United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)); see Blanciak, 77 F.3d at 698 ("Article Ill's 'case or controversy' requirement prevents federal courts from deciding cases that are moot."). 11 Sutton v. City ofPhiladelphia, 21 F. Supp. 3d 474, 480 (E.D. Pa. 2014) (collecting cases). 12 Nelson v. State ofNJ. Dep 't ofCorr., 214 F. App'x 243, 244 (3d Cir. 2007) (per curiam). 13 Specifically, the plaintiff "alleged that the trial court in his criminal case changed the jury's verdict after the jury left the courtroom and that his challenges to his conviction led to threats from prison officials and attempts being made on his life. He stated that he was beaten by correctional officers, drugged several times, and in May 2004, was poisoned by a nurse. He claimed that he subsequently experienced shortness of breath, headaches, and loss of consciousness and was denied medical treatment." Id. at 243-44 (footnote omitted). 14 Id. at 244. ls Id. 16 Id. 17 Herder v. Biesh, No. 09-2470, 2011 WL 861818, at *2-3 (M.D. Pa. Mar. 9, 2011). 18 Id. at *1 (citation and internal quotation marks omitted). 19 Id. at *2. 20 Id. 21 Ortiz v. New Jersey, No. 13-5372, 2015 WL 3755063, at *5 (D.N.J. June 16, 2015). 22 Id. at *1.
24 Id. at *5. 14

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25 See, e.g., Maskelunas v. Wexford Health Source, Inc., No. 14-369, 2015 WL 6686709, at *1 (W.D. Pa. Oct. 8, 2015) ("Any claim for injunctive relief is moot since Maskelunas has been on parole since September 2014, and I address only Maskelunas' claim for damages."), report and recommendation adopted, No. 14-369, 2015 WL 6686719 (W.D. Pa. Oct. 29, 2015); McKinney v. Pennsylvania Bd. of Prob. & Parole, No. 09-3679, 2010 WL 2720631, at *1 (E.D. Pa. July 7, 2010) (internal citation omitted) ("McKinney has since been released from DOC custody and is not under PBPP supervision. Thus, his injunctive relief claims are moot."), ajf'd, 405 F. App'x 646 (3d Cir. 2010). 26 ECF Doc. No. 67 at 3 (quoting Parkell v. Danberg, 833 F.3d 313, 333 (3d Cir. 2016); ECF Doc. No. 74 at 6 (same). 27 United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018) (quoting Turner v. Rogers, 564 U.S. 431, 439-440 (2011)). 28 Id. (citation and internal quotation marks omitted). 29 No. 12-2663, 2012 WL 5199370, at *3 (E.D. Pa. Oct. 19, 2012). 30 Id. at* 1. 31 Id. at *2. 32 Id. at* 1. 33 Id. at *2. 34 Id.
35 Id. at *3. 36 Id. (quoting Abdul-Akbar v. Watson, 4 F.3d 195, 207 (3d Cir. 1993)). 37 833 F.3d 313 (3d Cir. 2016). 38 632 F.2d 227 (3d Cir. 1980). 39 ECF Doc. No. 67 at 4 (quoting Parkell, 833 F.3d at 333); ECF Doc. No. 74 at 7 (same). 40 Micklus, 632 F.2d at 232. 41 Id. at 233. The Court of Appeals also found relevant the plaintiffs lengthy history of "confinement in noncomplying facilities." Id. 42 Id. at 232.
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43 Parkell, 833 F.3d at 323.
44 Id. at 332.
4s Id. at 333.
46 Id.
47 Id. at 334 ("We will therefore leave it for the District Court to determine on remand whether Parkell's request for injunctive relief in relation to the visual body-cavity searches remains a live issue under the capable-of-repetition exception to mootness.").
48 See Parkell v. Danberg, No. 10-0412, ECF Doc. No. 289 (D. Del. Feb. 20, 2018).
49 Parkell, 833 F.3d at 333.
so 138 S. Ct. 1532 (2018).
SI Id. at 1541 (quoting O'Shea v. Littleton, 414 U.S. 488, 497 (1974)).
s2 Id. at 1542 (emphasis added).
s3 ECF Doc. No. 53.
s4 See, e.g., US. Philips Corp. v. KBC Bank NV, 590 F.3d 1091, 1093 (9th Cir. 2010) ("A preliminary injunction imposed according to the procedures outlined in Federal Rule of Civil Procedure 65 dissolves ipso facto when a final judgment is entered in the cause."); Madison Square Garden Boxing, Inc. v. Shavers, 562 F.2d 141, 144 (2d Cir. 1977) ("With the entry of the final judgment, the life of the preliminary injunction came to an end, and it no longer had a binding effect on any one. The preliminary injunction was by its very nature interlocutory, tentative and impermanent."); Equal Emp't Opportunity Comm'n v. Evans Fruit Co., No. 10-3033, 2013 WL 12093748, at *1-2 (E.D. Wash. July 22, 2013) (mooting a motion to amend a final judgment for the judgment to include the dissolution of a preliminary injunction because the "final judgment calls for dissolution of the preliminary injunction order"); Ziemba v. Am. Home Mortg. Servicing, Inc., No. 10-02781, 2011 WL 3420646, at *6 (N.D. Ga. Aug. 4, 2011) (dissolving a preliminary injunction as a result of summary judgment); Great Lakes Consortium v. Michigan, 480 F. Supp. 2d 977, 986 n.4 (W.D. Mich. 2007) ("In light of the Court's disposition of the motion to dismiss and the motion to amend, the issue of continuing the preliminary injunction is now moot. The preliminary injunction therefore will be dissolved.").
ss 42 U.S.C. § 1997e(a).
s6 See Savage v. Wexford Health Sources, Inc., No. 16-2923, 2017 WL 5593353, at *3 (E.D. Pa. Nov. 21, 2017) ("Exhaustion of administrative remedies is mandatory and applies to all prisoners seeking redress for any prison condition or occurrence.").
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57 Dalmatia Imp. Grp., Inc. v. Foodmatch, Inc., No. 16-2767, 2016 WL 6525407, at *4 (E.D. Pa. Nov. 3, 2016); see Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017), as amended (June 26, 2017) (holding courts can only proceed to balance all four preliminary injunction factors if the movant "meet[s] the threshold for the first two 'most critical' factors," the first of which requires the movant "demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not)") (footnote omitted). 58 Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (internal quotation marks omitted). 59 Id. at 1859. 60 Id. 61 Id. 62 Id. at 1860. 63 See ECF Doc. No. 71 at 4-6. 64 Defs' Ex. No. 3 at 51, N.T. Feb. 11, 2019. 65 Id. (original underlining and some internal quotation marks omitted). 66 ECF Doc. No. 74 at 5. 67 Ross, 136 S. Ct. at 1859. 68 Defs.' Ex. No. 3 at 53, N.T. Feb. 11, 2019. 69 Rinaldi v. United States, 904 F.3d 257, 269 (3d Cir. 2018). 10 Id.
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 Case 5:18-cv-05170-MAK Document 38 Filed 01/15/19 Page 1 of 27

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

THERESA VICTORY

CIVIL ACTION

v.

NO. 18-5170

BERKS COUNTY, et al.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KEARNEY,J.

January 15, 2019

Berks County thoughtfully classifies newly admitted inmates in its jail system after careful study from a variety of experts using complicated analysis tools in reviewing each newly admitted inmate consistent with the sentencing state court judge's recommendations. It does not distinguish between male and female inmates in carefully setting custody classifications from highest to lowest risk. It focuses on risk posed by the newly admitted inmate and the inmate's need for rehabilitation. Just as it classifies certain newly admitted inmates as high or medium risk, Berks County properly finds a limited number of male and female inmates can be classified in the "Trusty" class-the lowest level of security risk. Trusty inmates typically spend approximately fifty-seven days in custody and may leave the jail system if their sentencing judge finds work release for the Trusty inmate fulfills the Commonwealth's sentencing goals. Male and female Trusty inmates are examined and classified in the same manner.
But, after carefully setting this custody classification for all newly admitted inmates, Berks County then houses the Trusty inmates in substantially different facilities depending on their gender: all male Trusty inmates live in a separate "Community Reentry Center" with, among other benefits, dorm-style unlocked cells attached to community day rooms, thirteen hours of daily recreation time, unlimited access to toilets/showers, meals served in a community

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day room, less risk of lockdown, and several programs designed to enhance their re-entry into the community as Berks County proudly touts on its website. Sounds like Berks County pursues an innovative and thoughtful approach to re-entry. Unless you are a female Trusty inmate.
By comparison, Theresa Victory, a female Trusty inmate since January 2018, is housed in the F Block of the neighboring but much larger Berks County Jail with locked cells, no more than six hours of daily recreation, limited access to toilets/showers, meals served in her cell, more lockdowns, and fewer programs fostering re-entry into the community. Her sentencing judge found she warranted work release and she has been a diligent worker at a local diner. But other than being transported to the diner and back, Berks County does not allow her out of locked cell for more than six hours a day-assuming no lockdowns on a certain day attendant to a much larger jail. Substantially different treatment.
Asked to explain its reasons for this substantially different treatment when sued by Ms. Victory for depriving her of equal protection under the Law, Berks County speculates it cannot allocate two its thirty-one female correctional officers to supervise Ms. Victory at the Community Reentry Center and the unknown speculative costs of modifications to either the jail or Community Reentry Center outweigh her rights. Relying on these staffing and costs concerns, it speculates as to a safety alarm. We find Berks County does not adequately justify its reasons for this substantially different treatment of lowest risk Trusty inmates working in our community on work release based on their chromosomes. After too long, Berks County must act now to mitigate further harm to Ms. Victory and ensure her equal protection under the Law, without retaliating against her (or other male and female inmates) because Berks County now needs to treat men and women Trusty inmates in the same manner.
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Following briefing, oral argument and evaluating the credibility of several witnesses and dozens of admitted exhibits at our January 10, 2019 evidentiary hearing, we find facts and enter conclusions of law supporting our accompanying Order granting Ms. Victory's Motion for a preliminary injunction:
I. Findings of Fact
1. For at least two years before January 2018, forty-eight-year-old Theresa Victory worked as a waitress and hostess at the Route 61 Diner in Berks County while residing with a significant other in a local apartment. She admittedly struggled with attention deficits compounded with alcohol dependency resulting in, among other things, two arrests for driving under the influence.
2. On an unknown date, the Commonwealth arrested Ms. Victory for her third driving under the influence offense.
3. On January 24, 2018, following a negotiated plea agreement, a Berks County judge sentenced Theresa Victory to a sentence of not less than one year nor more than five years to be served in the Berks County Jail arising from her third driving under the influence conviction within ten years, beginning January 28, 2018. 1
4. The judge required Ms. Victory participate in drug and alcohol and mental health programs and found Ms. Victory immediately eligible for Work Release.2 The judge did not allow furloughs. Ms. Victory never asked the judge to modify the sentence to allow furloughs.
5. Upon entry into a sentence, Ms. Victory learned the Berks County Jail System defines five levels of custody depending on the security risk posed by the newly admitted inmate: Administrative segregation, Maximum, Medium, Minimum, and Trusty.
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6. Berks County Warden Janine L. Quigley, as appointed by and responsible to the Berks County Prison Board and the Berks County Commissioners, is responsible for this custody classification system. She delegates this classification system to the Institutional Classification Committee consisting of five persons experienced in evaluating the treatment and clinical needs of the newly admitted inmate, including a logistical person familiar with the number of available beds and programs at the neighboring Community Reentry Center ("CRC").
7. Within three days of beginning her sentence, the Institutional Classification Committee approved Ms. Victory for "Trusty" classification-the lowest level of security for inmates.3 The Committee found Ms. Victory had a low risk ofrecidivism.
8. The average incarceration of an inmate with Trusty classification-regardless of woman or man-is approximately fifty-six or fifty-seven days.
9. An inmate with a Trusty classification is eligible for Work Release, consistent with the state judge's sentence.4
10. Berks County provides four general categories of inmate housing: classification/quarantine; general population; restricted housing (administrative or disciplinary segregation); or reentry (including Trusty or work release). 5
11. Berks County describes the reentry housing as "assigned to those who meet a number of criteria [where] you may be housed outside the secure perimeter of the jail [and] afforded, to a degree, more freedom and less direct supervision by staff."6 Berks County represents to Ms. Victory and others in reentry housing: "[y]ou will be accountable for your behavior and responsible to prepare yourself to return to the community."7
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12. Berks County sets different dress codes for each housing, with a greater number of clothes issued to Trusty classification inmates who are not housed in general population but instead housed in the neighboring CRC. 8
13. Upon her arrival and after a short quarantine period, Berks County housed Ms. Victory in an overflow unit of the Jail housing over forty female prisoners in dormitory housing with several women in bunk beds and no cell walls or bars.
14. On February 14, 2018, in stated reliance upon Warden Quigley's and Deputy Warden Stephanie E. Smith's recommendation, a Berks County judge permitted Ms. Victory to leave the Jail to return to work again until discharged from her sentence or re-classified to a nonTrusty status. 9
15. Ms. Victory returned to work as a waitress/hostess including at the Route 61 Diner working an eight-hour shift, five days a week, often returning later in the evening. She continues to work there.
16. In April 2018, Ms. Victory complained about her safety in the Jail when she returned from Work Release at approximately 10:25 P.M. when unsupervised male inmates were waiting in the lobby with her to enter the Jail. Berks County officers responded she faced no safety risk as cameras are monitoring the Jail lobby. 10
17. After Berks County denied her requests for furlough not permitted by the judge's sentence, Ms. Victory inquired in July 2018 as to programs available to other inmates classified as "Trusty" and housed in a nearby facility known as the "CRC." Ms. Victory sought to participate in job reentry and training programs which she understood were available to those with Trusty classification at CRC but not available to her in the Jail. 11
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18. After she filed grievances, Berks County moved Ms. Victory and other female prisoners with Trusty classification and/or work release status from the dormitory-style overflow housing unit to F Block in General Population in the Jail.
19. By mid-summer 2018, Berks County housed Ms. Victory in the general population F Block unit of its Jail, reserved exclusively for women inmates regardless of their classification.
20. Apparently unknown to her upon entering the Jail, Berks County also maintains housing for inmates with the Trusty classification in a neighboring CRC, just down the hill from the Jail where, as Berks County promises, the inmates may be "afforded, to a degree, more freedom and less direct supervision by staff."12
21. Berks County agrees every male inmate with a Trusty classification is housed on the CRC and afforded, to a degree, more freedom.
22. Berks County did not place Ms. Victory in the CRC. But upon her arrival in January 2018, the Committee found Ms. Victory's "placement in the CRC is contingent upon [her] participation in recommended programming" including drug and alcohol group. 13 The Committee further represented after her placement in the CRC, the CRC staff may require her to participate in additional programming. 14
23. Ms. Victory filed several grievances on a variety of concerns, including denial of services offered at the CRC and her mistaken belief she could obtain a furlough absent a court order, while being housed in the F unit from July through November 2018. 15
24. Ms. Victory never specifically asked for a program before this lawsuit.
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25. Berks County denied her grievances and appeals and once cited her for misconduct for having poems and clothing which Berks County characterized as contraband in the F Unit. 16
26. Ms. Victory completed the Outpatient Drug and Alcohol Treatment Program required by the sentencing judge by October 29, 2018. 17
27. At an unknown time possibly as early as May or June 2018, Berks County correctional officers told her only male inmates could be housed at CRC.
28. Ms. Victory filed this case on her behalf, and other similarly situated female inmates with the Trusty classification, on November 30, 2018. 18 She seeks, among other things, injunctive relief compelling the Warden and Deputy Warden to move her to the CRC or an alternative with the exact same privileges, programs and services as provided at the CRC.
29. Approximately a week later following newspaper coverage of her filing this case, Berks County ceased her work release privileges on December 7, 2018. 19 She missed work one day before Berks County ended this conduct based on a perceived disciplinary claim.
Berks County's Jail compared to its Community Reentry Center. 30. Berks County maintains a jail with several units exclusively for men, one unit (F or "foxtrot" Block) exclusively for women, and other units for medical care and discipline. The Jail includes persons with each level of custody classification. 31. The inmates in the Jail are confined to locked cells of approximately seventy-five square feet in size, except for a period of either four or six hours of recreation time when they can access phones, showers and a microwave. There are two persons to each locked cell in the Jail who share a toilet in the cell. The inmates eat their meals in the cell.
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32. The Jail provides a variety of programs for the inmates in the Jail, including drug and alcohol treatment.
33. The Warden and her staff strive, consistent with her understanding of Pennsylvania Law, to always assign at least one of their thirty-one women correctional officers on the F (or otherwise characterized as the "foxtrot") Block in the Jail for each of three daily shifts.
34. Given the physical size of the Jail and number of inmates, the Jail has frequent lockdowns requiring the inmates remain in their cell, often forfeiting recreation time.
35. In 2010, Berks County converted a juvenile detention center down the hill from the Jail into a Community Reentry Center for the admitted "goal of reducing recidivism and assisting residents in re-establishing themselves as productive members of our community."20
36. Berks County while touting the value of its CRC does not represent the CRC is available only to men to assist in re-establishing themselves as productive members of the community.
37. The CRC has four units: Q, R, Sand T. Q and R units are across from each other
on the same level separated by a roll-up steel door and possibly having ceiling holes which would allow comments to pass between the units. S and T units are next to each other on another level which have large glass windows looking into their community or day room from the guard stations.
38. Each of the four CRC units has a large community or day room with microwave, at least three showers/sinks shared by up to twenty-two inmates who may share cells opening into the day room with two or four beds and private closets. The cells within the four CRC units are never locked so as to allow the male inmates free access to the bathrooms and showers all
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day. The male inmates may come and go throughout their assigned unit, play backgammon and privately use the bathrooms and showers. They eat their meals in the group community or day room.
39. The CRC has 152 beds spread among the cells in the four units. As of our January 10, 2019 Hearing, approximately 100 beds are now being used by male inmates.
40. These inmates include all male inmates with Trusty classification as well as male inmates with greater risk, including medium security.
41. The Deputy Warden credibly testified she could assign each of the present 100 male inmates at CRC into three of the four units at the CRC and leave another unit for women.
42. The Warden has only assigned one female correctional officer to the CRC. The Warden would like to hire more female correctional officers. The correctional officers belong to a union and some of these assignments are considered "bid" positions.
43. Ms. Victory is eligible for parole as of January 28, 2019 but we have no assurance of her release on any date.21 Berks County's failed reasons for the different treatment of Trusty inmates based on gender.
44. Berks County maintains an official policy of excluding female inmates from housing in the CRC. Berks County admittedly justifies its policy to house only male inmates in the CRC through a confluence of staffing, security, and cost concerns.
45. Berks County must staff the Jail and CRC twenty-four hours each day, 365 days per year. To ensure around-the-clock staffing, Berks County estimates it must employ six correctional staff members to fill one duty post each day.
46. Berks County officials testified male and female correctional staff must be assigned in a manner consistent with Pennsylvania law requiring at least one male and one
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female corrections staff member be on duty at all times in the prison and also in units where male and female inmates are housed together (e.g., the Jail's medical care unit with both males and females). 22
47. Berks County currently employs approximately thirty-one female correctional officers. Berks County prefers one female correctional officer available to the necessary strip search of female inmates new to the jail system or returning each day from Work Release.
48. Three female correctional staff members are currently on inactive status for various reasons. Six female correctional staff members are in bid positions, meaning Berks County cannot freely reallocate these personnel throughout the jail. As a result, Berks County may assign approximately twenty-two female correctional staff members to posts throughout the Jail and CRC.
49. Assigning Ms. Victory to the CRC will require Berks County to assign at least six female corrections officers to the facility (2 officers for each of three daily shifts), reducing the number of female correctional staff Berks County can assign to the F Block and medical units in the Jail. Berks County did not credibly explain why six female corrections officers are necessary except it prefers one female officer available for the strip search protocol and one female officer available generally on a unit with a female inmate. But Berks County concedes it often has one female officer available on a unit with a female inmate.
50. Berks County officials testified inmates must be housed m compliance with Pennsylvania law requiring the separation of male and female inmates.23
51. Housing Ms. Victory or any other female inmates in the CRC may require Berks County to modify certain physical aspects of the CRC to provide female inmates necessary safety, privacy, and security. If it were to elect to treat Ms. Victory in the same manner it treats
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male Trusty inmates at the CRC, Berks County may need minimally necessary modifications to either level of the CRC.
52. Minimally necessary modifications to allow male and female inmates to reside safely in the CRC may include, by way of example: (1) reinforcing or replacing a rolling door
between units Q and R which could secure a possible to-be designated female unit in the CRC;
(2) installing a shade or other type of vision-blocking shield on an unused guard station currently allowing inmates to see into the day room of the to-be designated female unit S or T in the CRC;
and (3) blocking or sealing open spaces in the ceiling of the Q and R units in the CRC which
now potentially allows inmates to communicate with or harass one another. 53. Berks County has not introduced evidence of the cost or time required to
implement modifications. It produced no evidence of ever considering these steps.
II. Conclusions of Law
54. "A preliminary injunction is an extraordinary remedy that should be granted only if a party shows: (1) a substantial likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief."24 Ms. Victory must first carry her burden of proving each of the "first two 'most critical' factors."25 Only "[i]f these gateway factors are met [do we] then consider[] the remaining two factors and determine[] in [our] sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief."26
Ms. Victory has preliminarily shown a substantial likelihood ofsuccess on the merits. 55. Ms. Victory must first prove she is likely to obtain success on the merits of her
equal protection and sex discrimination claim.27 "To establish a likelihood of success on the
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merits, a movant must produce sufficient evidence to satisfy the essential elements of the underlying cause of action."28 "[T]he movant need only prove a 'prima facie case,' not a 'certainty' she'll win."29
56. "A showing that is 'significantly better than negligible but not necessarily more likely than not' is sufficient to obtain preliminary injunctive relief."30 In other words, "[w]e do not require that the right to a final decision after trial be 'wholly without doubt'; the movant need only show a 'reasonable probability' of success."31 To assess whether Ms. Victory demonstrates a substantial likelihood of success on the merits, "[w]e must examine the legal principles controlling the claim and the potential defenses available to the opposing party."32
57. "A successful claim that a government practice or policy violates the Equal Protection Clause requires proof that the plaintiff 'has been treated differently from persons who are similarly situated."'33 Even if we find differential treatment between similarly situated persons or groups, however, we will only find such treatment runs afoul of the Equal Protection Clause if the state fails to "show that the classification 'serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. "'34
58. Ms. Victory must first show she is similar situated to the Trusty class of male inmates she contends receives favorable treatment. We consider a variety of factors when considering whether inmates are similarly situated. The United States Court of Appeals for the Eighth Circuit's decision in Klinger v. Department of Corrections,35 is instructive. In Klinger, the plaintiffs, a class of female inmates housed at the Nebraska Center for Women, the only state correctional facility exclusively housing women, sued various state officials alleging their receipt of inferior programs and services compared to inmates at the all-male Nebraska State
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Penitentiary violated their Fourteenth Amendment right to equal protection.36 Following a fourweek trial, the district court found the current and former directors of the Nebraska Department of Correctional Services liable "for violating the plaintiffs' equal protection rights in over a dozen different ways relating to the programs in the challenged areas."37 On interlocutory appeal, the court of appeals reversed the district court's order finding the defendants liable and dismissed the plaintiffs equal protection claim.38 The court of appeals held, as a matter of law, the inmates at all-female facility and the male inmates at the Nebraska State Penitentiary "are not similarly situated for purposes of prison programs and services."39
The court of appeals emphasized "how different" the two facilities are.40 The Nebraska Center for Women, the court described, "houses the fewest inmates" among Nebraska's five single-sex prisons, while the male-only Nebraska State Penitentiary "houses about six times as many inmates."41 The court emphasized disparities in the average length of inmate stay and the security levels of the institutions,42 and also found relevant plaintiffs' witnesses testified "female inmates as a class have special characteristics distinguishing them from male inmates, ranging from the fact that they are more likely to be single parents with primary responsibility for child rearing to the fact that they are more likely to be sexual or physical abuse victims," and male inmates "are more likely to be violent and predatory than female inmates."43 The court of appeals held the programs at the two institutions "reflect separate sets of decisions based on entirely different circumstances."44 And the court of appeals cautioned against relying solely on differences in programming between institutions, which "improperly assumes that the Constitution requires all prisons to have similar program priorities and to allocate resources similarly. "45
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59. In Yates v. Stalder, the United States Court of Appeals for the Fifth Circuit emphasized the similarly situated analysis is a fact-intensive inquiry.46 In Yates, the district court dismissed male inmates' equal protection claim alleging female inmates at the Louisiana Correctional Institute for Women received favorable treatment in living conditions and work requirements as compared to male inmates at the state penitentiary.47 The court of appeals reversed the dismissal of the plaintiffs' equal protection claims and remanded.48 The court of appeals explained "Klinger's holding is based on a fact intensive examination of, inter alia, the number of inmates housed in each facility, their average length of stay, their security levels, and the statistical incidence of violence and victimhood."49 Finding the record below insufficient, the court of appeals instructed "[t]he record developed in the present case is, as illuminated by a comparison to Klinger, wholly inadequate to allow us to determine whether Plaintiffs are similarly situated to the female inmates in [Louisiana Correctional Institute for Women]."50
60. We enjoy the benefit of a fully developed evidentiary record with several witnesses, dozens of admitted exhibits and extensive briefing. After scrutinizing dozens of admitted exhibits and testimony, most of the facts are not disputed. Ms. Victory is similarly situated to Trusty male inmates. From the perspective of security risk, Berks County applies a nationally-recognized risk management equation to ensure no difference between Ms. Victory and Trusty male inmates as to custody classification. Berks County officials testified inmates, regardless of gender, are designated as Trusty only after the Institutional Classification Committee determines after a careful review the inmate presents the lowest security risk. Berks County introduced no testimony or evidence indicating Trusty males are more dangerous than Ms. Victory who serves as a waitress/hostess at a local diner most nights. Ms. Victory is also
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similarly situated to Trusty male inmates in terms of length of incarceration. The average length of incarceration of Trusty male and Trusty female inmates differs by one day.
61. Ms. Victory is similarly situated to Trusty male inmates. 62. We next consider whether Ms. Victory receives "substantially equivalent" treatment. 51 We are mindful of the United States Court of Appeals for the Eighth Circuit's instruction "[d]ifferences between challenged programs at ... two prisons are virtually irrelevant because so many variables affect the mix of programming that an institution has."52 But even avoiding a side-by-side comparison of programming compels us to find Ms. Victory does not receive "substantially equivalent" treatment to similarly situated Trusty male inmates with respect to freedom of movement and access to essential facilities. 53 63. Trusty male inmates sleep in rooms with unlocked doors. Trusty male inmates may come and go throughout the CRC units, privately access the bathroom and showers, and eat their meals communally in the community or day room. Trusty male inmates can move about the unit up to thirteen hours each day. Ms. Victory, as a Trusty female inmate in the Jail, by contrast, is restricted to a maximum of six hours each day of recreational time, divided into three, two-hour blocks--even when lockdowns do not occur. Ms. Victory, as a Trusty female inmate housed in the F Block in the Jail does not enjoy the same freedom to use a more private bathroom. 64. Our finding of differential treatment does not end our inquiry. Berks County may still prevail if it justifies its differential treatment as substantially related to an important governmental objective. 54 Berks County argues its policy substantially relates to its governmental interest in ensuring the safety of its inmates while also reintegrating offenders into the community and minimizing overcrowding. Though these interests are important 55 and we
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recognize Berks County's forward-thinking on rehabilitation for low-risk inmates, these interests are important to both men and women. Berks County's policy of categorically excluding female Trusty inmates from the CRC is not substantially related to achieving these objectives.
65. Berks County has not demonstrated its policy is substantially related to its interests in maintaining prison security, rehabilitating inmates, or reducing overcrowding, or that the policy or practice "is supported by sound gender-neutral reasoning."56 In this analysis, we must "consider the directness of the relation between the classification and the government interest."57
66. Keeping Ms. Victory as a female Trusty and Work Release inmate in the Jail, while permitting similarly designated male inmates to enjoy the CRC accommodations is not substantially related to the goal of rehabilitation. Berks County argues the goal of rehabilitation will be undermined by transferring women to the CRC because Berks County will then have to offer each program twice: once for men and once for women. Such double scheduling at the CRC, Berks County argues, would reduce the number of available programs for all members of the inmate community. Such an argument rests on an unduly narrow reading of the Pennsylvania requirement "[f]emale inmates ... be completely separated from male inmates" in housing.58 The next sentence of the same provision directs "[t]his does not preclude rehabilitative projects and food service assignments where male and female inmates could participate together with proper supervision."59 This reasoning lacks merit. All inmates earning the Trusty custody classification can attend rehabilitation programs together without the need for doubling the amount of requested programs.
67. Nor are we persuaded banning Ms. Victory from the CRC furthers the goal of inmate security given Berks County did not adduce evidence as to cost or time needed to
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implement minimally necessary modifications to accommodate her in the CRC. Berks County cites Ms. Victory's April 2018 concerns with her safety while in a lobby with male inmates upon returning home from Work Release. But Berks County assured her of safety including through camera surveillance. Those same cameras could be installed in the CRC lobby or outside the CRC unit housing Ms. Victory. Berks County has not argued otherwise.
68. Berks County speculated as to other safety harm if Ms. Victory-like all male Trusty inmates-is housed at the CRC. Despite these concerns, Berks County witnesses admitted male inmates of three security levels reside in the CRC (Trusty, Minimum, and Medium). Berks County's witnesses did not testify about incidents occurring in the CRC between or among inmates of these classifications.
69. Even if, however, legitimate concerns for Ms. Victory's safety justify limiting the CRC to male Trusty inmates only, Berks County failed to show why it could not house Ms. Victory in an area of the Jail permitting the same or similar freedom of movement as Berks County affords Trusty male inmates residing at the CRC and provide her transport to/from the CRC for joint rehabilitation programs.
70. We carefully considered Berks County's reasons. They are not sufficient. They are based on staffing speculation such as not enough female corrections officers to staff CRC if Ms. Victory is treated the same as male Trusty inmates. This lacks a basis. We cannot allow Berks County to deprive Ms. Victory of equal protection because of speculation of a lack of female corrections officers who would decline CRC assignment to a low-security unit.
Irreparable harm 71. Ms. Victory must also show irreparable harm to obtain preliminary injunctive relief. Our Court of Appeals instructs the mere "risk of irreparable harm" is insufficient.60
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Rather, "[a] plaintiff has the burden of proving a 'clear showing of immediate irreparable injury. "'61 Further, "[t]he 'requisite feared injury or harm must be irreparable-not merely serious or substantial,' and it 'must be of a peculiar nature, so that compensation in money cannot atone for it."'62
72. Ms. Victory argues she will be irreparably harmed because she "ha[s] a relatively brief opportunity to participate in beneficial prison programming" which would be available to her if she were a man, and once she is released, she "will have forever missed out on the termterm benefits of such programs."63 Ms. Victory testified the conditions of the Jail significantly impede her access to laundry facilities, and her limited movement in the jail caused and/or contributes to health issues including back pain and anxiety.
73. Ms. Victory shows she is presently suffering, and will continue to suffer, daily irreparable harm from Berks County's differential treatment of her as a female Trusty inmate.
74. Ms. Victory is suffering an injury which money damages alone cannot redress. 75. In Favia v. Indiana University of Pennsylvania, Judge Cohill found female athletes suffered irreparable harm when a university cut the women's gymnastics and field hockey teams in response to a budget crisis.64 The female athletes, Judge Cohill found, were being deprived of the opportunity to develop skills, self-confidence, learn team cohesion and a sense of accomplishment, practice physical and mental well-being, and develop a lifelong healthy attitude.65 Judge Cohill emphasized "[t]he opportunity to compete in undergraduate interscholastic athletics vanishes quickly, but the benefits do not."66 76. While few would compare the privileges of collegiate athletics to the conditions of confinement imposed by a judge, the testimony of various Berks County officials
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demonstrates the CRC strives to provide its residents many of the same noble benefits Judge Cohill described in Favia. Such a deprivation constitutes irreparable injury.
Harm to the defendants in treating Ms. Victory the same as male Trusty inmates. 77. We also consider whether granting preliminary relief will "result in even greater harm to the nonmoving party."67 Defendants argue awarding Ms. Victory the injunctive relief she seeks will inflict "substantial" harm upon the institution, as they must navigate the confluence of the CRC's design limitations, staffing and logistical constraints, and Pennsylvania law governing the housing of female inmates and allocation of female corrections officers.68 78. As a starting point, Defendants argue they must comply with Pennsylvania law mandating "[f]emale inmates ... be completely separated from male inmates"69 and "at least one male corrections staff member and one female corrections staff member . . . be on duty at all times" in a prison housing male and female inmates.70 "To correct the Plaintiffs alleged harms" and maintain compliance with Pennsylvania law, Defendants argue the "Berk[s] County Jail would need to either renovate the CRC (or build an entirely new facility) for a single inmate who is to be released from custody on January 28, 2019."71 Such renovation, Defendants argue, would also "require the jail to redistribute female correctional officers to the CRC."72 Defendants did not testify or introduce evidence as to the cost or time needed to complete minimally necessary renovations to accommodate Ms. Victory. Berks County, in fact, could name only a few alterations it would need to make. These include the installation of a screentype device to block male inmates from seeing into the S or T units in the CRC to block viewing of the female day room and adjoining bathroom, reinforcing or replacing a roll-down security door between the Q and R units to separate a female unit from the rest of the CRC population, and blocking or sealing large holes in the ceilings of various rooms in the Q and R units. Berks
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County offered no evidence of an extraordinary cost in these minimal modifications to ensure Ms. Victory with equal protection under the Law.
79. Defendants also testified they have a limited number of female corrections officers and encounter challenges hiring more. They also state the obvious fact the County cannot compel females to choose this line of work; they must recruit applicants and then train them for the position, a process that requires time and resources.
80. After hearing the testimony of various Berks County officials, we are not aware of a reason the County cannot minimize cost harm through the strategic allocation of staffing and resources to the CRC.
81. But even if such alterations would not feasible in the next month, Berks County has not demonstrated it could not provide Ms. Victory similar freedom of movement and access to programming in a separate unit of the jail itself; such a solution would minimize the need to allocate additional female correctional staff to two buildings.
Public interestfavors this narrow injunctive relief. 82. We next assess "whether the public interest favors the entry of the preliminary injunction."73 Our Court of Appeals "has recognized that '[a]s a practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff."'74 Our Court of Appeals also instructs "[i]n the absence of legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights,"75 a principle federal courts across our circuit have repeated!y emphasized.76 83. Ms. Victory argues the public interest favors the protection of her constitutional right to be free from unequal treatment solely on the basis of her gender.77 Ms. Victory emphasizes
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the public interest is particularly concrete in this case, as the "rehabilitation programs, job fairs, and other services available in the CRC improve prisoners' chances of successfully reentering society and reduce the risk of recidivism."78
84. Defendants argue the public interest favors safe prisons. 79 We agree. But they fail to show how treating Ms. Victory to the same liberty as the male Trusty inmates somehow makes either the Jail or CRC somehow unsafe.
85. Defendants also argue transferring Ms. Victory to the CRC would undermine the goals of reducing recidivism and promoting community reintegration. Defendants argue renovation of the CRC to house female inmates would require each program be offered at separate times, "[o]nee for female inmates and once for male inmates."80 Given the "finite rooms to hold the programs, it would reduce the variety of programs the CRC is able to offer," and, in tum, actually "reduce the number of programs offered, decreasing the benefit of successful reentry and increasing the risk of recidivism."81 Berks County can mitigate this alarm by simply affording Ms. Victory the same liberties in the Jail and transporting her to the CRC for its touted rehabilitation programs.
86. The public interest favors granting Ms. Victory injunctive relief. The public interest favors the protection of the constitutional right to be free from discrimination on the basis of gender. And for the reasons already discussed, Berks County could minimize safety concerns through either minimally invasive modifications to the CRC or designating a space in the Berks County Jail in which Ms. Victory could reside with the freedom of movement afforded to similarly situated Trusty male inmates.
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III. Appropriate limited remedies on a preliminary basis.
Having found injunctive relief is appropriate, we must next consider the appropriate scope of injunctive relief. We are mindful preliminary injunctive relief "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm."82 Berks County officials testified as to security concerns surrounding the potential transfer of Ms. Victory from the Jail to the CRC. The officials candidly swore modifications to certain aspects of the CRC would minimize the risk of an attack or other incident should Ms. Victory be transferred there. Berks County did not introduce specific estimates as to the amount of time necessary to make such modifications or the cost of doing so. We have no basis to conclude such modifications would be prohibitively costly or take unduly long.
We must also be mindful, however, Berks County officials-not courts-are responsible for the day-to-day administration of the prison.83 These officials carry out such a duty with knowledge and experience of the realities of the conditions on the ground, and we therefore factor such realities into our decision-making.
In the accompanying Order, upon Ms. Victory's posting of the required appropriate bond,84 we direct Berks County, through its agents including Warden Quigley, to implement, on or before January 18, 2019, a schedule at either the Berks County Jail or CRC allowing Ms. Victory to have the same liberty and freedom of movement provided to male Trusty inmates housed at the CRC as of January 10, 2019. Such freedom of movement shall include thirteen hours of each day-not including work release-outside of her cell, no lock on her cell in the evening hours, and direct access to programs she wishes to attend in the CRC. This remedy allows Berks County, consistent with its thoughtful analysis on custody classifications with new
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inmates, to make an informed decision to comply with today's Order based on which placement best accounts for their expressed security concerns, while ensuring Ms. Victory receives substantially similar treatment to male Trusty inmates now housed in the CRC.
1 Pl.'s Ex. No. 6. 2 Id. 3 Pl.'s Ex. No. 8. 4 See Inmate Handbook, Pl.'s Ex. No. 1 at 29-30. 5 Id. at 31. 6 Id. at 33. 7 Id. 8 Compare id. at 35; with id. at 37. 9 Pl.'s Ex. No. 7. 10 Defs.' Ex. No. 35. 11 Pl.'s Ex. Nos. 14-16. 12 Inmate Handbook, Pl.'s Ex. No. 1at33. 13 Pl.'s Ex. No. 8. 14 Id. 15 See Pl.'s Ex. Nos. 12-23. 16 Pl. 's Ex. No. 25. 17 Pl. 's Ex. No. 24. 18 See ECF Doc. No. 1. 19 Pl.'s Ex. No. 31. 20 Pl.'s Ex. No. 2 at 2.
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21 See Defs.' Ex. No. 20. 22 See 37 Pa. Code § 95.241(1)(iii) ("When both male and female inmates are housed in the prison, at least one male corrections staff member and one female corrections staff member shall be on duty at all times."). 23 See 37 Pa. Code § 95.226(3) ("Female inmates shall be completely separated from male inmates. This does not preclude rehabilitative projects and food service assignments where male and female inmates could participate together with proper supervision."). 24 Youtie v. Macy's Retail Holding, Inc., 653 F. Supp. 2d 612, 627 (E.D. Pa. 2009); see A.N By & Through Niziolek v. Upper Perkiomen Sch. Dist., 228 F. Supp. 3d 391, 396 (E.D. Pa. 2017). 25 Reilly v. City ofHarrisburg, 858 F.3d 173, 179 (3d Cir. 2017), as amended (June 26, 2017). 26 Id.
27 See Youtie, 653 F. Supp. 2d at 627. 28 Borough v. Middletown Water Joint Venture LLC, No. 18-861, 2018 WL 3473972, at *5 (M.D. Pa. July 19, 2018). 29 Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 131 (3d Cir. 2017) (quoting Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001)). 30 Middletown Water Joint Venture LLC, 2018 WL 3473972, at *5 (quoting Reilly, 858 F.3d at 179). 31 Issa, 847 F.3d at 131 (quoting Punnett v. Carter, 621F.2d578, 583 (3d Cir. 1980)). 32 Middletown Water Joint Venture LLC, 2018 WL 3473972, at *5. 33 Dinote v. Danberg, 601 F. App'x 127, 130 (3d Cir. 2015) (quoting Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003)).
34 Id. (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)). 35 Klinger v. Dep't ofCorr., 31 F.3d 727 (8th Cir. 1994).
36 Id. at 729. 37 Id. at 730. 38 Id. at 734. 39 Id. at 731.
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40 Id. 41 Id. 42 Id. ("Moreover, the average length of inmate stay at NSP is two to three times as long as it is at NCW. On Nebraska's security scale of one to four, with level four being the least secure, NCW is classifed as a level four institution, while NSP is classified as a level two institution."). 43 Id. at731-32. 44 Id at 732.
46 Yates v. Stalder, 217 F.3d 332, 334-35 (5th Cir. 2000). 47 Id. at 333. 48 Id. at 335. 49 Id. at 335. 50 Id. at 334-35. 51 Glover v. Johnson, 478 F. Supp. 1075, 1079 (E.D. Mich. 1979). 52 Klinger, 31 F.3d at 733. 53 Glover, 478 F. Supp. at 1079. 54 Dinote, 601 F. App'x at 130. 55 See, e.g., Pitts v. Thornburgh, 866 F.2d 1450, 1456 (D.C. Cir. 1989) ("[S]eeking to reduce prison overcrowding is surely an important government interest."). 56 Dinote, 601 F. App'x at 130. 57 Pitts, 866 F.2d at 1458. 58 37 Pa. Code§ 95.226(3). 59 Id.
°6 Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir.1980).
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61 ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987) (quoting Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir.1980)). 62 Id. (quoting Glasco v. Hills, 558 F.2d 179, 181 (3d Cir.1977)).
63 ECF Doc. No. 13 at 18.
64 Favia v. Indiana Univ. of Pennsylvania, 812 F. Supp. 578, 583 (W.D. Pa.), aff'd, 7 F.3d 332 (3d Cir. 1993).
65 Id.
66 Id.
67 Youtie, 653 F. Supp. 2d at 627.
68 ECF Doc. No. 21 at 15.
69 37 Pa. Code§ 95.226(3).
70 37 Pa. Code§ 95.241(1)(iii).
71 ECF Doc. No. 21 at 15.
72 Id. at 18.
73 Favia, 812 F. Supp. at 583. 74 Chamber ofCommerce for Greater Philadelphia v. City ofPhiladelphia, 319 F. Supp. 3d 773, 807 (E.D. Pa. 2018) (quoting Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994)).
75 Council ofAlternative Political Parties v. Hooks, 121 F.3d 876, 883-84 (3d Cir. 1997). 76 See, e.g., Reach Acad. for Boys & Girls, Inc. v. Delaware Dep't ofEduc., 8 F. Supp. 3d 574, 582 (D. Del. 2014) ("The public interest favors enforcement of the Individual Plaintiffs' constitutional rights."); Miller v. Skumanick, 605 F. Supp. 2d 634, 647 (M.D. Pa. 2009) (issuing temporary restraining order emphasizing "the public interest is on the side of protecting constitutional rights."), ajj"d sub nom. Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) ("We agree with the District Court's analysis of ... the public interest."); Favia, 812 F. Supp. at 585 ("The public has a strong interest in the prevention of any violation of constitutional rights."). 77 ECF Doc. No. 13 at 19 (arguing "[t]he public has no interest in perpetuating a system by which women are systematically denied privileges and opportunities available to similarly situated men").
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78 Id at 20. 79 ECF Doc. No. 21 at 16 ("Providing appropriate and safe living conditions for incarcerated individuals reinforces the moral character of our society. Prisons are entrusted with protecting an inmate while he or she serves their sentence for a wrong they committed. Placing inmates at risk of harm leaves not only the prison open to ridicule but the entire justice system."). 80 Id 81 Id 82 18 U.S.C. § 3626(a)(2). 83 Turner v. Safley, 482 U.S. 78, 89 (1987) ("Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand."). 84 We "may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Fed. R. Civ. P. 65(c). Berks County did not request a bond in this case, and Ms. Victory did not request we waive this requirement. Our Court of Appeals "hold[s] that a district court lacks discretion under Rule 65(c) to waive a bond requirement except in the exceptionally narrow circumstance where the nature of the action necessarily precludes any monetary harm to the defendant, and that such bond shall be issued irrespective of any request by the parties." Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 426 (3d Cir. 2010). The parties did not adduce evidence of the potential monetary harm to Defendants. We do not, however, conclude Defendants would incur no harm. We therefore condition this preliminary injunction upon Ms. Victory posting a $100.00 bond with the Clerk of this Court.
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 Case 5:18-cv-05170-MAK Document 39 Filed 01/15/19 Page 1 of 2

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

THERESA VICTORY v.
BERKS COUNTY, et al.

: CIVIL ACTION : : NO. 18-5170 : :

ORDER
AND NOW, this 15th day of January 2019, upon considering Plaintiff’s Motion for a preliminary injunction (ECF Doc. No. 9), Defendants’ Opposition (ECF Doc. No. 20), after evaluating the credibility of several witnesses and studying exhibits admitted during our evidentiary hearing, for reasons in Findings of Fact and Conclusions of Law, and upon finding Plaintiff established a likelihood of success on the merits as to her equal protection claim, imminent, irreparable and daily harm caused by Berks County’s substantially different mobility rights denied to Plaintiff compared to similarly situated male inmates with the same Trusty classification housed in the Community Reentry Center, the balance of equities favoring immediate injunctive relief, and the public interest favoring the equal treatment of similarly classified low risk Trusty-classified male and female inmates, it is ORDERED Plaintiff’s Motion for a preliminary injunction (ECF Doc. No. 9) is GRANTED:
1. On or before January 18, 2019, Berks County, through Warden Quigley, shall implement a schedule at either the Berks County Jail or Community Reentry Center allowing Plaintiff to have the same liberty and freedom of movement provided to male Trusty inmates housed at the Community Reentry Center as of January 10, 2019, including (by way of example only) thirteen hours of each day (not including work release) outside of her cell, no lock on her

Case 5:18-cv-05170-MAK Document 39 Filed 01/15/19 Page 2 of 2 cell in the evening hours, and direct access to rehabilitative programs she wishes to attend in the Community Reentry Center;
2. This preliminary injunction is effective upon Plaintiff posting a $100.00 bond with the Clerk of this Court; and,
3. Berks County and its agents shall not retaliate against Plaintiff for her pursuit of constitutional remedies including through less-than-immediate compliance with this Order or against other inmates including by adversely altering the present benefits for male Trusty inmates except possibly reassigning housing for male Trusty inmates among the four units in the Community Reentry Center to create room for Plaintiff.
_____________________________ KEARNEY, J.
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 Case 5:18-cv-05170-MAK Document 61 Filed 01/25/19 Page 1 of 6

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

THERESA VICTORY, et al.
v.
BERKS COUNTY, et al.

CIVIL ACTION NO. 18-5170

ORDER
AND NOW, this 25th day of January 2019, upon considering Defendants' Motion for relief under Fed. R. Civ. P. 60 (ECF Doc. No. 41) seeking to modify our January 15, 2019 Order (ECF Doc. No. 39) requiring compliance by January 18, 2019 to ensure equal protection for all Trusty inmates and to reconsider specific Findings of Fact and Conclusions of Law (ECF Doc. No. 38) supporting our January 15, 2019 Order, Plaintiffs' Opposition (ECF Doc. No. 56), following a scheduled January 23, 2019 evidentiary hearing after we stayed paragraph one of our January 15, 2019 Order requiring compliance by January 18, 2019 (ECF Doc. No. 48), after evaluating the credibility of Berks County's witnesses at our January 23, 2019 evidentiary hearing, and upon finding:
a. Berks County, through Warden Quigley and her subordinate officers, knowing of Ms. Victory's pending lawsuit seeking constitutional protections from retaliation and injunctive and declaratory relief under the Equal Protection clause leading to an extensive January 10, 2019 preliminary injunction hearing where Ms. Victory offered credible testimony, entered a sanction of placing Plaintiff in administrative disciplinary segregation status within four days of her January 10, 2019 hearing testimony and before our January 15, 2019 Order which required Berks County to treat Ms. Victory to the same conditions of confinement provided to male inmates with her same Trusty classification;

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b. On January 15, 2019, hours before we issued our injunction, Ms. Victory admitted guilt to two Class II prison offenses (passing property offense and misrepresentation) and opposed a charged harassment offense occurring after our January 10, 2019 hearing arising from her placing an innocuous non-threatening January 13, 2019 newspaper article with her highlights of certain items under the cell door of another inmate (and former cellmate) but then denying her same conduct three times to the investigating lieutenant who already knew the facts from video surveillance when he questioned her;
c. Ms. Victory contested the harassment offense, swearing she "was not trying to harass [the other inmate] in any way" but the hearing officer disagreed finding the other inmate "perceived [Ms. Victory's] actions to be harassing and notified staff immediately";
d. Based on her guilty plea to the misrepresentation charge, Berks County placed Ms. Victory in disciplinary segregation custody classification for ten days for misrepresentation, three days for property offense and two days for harassment resulting in temporarily removing her Trusty custody classification while she is placed in segregation;
e. Ms. Victory's counsel elected not to challenge the terms of sentence for Class II offenses as retaliatory but instead asked us to find the entire disciplinary finding of guilt after her January 10, 2019 testimony is retaliatory and essentially overrule Berks County's finding of guilt on the three offenses, two of which Ms. Victory plead guilty;
f. Based on Ms. Victory admitting guilt to two Class II offenses including lying three times to the investigating lieutenant, Berks County established it "would have made the same [guilty of the offenses] decision absent the protected conduct for reasons reasonably related to a legitimate penological interest" 1;
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g. Placing Plaintiff in this disciplinary segregation based on her guilty plea - albeit within days of her testimony and possibly having the effect of chilling her, and other inmates', constitutional rights - temporarily distinguishes her from the male Trusty inmates under our January 15, 2019 Order causing Berks County to now request we modify the required compliance;

h. Berks County's discipline for the three offenses, including based upon the guilty pleas to the two offenses, is within the guidelines for an admitted Class II violation under its established Inmate Handbook;

L

Given Plaintiffs present incarcerated status, we could not hear her testimony but

reviewed her affidavit (ECF Doc. No. 56-1) concerning an ongoing pattern of retaliatory

harassment towards her based on several complaints, the filing of this lawsuit and her January

10, 2019 testimony and her retaliation concerns are more directly related to a retaliation claim

which she has not, as yet, met her burden of showing a causal link between her guilty plea

leading to Berks County's January 2014 finding of guilt on the three offenses and her exercise of

constitutional rights;

J.

Berks County's witnesses did not credibly explain why Berks County selected

this sanction of disciplinary segregation as opposed to a lesser sanction which may not have

deprived Ms. Victory of Trusty status which provides her basis for a remedy as of January 18,

2019;

k. On January 17, 2019 - two days after our January 15, 2019 Order prohibiting retaliation against Ms. Victory - Berks County denied Ms. Victory's appeal of the harassment offense by substituting the hearing officer's view of the harassing nature of Ms. Victory's highlights on the January 13, 2019 newspaper article she placed under the other inmate's cell
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door and despite the reporting Officer Butterworth swearing as to her confusion as to why Ms. Victory highlighted certain portions of the article and the content of the article not otherwise raising security concerns;
1. Had Ms. Victory succeeded on her appeal of the harassment charge, her disciplinary segregation would end two days earlier;
m. Ms. Victory's counsel did not presently argue the January 17, 2019 denial of her appeal of the harassment charge based on the appeal officer's personal view the highlighted article was harassing to the other inmate is retaliatory;
n. Ms. Victory exhausted her internal grievance procedure and remains in segregation and, as of today, not in a Trusty custody classification;
o. Ms. Victory's present disciplinary status will end on January 29, 2019 which is one day after her scheduled release from Berks County Jail or Community Reentry Center;
IT is ORDERED Defendants' Motion for relief (ECF Doc. No. 41) is GRANTED in part and DENIED in part:
1. Defendants' Motion for relief (ECF Doc. No. 41) is GRANTED to correct our inaccurate finding of the publication date of the newspaper article concerning Plaintiffs lawsuit in the Reading Eagle to accurately report the publication date of the newspaper article is December 11, 2018;
2. We continue to stay Berks County's obligations to provide Ms. Victory with equal treatment of male Trusty inmates until the January 29, 2019 lifting of her disciplinary
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segregation based on her guilty pleas to prison discipline charges which allowed Berks County to
sanction her to disciplinary segregation until January 29, 2019;
3. On or before 6:00 PM EST on January 28, 2019, Berks County, through Warden
Quigley, shall comply with the obligations of our January 15, 2019 Order by filing a plan with
this Court describing the constitutional protections defined in our January 15, 2019 Order it will provide Ms. Victory after her disciplinary segregation expires on January 29, 20192; and,
4. Defendants' Motion for relief (ECF Doc. No. 41) is otherwise DENIED,
including Berks County's motion to modify our January 15, 2019 Order which we expect Berks
County and its Warden will strictly obey following the end of Ms. Victory's disciplinary segregation on January 29, 2019.3
1 Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (quoting Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). Ms. Victory's lawyer confirmed he is presently only challenging the process and violation and not the term and nature of the penalty. On the present record, Ms. Victory's plea avoids the ambiguity in the nature of the violation which caused our Court of Appeals to reverse the district court's entry of summary judgment against the inmate in Watson. Conversely, on the present preliminary record, we do not have evidence confirming the punishment is reasonably related to a legitimate penological interest. On this preliminary record, while we may interfere with the placement of inmates when constitutional rights are infringed, we do not find Berks County's decision to find her guilty of the violations after she plead guilty (although the investigating lieutenant already knew the facts and questioned her only to see if she would lie), warrants ordering the release of Ms. Victory from disciplinary segregation. But nothing in this Order affects our ability to review whether Berks County's selected punishment altering Ms. Victory's Trusty inmate classification and thus temporarily depriving her of rights as of January 18, 2019 under our January 15, 2019 Order, may be shown to be retaliatory warranting a jury's review of potential damages. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) ("In dismissing [the inmate's] retaliation claim, the District Court failed to recognize that '[g]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." (quoting Allah v. Seiverling, 229 F.3d 220, 22425 (3d. Cir. 2000) (omitting additional citations))).
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2 We can address future steps to ensure Ms. Victory's equal protection rights are upheld on and after January 29,2019. See Hampton v. Baldwin, No. 18-550, 2018 WL 58330730, at *16 (S.D. Ill. Nov. 7, 2018). Mindful of security concerns, Berks County's filed plan need not include drawings of the units in the Jail or Community Reentry Center, but must describe steps taken to comply with our January 15, 2019 Order including a modified screen on windows in the Sor T units in the Community Reentry Center or a schedule at the Jail for Ms. Victory equivalent to the liberty provided to male Trusty inmates with offered programming including transport to the Community Reentry Center if necessary. 3 We do not modify our January 15, 2019 Order to eliminate Berks County's continuing obligations once Ms. Victory finishes serving her term in disciplinary segregation. Considering equity's demand for a flexible response, there is nothing unworkable in our decree once Ms. Liberty completes the disciplinary segregation early next week. Building and Construction Trades v. NLRB, 64 F.3d 880, 888 (3d Cir. 1995). Upon finishing her term in disciplinary segregation, Ms. Victory faces a recurring risk of equal protection violations unless Berks County now completes its plans for a schedule defining its actions compliant with our January 15, 2019 Order. We expect it began planning after our January 15, 2019 Order. We also expect Berks County will otherwise honor the January 15, 2019 Order to avoid retaliating towards Ms. Victory or other inmates affected by our January 15, 2019 Order. To ensure prompt notice, we are emailing this Order to all counsel contemporaneous with delivery to our Clerk for docketing.
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 Case 5:18-cv-05170-MAK Document 114 Filed 04/22/19 Page 1 of 31

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

_________________________________________

THERESA VICTORY,

:

ALICE VELAZQUEZ-DIAZ,

:

ANABELL DEALBA,

:

and all others similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

BERKS COUNTY, BERKS COUNTY

:

COMMISSIONERS KEVIN S.

:

BARNHARDT, CHRISTIAN Y.

:

LEINBACH AND MARK C. SCOTT, ESQ.,

:

WARDEN JANINE L. QUIGLEY,

:

DEPUTY WARDEN STEPHANIE SMITH,

:

SERGEANT SPOTTS, C.O. REICHART,

:

C.O. ZERR, C.O. BROWN,

:

:

Defendants.

:

_________________________________________ :

CIVIL ACTION NO. 18-05170 Judge Mark A. Kearney CLASS ACTION COMPLAINT
JURY DEMANDED

SECOND AMENDED COMPLAINT I. STATEMENT OF THE CASE
1. This is a civil rights action brought under 42 U.S.C. § 1983, the United States Constitution, and the Pennsylvania Constitution concerning Defendants’ refusal to provide Plaintiffs Theresa Victory, Alice Velazquez-Diaz, Anabell Dealba, and other female prisoners with “Trusty” custody-level classifications and/or Work Release status the same housing and services as similarly situated male prisoners, solely on the basis of sex, and Defendants’ subsequent retaliation against Ms. Victory for complaining to staff and filing grievances about this issue. By denying otherwise eligible female prisoners access to housing and services provided to male prisoners in the Berks County Jail System’s Community Reentry Center

Case 5:18-cv-05170-MAK Document 114 Filed 04/22/19 Page 2 of 31
(“CRC”), Defendants discriminate on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Pennsylvania Equal Rights Amendment, Art. I, § 28 of the Pennsylvania Constitution. By retaliating against Ms. Victory for filing grievances and complaining orally and threatening punishment if she files additional grievances, Defendants violated the First Amendment to the U.S. Constitution. II. JURISDICTION
2. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331. Jurisdiction for declaratory and other relief is invoked pursuant to 28 U.S.C. §§ 2201(a) and 2202 and Rule 57 of the Federal Rules of Civil Procedure.
3. This court has supplemental jurisdiction over the state Equal Rights Amendment claim pursuant to 28 U.S. C. § 1367.
4. Venue is proper pursuant to 28 U.S.C. § 1391(a) as all of the claims arise in and the Defendants are located in the Eastern District of Pennsylvania. III. PARTIES
5. Plaintiff Theresa Victory resides in Lenhartsville, Pennsylvania and was incarcerated in the Berks County Jail in Leesport, Pennsylvania from January 27, 2018 through January 28, 2019.
6. Plaintiff Alice Velazquez-Diaz resides in Pennsylvania and is incarcerated in the Berks County Jail in Leesport, Pennsylvania.
7. Plaintiff Anabell Dealba resides in Pennsylvania and is incarcerated in the Berks County Jail in Leesport, Pennsylvania.
8. Defendant Berks County is a county of the third class in Pennsylvania, operates the Berks County Jail System, and has offices at 633 Court Street, Reading, PA 19601.
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9. Defendant Kevin S. Barnhardt is a commissioner on the Berks County Board of Commissioners, which constitutes the chief governing body of Berks County and has offices at 633 Court Street, 13th Floor, Reading, PA 19601. He serves on and is the president of the Berks County Prison Board. He is sued in his official capacity.
10. Defendant Christian Y. Leinbach is a commissioner on the Berks County Board of Commissioners, which constitutes the chief governing body of Berks County and has offices at 633 Court Street, 13th Floor, Reading, PA 19601. He serves on and is the vice president of the Berks County Prison Board. He is sued in his official capacity.
11. Defendant Mark C. Scott, Esq. is a commissioner on the Berks County Board of Commissioners, which constitutes the chief governing body of Berks County and has offices at 633 Court Street, 13th Floor, Reading, PA 19601. He serves on the Berks County Prison Board. He is sued in his official capacity.
12. Defendant Janine Quigley is and was employed as the warden of the Berks County Jail System at all times relevant to this complaint. She is sued in her official capacity.
13. Defendant Stephanie Smith is and was employed as the deputy warden for treatment in the Berks County Jail System at all times relevant to this complaint. She is sued in her official capacity.
14. Defendant Sergeant Spotts is and was employed as a correctional lieutenant in the Berks County Jail System at all times relevant to this complaint. He is sued in his individual capacity.
15. Defendant Corrections Officer Reichart is and was employed by the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
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16. Defendant Corrections Officer Zerr is and was employed by the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity.
17. Defendant Corrections Officer Brown is and was employed by the Berks County Jail System at all times relevant to this complaint. She is sued in her individual capacity. IV. CLASS ACTION ALLEGATIONS
18. Plaintiffs Victory, Velazquez-Diaz, and Dealba bring this action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2) on behalf of themselves and the following class:
All current and future female inmates committed to the Berks County Jail System who have the Trusty custody-level classification and/or Work Release status but have been denied assignment to the Community Reentry Center (“CRC”) and denied access to the privileges, services, and programs available to men assigned to the CRC. 19. All class members are aggrieved persons under federal and state civil rights law as a result of Defendants’ actions, policies, customs, and practices. 20. On information and belief, there are currently approximately 11 women committed to the Berks County Jail System who satisfy the criteria for class membership. 21. On information and belief, numerous other women enter the facility throughout the year who satisfy the criteria for class membership. 22. This matter is properly maintainable as a class action pursuant to Fed. R. Civ. P. 23(a)(1) in that joinder of all members of the proposed class is not only impracticable, but also impossible, because the class includes a shifting prison population whose identities are incapable of being known at the present time.
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23. The proposed class meets the requirements of Fed. R. Civ. P. 23(a)(2) because there are questions of law and fact common to the class members, including, but not limited to, the following:
(1) Whether Defendants’ disparate treatment of men and women with Trusty custody-level classification and/or Work Release status is a sex-based classification;
(2) Whether the Defendants violate the Fourteenth Amendment Equal Protection rights of the Proposed Class members by housing them in the Jail rather than in the CRC;
(3) Whether the Defendants violate the Fourteenth Amendment Equal Protection rights of the Proposed Class members by denying them the privileges, services, and programs provided to male prisoners housed in the CRC;
(4) Whether the Defendants have a genuine and exceedingly persuasive justification for their failure to treat the Proposed Class members and similarly situated men equally;
(5) Whether the Defendants’ failure to treat the Proposed Class members and similarly situated men equally serves important governmental objectives;
(6) Whether the Defendants’ denial of CRC housing and its concomitant privileges, services, and programs to the Proposed Class members is substantially related to the achievement of important governmental objectives;
(7) Whether the Defendants violate the rights of the Proposed Class members under the Pennsylvania Equal Rights Amendment, Art. I, § 28 of the Pennsylvania Constitution. 5

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24. The proposed class representatives satisfy Fed. R. Civ. P. 23(a)(3) because their claims are typical of those of the proposed class in that the representatives are or, at the time this action was initiated, were being denied access to the same reentry housing and the benefits accompanying the reentry housing based solely on sex.
25. The proposed class representatives will fairly and adequately protect the interests of the class pursuant to Fed. R. Civ. P. 23(a)(4) because they will prosecute this action vigorously in order to obtain remedies for the all members of the class, whose interests they share. V. FACTUAL ALLEGATIONS Berks County Jail System
26. At all times relevant to this Complaint, individual Defendants were acting under color of state law, within the scope and course of their employment, and under the direct control and supervision of Berks County.
27. The Berks County Jail System (“BCJS”) is governed and controlled by a board of inspectors, also known as the Berks County Prison Board (“Prison Board”), which is mandated by law to “provide for the safekeeping, discipline and employment of inmates and the government and management of [BCJS]” and to appoint a warden. See 61 Pa. C.S. §§ 1731(3), 1733.
28. All expenditures connected with the operation of BCJS must be approved by a majority of the members of the Prison Board and, in addition, specifically by Defendant Barnhardt, in his role as Prison Board president. See 61 Pa. C.S. § 1735.
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29. Defendant Warden Quigley is the chief executive officer of BCJS and approves all of BCJS’s policies, including those that govern the classification of inmates into different custody levels and inmates’ housing assignments.
30. BCJS includes two facilities, located in close proximity to each other: the Berks County Jail (“Jail”) and the Berks County Community Reentry Center (“CRC”).
31. The Jail is a secure custodial facility with prisoners of both sexes and all security levels, located at 1287 County Welfare Road, Leesport, PA 19533.
32. The CRC is a separate facility located close to the Jail at 1261 County Welfare Road, Leesport, PA 19533, that houses men only.
33. According to Berks County, the CRC is “dedicated to improving the quality of our community by delivering effective and innovative inmate services that instill pro-social behavior, healthy life choices, and personal accountability, thereby reducing recidivism and its financial burden on the county.” Welcome to Berks County Community Reentry Center, COUNTY OF BERKS PENNSYLVANIA, http://www.co.berks.pa.us/Dept/Jail/CRC/Pages/default.aspx (last visited Nov. 26, 2018).
34. The CRC “opened its doors in May of 2010 with the goal of reducing recidivism and assisting residents in re-establishing themselves as productive members of our community. Through a collaborative effort with other local government agencies, non-profit agencies, community-based agencies and faith-based organizations, [the CRC] strive[s] to provide the guidance and resources necessary to enable reintegration back into the community. These agencies deliver services both pre- and post-release and provide a continuum of care for up to three years after release. The partnership among these aforementioned agencies seeks to enhance public safety by utilizing evidence based practices which support positive choices, constructive
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behavior and accountability, thereby reducing criminal actions and financial burden upon the county.” About the Community Reentry Center, COUNTY OF BERKS PENNSYLVANIA, http://www.co.berks.pa.us/Dept/Jail/CRC/Pages/About-the-CRC.aspx (last visited Nov. 26, 2018).
35. On information and belief, there are currently approximately 100 men—and no women—housed in the CRC.
36. The CRC has enough space and beds to house up to 152 people. 37. BCJS has a classification system that assigns prisoners to one of five custody levels: Administrative Segregation, Maximum, Medium, Minimum, and Trusty. Trusty is the least restrictive custody level. BERKS COUNTY JAIL SYSTEM INMATE HANDBOOK (Eff. Apr. 1, 2016) 31, available at http://www.co.berks.pa.us/Dept/Jail/Documents/INMATE%20HANDBOOK%202016%20%20PDF%20version%2004-01-16.pdf. 38. Classification is determined based on:
• Reports from law enforcement agencies • Medical or psychiatric condition and history • Jail records of conduct and adjustment • Records of prior incarceration • Length of time in present classification status • Criminal charges • Existence of detainers • Adjudication status • Program participation
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Id. 39. BCJS has four categories of housing. Three are located in the Jail: Quarantine,
General Population, and Restricted Housing (administrative or disciplinary segregation). Id. 40. The fourth housing category is Reentry, which “includes Trusty or work release.”
Reentry housing, also known as the CRC, is outside the secure perimeter of the jail and affords inmates more freedom and subjects them to less direct supervision than in the Jail. Id.
41. According to the Inmate Handbook, “[a prisoner’s] housing assignment [is] based upon the results of the classification process.” Id.
42. The Inmate Handbook says that “[r]eentry housing is assigned to those who meet a number of criteria” but does not state what those criteria are. Id. at 33.
43. Prisoners are not eligible for reentry housing if they: • Are in an administrative segregation status • Are in quarantine status • Ever escaped or attempted to escape from custody in the last eight (8) years • Have a detainer from another jurisdiction lodged against the prisoner • Have a custody level assignment of minimum, medium, or maximum until reviewed and approved by the ICC • Have a risk assessment level of medium high, or high • Refuse to participate in specific treatment programs or fail to demonstrate improvement • Have a prior work release failure in the last three years • Have received a formal misconduct in the past sixty (60) days
Id. at 34. 9

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44. The Work Release Program “provides an opportunity for [prisoners] to become employed in the community.” Id. at 29.
45. To be eligible for Work Release, a prisoner must meet the criteria for Trusty custody level classification and attend or be involved in all recommended programming. Id. at 30. Discrimination against Women in the Berks County Jail System
46. Berks County and BCJS have a policy and custom of housing male prisoners with a Trusty custody-level classification and/or Work Release status in the CRC.
47. Berks County and BCJS have a policy and custom of housing all women committed to BCJS—regardless of their assigned custody level—in the Jail, including those with the Trusty classification and those on Work Release.
48. On information and belief, Defendants Barnhardt, Leinbach, Scott, Quigley, and Smith approved and ratified BCJS’s policy and custom of barring Trusty and Work Release women from the CRC, on the basis of their sex and gender.
49. In addition to housing Trusty and Work Release men, the CRC also houses some men with custody-level classifications of Minimum or Medium.
50. Men incarcerated in BCJS, whether in the Jail or the CRC, live on housing units or cell blocks only with other men of the same custody level.
51. Women incarcerated in BCJS, unless they are in a medical or other special unit, are all housed on F Block in the Jail, where women with custody levels ranging from Trusty to Maximum are all housed together and sometimes share cells; for example, an inmate classified as Trusty sometimes shares a cell with an inmate classified as Maximum.
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52. Women housed on F Block are confined in locked cells, approximately 75 square feet in area.
53. Each cell on F Block houses two inmates and contains a toilet with no lid or cover.
54. Women on F Block eat all their meals in their cells. 55. The toilets in the cells on F Block automatically “lock”—i.e., they cannot be flushed—for one hour if they are flushed twiced within five minutes. 56. There is sometimes fecal matter and/or urine in the uncovered toilets while women on F Block are eating in their cells. 57. Excluding time that women who have jobs spend at work, women on F Block are limited to a maximum of 6 hours out of their cells daily, during three different two-hour recreation periods. 58. Women on F Block are often forced to forfeit their recreation time—and, thus, often get less than six hours out of their cells each day—because of frequent “lockdowns” and “lock-ins,” during which prisoners are confined in their locked cells for hours, and sometimes days, on end. 59. Women on F Block are only permitted to use the phones, microwaves, and showers during their recreation periods. 60. Consequently, women on F Block sometimes go for days without access to showers. 61. When female Trusty and/or Work Release prisoners in the Jail receive visitors, they must sit in a room with other prisoners and are separated from their visitors by a glass or
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plexiglass barrier, through which they must talk without the benefit of a phone or other means of amplification.
62. The CRC consists of four housing units, each of which contains cells, a “day room,” and a communal bathroom, which contains at least three showers and toilets.
63. Inmates in the CRC live in cells, the doors of which remain unlocked at all times. 64. The CRC cells contain either 2 or 4 beds and a private closet for each inmate’s possessions. 65. Inmates in the CRC have unfettered access to the day room from 4:00 A.M. through 11:30 P.M. every day, and can move freely between their cells and the day room, socialize, and play games. 66. Inmates in the CRC have unfettered access to showers during the 19 ½ hours they are permitted out of their cells each day, and can shower as often as they want. 67. The day rooms in the CRC contain phones and microwaves, which the inmates are free to use during the 19 ½ hours they are permitted out of their cells each day. 68. Inmates in the CRC eat their meals in the day room. 69. Inmates in the CRC are able to have visitors on days when they are not working and are able to sit at a table with their visitors, without any physical barrier between them. 70. Although inmates in the CRC are occasionally affected by lockdowns, they spend much less time on lockdown than inmates in the Jail. 71. On information and belief, men with the Trusty custody level—who are housed in the CRC—have access to job fairs and other programs and services that help them to acquire jobs and get approved for Work Release.
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72. On information and belief, women with the Trusty custody level—who are housed in the Jail—do not have comparable access to job fairs or other programs and services that would enable them to acquire jobs and get approved for Work Release.
73. Berks Connections is a nonprofit organization that provides programming in the CRC to prepare inmates to return to free society and increase their chances of acquiring employment, including:
a. Introduction to Reentry; b. Ready to Re-Enter, a three-session program that assists inmates with
reentry planning; c. Resume writing seminar; and d. Ready to Succeed, a four-week program that assists inmates with job-
seeking skills, interviewing skills, and other skills needed to acquire jobs. 74. Each of the programs listed in the previous paragraph is offered in the CRC but not the Jail and, thus, available to men but not women. 75. Male and female prisoners on Work Release—including Ms. Victory when she was incarcerated—are charged $50 per week for room and board, but male prisoners on Work Release receive all the benefits and privileges associated with being housed in the CRC, while female prisoners on Work Release—including Ms. Victory when she was incarcerated—do not. Discrimination and Retaliation Against Theresa Victory 76. On January 24, 2018, Theresa Victory entered a guilty plea in the Court of Common Pleas of Berks County pursuant to a negotiated plea agreement, the terms of which guaranteed that she would be immediately eligible for Work Release.
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77. This guarantee of immediate eligibility for Work Release was a major factor in Ms. Victory’s decision to accept the plea agreement and plead guilty, as it would enable her to continue to work, pay her bills, and keep her apartment.
78. As part of those negotiations, Ms. Victory understood that her participation in Work Release would be accompanied by housing separate from the main jail.
79. On January 24, 2018, Ms. Victory was sentenced to 1 to 5 years confinement. 80. If she is released before her maximum sentence, she will serve the remainder of her sentence on parole. 81. Ms. Victory reported to Berks County Jail on January 27, 2018. 82. On January 31, 2018, Berks County issued a document reflecting Ms. Victory’s approval for Trusty custody level and specifically stated that her placement in the CRC was contingent on her participation in a drug and alcohol group. 83. Ms. Victory was put on Work Release and worked as a server at Route 61 Diner while she was incarcerated. She worked eight-hour shifts, five days a week, and was paid $7.85 per hour. 84. For the first two weeks she was on Work Release, BCJS deducted $75 per week from Ms. Victory’s wages for room and board; and every week for the remainder of her incarceration, BCJS has deducted $50 per week from her wages for room and board. 85. Ms. Victory participated in and completed the drug and alcohol group, and she has complied with all requirements of the program throughout her time at the Berks County Jail. 86. Throughout her confinement, Ms. Victory was classified as a Trusty and approved for Work Release.
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87. At no point during her confinement, prior to her testifying in this case, was Ms. Victory in any of the disqualifying categories for reentry housing (i.e., housing in the CRC). See supra, ¶ 43.
88. Despite this, Ms. Victory was assigned to General Population in the Jail instead of the CRC.
89. When Ms. Victory first arrived at the Jail, she was placed in an “overflow” unit of the Jail that houses 45 female prisoners in “dormitory” housing rather than in locked cells.
90. While housed in the overflow unit, Ms. Victory and, upon information and belief, other female prisoners with Trusty custody level and/or Work Release status, filed grievances in which they complained about not being housed in the CRC and requested the same services and privileges that male prisoners with Trusty custody level received.
91. Shortly after filing these grievances, Ms. Victory and other female prisoners with Trusty classification and/or Work Release status were moved from the dormitory-style overflow housing unit to F Block in General Population in the Jail, where they were housed in locked cells.
92. C.O. Bauer said she moved Ms. Victory and the other female Trusty prisoners out of the overflow housing and on to F Block because, in her words, they were “too demanding.”
93. Upon information and belief, C.O. Bauer received authority to move Ms. Victory and the other female Trusty-classified prisoners from Defendants Warden Quigley and Deputy Warden Smith.
94. Ms. Victory has been subjected to lockdowns in the Jail—periods when she was not permitted to leave her cell for long periods of time—on more than 45 occasions, including multiple times for 19 hours straight.
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95. Laundry services are unreliable and erratic in the Jail, causing Ms. Victory to have to wear the same dirty clothing to work day after day.
96. On or around July 15, 2018, Ms. Victory asked C.O. Drosdak to do her laundry and told her that she had no clean underwear.
97. When it was time for Ms. Victory to leave for work on July 15, 2018 and C.O. Drosdak still had failed to do Ms. Victory’s laundry, C.O. Drosdak told Ms. Victory to go to work with no underwear on.
98. On May 31, 2018, Ms. Victory filed a grievance complaining about the failure of the Jail System to assign her to housing and services in the CRC and complaining about the disparities in treatment and privileges between her and other women with Trusty classification and/or Work Release status (all of whom are housed in the Jail) and men with Trusty classification and/or Work Release status (all of whom are housed in the CRC) (“CRC grievance”).
99. On or about July 24, 2018, Ms. Victory filed an appeal of the unanswered CRC grievance.
100. On or about August 14, 2018, Ms. Victory asked her counselor about the status of her CRC grievance and appeal, and her counselor found a response to the appeal, dated July 26, 2018, in Ms. Victory’s file. Ms. Victory had not previously received a copy of this response.
101. In the response, Defendant Captain Castro claimed not to have received the initial grievance, treated the appeal as a grievance, and denied the grievance.
102. In her denial of Ms. Victory’s CRC grievance, Captain Castro stated: “Due to the small size of the female prisoner population, in comparison to the male population, the physical design of the jail prohibits dedicating a housing unit for trusty status females. Even our smallest
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housing unit would maintain nearly 90% unoccupied beds if we were to attempt to create a female trusty unit. This would be a tremendous waste of valuable bedspace and resources. The CRC is not a co-ed building.”
103. On or about August 14, 2018, Ms. Victory filed an appeal of the denial of her CRC grievance.
104. On August 17, 2018, Defendant Deputy Warden Stephanie Smith denied Ms. Victory’s appeal of her CRC grievance, claiming that, Trusty Status, CRC, and Work Release were unrelated and that Ms. Victory was not entitled to CRC housing and benefits based on her Work Release and Trusty status.
105. On July 24, 2018, Ms. Victory submitted a furlough request. 106. On or about August 17, 2018, Defendant Deputy Warden Smith denied Ms. Victory’s request for a furlough. 107. On or about August 18, 2018, Ms. Victory filed a grievance complaining about the denial of her request for a furlough (“furlough grievance”), explaining that she felt it was unfair that men with Trusty classification and/or Work Release status were routinely granted furloughs but women with the same status were not.
108. On or about August 30, 2018, Lieutenant Weber denied Ms. Victory’s furlough grievance and wrote in his response, “You have already filed an appeal to your grievance. This exhausts the steps of the grievance process. Future communication on this topic will be considered harassment and discipline will follow.”
109. Since filing her grievances and appeals, Ms. Victory has been repeatedly subjected to interference with her Work Release employment and threats to terminate her Trusty
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custody level and her Work Release status, in retaliation for her grievances and other communications with BCJS staff.
110. On information and belief, Defendants Sergeant Spotts, C.O. Reichart, C.O. Zerr, and C.O. Brown, all knew about or were aware of Ms. Victory’s grievances, and/or Lieutenant Weber’s and Deputy Warden Smith’s responses.
111. On or around July 14, 2018, C.O. Drosdak and C.O. Bauer refused to release Ms. Victory when she was scheduled to leave for work, causing her to arrive at work late.
112. When she explained that she was scheduled to leave for work, C.O. Drosdak and C.O. Bauer responded derisively, and Defendant Sergeant Spotts said, “You will go to work when I tell you to. If you keep it up, you will not go at all.”
113. On or around September 4, 2018, Ms. Victory was scheduled to go to work, but Defendants C.O. Zerr and C.O. Brown refused to let her leave because they said she was not listed as being scheduled to work that day.
114. When Ms. Victory explained that she could lose her job if she was absent and asked C.O. Zerr to check with Work Release Coordinator Joanna Brown, C.O. Zerr told her that if she continued to ask about it, she would send her to “the hole” (i.e., Restrictive Housing).
115. When Ms. Victory told C.O. Brown she needed to go to work and asked C.O. Brown to call Work Release Coordinator Joanna Brown, C.O. Brown replied, “If you ask me one more time, I’m going to put you in the hole today.”
116. Ms. Victory’s fiancé and her boss both called Joanna Brown multiple times that day but got no response, and Ms. Victory ended up missing the entire day of work.
117. On or around September 12, 2018 at approximately 1:10 p.m., Ms. Victory knocked on her cell door because it was time for her to be released to go to work.
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118. Defendant C.O. Reichart then told Ms. Victory, “Knock on your door one more time, and you’ll lose your job.”
119. On or around September 13, 2018, Ms. Victory was released late from her unit to go to work.
120. Defendant C.O. Reichart said to Ms. Victory, “It’s jail. We cannot help it if you are late for work.”
121. On or around September 26, 2018, Ms. Victory was released late from her unit to go to work because C.O. Drosdak refused to allow her to leave at the proper time.
122. C.O. Drosdak told Ms. Victory, referring to getting released to go to work, “It’s not a priority. . . . I don’t care. I will get to it when I get around to it.”
123. On or around September 26, 2018, as well as on multiple other days, C.O. Drosdak interfered with Ms. Victory’s ability to get to work on time by requiring her fiancé, who drove her to work, to check in inside the Jail before C.O. Drosdak would permit Ms. Victory to leave; when other C.O.’s were on duty, Ms. Victory’s fiancé was not required to do this.
124. On or around October 18, 2018, Ms. Victory was late to work because Defendants C.O. Zerr and C.O. Reichart failed to let her out of her cell on time.
125. On or around November 19, 2018, Defendant C.O. Brown searched Ms. Victory’s cell and accused her of having an extra towel, an extra bed sheet, and prohibited correspondence from another inmate.
126. The allegedly prohibited correspondence from another inmate was actually a poem that Ms. Victory’s former cellmate, who had been released from the Jail, had written and left in the cell.
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127. C.O. Brown told Ms. Victory she could either accept an “informal” punishment of 10 days locked in her cell or go through the formal discipline process, which would mean time in “the hole” and the possible loss of her Work Release status; Ms. Victory chose the former option.
128. On December 7, 2018, C.O. Drosdak wrote a misconduct citation in which she alleged that Ms. Victory had saved oatmeal from breakfast, in violation of Jail policies.
129. Ms. Victory did not receive a copy of C.O. Drosdak’s citation and did not know that she had been cited until a few days later.
130. On December 7, 2018, Joanna Brown, the Work Release Coordinator, wrote in an email to Ms. Victory’s boss at the diner that Ms. Victory had been removed from the Work Release Program.
131. Ms. Victory first learned of this email and its contents when she got to work on December 7, which caused her great embarrassment.
132. On December 10, 2018, Defendants were served summonses and copies of the original complaint Ms. Victory filed in this lawsuit.
133. On the morning of December 11, 2018, an article appeared in the Reading Eagle about Ms. Victory’s lawsuit.
134. Later that same day, Joanna Brown visited Ms. Victory on F-Block and told her that the December 7th misconduct citation “did not stand,” and that her Work Release status was being reinstated.
135. On Thursday, January 10, 2019, this Court conducted an evidentiary hearing on Ms. Victory’s motion for a preliminary injunction.
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136. At the preliminary injunction hearing, Ms. Victory testified about the discrimination to which she has been subjected, Defendants’ responses to her grievances, and Defendants’ retaliation against her.
137. Warden Quigley, Deputy Warden Smith, and Captain Castro all testified at the preliminary injunction hearing and were subjected to cross examination by Ms. Victory’s counsel.
138. On information and belief, all of the Defendants employed by BCJS as well as all other BCJS correctional staff knew that that, as a result of Ms. Victory’s lawsuit, Warden Quigley, Deputy Warden Smith, and Captain Castro had to testify in court.
139. On Sunday, January 13, 2019, Ms. Victory passed a newspaper article about homelessness, with certain passages underlined or circled in red pencil, under the cell door of another female inmate on F Block, Cassie Heilman.
140. Ms. Victory and Ms. Heilman had previously had a conversation about homelessness, so Ms. Victory gave Ms. Heilman the article because she thought she might find it interesting.
141. Ms. Victory was going to work that day so would not be able to give it to Ms. Heilman directly and, therefore, decided to put it under her cell door.
142. Ms. Heilman had previously been classified as a Trusty but had recently lost her Trusty classification.
143. Ms. Heilman and Ms. Victory had previously been cellmates and did not get along well when they were cellmates.
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144. Later in the day on January 13, 2019, Defendant C.O. Brown wrote a report in which she alleged that Ms. Heilman believed Ms. Victory was harassing her by passing the article under her cell door.
145. Ms. Victory denied the allegations because her intent was not to harass Ms. Heilman and because—in light of Defendants’ pattern of retaliation against her and the recent court proceeding—she was fearful of what C.O. Brown and other staff would do to her if she admitted to having passed the newspaper article under Ms. Heilman’s door.
146. After reading C.O. Brown’s report and speaking to Ms. Victory, Lieutenant Baurle cited her for three misconducts—Harassment, Misrepresentation, and Transfer of Property—and placed Ms. Victory in the Restricted Housing Unit (“RHU”).
147. A disciplinary hearing was held and Ms. Victory was sentenced to 15 days in the RHU.
148. As a result of this infraction, Ms. Victory’s Work Release status was terminated. 149. Defendants Quigley and Smith did not want to transfer Ms. Victory to the CRC or treat her the same as male Trusty/Work Release inmates, even if the Court ordered them to do so. 150. Defendants Quigley and Smith knew that if Ms. Victory got a formal misconduct citation, they could argue she was no longer similarly situated to male Trusty inmates and would not be entitled to any relief this Court might order. 151. On information and belief, Defendants Quigley and Smith were aware of or directed C.O. Brown’s report and Lieutenant Bauerle’s misconduct citations against Ms. Victory. 152. Warden Quigley, Deputy Warden Smith, and Lieutenant Weber were aware of the ongoing pattern of retaliation against Ms. Victory by the Jail staff they supervised, did nothing to stop it, and, in some cases, even encouraged it or directed it.
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153. The intimidation, threats, and retaliation by Defendants have caused Ms. Victory severe depression and anxiety about getting to work late, losing her Trusty custody level, and losing her Work Release employment.
154. Ms. Victory suffered from frequent nightmares as a result of her anxiety. 155. Ms. Victory experienced nausea and vomiting several mornings each week as a result of her anxiety, ever since the intimidation and threats by correctional officers began. 156. In September 2018, medical staff prescribed Ms. Victory medication for her depression and prescribed an increased dosage of medication for her anxiety. 157. On or around October 3, 2018, Ms. Victory was diagnosed with a muscle spasm in her back, a condition that was caused and/or exacerbated by her having to sleep on a hard metal bedframe, a lack of exercise, and insufficient time out of her cell. 158. On multiple occasions, as a result of lockdowns or lock-ins, Ms. Victory was forced to go several days without a shower and has had to go to her waitressing job without having showered. 159. One such example was in January 2019, when she went from January 6 - January 11 without showering. 160. Ms. Victory was released on parole from Berks County Jail on January 28, 2019. Discrimination Against Alice Velazquez-Diaz 161. Alice Velazquez-Diaz is an inmate at Berks County Jail. 162. Ms. Velazquez-Diaz was sentenced by the Court of Common Pleas of Berks County on October 24, 2018 to 11 ½ to 23 months confinement. 163. If she is released before her maximum sentence, she will serve the remainder of her sentence on parole.
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164. Ms. Velazquez-Diaz was classified as a Trusty on or around January 30, 2019 and has remained a Trusty since then.
165. She is incarcerated on F Block in the Jail and subject to all of the same restrictions as other F Block inmates.
166. She does not fit into any of the categories that would disqualify an inmate from being housed in the CRC. See supra, ¶ 43.
167. But for her being a woman, she would be housed in the CRC. 168. On February 8, 2019, Ms. Velazquez-Diaz filed a grievance in which she complained about the differences in treatment between male and female Trusty inmates, including asking why women were excluded from the CRC. 169. In response to her grievance, Ms. Velazquez-Diaz was sent to see a Special Operating Group (“S.O.G.”) officer. 170. S.O.G. officers, known by inmates as “turtles,” wear body armor and carry large weapons. 171. Ms. Velazquez-Diaz felt that her being sent to see a S.O.G. officer was intended to intimidate her. 172. On February 19, 2019, Deputy Warden Smith responded to the grievance and wrote that the CRC was for men only. 173. On March 5, 2019, Ms. Velazquez-Diaz filed an appeal of Deputy Warden Smith’s response to her grievance. 174. On March 12, 2019, Captain Castro responded and said it was unclear whether Ms. Velazquez-Diaz was attempting to file an appeal or a new grievance, and he instructed her to re-submit it.
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175. On March 15, 2019, Ms. Velazquez-Diaz filed a new appeal of the response to her initial grievance.
176. On March 28, 2019, Warden Quigley responded to the appeal, upheld Deputy Warden Smith’s response, and stated that the CRC was for men only.
177. Ms. Velazquez-Diaz exhausted the steps of the BCJS grievance procedure. Discrimination Against Anabell Dealba
178. Anabell Dealba is an inmate at Berks County Jail. 179. Ms. Dealba was sentenced by the Court of Common Pleas of Berks County on February 13, 2019 to 9 to 23 months confinement. 180. If she is released before her maximum sentence, she will serve the remainder of her sentence on parole. 181. On or around March 12, 2019, she was classified as a Trusty and has remained a Trusty ever since. 182. She is incarcerated on F Block in the Jail and subject to all of the same restrictions as other F Block inmates. 183. She does not fit into any of the categories that would disqualify an inmate from being housed in the CRC. See supra, ¶ 43. 184. But for her being a woman, Ms. Dealba would be housed in the CRC. 185. On March 15, 2019, Ms. Dealba filed a grievance in which she complained about the differences in treatment between male and female Trusty inmates. 186. On March 20, 2019, Deputy Warden Smith responded to Ms. Dealba’s grievance and wrote that the CRC was for men only and that “[a]ll inmates are treated equally within the parameters of institutional security and operational limitations.”
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187. On March 22, 2019, Ms. Dealba filed an appeal of Deputy Warden Smith’s response to her grievance.
188. On April 5, 2019, a BCJS staff member responded to Ms. Dealba’s grievance appeal, stating that the “time limit [was] extended for further investigation.”
189. On April 9, 2019, Warden Quigley responded to Ms. Dealba’s grievance appeal, upholding Deputy Warden Smith’s response, stating that “programs and housing are impacted by the confines of operational limitations and institutional safety and security.”
190. Ms. Dealba exhausted the steps of the BCJS grievance procedure. VI. LEGAL CLAIMS
Count I – Sex Discrimination in Violation of the Fourteenth Amendment to the US Constitution – Injunctive Relief
Plaintiffs Victory, Velazquez-Diaz, Dealba, and Class against Berks County, County Commissioner Defendants, Warden Quigley, and Deputy Warden Smith
191. Plaintiffs repeat and re-allege all of the paragraphs of this Complaint as if fully set forth herein.
192. Defendants’ policy, custom, and practice of refusing to assign female prisoners who are on Work Release and/or have Trusty custody-level classifications to the CRC and denying to them the benefits of such assignment discriminates against Plaintiffs and the class they represent on the basis of sex, in violation of their right to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.
193. The sex-based classification used by Defendants in making housing assignments for prisoners with Trusty custody-level classification or Work Release status is not substantially related to the achievement of any important governmental objectives.
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Count II – Sex Discrimination in Violation of the Fourteenth Amendment to the US Constitution – Damages
Plaintiffs Victory, Velazquez-Diaz, and Dealba against Berks County 194. Plaintiffs repeat and re-allege all of the paragraphs of this Complaint as if fully set forth herein. 195. Defendants’ policy, custom, and practice of refusing to assign female prisoners who are on Work Release and/or have Trusty custody-level classifications to the CRC and denying to them the benefits of such assignment discriminates against Plaintiffs and the class they represent on the basis of sex, in violation of their right to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution. The sex-based classification used by Defendants in making housing assignments for prisoners with Trusty custody-level classification or Work Release status is not substantially related to the achievement of any important governmental objectives.
Count III - Retaliation for Asserting First Amendment Rights Plaintiff Victory against Defendants, Spotts, Reichart, Zerr, and C.O. Brown 196. Plaintiff repeats and re-alleges all of the paragraphs of this Complaint as if fully set forth herein. 197. Plaintiff Victory engaged in protected First Amendment activity when she filed grievances and inmate communication forms, made informal complaints to prison staff, requested to be released from her cell to report to her Work Release job, filed this lawsuit, and testified at a preliminary injunction hearing. 198. Defendants took adverse actions against Plaintiff Victory—including transferring her to different housing, verbally threatening to punish her, and interfering with her
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employment—sufficient to deter a prisoner of ordinary firmness from engaging in further protected speech.
199. Plaintiff Victory’s protected First Amendment speech was a motivating factor in Defendants’ decisions to threaten and take other adverse actions Plaintiff Victory.
200. Defendants Quigley and Smith was aware of, acquiesced to, and/or directed the continued retaliation against Ms, Victory.
201. These actions were undertaken intentionally, with malice, and/or with reckless disregard for Plaintiff Victory’s rights. Count IV – Sex Discrimination in Violation of the Pennsylvania Equal Rights Amendment,
Art. I, § 28 of the Pennsylvania Constitution Plaintiffs Victory, Velazquez-Diaz, Dealba, and Class against Berks County,
County Commissioner Defendants, Warden Quigley, and Deputy Warden Smith
202. Plaintiffs repeat and re-allege all of the paragraphs of this Complaint as if fully set forth herein.
203. Defendants’ policy, custom, and practice of refusing to assign female prisoners who are on Work Release and/or have Trusty custody-level classifications to the CRC and denying to them the benefits of such assignment discriminates against Plaintiffs and the class they represent on the basis of sex, in violation of their right to equal protection of the laws guaranteed by the Pennsylvania Equal Rights Amendment, Art. I, § 28 of the Pennsylvania Constitution. VII. JURY DEMAND
Plaintiffs hereby demand that this matter be tried by jury.
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VIII. RELIEF WHEREFORE, Plaintiffs request that this Court grant:
A. A preliminary and permanent injunction: (1) Prohibiting Defendants from assigning female prisoners on Work Release and/or with Trusty custody-level classification to any housing other than the CRC or an alternative with the exact same privileges, programs, and services as the CRC; (2) Ordering Defendants to immediately move Alice Velazquez-Diaz, Anabell Dealba, and all other members of the Proposed Class currently in the Berks County Jail System to the CRC or an alternative with the exact same privileges, programs, and services as the CRC; (3) Prohibiting Defendants from retaliating against Ms. Velazquez-Diaz, Ms. Dealba, and other members of the Proposed Class for complaining about sex discrimination and retaliation.
B. A declaratory judgment under 28 U.S.C. § 2201 that the Defendants violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Pennsylvania Equal Rights Amendment.
C. An award of compensatory damages to Ms. Victory, Ms. Velazquez-Diaz, and Ms. Dealba.
D. An award of punitive damages to Ms. Victory, Ms. Velazquez-Diaz, and Ms. Dealba.
E. An award of reasonable attorneys’ fees and costs. F. Such other and further relief as may appear just and appropriate.
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Dated:

April 18, 2019

Respectfully submitted,
/s/ Su Ming Yeh___________ Su Ming Yeh PA Attorney No. 95111 /s/ Angus Love____________ Angus Love PA Attorney No. 22392 /s/ Matthew A. Feldman_____ Matthew A. Feldman PA Attorney No. 326273 PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 Tel: 215-925-2966 smyeh@pailp.org alove@pailp.org mfeldman@pailp.org Counsel for Plaintiffs and Proposed Class Members

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

THERESA VICTORY, ALICE VELAZQUEZ-DIAZ, ANABELL DEALBA, and all others similarly situated,
Plaintiffs,
v.
BERKS COUNTY, et al.
Defendants.

:

:

:

:

:

CIVIL ACTION NO. 18 Civ. 5170

:

:

:

:

Judge Mark A. Kearney

:

:

:

:

CERTIFICATE OF SERVICE

I, Matthew A. Feldman, hereby certify that on April 22, 2019, I caused to be served a true and correct copy of Plaintiff’s Amended Complaint upon the following by filing it with the Clerk’s Office:

Matthew J. Connell, Esq. Samantha Ryan, Esq. MacMain Law Group 433 W. Market Street Suite 200 West Chester, PA 19382 mconnell@macmainlaw.com

/s/ Matthew A. Feldman Matthew A. Feldman PA Attorney No. 326273 PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 Tel: 215-925-2966 mfeldman@pailp.org

 
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 Case 5:18-cv-05170-MAK Document 206 Filed 07/29/19 Page 1 of 2

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

THERESA VICTORY,etal.

CIVIL ACTION

v.

NO. 18-5170

BERKS COUNTY, et al.

ORDER
AND NOW, this 29th day of July 2019, upon considering Class Counsel's Motion for approval of Notice to the limited class of Trusty female inmates in the Berks County Jail (ECF Doc. No. 200) under our July 8 and July 15, 2019 Orders (ECF Doc. Nos. 187, 196), Defendants' Objections (ECF Doc. No. 203), and finding the Court of Appeals' present stay 1 on implementing Defendants' plan for changes to comply with our Orders does not affect our ongoing management of this class action towards trial, it is ORDERED Plaintiffs' Motion (ECF Doc. No. 200) is GRANTED in part and DENIED in part based on our sustaining and overruling Defendants' objections:
1. Defendants' objection to the characterization of the Jail System's policy as "granting Trusty women fewer privileges and freedoms" is SUSTAINED and shall be amended to: "treating Trusty women differently than Trusty men";
2. Defendants' objection to the characterization of injunctive relief sought is SUSTAINED and the Notice shall be amended to describe the lawsuit as seeking "an injunction ordering Berks County to treat men or women with the Trusty classification in substantially similar or substantially equivalent manners";
3. Defendants' objection to the solicitation of witness information through seeking "any information regarding this litigation" is SUSTAINED and the Plaintiffs' proposed 1 Victory v. Cnty. ofBerks, No. 19-2648 (3d Cir. July 19, 2019).

Case 5:18-cv-05170-MAK Document 206 Filed 07/29/19 Page 2 of 2
language should be modified to read "if you seek further information about this case, please contact the attorneys representing the Class:";
4. Defendants' objection to the distribution of the Notice is OVERRULED and the last sentence of the Notice shall read "This Notice shall be conspicuously placed on each bulletin board in F-Unit of the Berks County Jail for the duration of this litigation or until further Order." and shall further be provided to each new female Trusty inmate upon designation consistent with the Berks County Jail's longstanding practices defining female Trusty inmates;
5. The Notice shall be amended to correct the spelling of "Judgment" in the second paragraph; and,
6. Defendants shall post the approved revised Notice consistent with this Order beginning no later than July 31, 2019 and file a certificate of compliance with this Order no later than August 2, 2019.
KEARNEY,J.
2

 
 Case 5:18-cv-05170-MAK Document 213 Filed 08/07/19 Page 1 of 1

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

THERESA VICTORY, et al.

CIVIL ACTION

v.

NO. 18-5170

BERKS COUNTY, et al.

ORDER

AND NOW, this 7th day of August 2019, upon considering the Class Plaintiffs' Motion

for a preliminary injunction on behalf of the Class (ECF Doc. No. 189), Defendants' Response

(ECF Doc. No. 210), finding we previously granted preliminary injunctive relief (ECF Doc. No.

135) requiring Defendants propose a plan for implementing injunctive relief now stayed pending

the United States Court of Appeals' review of our July 15, 2019 Order (ECF Doc. No. 196), and

further finding, after three evidentiary hearings, the same likelihood of success and irreparable

harm exist for female Trusty inmates certified as part of the Class as previously awarded to

Plaintiff Alice Velazquez-Diaz under our May 20, 2019 Order (ECF Doc. No. 135), it is

ORDERED:

1. Subject to the posting of a $100 bond on behalf of the Class Members with the

Clerk of Court, Class Plaintiffs' Motion for preliminary injunction (ECF Doc. No. 189) is

GRANTED to compel Defendants to implement their proposed plan under our July 15, 2019

Order (ECF Doc. No. 196) for all Class Members; but, 2. Consistent with our Court of Appeals' July 19, 2019 Order1 staying our July 15,

2019 Order (ECF Doc. No. 196), we stay implementation of this Order until further Order.
'

1 Victory v. Cnty. ofBerks, No. 19-2648 (3d Cir. July 19, 2019).

 
 Case 5:18-cv-05170-MAK Document 350 Filed 04/07/20 Page 1 of 3

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

THERESA VICTORY, et al. v.
BERKS COUNTY, et al.

: CIVIL ACTION : : NO. 18-5170 : :

JUDGMENT
AND NOW, this 7th day of April 2020, having reviewed the jury’s November 14 and 15, 2019 Verdicts (ECF Doc. Nos. 321, 323), our January 15, 2020 entry of permanent injunctive relief (ECF Doc. No. 339), and today’s Order (ECF Doc. No. 349) partially granting Plaintiffs’ Motion for reasonable attorneys’ fees and costs, we enter JUDGMENT:
1. Consistent with the terms described in our January 15, 2020 Order (ECF Doc. No. 339), Berks County and its Warden and Deputy Warden shall:
a. Provide a substantially equivalent amount of time each day during which cell doors are unlocked and prisoners are permitted to access the dayroom for all Trusty women and men, unless there is a unit-wide lockdown or individual disciplinary action;
b. Provide substantially equivalent access to phones, microwaves, and showers to all Trusty women and men, if allowing both Trusty women and men to access those amenities during time periods when their cell doors are unlocked or during indoor recreation periods, unless there is a unit-wide lockdown or individual disciplinary action;
c. Provide substantially equivalent visitation conditions for Trusty women and men including the presence or absence of a physical barrier between prisoners and their visitors;
d. Notify a female or male Trusty inmate, at the time that a male or female inmate is classified as a Trusty, of that classification by providing a Review for Trusty Status

Case 5:18-cv-05170-MAK Document 350 Filed 04/07/20 Page 2 of 3

Memorandum from Berks County Jail System Treatment Staff. This memorandum shall at least

notify the inmate of the following:

i.

You are fully sentenced on all charges. If additional charges are

brought against you, your classification status will be reviewed and adjusted accordingly.

ii.

You have been medically cleared to work and must accept any job

assignment offered to you. If you are no longer medically cleared, your classification status will

be reviewed and adjusted accordingly.

iii.

If recommended programming interferes with your job assignment,

your program schedule takes priority.

iv.

You may also be eligible for work release and furloughs. You may

sign up to speak with your unit counselor about these programs.

v.

Formal misconduct citations may result in the loss of Trusty

Classification.

e. For as long as Berks County continues to offer Trusty inmates eligibility for

a home furlough, submit a Partial Confinement Reentry Order to a Trusty inmate’s sentencing

judge on a case by case basis after a given Trusty inmate meets the criteria for and requests a home

furlough;

2. We enter JUDGMENT of $510,139.61, plus post-judgment interest, in favor of the

Plaintiffs and against Berks County consisting of $2,800 in compensatory damages payable to Ms.

Victory, $1.00 in compensatory damages payable to Ms. Velasquez-Diaz, and reasonable

attorney’s fees of $503,939.20 and uncontested costs of $3,399.41 consistent with our April 7,

2020 Order (ECF Doc. No. 349); and,

2

Case 5:18-cv-05170-MAK Document 350 Filed 04/07/20 Page 3 of 3 3. The Clerk of Court shall close this case.
______________________ KEARNEY, J.
3

 
 Case 5:18-cv-05170-MAK Document 245 Filed 10/17/19 Page 1 of 4

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

THERESA VICTORY, et al.

CIVIL ACTION

v.

NO. 18-5170

BERKS COUNTY, et al.

ORDER-MEMORANDUM
AND NOW, this 17th day of October 2019, upon considering the Defendants' Motion to
decertify (ECF Doc. No. 220), and Plaintiffs' Response (ECF Doc. No. 229), it is ORDERED
Defendants' Motion to decertify (ECF Doc. No. 220) is DENIED.
Analysis
On July 8, 2019, we granted Plaintiffs' motion for class certification of their Equal
Protection injunction claims under Fed.R.Civ.P. 23(b)(2) supported by detailed findings
warranting class treatment of prospective equitable relief at our upcoming trial for:
All current and future female inmates committed to the Berks County Jail System who have the Trusty custody-level classification but denied assignment to the Community Reentry Center ("CRC") and denied access to the privileges and services available to men assigned to the CRC. 1

Following the close of discovery, the Berks County Defendants move to decertify the class because (1) the individual claims for injunctive relief of class representatives Mses. Victory and Velazquez-Diaz are moot; and, (2) Mses. Victory and Velazquez-Diaz cannot adequately represent the interests of the class under Fed. R. Civ. P. 23(a)(4). We reject these arguments.
First, the mootness of class representatives Mses. Victory or Velazquez-Diaz's individual claims for injunctive relief do not preclude the class from presenting a live case or controversy
1 ECF Doc. Nos. 186, 187.

Case 5:18-cv-05170-MAK Document 245 Filed 10/17/19 Page 2 of 4
for injunctive relief. A class representative may continue to represent the class even when her
individual claims are mooted if the class claims are particularly susceptible to mootness.2
In our July 8, 2019 Memorandum, certifying a class of female Trusty inmates with Mses.
Victory and Velazquez-Diaz as class representatives, we explained:
Mses. Victory and Velazquez-Diaz adduce evidence showing potential class members would be unable to litigate their claims for injunctive relief individually because of the administrative exhaustion requirement and the short length of incarceration for female Trusty inmates. From January 2016 to May 2019, female Trusty inmates held Trusty status for an average forty-nine days during their incarceration. In 2018, the Commonwealth incarcerated female Trusty inmates in the Berks County for an average fifty-seven days. Female Trusty inmates could not file lawsuits seeking injunctive relief because they would fail to exhaust administrative remedies before their claims for injunctive relief became moot. Ms. Victory exhausted her remedies and filed suit but Berks County released her shortly after we granted her motion for injunctive relief. Berks County released two other plaintiffs who earlier joined in this action-Anabell Dealba and Samantha Huntington-before we could rule on their motions for preliminary injunctive relief. Mses. Victory and Velazquez-Diaz
2 See, e.g., Cty. ofRiverside v. McLaughlin, 500 U.S. 44, 51-52 (1991) ("It is true, of course, that the claims of the named plaintiffs have since been rendered moot; eventually, they either received probable cause determinations or were released. Our cases leave no doubt, however, that by obtaining class certification, plaintiffs preserved the merits of the controversy for our review."); US. Parole Comm'n v. Geraghty, 445 U.S. 388, 399 (1980) ("Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires."); Sosna v. Iowa, 419 U.S. 393, 399 (1975) ("But appellant brought this suit as a class action and sought to litigate the constitutionality of the durational residency requirement in a representative capacity. When the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by appellant. We are of the view that this factor significantly affects the mootness determination."); Gayle v. Warden Monmouth Cty. Corr. Inst., 838 F.3d 297, 307 (3d Cir. 2016) ("A plaintiff who files a motion to certify a class prior to the expiration of his individual claims does not lose his interest in accurate resolution of his legitimate efforts to serve as class representative, merely because the District Court, as a technical matter, denies or terminates the motion without actually deciding it.") (internal quotation and citation omitted).
2

Case 5:18-cv-05170-MAK Document 245 Filed 10/17/19 Page 3 of 4
show the putative class members' inability to seek injunctive relief individually. 3 We determined Berks County female Trusty inmates class claims for injunctive relief are particularly susceptible to mootness. We explained how Ms. Victory is an adequate class representative despite, as noted above, her release from Berks County Jail System. Since our July 8 Memorandum, Ms. Velazquez-Diaz has been released from Berks County Jail System. We appreciate both individual claims for injunctive relief are now moot. But mootness of the representatives' claims for injunctive relief does not warrant class decertification.4 We reject Berks County Defendants' decertification argument based on mootness of class representative's individual claims. Second, Defendants argue Mses. Victory and Velazquez-Diaz cannot adequately represent the interests of the class because the two (1) are not incentivized in the outcome of claim for injunctive relief; and, (2) have a "conflict of interest" because they seek money damages when the class seeks injunctive relief. We deny these same arguments for the reasons stated in our July 8, 2019 Memorandum analyzing adequacy under Rule 23(a)(4).5 We then explained: "Ms. Victory's damages claims under the Equal Protection Clause arise from the same policy as the class members' claim for injunctive relief: Berks County's policy of treating female Trusty inmates differently than male Trusty inmates. A finding in favor of Mses. Victory and Velazquez-Diaz on their claims for damages for Equal Protection violations would similarly support a claim for injunctive relief."6 This remains true. Mses. Victory and Velazquez-Diaz are
3 ECF Doc. No. 186, at p. 43 (citations omitted). 4 See e.g., Sosna v. Iowa, 419 U.S. 393,399 (1975). 5 See ECF Doc. No. 186 at pp. 46-49. 6 Id. at p. 49.
3

Case 5:18-cv-05170-MAK Document 245 Filed 10/17/19 Page 4 of 4 incentivized to represent the class. We see no conflict of interest.7 We decline to decertify based on Rule 23(a)(4) as Mses. Victory and Velazquez-Diaz continue to satisfy the adequacy requirement.
7 New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007) ("Conflicts of interest are rare in Rule 23(b)(2) class actions seeking only declaratory and injunctive relief.").
4

 
 Case 5:18-cv-05170-MAK Document 247 Filed 10/17/19 Page 1 of 43

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

THERESA VICTORY, et al.

CIVIL ACTION

v.

NO. 18-5170

BERKS COUNTY, et al.

KEARNEY,J.

MEMORANDUM

October 17, 2019

Berks County admittedly houses female Trusty inmates in its Jail with different rights as

to freedom of movement, access to privileges, and visitation than it offers to male Trusty inmates

in a neighboring Community Reentry Center even though all inmates are carefully screened upon

prison entry to ensure only the lowest risk inmates are classified as "Trusty." Two female Trusty

inmates no longer in custody challenge this policy, as well as differing access rights to prison

furloughs, as violating the Equal Protection Clause of the Fourteenth Amendment. They

individually seek damages. They also seek permanent injunctive relief on behalfof class ofsimilar

situated female Trusty inmates to change this policy. Berks County defends its policy arguing it

is not obligated to provide the same freedom of movement, access to privileges, and visitation to

females as males and otherwise cannot think a plan to remedy the possible equal protection

violation given its safety fear, structural barriers, and lack of female staff. Both parties move for

summary judgment. Although we find Berks County's policy as to freedom of movement, access

to privileges, and visitation violates the female Trusty inmates' rights to equal protection, we deny

both motions as there are genuine issues of material fact as to Berks County's policy on access to

furloughs for Trusty inmates, the narrowness, intrusiveness and necessity of permanent injunctive

relief, and possible compensatory and punitive damages for the two former Trusty female inmates.

Case 5:18-cv-05170-MAK Document 247 Filed 10/17/19 Page 2 of 43

I.

Undisputed Facts1

The Berks County Jail System consists of the Berks County Jail and the Community Reentry Center. 2 The Reentry Center is located down the hill from the Jail. 3 Berks County houses

both male and female inmates in the Jail.4 The Jail consists of several male-only housing units, one female-only housing unit, and two medical units housing both male and female inmates. 5

Berks County houses only male inmates in the Reentry Center. 6 Berks County classifies inmates

as one of five custody levels: Administrative Segregation, Maximum, Medium, Minimum, and Trusty. 7 Trusty is the least restrictive custody level.8

As of May 14, 2019, Berks County housed 1,006 inmates in the Berks County Jail System, with 873 male inmates and 133 female inmates.9 As ofAugust 16, 2019, eight female inmates held Trusty status. 10 Sixty-eight male inmates held Trusty status.11 From January 2016 to May 2019, female Trusty inmates accounted for fourteen percent of the total Trusty inmate population. 12 Berks County houses ninety-two male inmates in the Reentry Center. 13

The average length of stay in the Berks County Jail System for female Trusty inmates from

2014 to 2018 was 126 days, while the average length for male Trusty inmates was 149 days. 14

From January 2016 to May 2019, female Trusty inmates held "Trusty" status for an average forty-

nine days during their incarceration, while male Trusty inmates held the status for an average sixtythree days. 15 In 2018, the average length of incarceration was fifty-seven days for female Trusty inmates and fifty-six days for male Trusty inmates. 16

Berks County uses the Ohio Risk Assessment System.

Berks County classifies inmates with a custody level after a risk assessment and review by

the Institutional Classification Committee.17 Berks County uses an "objective classification

system" to determine an inmate's custody level and eligibility for programming. 18 Berks County

2

Case 5:18-cv-05170-MAK Document 247 Filed 10/17/19 Page 3 of 43
bases an inmate's custody level on their security risk. 19 Berks County employs the Ohio Risk Assessment System, a nationally recognized risk assessment test, to determine both male and female inmates' risk level in the Jail System. 20 It uses the Ohio Risk Assessment "Prison Screening Tool" to categorize an inmate as low, moderate, or high risk. 21 Prison officials perform the risk assessment analysis for both male and female inmates.22 Trusty inmates generally receive "low" or "moderate" Ohio Risk Assessment scores.23 Berks County applies this System to men and women and does not distinguish between men and women in classifying the presented risk.
An inmate's risk assessment score determines eligibility for job-related programming. Berks County hired Berks Connection, a non-profit organization, to provide programs at the Jail and the Reentry Center.24 Deputy Warden Smith testified Berks Connection offers programming to inmates based on their Ohio Risk Assessment scores.25 She testified Berks Connections only offered job-related programs-in the Jail and the Reentry Center-to inmates with "moderate" or "high" risk scores.26 Berks Connection offers four job-related programs at the Reentry Center: (1) Introduction to Reentry, (2) Ready to Reenter, (3) Resume writing seminar, and (4) Ready to Succeed.27 Berks Connection offer these four programs to inmates with "moderate" or "high" Ohio Risk Assessment scores.28
Berks Connection offers a single job-related program at the Jail called Working Towards Change, a cognitive behavior therapy program focused on problem solving and reducing recidivism.29 Berks Connection offers Working Towards Change only to "moderate" or "high" risk inmates in the Jail.30
Female Trusty inmates reside only in the Jail Berks County houses female Trusty inmates on the F Block of the Jail, either in locked cells or in bunk-style housing in the overflow unit.31 During her incarceration, Ms. Victory lived
3

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in both a locked cell and the overflow unit.32 The locked cells house two inmates and contain a toilet and a sink.33 The toilet has no lid and locks after two flushes. 34 Female Trusty inmates eat their meals in their cells.35 Ms. Velazquez-Diaz testified she ate meals with a locked toilet containing feces. 36 Female Trusty inmates leave their cells to retrieve meals and medicine and attend programming.37
Female Trusty inmates in the overflow unit in the Jail live in an open housing area with bunk beds.38 They use communal bathrooms and showers.39 Female Trusty inmates in the
° overflow unit cannot wander freely around the unit except during recreation periods.4 Female
Trusty inmates can use only during telephones and microwaves in the overflow unit recreation periods. 41
Female Trusty inmates in the Jail receive six hours of recreation each day but forfeit recreation during lockdowns.42 Female Trusty inmates can only use the shower, microwave, and telephone during recreation periods but cannot use these amenities during lockdowns.43 Between February 24, 2018 and April 7, 2019, the Berks County Jail System had seventy-one lockdowns, with six of those only affecting the F Block.44 Lockdowns can last longer than a day.45 Captain Miguel Castro admits inmates in the Jail spend more time on lockdown than inmates in the Reentry Center. 46
Female Trusty inmates may receive visitors in the Jail. A glass partition separates female Trusty inmates in the Jail from their visitors.47 Ms. Velazquez-Diaz testified she could not hear her family members during visits because she shared the room with other inmates and visitors and people shouted to each other.48
4

Case 5:18-cv-05170-MAK Document 247 Filed 10/17/19 Page 5 of 43
Male Trusty inmates reside only in the Community Reentry Center. The Community Reentry Center houses male inmates with Trusty, Minimum, and Medium custody level classifications.49 It has four units (Q, R, S, and T) and contains 152 beds. so Two roll-up doors separate Units Q and R, but there are openings near the ceiling between the two units. 51 Unit T houses Minimum and Medium male inmates.52 Glass windows separate Units T and S.53 The Reentry Center also contains a dayroom with telephones and microwaves. 54 The Reentry Center has communal bathrooms and showers. 55 The Reentry Center contains cells housing two or four inmates.56 These cells do not contain toilets or sinks, and they do not lock. 57 Inmates in the Reentry Center can access the Center's dayroom and can use the microwaves and showers any time from 5:00 AM to 11 :00 PM.58 They can move freely between their cells and the dayroom during this time.59 They may eat their meals in the dayroom.60 Between 11:00 PM and 5:00 AM, they can only leave their cells to use the bathroom.61 The Reentry Center contains a computer lab. 62 The Reentry Center also contains four locked cells with toilets for inmates with minor disciplinary infractions.63 Inmates in the Reentry Center can only receive visitors on Sundays at specific times.64 Visitations occur in the Reentry Center's gymnasium.65 The Inmate Handbook provides visits in the Reentry Center can last up to fifty minutes, while Lieutenant Mugar testified visits in the Reentry Center cannot exceed forty-five minutes.66 No partition separates Reentry Center inmates from their visitors.67 Berks County's differing policies for access to furloughs for male Trusty inmates. Berks County officials swore inmates only receive furloughs if the sentencing judge allows for furloughs. 68 But its policy does not define this condition. The Berks County Jail System's
5

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Inmate Handbook describes the furlough policy but does not mention a need for sentencing judge approval for eligibility:
The furlough program provides a means for temporary release from custody for those inmates successfully participating in select treatment programs, or in some specific cases for family emergencies, e.g. to attend funerals of immediate family members. The Warden makes the final determination on whether or not a furlough will be considered. To be eligible for any furlough you must be sentenced on all charges, have no detainers, and have noun-adjudicated parole violations. Requests for any type of furlough are initiated through your counselor.69 The policy provides further access to furloughs for Reentry Center inmates only: "Access to other types of program furloughs may be offered and will be considered on an individual basis."70 Deputy Warden Smith admitted men currently receive furloughs to spend time with family members, but no women do. 71 She testified she could not remember any female inmate ever receiving a furlough to spend time with family members. 72 When sentenced male Trusty inmates move to the Reentry Center, Berks County personnel assist inmates complete furlough paperwork.73 Mr. James Williams was incarcerated in the Berks County Jail System from July 2018 through December 3, 2018.74 Mr. Williams swears Berks County transferred him to the Reentry Center around "September or early October 2018."75 During his second day, he swears he attended an orientation where "a [Berks County] staff member gave [him] a form to sign to request approval for a furlough from my sentencing judge."76 Two weeks after signing the form, Mr. Williams swears he "received a document informing him [he] had been approved for a furlough. ,m Ms. Velazquez-Diaz swears Berks County does not assist female Trusty inmates in applying for furloughs. She swears: "No Berks County Jail System employee ever told me I could request approval for a furlough from my sentencing judge."78 Ms. Velazquez-Diaz also swears:
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"No [Berks County Jail System] employee ever assisted or offered to assist me in requesting a furlough from my sentencing judge."79
Berks County's employee allocation in the Jail System. Correctional staff members in the Jail System belong to the Teamsters Union.80 The Union's collective bargaining agreement sets wages for correctional staff.81 Berks County currently employs thirty-three female correctional officers.82 Only twenty-two female officers are active, due to medical leaves, training, or bid positions.83 Warden Quigley testified she performed a staffing analysis in 2016 and determined Berks County required six individual correctional staff members to cover shifts for an entire week. 84 Berks County requires at least one female officer present in each facility housing female inmates. 85 Captain Castro testified Warden Quigley attempted to hire additional female correctional officers, but Berks County cannot force women to apply for these positions. 86
Ms. Victory's one-year incarceration in Jail The Commonwealth incarcerated Theresa Victory in the Berks County Jail from January 28, 2018 to January 28, 2019. 87 During her incarceration, Ms. Victory lived in both a locked cell and the overflow unit on F Block.88 Berks County scored Ms. Victory as "low" risk under the Ohio Risk Assessment System.89 On January 31, 2018, Berks County classified Ms. Victory as a Trusty inmate with Work Release status.90 Deputy Warden Smith testified Ms. Victory could not participate in Berks Connections' job-related programs because of her risk assessment score.91 Ms. Victory's sentencing judge did not make her eligible for furloughs. 92 In February 2018, Berks County moved Ms. Victory to the overflow unit on F Block.93 Ms. Victory requested a furlough on May 12, 2018.94 Two days later, a nonparty official denied her request.95 Ms. Victory began hearing of Berks County's treatment of male Trusty inmates in the
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Reentry Center.96 In late May 2018, she filed a grievance complaining about not being housed in the Reentry Center.97 Correctional Officer Bauer transferred her to a locked cell shortly after her grievance. 98
After exhausting her internal grievances, Ms. Victory sued the Berks County Defendants alleging, among other things, violations of the Equal Protection Clause of the Fourteenth Amendment arising from Berks County's differing treatment of male and female Trusty inmates.99
Ms. Velazquez-Diaz's incarceration in the Jail. The Commonwealth incarcerated Alice Velazquez-Diaz in the Berks County Jail beginning October 24, 2018. 100 Ms. Velazquez-Diaz scored "low" risk on the Ohio Risk Assessment test. 101 Her sentencing judge did not make her eligible for furloughs. 102 Berks County initially classified Ms. Velazquez-Diaz as a Trusty inmate. 103 Ms. Velazquez-Diaz lived in both a locked cell and the overflow unit on F Block during her incarceration. 104 On February 8, 2019, Ms. Velazquez-Diaz grieved Berks County's housing male Trusty inmates in the Reentry Center and female Trusty inmates in the Jail. 105 Deputy Warden Smith responded, "[The Reentry Center] is a male housing unit."106 In April 2019, she requested a furlough but Berks County denied her request. 107
Berks County proposes new housing plan for female Trusty inmates. On April 22, 2019, Ms. Velazquez-Diaz joined Ms. Victory's lawsuit. 108 Two days later, she filed for preliminary injunctive relief seeking to enjoin Berks County's differing treatment. 109 After a hearing, we granted Ms. Velazquez-Diaz's motion for injunctive relief on May 20, 2019. 110 We ordered Berks County to provide a plan for providing Ms. Velazquez-Diaz with similar freedom of movement and visitation conditions provided to male Trusty inmates in the Reentry Center. 111
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On May 20, 2019, we ordered Berks County to file a proposed plan allowing female Trusty inmates similar conditions of confinement to male Trusty inmates. 112 Berks County, through Warden Quigley, swore an affidavit stating "[b]ased upon my experience in corrections, management of the safety and security needs and the physical facilities at [Berks County Jail System], I believe ... we are providing equal housing and services to all inmates ... within the operational parameters and using our best judgment to manage and operate the [Berks County Jail System]."113 Warden Quigley further stated "[t]here are significant safety and security concerns associated with providing inmates ... access to non-secure visits."114
On July 8, 2019, Warden Quigley amended her affidavit and attached a memorandum titled "Housing and Schedule Changes for Female Inmates Classified as 'Trusty."' 115 Berks County's amended plan would redesign the Jail's quarantine unit to house female Trusty inmates with the same freedom of movement, with no locked cells, common area with tables for meals and recreation, barrier free visitation, and toilets with no lockouts. 116 Mses. Victory and VelazquezDiaz objected to the proposal. 117 II. Analysis 118
Ms. Victory and co-plaintiffs seek injunctive relief and compensatory and punitive damagesY9 Mses. Victory and Velazquez-Diaz allege Berks County Defendants violated the Equal Protection Clause of the Fourteenth Amendment by housing only male Trusty inmates in the Reentry Center and offering them more favorable conditions of confinement. The parties now cross-move for summary judgment. Berks County Defendants argue Mses. Victory and Velazquez-Diaz fail to show they are similarly situated to male Trusty inmates; Mses. Victory and Velazquez-Diaz argue female and male Trusty inmates are similarly situated. Berks County argues Mses. Victory and Velazquez-Diaz fail to show impermissibly different treatment; Mses. Victory
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and Velazquez-Diaz argue there is impermissibly different treatment. The parties also dispute whether any differing treatment serves important government objectives.
Under the Fourteenth Amendment, Berks County Defendants may not "deny to any person within [their] jurisdiction the equal protection of the law."120 The Supreme Court held the Equal Protection Clause applies to discrimination on the basis of sex. 121 "A successful claim that a government practice or policy violates the Equal Protection Clause requires proof that the plaintiff 'has been treated differently from persons who are similarly situated. "' 122 "Official action does not violate the Equal Protection Clause solely because it results in a disproportionate impact; proof of discriminatory intent or purpose is required to show a violation." 123
If Mses. Victory and Velazquez-Diaz show there are no disputes as to material facts concerning differential treatment of similarly-situated persons, Berks County Defendants can still defeat summary judgment by showing differing treatment "serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives."124 If Mses. Victory and Velazquez-Diaz fail to adduce sufficient facts to show Berks County disparately treats similarly situated male and female Trusty inmates, then Berks County is entitled to judgment as a matter of law.
A. There are no genuine issues of disputed material fact as to Berks County Defendants' constitutional violation of female Trust inmates' freedom of movement, access to privileges, and visitation.
Mses. Victory and Velazquez-Diaz argue Berks County disparately treats its similarly situated female and male Trusty inmates by denying female inmates similar freedom of movement, access to privileges, visitations, and furloughs. Mses. Victory and Velazquez-Diaz move for summary judgment for the first three of these alleged violations. But they do not move for summary judgment on the issue of furloughs. Berks County Defendants moves for summary
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judgment in its favor on all four conditions. Upon intensive review of the record, there is no genuine dispute as to material fact: (1) female and male Trusty inmates are similarly situated; (2) Berks County Defendants do not similarly treat female and male Trusty inmates respecting freedom of movement, access to privileges, visitations, and furloughs; and, (3) Berks County Defendants' differential treatment does not serve an important governmental objective, and discrimination is not substantially related to those objectives. But there are disputed material facts about whether Berks County fails to provide substantially similar treatment to male and female Trusty inmates regarding furloughs.
1. Female Trusty inmates are similarly situated to male Trusty inmates in the Berks County Jail System.
Berks County Defendants argue female and male Trusty inmates in the Berks County Jail System are not similarly situated as a matter oflaw because (1) the male Trusty inmate population is larger, with a longer average length of incarceration and (2) female Trusty inmates are more likely to be abuse victims and single, sole custody parents. Mses. Victory and Velazquez-Diaz argue female and male Trusty inmates are similarly situated as a matter of law because undisputed facts show Berks County Defendants classify female and male inmates through the same risk assessment test, female and male Trusty inmates have similar lengths of incarceration, and there is no evidence female Trusty inmates are more dangerous than male Trusty inmates. We agree with Mses. Victory and Velazquez-Diaz.
The Court of Appeals for the Eighth Circuit's decision in Klinger v. Department of Corrections offers guidance for determining whether female prisoners are similarly situated to male prisoners under the Equal Protection Clause. 125 In Klinger, female inmates in Nebraska's only all-female correctional facility sued the Nebraska Department of Corrections under the Equal Protection Clause alleging male inmates in the Nebraska prison system received favorable
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treatment with regard to prison programs and services. 126 They claimed men at an all-male facility received superior "vocational, educational and employment opportunities and programs, rehabilitation programs, exercise and recreational programs and facilities, visiting privileges, legal programs, medical, dental and psychological services, and treatment associated with security classifications." 127 The case did not resolve on summary judgment motions. After a four-week trial, Judge Kopf of the United States District Court for the District of Nebraska found the Department of Corrections liable for violating the female prisoners' right to equal protection under the law. 128
The court of appeals reversed Judge Kopf, holding the female inmates were not similarly situated to the male inmates without reaching the issue of differing treatment. 129 The court of appeals looked at the differences between the female prison and the male prison, including the size of the two institutions. 130 The all-male prison housed six times as many inmates, the male inmates averaged two to three times greater lengths of incarceration, and the inmates at the all-male prison had a higher security level. 131 The court also explained female inmates were more likely to be single, sole custody parents, and victims of sexual or physical abuse. 132 Male inmates were also more violent and predatory than female inmates.
Scholars criticize the Klinger "similarly situated" analysis. The court in Klinger concluded the size difference between the male and female prisons showed female inmates were not similarly situated to male inmates, explaining the all-male prison housed six times as many inmates. But as Professor Jennifer Lee explains, "[t]he focus on the differences between prison facilities at the 'similarly situated' stage defeats the purpose of the constitutional claim."133 She argues the court's analysis makes no sense since a challenged condition-e. g., the smaller size of an institution, and
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as a corollary, its dearth of programming-could prevent a court from even analyzing whether the differing condition violates the Equal Protection Clause.
Professor Baker makes a similar argument about the court of appeals' use of "special characteristics"-female prisoners were more likely to be single, sole custody parents and abuse victims-to determine female and male inmates were not similarly situated. The court of appeals concluded because female inmates are "more likely to be single parents with primary responsibility for child rearing [and] more likely to be sexual or physical abuse victims," female and male inmates in the Nebraska correctional system were not similarly situated. 134 Professor Baker argues while this might be true, courts should not allow the state actor to merely point at statistical differences between male and female inmates to avoid an analysis ofunequal treatment. 135 Because the court in Klinger concluded female and male inmates were not similarly situated, it did not reach the issue of whether offering male inmates in the Nebraska correctional facility more programming violated the Equal Protection Clause. Focusing on these differences to determine female and male inmates are not similarly situated illogically leads to a court avoiding analysis of an issue which may exacerbate these differences. 136
Professors Lee and Baker note the Court of Appeals for the Eighth Circuit's decision predates the Supreme Court's decision in United States v. Virginia. 137 In Virginia, the Court held the Commonwealth of Virginia failed to show an exceedingly persuasive justification for excluding women from the citizen-soldier program offered at Virginia military college in violation of the Equal Protection Clause. The Court framed the issue as whether excluding women who were "capable of all the individual activities required ofVMI cadets" violated the Equal Protection Clause. 138 The Court instructed the State "may not exclude qualified individuals based on 'fixed notions concerning the roles and abilities of males and females."' 139
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The Klinger analysis is informative but, as Professors and Lee and Baker suggest, we should not rigidly apply Klinger's reasoning when faced with very different circumstances than Klinger. Berks County female Trusty inmates and male Trusty inmates are similarly situated as a matter of law. Female and male Trusty inmates have similar lengths of incarceration. In 2018, the average length of incarceration for female Trusty inmates was fifty-seven days, while the average length for males was fifty-six days. 140 The population of female and male Trusty inmates is similar. Trusty women and men are all in the custody of Berks County's custody and incarcerated in neighboring buildings within the same jail complex. 141 The Berks County prison complex consists only of these two buildings, and they are administered, run, and staffed by the same officials. 142 While Berks County Defendants adduce evidence showing male Trusty inmates comprise a larger percentage of the overall inmate population than female Trusty inmates, the difference is insignificant when analyzing whether female and male inmates are similarly situated.
Berks County Defendants admittedly use the same Ohio Risk Assessment System for all inmates, both female and male, to determine risk level and security classification. Berks County Defendants classify inmates-both female and male-as "Trusty" only after the inmate receives a risk assessment score and Berks County's Institutional Classification Committee reviews the inmate's score. Unlike the Nebraska Department of Corrections in Klinger, Berks County Defendants adduce no evidence male Trusty inmates are more violent or predatory than female Trusty inmates-or any personal characteristics of the two groups-to raise a genuine issue of material fact as to whether the two groups are similarly situated. Without such a showing, Mses. Victory and Velazquez-Diaz demonstrate female Trusty inmates are similarly situated to male Trusty inmates as a matter of law.
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2. Berks County Defendants do not provide substantially equivalent treatment to female Trusty inmates for freedom of movement, access to privileges, and visitation.
Berks County Defendants argue we should grant them summary judgment because housing conditions in the Jail are substantially equivalent to housing conditions in the Reentry Center. Mses. Victory and Velazquez-Diaz argue they adduce sufficient undisputed evidence to demonstrate differential treatment concerning freedom of movement, access to privileges, and visitation conditions as a matter of law. We agree with Mses. Victory and Velazquez-Diaz.
Under the Equal Protection Clause, Berks County Defendants are "bound to provide women inmates with treatment and facilities that are substantially equivalent to those provided the men[.]" 143 Courts use a standard of "parity of treatment, as contrasted with identity of treatment, between male and female inmates with respect to the conditions of their confinement and access to rehabilitation opportunities."144
For example, in McCoy v. Nevada Department ofPrisons, female prisoners in the Nevada Women's Correctional Center sued the Nevada Correctional Department alleging sex discrimination in Nevada prisons. 145 The female prisoners alleged superior conditions at all-male prisons, and alleged male prisoners received better programs, better visitor privileges, more free time, and more access to telephones. Concerning free time, the plaintiffs argued "male inmates are permitted greater free time, i.e., more time out of their cells, than female inmates[.]"146 The court denied the department's motion for summary judgment on the female prisoners' claim male prisoners receive more time out of their cells. 147
In Bukhari v. Hutto, a female prisoner at an all-female prison in Virginia sued the state department of corrections alleging sex discrimination in the state's prison system. 148 She alleged female prisoners experienced "more restricted freedom of movement among and interaction with the general prison population" than male prisoners in the Virginia prison system. 149 The district
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court refused to dismiss the plaintiffs Equal Protection claim. While acknowledging the smaller female prison population and providing similar conditions for female prisoners could entail a greater cost, the district court warned the department of corrections may not use cost concerns to "justify official inaction or legislative unwillingness to operate a prison system in a constitutional manner." 150
In Mitchell v. Untreiner, female prisoners in a Florida county jail sued the board of county commissioners alleging sex discrimination. 151 The female prisoners alleged inferior visitation conditions to male inmates, including non-contact visits separated by windows in the presence of other inmates and visitors. 152 The female prisoners alleged the county board allowed male inmates contact visits. 153 The district court entered summary judgment for the female prisoners on their Equal Protection claims and ordered injunctive relief ordering similar visitation conditions for male and female inmates. 154
Mses. Victory and Velazquez-Diaz adduce evidence Berks County Defendants fail to provide "substantially equivalent" conditions for female and male Trusty inmates. Berks County Defendants offer male Trusty inmates more freedom of movement at the Reentry Center. Male Trusty inmates can move between their cell and a dayroom nineteen hours a day. They can access microwaves, showers, and a television during this time. They may eat their meals in the dayroom. They sleep in unlocked cells and use communal bathrooms and showers. During visitations, no partition separates visitors from male Trusty inmates.
Berks County Defendants house all female Trusty inmates in the Jail. Berks County housed Mses. Victory and Velazquez-Diaz currently resides in a locked cell for most of their incarcerations. Female Trusty inmates eat their meals in locked cells. The cells contain locking toilets. Ms. Velazquez-Diaz testified she ate meals next to a locked toilet containing feces. 155
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Female Trusty inmates living in locked cells can only leave their cells for six hours a day during recreation periods but forfeit recreation during lockdowns. Captain Castro testified the Jail experiences more lockdowns than the Reentry Center. 156 Female Trusty inmates can only access showers, microwaves, and telephones during recreation periods. As with Bukhari and McCoy, Mses. Victory and Velazquez-Diaz show differential treatment with evidence of differing amounts of free time and freedom of movement. Like the plaintiff in Mitchell, Mses. Victory and Velazquez-Diaz show Berks County Defendants treat male and female Trusty inmates differently with respect to visitation conditions. A glass window separates female Trusty inmates in the Jail from their visitors, while no partition separates male Trusty inmates in the Reentry Center from their visitors. 157
Berks County Defendants argue they do not impermissibly treat female Trusty inmates differently because we should not conduct a "side-by-side" comparison of the Reentry Center and the Jail. They argue the Equal Protection Clause only requires "parity" and they provide substantially equivalent housing in the Jail and the Reentry Center. We agree Berks County Defendants need only provide substantially equivalent housing for female and male Trusty inmates. But as a matter of law Berks County fails to provide substantially equivalent housing for female and male Trusty inmates. Mses. Victory and Velazquez-Diaz adduce undisputed material facts demonstrating Berks County Defendants treat them differently than male Trusty inmates concerning freedom of movement, access to privileges, and visitation conditions. Courts recognize this differential treatment supports a prisoner's Equal Protection claim.
3. The differential treatment does not serve an important governmental objective, and discrimination is not substantially related to those objectives.
Mses. Victory and Velazquez-Diaz adduce sufficient undisputed material facts proving differential treatment of similarly situated persons as a matter oflaw. But differential treatment of
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similarly situated persons "is permissible ... if it bears a sufficient nexus to a qualifying governmental interest; in the case of a gender classification, the state must show that the classification 'serves important government objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. "'158 Berks County Defendants move for summary judgment arguing "the important government interest of operating a safe and secure facility is served by Berks County's policy."159 Mses. Victory and VelazquezDiaz move for summary judgment arguing Berks County discriminatory policy is invented post hoc to litigation and, even if not invented post hoc, is insufficient as a matter of law because they are not substantially related to the interest of operating a safe and secure facility.
We agree with Berks County Defendants: safety is a valid government interest. 160 But even when the objective is legitimate and important, the defendant must show the discriminatory means are substantially related to the legitimate and important governmental interest. 161 Berks County Defendants fail to adduce facts showing their treatment of different Trusty female inmates compared to male Trusty inmates is substantially related to the government's valid security interest.
In Davie v. Wingard, inmate Michael Davie argued Ohio prison officials violated the Equal Protection Clause by enforcing different hair grooming policies for male and female inmates. 162 Department regulations governed male and female hair grooming rules. Male inmates' hair could not "extend over the ears or the shirt collar;" 163 female inmates' hair could not "extend below the middle back area in length." 164 Ohio Defendants moved for summary judgment, arguing the "gender classification is justified because male inmates pose different issues of safety, security, and discipline when compared to female inmates."165 Ohio Defendants offered "several pieces of evidence to support their conclusion."166 They adduced evidence demonstrating female offenders
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were less likely to be violent offenders than male counterparts, 167 and female inmates were "less likely to be classified in higher safety classification."168 Defendants also adduced evidence showing "[f]emale inmates are less likely than male inmates to be involved in the production and hiding of contraband such as drugs or weapons."169
Judge Smith granted Ohio Defendant's summary judgment motion as to Mr. Davie's Equal Protection claim. Judge Smith concluded Ohio Defendants demonstrated male inmates presented a higher risk than female inmates ofsmuggling unsafe contraband in long hair.170 Ohio Defendants proved their hair policy substantially related to security concerns.
In contrast, prisoner William Sassman challenged the constitutionality of California's Alternative Custody Program allowing female-but not male-prisoners to apply to serve the last twenty-four months of their sentence outside of prison. 171 The California legislature enacted the Alternative Custody Program after finding:
• Female incarceration rate doubled in twenty years; 172 • Approximately sixty-seven percent of incarcerated women were mothers, and
many of them were single parents; 173 • Most of California's incarcerated mothers were the primary caregivers of
dependent children and hoped to return home to their children once released; 174 • Children were substantially impacted when separated from their parents,
resulting in an observed higher likelihood to become incarcerated; 175 • A father's involvement in a child's life greatly improved the child's chances for
success. 176 California enacted the Alternative Custody Program to "facilitate parenting and family reunificiation." But it explicitly limited eligibility to "female prisoners." 177
In 2013, Mr. Sassman applied to the Alternative Custody Program, requesting the California Department of Corrections and Rehabilitation allow him to finish his sentence in his home community of Sacramento. 178 Mr. Sassman claimed he met all criteria. 179 But the state
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rejected his application because of his gender. 180 The state instead instructed Mr. Sassman to "transition back into society via transition hubs instead."181 The transition hubs offered programs on "substance abuse, criminal thinking, anger management, and family relationships."182
The parties cross moved for summary judgment. Mr. Sassman argued California's refusal
to permit male inmates to apply to the Alternative Custody Program violated the Equal Protection Clause. California argued the Alternative Custody Program survived constitutional scrutiny because it: "(1) serves the legitimate governmental objective of reducing recidivism for female offenders and ameliorating the disproportionate burdens they face in prison, particularly by treating the lasting effects of separation for their children, and trauma, abuse, and addiction; and (2) is substantially related to that objective because it provides gender-responsive programming tailored to female offenders' needs." 183 Chief Judge England dismissed California's argument, explaining: "[t]he legislative history made clear that, contrary to Defendants' current assertions, the State's interests in passing the [Alternative Custody Program] were family reunification and community reintegration, which this Court has already determined are interests not served, and indeed undermined, by excluding men from the [Alternative Custody Program]."184 Because California failed to show the discriminatory policy furthered their important governmental objective, Judge England granted Mr. Sassman's motion for summary judgment.
As in Sassman, Berks County Defendants fail to adduce evidence to demonstrate treating female Trusty inmates less favorably than male Trusty inmates serves its compelling government interest in maintaining security. To meet its burden of proving differing treatment substantially relates to security, Berks County Defendants must demonstrate the sexes must be treated differently to ensure security. It could do as the Ohio defendants did in Davie; it could have tried to adduce evidence showing Berks County female Trusty inmates exhibit higher incidences of
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violence compared to male Trusty inmates. But Berks County did not do so. Instead, the Berks County Defendants rely on security risks ifit were to provide a parity oftreatment between male and female Trusty inmates. Such evidence does not demonstrate treating female Trusty inmates differently than male Trusty inmates substantially relates to a legitimate security interest in safety.
The reason Berks County's asserted justifications for differential treatment fail becomes clearer after examining Judge Gertner's reasoning in Ford v. City of Boston. 185 Boston city officials housed female arrestees in the county jail and performed strip and body cavity searches on these arrestees during booking. 186 But officials did not search male arrestees, and they housed men in more comfortable cells in the police station. 187 The female arrestees sued under the Equal Protection Clause alleging impermissibly differential treatment. City officials attempted to justify differential treatment arguing (1) the police station cells "could not hold women, because they were not configured to separate women from men" and (2) the police department "did not have the personnel and resources to administer holding cells for women."188
Judge Gertner rejected the City's arguments. She reasoned "these conclusory statements do little more than recast the City's original decision to discriminate in less offensive terms," explaining: "To satisfy the strictures of the equal protection jurisprudence ... , the City would have to explain why it could find no satisfactory space for women in the BPD station houses, and why it felt its personnel and resources were better used to meet the needs of male rather than female arrestees." 189 Judge Gertner explained: "[v]ague and general references to funding and space constraints cannot justify" a clearly discriminatory policy. 190
We review Berks County Defendants' asserted security interests and find each suffer from the same flaw as the City of Boston in Ford. Berks County Defendants fail to adduce evidence sufficiently explaining why female Trusty inmates are treated differently than male Trusty inmates.
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The explanations only vaguely address security concerns for remedying a past decision to provide more favorable treatment to male Trusty inmates.
Berks County Defendants argue the structure of the Reentry Center prohibits housing both male and female Trusty inmates. They argue they cannot safely house female Trusty inmates in the Reentry Center because the units are separated by windows through which inmates can see inmates in other units. They also argue safety concerns prevent female Trusty housing at the Reentry Center because (1) an open area exists near the ceiling between the Sand R units, and (2) inmates could slide items under the roll-up doors separating units.
We rejected these arguments on an earlier summary judgment motion; Berks County Defendants adduce no new evidence to support their argument. Berks County Defendants only speculate as to safety issues due to the Reentry Center's structure. They also fail to adduce evidence they could not make minor modifications to the Reentry Center to ensure the safety of female Trusty inmates. Berks County Defendants once again adduce no evidence such modification would be cost-prohibitive.
They also argue moving female Trusty inmates to the Reentry Center requires displacement of male inmates in the Reentry Center. But the Reentry Center contains 152 beds and as of May 14, 2019, Berks County only housed ninety-two inmates in the Reentry Center. 191 As of the same date, only four female Trusty inmates reside in the Jail. Warden Quigley also testified Berks County could house four female Trusty inmates in the Reentry Center's smallest unit and still accommodate the displaced male inmates in the Reentry Center's remaining units. 192 As a matter of law, we cannot see how Berks County Defendants' failure to house female Trusty inmates in the Reentry Center serves an important governmental interest and is substantially related to the achievement of the objective.
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Berks County Defendants also argue they lack sufficient female correctional staff to house female Trusty inmates in the Reentry Center. They argue they can only freely assign twenty-two of the thirty-three total female correctional staff members and they cannot assign female officers to the Reentry Center without creating security concerns. They argue they need six individual female correctional officers to fill every duty post in the Jail twenty-four hours per day. 193
We rejected this argument in denying Berks County's earlier motion for summary judgment. Berks County Defendants adduce no new evidence supporting their argument. We explained Berks County Defendants failed to credibly explain why they need six female correctional officers for each post except they "prefer[] one female correctional officer available to the necessary strip search of female inmates new to the jail system or returning each day from Work Release."194 But we also found Berks County Defendants admitted they often only have one female officer on a unit with female inmates. 195 Berks County Defendants fail to adduce evidence warranting a different conclusion. Like the defendants in Ford, Berks County Defendants fail to credibly explain why they cannot accommodate female Trusty inmates at the in similar living conditions to male Trusty inmates based on security concerns about their female Trusty inmates.
Berks County Defendants cite Danberg and Pitts to argue "[l]ack of available resources justifies implementation of a policy which is substantially related to an important government interest."196 But both Danberg and Pitts dealt with overcrowding-an issue where lack of resources may substantially relate to the policies enacted by the government. In Danberg, our Court of Appeals considered whether the district court properly upheld a Delaware Department of Corrections policy allowing law enforcement officers to bring women arrested in Sussex County, Delaware to Sussex Correctional Institution for twenty-four hours before being transferred eighty-
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five miles north to Baylor Women's Correctional Institution-the only all-women's facility in Delaware. 197 Judge Sleet reasoned the female inmate plaintiff failed to demonstrate "the named defendants violated the Equal Protection Clause by requiring male and female inmates to be housed separately" and failed to adduce facts to show a female inmate would be released sooner if not transferred to Baylor Women's Correctional Institution. 198 Our Court of Appeals affirmed, concluding "transferring women, and quickly, to a facility that can accommodate them directly accomplishes the goal of providing gender-segregated institutions."199 Judge Barry, writing for a unanimous panel, reasoned defendants based the policy on "sound gender-neutral reasoning" because, without the policy, Delaware risked overcrowding in the few cells used for short-term female prisoners.200
We also find Pitts inapposite. In Pitts, female inmates brought an equal protection claim against the Federal Bureau of Prisons, based on the geographic locations of prison facilities for women versus those for similarly situated men. The district court found the evidence of severe overcrowding and determined the only way to house women prisoners in the closer facility would have been to build or purchase a new facility, or to convert a present facility. The court explained: "the practice of gender-based separation allows the classification according to gender at issue to achieve a modest reduction in prison overcrowding."201 Berks County does not adduce sufficient evidence to show their differential treatment substantially relates to a legitimate and genuine concern about overcrowding. We do not find Pitts or Danberg persuasive.
At best, Defendants point to potential security concerns associated with moving female Trusty prisoners to another housing unit, but, even if valid, these concerns cannot justify the vast differences in treatment of Trusty men and Trusty women, including not only their being housed in different buildings but also differences in out-of-cell time, access to phones and microwaves,
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and the quality of visits. Defendants' justifications for their discrimination in these three conditions against members of the Plaintiff Class fail based on the undisputed facts. 202
4. Mses. Victory and Velazquez-Diaz need not show invidious motive to establish their sex discrimination claims.
Berks County Defendants argue we should grant them summary judgment on Mses. Victory's and Velazquez-Diaz's Equal Protection claims because Mses. Victory and VelazquezDiaz fail to show intentional discrimination. Mses. Victory and Velazquez-Diaz argue because Berks County's policy treating male and female Trusty inmates differently is facially discriminatory, it need not show discriminatory motive. We agree with Mses. Victory and Velazquez-Diaz.
In Hassan v. City of New York, a group of Muslims alleged the New York City Police Department violated the Equal Protection Clause by targeting Muslims with increased surveillance following the September 11 th terrorist attacks.203 The police department argued the plaintiffs failed to show purposeful discrimination because public safety concerns, not discrimination, drove the policy of differential treatment.204 Our Court of Appeals rejected the police department's argument explaining the department confused "intent" and "motive."205 The court explained the plaintiff need not show "invidious motive;" rather, the plaintiff need only show the defendant "meant to single out a plaintiff because of the protected characteristic itself."206
Berks County Defendants argue Mses. Victory and Velazquez-Diaz only show Berks County Defendants treat male and female Trusty inmates differently for reasons of safety, staffing concerns, and institutional needs. But like the police department in Hassan, Berks County Defendants misunderstand the difference between "intent" and "motive." As the policy discriminates on its face, Mses. Victory and Velazquez-Diaz need not show an invidious motive for differential treatment. They only need to show Berks County Defendants meant to single them
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out because of the protected characteristic, here, sex. Berks County Defendants admittedly house all female Trusty inmates in the Jail and all male Trusty inmates in the Reentry Center. Inmates in each facility experience different conditions of confinement. Mses. Victory and Velazquez-Diaz adduce evidence showing Berks County Defendants intentionally treat female Trusty inmates differently than they treat male Trusty inmates. Berks County Defendants' argument fails.
B. There are genuine issues of material facts as to whether Berks County Defendants disparately treats female and male Trusty inmates in its furlough policy.
Mses. Victory and Velazquez-Diaz also argue Berks County Defendants provide male Trusty inmates with more furloughs-but they do not move for summary judgment on this issue. Berks County Defendants argue there are no disputes as to material fact on the issue of furloughs. Mses. Victory and Velazquez-Diaz both unsuccessfully requested furloughs while incarcerated. They argue while Berks County Defendants provide male inmates with weekly family furloughs because it has not granted a female inmate a family furlough since at least September 2014.207
Berks County Defendants respond they do not impermissibly discriminate since it only grants inmates-both male and female-furloughs if their sentencing judge allows furloughs. 208 But Mses. Victory and Velazquez-Diaz raise a genuine issue of fact concerning differential treatment with access to furloughs. Berks County provides its furlough policy in the Inmate Handbook. It allows furloughs for inmates "successfully participating in select treatment programs, or in some specific cases for family emergencies[.]"209 Berks County's Inmate Handbook represents, "[t]o be eligible for any furlough you must be sentenced on all charges, have no detainers, and have noun-adjudicated parole violations."210 Berks County's Inmate Handbook does not condition eligibility on a sentencing judge's approval. Berks County further provides in its furlough policy: only inmates in the Reentry Center have "[a]ccess to other types of program
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furloughs may be offered and will be considered on an individual basis."211 Based on the additional language in the furlough policy applying only to Reentry Center inmates, Mses. Victory and Velazquez-Diaz argue Berks County treats female Trusty inmates differently than male Trusty inmates concerning access to furloughs. Deputy Warden Smith admitted men currently receive family furloughs, but no women do.212
Even if the adduced evidence demonstrated Berks County Defendants condition furlough eligibility on a sentencing judge's approval,213 Berks County may disparately treat female and male Trusty inmates regarding access to furloughs because there is evidence Berks County assists all eligible Reentry Center inmates in applying for furloughs. Former Reentry Center inmate Mr. James Williams swears Reentry Center personnel assisted him in completing furlough paperwork during his orientation in the facility. 214 There is no adduced evidence of similar assistance in the Jail. To the contrary, Ms. Velazquez-Diaz swears no Berks County employee ever even offered to assist her in requesting a furlough from her sentencing judge. 215
Considering the Inmate Handbook's silence about a sentencing judge's determination for eligibility and the additional policy for Reentry Center inmates, and adduced evidence showing Berks County assists male Trusty inmates but not female Trusty inmates in obtaining furloughs, there are genuine issues of material fact whether Berks County treats female Trusty inmates differently than male Trusty inmates concerning access to furloughs. We cannot decide if a parity of treatment exists based on the genuine issues of material fact concerning access to furloughs.
C. There are genuine issues of material facts as to the appropriate remedy. There are no questions of material fact concerning Berks County Defendant's liability for violating the constitutional rights of Mses. Victory and Velazquez-Diaz as to freedom of movement, access to privileges, and visitation. But we cannot enter judgment as a matter of law
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on the remedy for this violation when questions remain as to Mses. Victory and Velazquez-Diaz's monetary damages and the class claims for injunctive relief. 216
1. There are questions of fact as to Mses. Victory and Velazquez-Diaz's individual claims for damages.
Mses. Victory and Velazquez-Diaz request monetary damages for their sex discrimination claim under the Equal Protection Clause. We conclude Berks County Defendants' policy of housing male inmates in the CRC and female inmates in the Jail resulted in a "clear and significant gender disparity in the treatment" of Berks County inmates as to at least three conditions.217 Berks County failed to show a dispute as to material fact to support their reasons justified for the disparate treatment as to freedom of movement, access to privileges, and visitation.
But Mses. Victory and Velazquez-Diaz do not adduce evidence oftheir monetary damages. They sued seeking compensatory and punitive damages. They do not waive these damages. If they only seek nominal damages with reasonable attorney's fees, we have a different issue on their individual claim. A jury must decide the extent of compensatory and punitive damages if Mses. Victory and Velazquez-Diaz seek this recovery.218
2. There are questions of fact as to class claims for injunctive relief. Mses. Victory and Velazquez-Diaz argue, if we were to grant their partial motion for summary judgment, we should enter a permanent injunction. To grant prospective relief, the Prison Litigation Reform Act requires the prospective relief (1) be narrowly drawn, (2) extend no further than necessary to correct the harm, and (3) be the least intrusive means necessary to correct the harm.219 We also must give substantial weight to an adverse impact the relief may have on public safety or the operation of the criminal justice system.220 But the injunctive relief must remedy the violation of the federal right. 221
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We afford certain deference to prison officials as they undertake their duty to protect inmates, staff, and the community.222 Our deference includes "giving the States the first opportunity to correct the errors made in the internal administration of their prisons."223 This deference does not preclude district court judges permitting or ordering prison officials to propose remedial plans in prison conditions litigation.224 We need to balance these issues.
We permitted Berks County prison officials the opportunity to propose a remedial plan. We consider whether this plan-which, from our review of the record-is the only concrete remedial plan proposed by either party. There are significant disputes as to material facts and we cannot determine as a matter of law whether this proposal meets the test of the Prison Litigation Reform Act.225 Berks County's proposed plan "correct[s] the violation of the Federal right."226 Mses. Victory and Velazquez-Diaz contest the remedial effect ofthe County's proposed plan. This dispute requires fact finding to determine whether a plan may correct Berks County's violations at least as to the disparate treatment as to freedom of movement, access to privileges, and visitation.
Mses. Victory and Velazquez-Diaz objected to housing Trusty women-the lowest custody-level classification-in cells "designed and designated for Female inmates in Administrative Segregation, Quarantine Status."227 They contend "these cells are not meant for long-term confinement" and "[u]nlike the cells in general population, these cells have metal toilets," "the sinks in these cells are substantially smaller than those in the general population cells," and "the cells themselves may be smaller."228 They also argue if Berks County will keep the cell doors unlocked, the cells have no lockers in which female inmates could securely store personal possessions.229
Mses. Victory and Velazquez-Diaz question whether a proposed plan purports to provide access to the F Unit dayroom or to create a new dayroom in the current quarantine area.230 The
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ambiguity appears in the proposed plan, where Berks County states female inmates "shall have access to the dayroom" but also references "the open dayroom area contained within this housing area" and "the newly created dayroom area."231 Mses. Victory and Velazquez-Diaz object if the proposed plan creates a new, smaller dayroom than the F Unit dayroom to which they currently have access.
Mses. Victory and Velazquez-Diaz point to the proposed plan's statement "Trusty inmates shall be required to remain in their cells, unlocked when possible . . . during any emergency situations at the jail or F-Unit requiring a lock down or lock in."232 They believe this policy raises serious concerns because "it is undisputed ... the Jail is subject to far more lockdowns than the CRC and ... these lockdowns sometimes last for hours or even days."233
Warden Quigley swears Trusty women will be strip searched after each visit.234 Plaintiffs argue "[a] policy under which Trusty men in the CRC were not strip searched after visits, but Trusty women were, would violate the Equal Protection Clause and should not be approved ...
,,235
The proposed plan "reduce[s] both the length and frequency of visits for Trusty women."236 Mses. Victory and Velazquez-Diaz argue the plan "fail[s] to explain why these changes are necessary when [Berks County has] merely been ordered to propose a plan to provide 'visitation without glass partition."'237 Under the proposed plan, Mses. Victory and Velazquez-Diaz argue, "Trusty women would have their visits curtailed from three days per week for at least 30 minutes each (and often longer) to only one day per week for a maximum of 45 minutes."238
Each Trusty female would receive a specific forty-five-minute visitation slot each week.239 "If a woman's visitor is not available at that time or if the woman is on work release, she would not get any visits at all."240 Again, Mses. Victory and Velazquez-Diaz argue Berks County
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do[es] not explain why [it] propose[s] to reduce the length and frequency of Trusty women's visits. Even if such reductions were somehow necessary in order to comply with the Court's Order, Trusty women should, at a minimum, be given a choice between visits under the old system and visits under the new proposed plan, as some women might prefer more frequent and longer visits with a partition than shorter and less frequent visits without a partition ....241 We find these disputes material and require further evidence adduced at trial. We need further factfinding to determine whether any prospective injunctive remedy would remedy the constitutional violations. We cannot enter permanent injunctive remedy under the Prison Litigation Reform Act when there are disputes as to material facts concerning the narrowness, intrusiveness and necessity of a proposed plan. The parties must submit evidence at trial sufficient to allow us to make the necessary findings under the Prison Litigation Reform Act to determine an appropriate injunctive remedy. The record does not presently allow us to make these findings. III. Conclusion Berks County violated Mses. Victory's and Velazquez-Diaz's rights when it discriminated against them in disparate treatment as to freedom of mobility, access to privileges, and visitation on the basis of their sex in violation of the Equal Protection Clause of the United States Constitution. There are no genuine issues of fact as to Berks County Defendants violating constitutional rights of female Trusty inmates through disparate freedom of movement, access to privileges, and visitation. But there are questions of material fact as to whether Berks County provides a parity of treatment to access furloughs for female Trusty inmates. Berks County is liable in damages for its sex discrimination against both Mses. Victory and Velazquez-Diaz. Unless Plaintiffs concede they are not seeking compensatory or punitive damages, the factfinder will need to determine individual damages at trial. The record is also insufficient for us to enter a permanent injunction under the Prison Reform Litigation Act.
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1 Our Policies require a Statement of Undisputed Material Facts and a Joint Appendix of exhibits in support of a Rule 56 motion. The parties filed a Joint Appendix of exhibits. See ECF Doc. No. 221. The parties filed supplements to the Joint Appendix. See ECF Doc. No. 233. We reference the exhibits and affidavits submitted in the Joint Appendix as "J.A." 2 ECF Doc. No. 231 (Victory Response SUMF) 1 1. 3 J.A. 243 at 1197 (ECF Doc. No. 221-1); J.A.2731197 (ECF Doc. No.221-1). 4 J.A. 243-44 at 1199 (ECF Doc. No. 221-1); J.A. 273 at 1199 (ECF Doc. No. 221-1). 5 J.A. 244 at 1200 (ECF Doc. No. 221-1); J.A. 273 at 1200 (ECF Doc. No. 221-1). 6 Id. 7 ECF Doc. No. 223 (Berks SUMF) 12; ECF Doc. No. 231 (Victory Response SUMF) 12. s Id. 9 J.A.2081175-80 (ECF Doc. No. 221-1); J.A. 2311175-80 (ECF Doc. No. 221-1). 10 J.A. 1224 (ECF Doc. No. 221-4). 11 J.A.2081175-80 (ECF Doc. No. 221-1); J.A. 2311175-80 (ECF Doc. No. 221-1). 12 ECF Doc. No. 167-45 (Berks App.) at A1049. 13 J.A.208180 (ECF Doc. No. 221-1); J.A. 231180 (ECF Doc. No. 221-1). 14 ECF Doc. No. 167-45 (Berks App.) at A1048. is Id 16 J.A.2091186-87 (ECF Doc. No. 221-1); J.A.2321186-87 (ECF Doc. No. 221-1). 17 J.A. 244 at 1203 (ECF Doc. No. 221-1); J.A. 274 at 1203 (ECF Doc. No. 221-1). 18 J.A. 126 (ECF Doc. No. 221-1). 19 Id. 20 J.A. 203 at 132 (ECF Doc. No. 221-1); J.A. 227 at 132 (ECF Doc. No. 221-1). 21 ECF Doc. No. 167-30 (Berks App.) at A0960. 22 ECF Doc. No. 167-5 (Berks App.) at A0151. 23 ECF Doc. No. 164-4 (Victory Response App.) at A1304.
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24 J.A. 203 at ,I 36 (ECF Doc. No. 221-1); J.A. 227 at ,I 36 (ECF Doc. No. 221-1). 25 J.A. 1048 at 154:17-156:10 (ECF Doc. No. 221-2).
26 Id.
27 J.A. 203 at ,I 38 (ECF Doc. No. 221-1); J.A. 228 at ,I 38 (ECF Doc. No. 221-1). 28 J.A. 204 at ,I 40 (ECF Doc. No. 221-1); J.A. 228 at ,I 40 (ECF Doc. No. 221-1). 29 J.A. 204 at ,I 39 (ECF Doc. No. 221-1); J.A. 228 at ,I 39 (ECF Doc. No. 221-1).
30 J.A. 204 at ,I 40 (ECF Doc. No. 221-1); J.A. 228 at ,I 40 (ECF Doc. No. 221-1).
31 ECF Doc. No. 223 (Berks SUMF) ,r 5; ECF Doc. No. 231 (Victory Response) ,r 5. 32 J.A. 1352 at ,r,r 8-23 (ECF Doc. No. 221-4).
33 J.A. 199 at ,I 9 (ECF Doc. No. 221-1); J.A. 224 at ,I 9 (ECF Doc. No. 221-1). 34 J.A. 673 at 18:19-22 (ECF Doc. No. 221-2). 35 J.A. 437 at 120:14-19 (ECF Doc. No. 221-2); J.A. 1297-99 (ECF. Doc. No. 221-4). 36 J.A. 673 at 19:1-6 (ECF Doc. No. 221-2).
37 J.A. 200 at ,I 13 (ECF Doc. No. 221-1); J.A. 225 at ,I 13 (ECF Doc. No. 221-1).
38 J.A. 1352 at 9:12-14 (ECF Doc. No. 221-4); J.A. 1300-05 (ECF Doc. No. 221-4).
39 J.A. 199 at ,I 6 (ECF Doc. No. 221-1); J.A. 223 at ,I 6 (ECF Doc. No. 221-1). 40 J.A. 199 at ,I 7 (ECF Doc. No. 221-1); J.A. 224 at ,I 7 (ECF Doc. No. 221-1). 41 J.A. 199 at ,I 8 (ECF Doc. No. 221-1); J.A. 224 at ,I 8 (ECF Doc. No. 221-1). 42 J.A. 199 at ,I 11 (ECF Doc. No. 221-1); J.A. 224 at ,I 11 (ECF Doc. No. 221-1).
43 J.A. 247,254 ,I,I 228,292 (ECF Doc. No. 221-1); J.A. 275,279 ,J,J 228,292 (ECF Doc. No. 2211). 44 J.A. 1126-1131 (ECF Doc. No. 221-3). 45 ECF Doc. No. 231 (Victory SUMF) ,I 157; ECF Doc. No. 240 (Berks Response SUMF) ,I 157. 46 J.A. 477 at 280:18-22 (ECF Doc. No. 221-1).
47 ECF Doc. No. 231 (Victory Response SUMF) ,r 161; ECF Doc. No. 240 (Berks Response
SUMF) ,I 161. 33

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48 J.A. 677 at 34:20-35:8 (ECF Doc No. 221-2).
49 J.A. 200 at ,r 15 (ECF Doc. No. 221-1); J.A. 225 at ,r 15 (ECF Doc. No. 221-1). 50 J.A. 200 at ,r,r 14, 15 (ECF Doc. No. 221-1); J.A. 225 at ,r,r 14, 15 (ECF Doc. No. 221-1). 51 J.A. 200-01 at ,r,r 16, 17 (ECF Doc. No. 221-1); J.A. 225 at ,r,r 16, 17 (ECF Doc. No. 221-1). 52 J.A. 201 at ,r 19 (ECF Doc. No. 221-1); J.A. 225 ,r 19 (ECF Doc. No. 221-1).
53 J.A. 201 at ,r 20 (ECF Doc. No. 221-1); J.A. 225 ,r 20 (ECF Doc. No. 221-1).
54 J.A. 437 at 118:5-7, 478 at 282:13-20 (ECF Doc. No. 221-2).
55 ECF Doc. No. 231 (Victory SUMF) ,r 141; ECF Doc. No. 240 (Berks Response SUMF) ,r 141. 56 J.A. 201 at ,r 23 (ECF Doc. No. 221-1); J.A. 226 at ,r 23 (ECF Doc. No. 221-1). 57 J.A. 201 at ,r,r 24, 25 (ECF Doc. No. 221-1); J.A. 226 at ,r,r 24, 25 (ECF Doc. No. 221-1). 58 Id. at ,r 26.
59 Id.
60 J.A. 246 at ,r 220 (ECF Doc. No. 221-1). 61 J.A. 202 at ,r 26 (ECF Doc. No. 221-1); J.A. 226 at ,r 26 (ECF Doc. No. 221-1).
62 J.A. 118 (ECF Doc. No. 221-1).
63 J.A. 201 at ,r 21 (ECF Doc. No. 221-1); J.A. 226 at ,r 21 (ECF Doc. No. 221-1). 64 J.A. 209 at ,r,r 94, 95 (ECF Doc. No. 221-1); J.A. 233 at ,r,r 94, 95 (ECF Doc. No. 221-1).
65 J.A. 210 at ,r 98 (ECF Doc. No. 221-1); J.A. 233 at ,r 98 (ECF Doc. No. 221-1).
66 J.A. 209 at ,r 96 (ECF Doc. No. 221-1); J.A. 233 at ,r 96 (ECF Doc. No. 221-1). 67 J.A. 209 at ,r 97 (ECF Doc. No. 221-1); J.A. 233 at ,r 97 (ECF Doc. No. 221-1).
68 J.A. 202 at ,r 27 (ECF Doc. No. 221-1).
69 J.A. 125 (ECF Doc. No. 221-1). 10 Id. 71 J.A. 1046-47 at 148:20-49:2 (ECF Doc. No. 221-2). n Id.
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73 J.A. 1234 (ECF Doc. No. 221-4). 74 J.A. 1490 at, 1 (ECF Doc. No. 233). 75 Id. at, 2. 76 Id. at,, 3-4. 77 Id. at ,, 5-6. 78 J.A. 1488 at, 5 (ECF Doc. No. 233). 79 Id. at, 6 (ECF Doc. No. 233). 80 J.A. 204 at, 41 (ECF Doc. No. 221-1); J.A. 228 at, 41 (ECF Doc. No. 221-1). 81 J.A. 204 at, 42 (ECF Doc. No. 221-1); J.A. 228 at, 42 (ECF Doc. No. 221-1). 82 J.A. 204 at, 44 (ECF Doc. No. 221-1); J.A. 228 at, 44 (ECF Doc. No. 221-1). 83 J.A. 204 at, 46 (ECF Doc. No. 221-1); J.A. 228 at, 46 (ECF Doc. No. 221-1). 84 J.A. 441 at 135:5-12 (ECF Doc. No. 221-2). 85 J.A. 442 at 137:5-11 (ECF Doc. No. 221-2). 86 J.A. 206 ,, 55, 56 (ECF Doc. No. 221-1); J.A. 230 ,, 55, 56 (ECF Doc. No. 221-1) 87 J.A. 206 at, 59 (ECF Doc. No. 221-1); J.A. 230 at, 59 (ECF Doc. No. 221-1). 88 J.A. 206 at, 60 (ECF Doc. No. 221-1); J.A. 230 at, 60 (ECF Doc. No. 221-1). 89 J.A. 206 at, 62 (ECF Doc. No. 221-1); J.A. 230 at, 62 (ECF Doc. No. 221-1). 90 J.A. 206-07 at,, 61, 66 (ECF Doc. No. 221-1); J.A. 230-31 at,, 61, 66 (ECF Doc. No. 221-1). 91 J.A. 207 at, 64 (ECF Doc. No. 221-1); J.A. 230-31 at, 64 (ECF Doc. No. 221-1). 92 J.A. 207 at, 65 (ECF Doc. No. 221-1); J.A. 231 at, 65 (ECF Doc. No. 221-1). 93 J.A. 254 at, 289 (ECF Doc. No. 221-1); J.A. 280 at, 289 (ECF Doc. No. 221-1). 94 J.A. 255 at, 298 (ECF Doc. No. 221-1); J.A. 279 at, 298 (ECF Doc. No. 221-1). 95 J.A. 1109 (ECF Doc. No. 221-2). 96 J.A. 414 at 27:16-22 (ECF Doc. No. 221-2). 97 J.A. 255 at,, 296-97 (ECF Doc. No. 221-1); J.A. 274-75 at,, 296-97 (ECF Doc. No. 221-1);
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98 J.A. 255 at 1300 (ECF Doc. No. 221-1). 99 ECF Doc. No. 1. ioo ECF Doc. No. 149-2, at p. 5. 101 J.A. 207171 (ECF Doc. No. 221-1); J.A. 231171 (ECF Doc. No. 221-1). 102 J.A. 207174 (ECF Doc. No. 221-1); J.A. 231174 (ECF Doc. No. 221-1). 103J.A. 207171 (ECF Doc. No. 221-1); J.A. 231171 (ECF Doc. No. 221-1). 104 J.A. 207170 (ECF Doc. No. 221-1); J.A. 231170 (ECF Doc. No. 221-1). 105 J.A.2681396 (ECF Doc. No. 221-1); J.A.2881396 (ECF Doc. No. 221-1). 106 J.A.2681397 (ECF Doc. No. 221-1); J.A.2881397 (ECF Doc. No. 221-1). 107 ECF Doc. No. 167-19 (Berks App.) at A0664. 108 ECF Doc. No. 114. 109 ECF Doc. No. 115. 110 ECF Doc. No. 135. 111 Id.
112 ECF Doc. No. 135. 113 ECF Doc. No. 150 at 14 (emphasis added).
114 Id. at 15.
115 ECF Doc. No. 188. 116 J.A. 400 (ECF Doc. 221). 117 ECF Doc. No. 181. 118 Summary judgment is proper when "the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material facts are those 'that could affect the outcome' of the proceeding, and 'a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party."' Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)(quoting Lamontv. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). On a motion for summary judgment, "we view the facts and draw all reasonable inferences in the light most favorable to the nonmovant." Pearson, 850 F.3d at 533-34 (3d Cir. 2017) (citing Scott v. Harris, 550 U.S. 372, 378
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(2007)). "The party seeking summary judgment 'has the burden of demonstrating that the evidentiary record presents no genuine issue of material fact.'" Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting Willis v. UPMC Children's Hosp. ofPittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)). If the movant carries its burden, "the nonmoving party must identify facts in the record that would enable them to make a sufficient showing on essential elements of their case for which they have the burden of proof." Willis, 808 F.3d at 643 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "If, after adequate time for discovery, the nonmoving party has not met its burden, pursuant to Federal Rule of Civil Procedure 56, the court must enter summary judgment against the nonmoving party." Willis, 808 F.3d at 643 (citing Celotex Corp., 477 U.S. at 322-323).
119 ECF Doc. No. 114 at p. 29. 120 U.S. Const. amend. XIV. 121 Reed v. Reed, 404 U.S. 71, 76 (1971). 122 Dinote v. Danberg, 601 F. App'x 127, 130 (3d Cir. 2015) (quoting Williams v. Morton, 343 F.3d 212,221 (3d Cir. 2003)). 123 Nifas v. Beard, No. 08-834, 2009 WL 3241871, at *10 (W.D. Pa. Oct. 6, 2009) (citing Village ofArlington Heights v. Metro. Haus. Dev. Corp., 429 U.S. 252,265 (1977)). 124 Dinote, 601 F. App'x at 130 (quoting United States v. Virginia, 518 U.S. 515,571 (1996)). 125 Klinger v. Department ofCorrections, 31 F.3d 727 (8th Cir. 1994). 126 Id. at 729. 121 Id.
128 Id. at 730. 129 Id.
130 Id. at 731-32. 131 Id. at 731. 132 Id. at 731-32. 133 Jennifer Arnett Lee, Women Prisoners, Penological Interests, and Gender Stereotyping: An Application ofEqual Protection Norms to Female Inmates, 32 Colum. Hum. Rts. L. Rev. 251,285 (2000). 134 Klinger, 31 F.3d at 732.
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135 Angie Baker, Leapfrogging over Equal Protection Analysis: The Eighth Circuit Sanctions Separate and Unequal Prison Facilities for Males and Females in Klinger v. Department of Corrections, 31 F3d 727 (8th Cir. 1994), 76 Ne. L. Rev. 371 (1997). 136 Id. at 389 (arguing the court in Klinger improperly instructs "if a court is able to articulate any statistical difference between men and women-whether or not relevant to the challenged disparity-then the court need not bother analyzing the challenged disparity"). 137 United States v. Virginia, 518 U.S. 515, 524 (1996). 138 Id. at 525. 139 Id. at 541 (quoting Mississippi Univ. of Women v. Hogan, 458 U.S. 718, 725 (1982)).
140 ECF Doc. No. 147 (Berks SUMF) ,r,r 86-87. 141 ECF Doc. No. 225-2 (Victory SUMF) ,r,r 1, 9.
142 Id.
143 Glover v. Johnson, 478 F. Supp. 1075, 1079 (E.D. Mich. 1979). 144 Id. 145 McCoyv. Nevada Dep'tofPrisons, 776 F. Supp. 521,522 (D. Nev. 1991). 146 Id. at 525-26. 147 Id. at 526. 148 Bukhari v. Hutto, 487 F. Supp. 1162, 1164 (E.D. Va. 1980). 149 Id. at 1171. 150 Id. at 1172 (quoting Glover, 478 F. Supp. at 1078). 151 Mitchell v. Untreiner, 421 F. Supp. 886, 888 (N.D. Fla. 1976). 152 Id. at 891. 153 Id. 154 Id. at 902. 155 J.A. 673 at 16:8-18 (ECF Doc. No. 221-2). 156 E.g, J.A. 477-78 at 280:18-22 (ECF Doc. No. 221-2). 157 J.A. 458 at 202:23-203:18 (ECF Doc No. 221-2).
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158 Dinote v. Danberg, 601 F. App'x 127, 130 (3d Cir. 2015) (quoting United States v. Virginia, 518 U.S. 515, 533 (1996). 159 ECF Doc. No. 222, at p. 13. 160 E.g., Davie v. Wingard, 958 F. Supp. 1244, 1252 (S.D. Ohio 1997). 161 Miss. Univ.for Women v. Hogan, 458 U.S. 718, 723 (1982). 162 Davie, 958 F. Supp. at 1246-47. 163 Id. at 1247. 164 Id. at 1252. 165 Id.
166 Id. at 1253. 167 Id. (noting "approximately 8% of [Ohio Department of Rehabilitation and Correction]'s female inmates have been convicted of a violent crime, while 21 % of male inmates have been convicted of a vio_lent crime."). 168 Id. ("Approximately 1% of female inmates are classified as close or maximum security, but 32% of male inmates are classified as such."). 169 Id.
170 Id. ("[t]he differences between male and female inmates that Defendants cite are the very characteristics which justify the policy .... Therefore, the Court finds that the gender classification is substantially related to an important government interest."). 171 Sassman v. Brown, 99 F. Supp. 3d 1223 (E.D. Cal. 2015). 172 Id. at 1228. 113 Id.
114 Id.
175 Id. (emphasis omitted). 116 Id.
177 Id. To ensure Alternative Custody Program participants remedied issues observed by the legislature, the bill setup a detailed selection process. A female prisoner must apply to the California Department of Corrections and Rehabilitation; the Department would then screen applicants to evaluate eligibility by looking to predictive risk and preparing an individualized treatment and rehabilitation plan. Id. at 1230. This plan is presented to a committee which
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considered the inmate for placement in the program. Id. The committee did not select all eligible applicants to participate. If selected, a parole officer supervised female inmates. Id. at 1231. 178 Id. at 1231. 119 Id. 180 Id. The Department also dismissed his appeal because "[s]tate law only allows female inmates to participate in the [Alternative Custody Program]." Id. 181 Id. at 1231. 182 Id.
183 Id. at 1235. 184 Id. at 1235 n. 10. Chief Judge England wrote: "On a fundamental basis, the most troubling aspect of the State's arguments is that, even if the ACP is a superior method of approaching recidivism and social issues for some women, and even though the State has offered ample justifications for providing the program to female offenders, the State still has not offered any rational explanation for excluding men." Id. at 1243. 185 Fordv. City ofBoston, 154 F. Supp.2d 131,133 (D. Mass. 2001). 186 Id. 187 Id. at 150. 188 Id. 189 Id. 190 Id. 191 J.A. 208 at ,-r 80 (ECF Doc. No. 221-1). 192 ECF Doc. No. 167-15 (Berks App.) at A0352-53. 193 ECF Doc. No. 146, at p. 17. 194 ECF Doc. No. 38 at ,-r 47. 195 Id. at ,-r 49. 196 ECF Doc. No. 230-2, at p. 5 (citing Dinote v. Danberg, 601 Fed. App'x 127 (3d Cir. 2015); Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989)). 197 Dinote, 601 Fed. App'x 127.
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198 Dinote v. Danberg, No. 12-377, 2013 WL 2297039, at *3-5 (D. Del. May 23, 2013). 199 Dinote, 601 Fed. App'x at 130 (Appeals observed a "direct relationship between th[e 24-hour transfer policy] and its objective [of providing gender-segregated institutions]."). 200 Id. at 130. 201 Id.
202 Mses. Victory and Velazquez-Diaz argue Berks County's asserted justifications were invented post hoc to litigation. But we do not find Berks County's justifications sufficient as a matter of law regardless of whether genuine or invented post hoc. We do not need to decide this question. 203 Hassan v. City ofNew York, 804 F.3d 277 (3d Cir. 2015). 204 Id. at 297. 205 Id.
206 Id. (citing Snyder v. Louisiana, 552 U.S. 472 (2008)). 207 J.A. 1046-47 (ECF Doc No. 221-4). 208 ECF Doc. No. 146, at p. 11. 209 J.A. 125 (ECF Doc No. 221-1). 210 Id.
211 J.A. 125 (ECF Doc No. 221-1). 212 J.A. 1046-47 145:24-149:20 (ECF Doc No. 221-4). 213 E.g., J.A. 1229 (ECF Doc No. 221-4). 214 J.A. 1490-91 (ECF Doc. No. 233). 215 J.A. 1488-89 (ECF Doc. No. 233). 216 Dayton Board ofEducation v. Brinkman, 433 U.S. 406, 419- 420 (1977) ("The power of the federal courts to restructure the operation of local and state governmental entities is not plenary. Once a constitutional violation is found, a federal court is required to tailor the scope ofthe remedy to fit the nature and extent of the constitutional violation.") (internal quotation marks omitted). 217 Ford, 154 F. Supp. 2d at 151. 218 Id.; cf Gordon v. Pete's Auto Service of Denbigh, Inc., 837 F. Supp. 2d 581, 585 (E.D. Va. 2011) (granting summary judgment with respect to liability with"[a] determination as to monetary
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damages, if any, [] reserved for jury trial"); Old St. Paul Missionary Baptist Church v. First Nation Insurance Group, 707 F. Supp. 2d 811, 827 (E.D. Ark. 2010) (granting summary judgment as to liability but "[g]enuine issues of material fact remain as to the amount of compensatory damages to which Old St. Paul is entitled on those claims."); Bradley v. Atlantic City Board ofEducation, 736 F. Supp. 2d 891,901 (D.N.J. 2010) (granting summary judgment as to liability); LeafFunding, Inc. v. Brogan Pharmaceuticals, Inc., 642 F. Supp. 2d 844, 855-56 (N.D. Ind. 2009) (granting summary judgment on damages "in an amount to be determined following further briefing by the parties on the calculation of damages."); MacSteel International USA Corp. v. M/V JEN Abdoun, 154 F. Supp. 2d 826, 831 (S.D.N.Y. 2001) (granting summary judgment as to liability but "the issue of damages is reserved for trial"); Capitol Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D. 25, 30 (N.D. Ill. 1985) (granting motion for summary judgment on the issue of liability only and setting trial date to resolve issue of damages); Polo Fashions, Inc. v. Gordon Group, 627 F. Supp. 878, 886 (M.D.N.C. 1985) ("it is proper for a court to grant summary judgment on the issue of liability alone and to leave the determination of damages for later proceedings").
219 18 U.S.C. § 3626(a)(l)(A).
220 Id.
221 18 U.S.C. § 3626(a)(l)(A).
222 Turner v. Safley, 482 U.S. 78 (1987).
223 Lewis v. Casey, 518 U.S. 343, 362 (1996); see also Issa v. School District of Lancaster, 847 F.3d 121, 144 n.13 (3d Cir. 2017) ("[T]he District Court should allow the [Defendant] an opportunity to propose a legally compliant solution, among other alternatives considered by the Court, before the issuance of any permanent injunction ....").
224 See e.g., Hernandez v. County of Monterey, 110 F. Supp. 3d 929, 940-41, 959-60 (N.D. Cal. 2015) (specifying elements prison officials must submit in proposed remedial plan); Lipscomb v. Pfister, No. 12-1041, 2014 WL 287269, at *3 (C.D. Ill. Jan. 27, 2014) ("Recognizing ... courts must provide for flexibility and defer to the expertise of prison officials, and keeping with the requirements of [18 U.S.C.] § 3626, the [c]ourt will not order a specific policy or practice to resolve the this problem. Rather, Defendant ... must craft a policy ... address[ing] the constitutional violation ... , and must submit a remedial plan to the [c]ourt ... to verify . . . it satisfies the Eighth Amendment."); Henderson v. Thomas, 913 F. Supp. 2d 1267, 1317 (M.D. Ala. 2012) (affording prison defendants opportunity to propose appropriate relief); Clark v. California, 739 F. Supp. 2d 1168, 1234 (N.D. Cal. 2010) (allowing prison opportunity to develop amendments to order to remedy noncompliance with prior orders and disability statuses); Couch v. Jabe, 737 F. Supp. 2d 561, 573-74 (W.D. Va. 2010) (enjoining prison censorship policy as facially unconstitutional and allowing defendants opportunity to revise policy); Skinner v. Uphoff, 234 F. Supp. 2d 1217-18 (D. Wyo. 2002) (ordering parties to submit plan or joint remedial plan to address constitutional prison violations).
225 18 U.S.C. § 3626(a)(l)(A).
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226 Id. 227 ECF Doc. No. 181 at p. 2 (citing ECF Doc. No. 178 at 6). 228 Id. 229 Id. at 2-3. 230 Id. at 3. 231 Id. 232 Id. at 3-4. 233 Id. at 4. 234 Id. (citing ECF Doc. No. 178 at 5). 23s Id. 236 Id. (citing ECF Doc. No. 178 at 5, 7). 237 Id. (citing ECF Doc. No. 135). 238 Id. (citing ECF Doc. No. 178 at 5, 7). 239 Id. 240 Id. 241 Id. at 4-5.
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 Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 1 of 49

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

THERESA VICTORY, et al. v.
BERKS COUNTY, et al.

: CIVIL ACTION : : NO. 18-5170 : :

KEARNEY, J.

MEMORANDUM

April 7, 2020

For several years and until the business day before our November 12-15, 2019 trial, Berks

County vigorously defended its historical policy of not providing substantially equivalent

treatment regarding freedom of mobility, access to privileges, and visitation to female Trusty

inmates housed in its jail compared to male Trusty inmates housed in a nearby Community Reentry

Center. As we found on October 17, 2019 and January 15, 2020, as a matter of law on undisputed

facts, and the jury found on disputed facts as to inmate furloughs, Berks County finally stopped

violating the Equal Protection rights of female Trusty inmates in response to this case. The lawyers

for the prevailing female Trusty inmates now seek reasonable fees and costs authorized by

Congress. Berks County objects on specific grounds. We overrule most of its objections.

In September 2018, Trusty inmate Theresa Victory met with the non-profit Pennsylvania

Institutional Law Project seeking to stop Berks County’s disparate policy. The Institutional Law

Project sued Berks County and its officials for Ms. Victory and a class of similarly situated female

Trusty inmates two months later. Even after we enjoined its unconstitutional policy three times in

2019, Berks County continued its policy resulting in, among other things, our July 2019 finding

of civil contempt for its intentional noncompliant conduct. On the last business day before our

November 12, 2019 trial, Berks County moved the male Trusty inmates into the Jail with the same

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conditions as the female Trusty inmates. By then, Ms. Victory’s counsel incurred over $400,000 in fees at hourly rates set by Congress.
Although it changed its policy to address our findings of law, Berks County still would not concede the disputed issues as to furloughs, compensatory damages, and equitable relief. We proceeded to a jury trial on November 12-15, 2019. Following the jury’s verdicts against Berks County on both Class and Ms. Victory’s individual claims, Mses. Victory and Velasquez and the Class now seek $540,155.46 in reasonable attorney’s fees and costs. Berks County objects arguing part of the requested fees are for two claims brought by Class members who are not prevailing parties, challenging attorney rates for paralegal or clerical work, and challenging certain time entries as vague, duplicative, or excessive. Berks County chose to fight every issue; it only changed its mind as to some issues one business day before facing the jury. Its years of unconstitutional conduct capped by several months of litigation hardball required experienced trial counsel to represent the female Trusty inmates consistent with their professional obligations.
After careful study, we overrule Berks County’s objections challenging the number of attorneys representing the Class required to answer Berks County’s scorched earth strategy. But we reduce the requested fees as to challenged paralegal or clerical tasks billed at attorney rates and vague or duplicative time entries. Berks County’s objections to the Class Counsel’s extraordinarily vague description of effort is well grounded. Consistent with Congress’s mandate, we award Class Counsel $503,939.20 in reasonable attorney’s fees and $3,399.41 in uncontested costs for a total award of $507,330.61. I. Background1
Theresa Victory and Alice Velazquez-Diaz are former Trusty inmates of the Berks County Jail System. Berks County housed them in the Jail’s F-Block while men with the same Trusty classification lived in the County’s Community Reentry Center.2 Mses. Victory and Velazquez-
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Diaz sued Berks County for discriminating against women on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by offering less favorable treatment to female Trusty inmates when considering the totality of living conditions.3 They sought injunctive and declaratory relief individually and on behalf of a class of present and future female Trusty inmates at the Berks County Jail System.4 They also individually sought compensatory damages for alleged injuries from the unlawful treatment.5
Attorneys from the Pennsylvania Institutional Law Project—Angus Love, Su Ming Yeh, Matthew Feldman, Jim Davy, and Alexandra Morgan-Kurtz—represented Mses. Victory and Velazquez-Diaz throughout this lawsuit. The Pennsylvania Institutional Law Project is “a nonprofit organization that provides free civil legal services to indigent institutionalized persons in the Commonwealth of Pennsylvania.”6 Attorney Love is its former Executive Director.7 Attorney Yeh served as its Deputy Director until recently being named to her current role as its Interim Executive Director.8 Attorney Feldman is currently a staff attorney, and Attorney Davy is a former staff attorney.9 Attorney Morgan-Kurtz is its Managing Attorney.10
Class Counsel begins representing the female Trusty inmates and we enjoin the policy. Executive Director Attorney Love visited Ms. Victory at Berks County Jail on September
28, 2018.11 The Pennsylvania Institutional Law Project then began investigating potential claims and eventually drafted a complaint to file on her behalf.12 Ms. Victory, represented by the Pennsylvania Institutional Law Project, filed a complaint on November 30, 2018 alleging sex discrimination under the Equal Protection Clause and retaliation for asserting her First Amendment rights.13 Ms. Victory promptly moved to preliminarily enjoin Berks County from discriminating against female Trusty inmates on the basis of sex.14 We held an evidentiary hearing where Attorneys Love, Yeh, and Feldman appeared.15 We granted Ms. Victory’s motion for a
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preliminary injunction supporting by eighty-six findings of fact and conclusions of law.16 Berks County appealed.17
On January 17, 2019, Ms. Victory, joined by two additional female Trusty inmates— Amara Sanders and Samantha Huntington—filed an Amended Complaint.18 Mses. Victory, Sanders, and Huntington sued individually and on behalf of a class of “current and future female inmates committed to the Berks County Jail System[.]”19 Mses. Sanders and Huntington moved for injunctive relief similar to the relief we earlier afforded Ms. Victory.20 Berks County opposed Mses. Sanders’s and Huntington’s motion and also moved to dissolve the injunction we awarded to Ms. Victory on grounds of mootness as Berks County had now released her from custody.21 We held another evidentiary hearing where Attorneys Yeh, Feldman, and Davy appeared for Mses. Victory, Sanders, and Huntington.22 Following the hearing, we denied Mses. Sanders and Huntington’s request for a preliminary injunction and dissolved Ms. Victory’s injunction upon finding Mses. Huntington and Victory had been released from the custody of the Berks County Jail System and Ms. Sanders had not exhausted her administrative remedies.23
Class Counsel added Ms. Velazquez-Diaz and we again enjoined the policy. On April 22, 2019, Ms. Victory, joined by another female Trusty inmate, Alice VelazquezDiaz, filed a second amended complaint with individual claims and for class relief.24 Two days later, Ms. Velazquez-Diaz moved for preliminary injunctive relief arguing she was “in all relevant respects similarly situated to Ms. Victory when the Court heard her motion for a preliminary injunction [in January 2019].”25 We held another evidentiary hearing where Attorneys Love, Yeh, and Feldman appeared for Ms. Velazquez-Diaz.26 Following this hearing, we granted Ms. Velazquez-Diaz’s motion for preliminary injunctive relief and ordered Berks County to submit a plan.27 Berks County appealed this ruling to our Court of Appeals.28
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In addition to the Equal Protection challenge and Ms. Victory’s First Amendment retaliation claim, Mses. Victory and Velazquez-Diaz also asserted a claim under the Equal Rights Amendment of the Pennsylvania Constitution.29 In June 2019, Berks County moved for summary judgment on all claims. Berks County filed a 1,100-page appendix, which included nine deposition transcripts.30
We narrowed the issues on summary judgment and certified the Class. In July 2019, we granted Berks County’s motion for summary judgment on all claims except the Equal Protection claim.31 We also granted Mses. Victory’s and Velazquez-Diaz’s Motion for class certification.32 We certified Mses. Victory and Velazquez-Diaz as class representatives.33 We certified Attorneys Love, Yeh, and Feldman of the Pennsylvania Institutional Law Project as Class Counsel.34 We authorized Class Counsel to “act on behalf of the Class with respect to actions required by, or necessary to be taken under, the Federal Rules of Civil Procedure and this Court’s Orders and Policies.”35 Mses. Victory and Velazquez-Diaz sought declaratory and permanent injunctive relief for the Class.36 They also sought individual damages.
We held Berks County in civil contempt for violating our Order. Berks County failed to comply with our injunction requiring it to submit a proposal by a certain date. On the day of our ordered deadline, Berks County submitted an affidavit of Warden Quigley outlining a proposal which we had already rejected as failing to cure the unconstitutional conditions.37 And despite our Order and Memorandum extensively analyzing the constitutional violations, Warden Quigley swore Berks County “provid[ed] equal housing and services to all inmates that are committed to the [Berks County Jail System].”38
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Ms. Velazquez-Diaz moved to enforce our preliminary injunction Order and for contempt arguing Warden Quigley did not propose a plan to comply with the preliminary injunction.39 Berks County responded with Warden Quigley swearing to safety and security concerns concerning visitation conditions at the Jail and the Community Reentry Center but again failed to propose a method for providing similar visitation conditions for male and female Trusty inmates.40 Almost a month after our ordered deadline, Warden Quigley amended her affidavit and attached a memorandum titled “Housing and Schedule Changes for Female Inmates Classified as ‘Trusty.’”41 Warden Quigley outlined a proposed plan where the Jail would convert the quarantine unit to a female Trusty inmate housing unit. Ms. Velazquez-Diaz objected to this plan on several grounds.
On July 11, 2019, we granted Ms. Velazquez-Diaz’s Motion for contempt against Berks County and Warden Quigley imposing compensatory sanctions of $500.00 to Ms. Velazquez-Diaz and $6,571.20 to Ms. Velazquez-Diaz’s counsel.42 We found Ms. Velazquez-Diaz proved: “(1) a valid court order existed, (2) [Berks County] had knowledge of the order, and [Berks County] disobeyed the order.”43
We denied summary judgment on the Equal Protection claim but made findings as to undisputed facts.
On September 16, 2019, the parties cross-moved for summary judgment on the Equal Protection claim.44 The parties submitted over 1,300-pages in a Joint Appendix.45
On October 17, 2019, we partially denied the summary judgment cross-motions finding genuine issues of material fact regarding access to furloughs, compensatory damages, and the scope of injunctive relief for the Class.46 While denying the specific final relief sought in the parties’ cross-motions and relying upon undisputed facts, we held as a matter of law: (a) female and male Trusty inmates in the Berks County Jail System are similarly situated; (b) Berks County failed to provide substantially equivalent treatment to female Trusty inmates regarding freedom of
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mobility, access to privileges, and visitation when comparing the totality of living conditions of female Trusty inmates housed in the Jail to male Trusty inmates residing in the Community Reentry Center; and, (c) Berks County’s policy did not serve an important governmental objective and the housing policy did not substantially relate to an important governmental objective.47 We concluded “Berks County violated Mses. Victory’s and Velazquez-Diaz’s rights when it discriminated against them in disparate treatment as to freedom of mobility, access to privileges, and visitation on the basis of sex in violation of the Equal Protection Clause.”48
Class Counsel added two Dechert LLP lawyers for trifurcated trial. We then turned to final pretrial efforts necessary to try disputed issues of fact on access to furloughs, compensatory damages, and the scope of injunctive relief for the Class. Berks County requested the trial proceed in three parts with the jury first hearing the remaining liability question as to furloughs, followed by the individual cases for compensatory damages, and then a bench trial on the evidence relating to prospective relief.49 Berks County moved in limine to preclude Ms. Velazquez-Diaz’s request for compensatory damages arguing she failed to produce evidence of injury.50 The day before the final pre-trial conference, two attorneys from Dechert LLP—Will Sachse and Cory Ward—entered their appearances for Mses. Victory and Velazquez-Diaz.51 Dechert LLP is an international for-profit law firm with over 900 lawyers. Attorney Sachse is a partner, and Attorney Ward is an associate.52 Dechert LLP and the Pennsylvania Institutional Law Project agreed to a “Co-Counseling Agreement.”53 The Dechert LLP lawyers “agree[d] to serve as co-counsel in representing [Ms. Victory] with respect to the upcoming trial[.]”54 Dechert LLP agreed “to donate its respective share of [any] fees awarded to [the Pennsylvania Institutional Law
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Project[.]”55 The lawyers agreed the Pennsylvania Institutional Law Project “shall be lead counsel[.]”56 The Dechert LLP lawyers never moved to be appointed as Class Counsel.
After the final pre-trial hearing, we resolved post-trial motions and finalized the trial schedule for the remaining liability and damages questions. We dismissed Ms. Velazquez-Diaz’s request for compensatory damages as she offered no evidence of a physical injury or actual damages.57 We granted Berks County’s motion to bifurcate the trial and ordered the trial to proceed in three parts by first presenting the remaining liability question on the constitutionality of Berks County’s furlough policy, then Ms. Victory’s individual case for compensatory damages, and finally a bench trial on the scope of requested prospective relief under 18 U.S.C. § 3626(a)(1).58 Phases one and two involved jury questions and phase three involved evidence presented in a non-jury trial.
Berks County changes the challenged policy the last business day before trial. On the last business day before trial, Berks County filed a “Notice” disclosing the Berks County Commissioners voted (on an unknown date) to move the inmates housed at the Community Reentry Center to the Jail.59 It represented both male and female Trusty inmates would, effective Friday, November 8, 2019, be housed in the Jail.
Jury returns verdicts in favor of Class and Ms. Victory. We held trial from Tuesday, November 12, 2019 to Friday, November 15, 2019. After hearing evidence in the first phase of the trial relating to unequal access to furloughs between male and female Trusty inmates, the jury found Berks County violated the Equal Protection Clause by refusing to provide female Trusty inmates substantially equivalent access to furloughs as male Trusty inmates.60 The jury found Berks County’s furlough policy served an important government interest, but the policy did not substantially relate to the important government interest.61 In the
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second phase of the trial, the jury found Berks County’s Equal Protection Clause violation caused Ms. Victory to experience physical or emotional pain and awarded her $2,800 in compensatory damages.62 In the third non-jury phase of the trial relating to prospective relief, we heard a halfday of testimony from two witnesses who explained Berks County very recently (the business day before trial) decided to close the Reentry Center and move all male Trusty inmates to the Jail. Class Counsel requested limited discovery into these last-minute changes, and to brief mootness issues relating to Berks County’s trial-eve change of policy. We granted the limited discovery and supplemental briefing on potential equitable relief.
During the four-day, three-phase trial, five lawyers represented the Class and its representatives Mses. Victory and Velazquez-Diaz. Attorneys Yeh, Feldman, and Morgan-Kurtz appeared from the Pennsylvania Institutional Law Project, and Attorneys Sachse and Ward appeared from Dechert LLP. Attorneys Yeh and Feldman presented each of the opening and closing arguments.63 Attorney Yeh presented six witnesses, Attorneys Feldman and Sachse each presented four witnesses, Attorney Ward presented two witnesses, and Attorney Morgan-Kurtz presented one witness.64 The attorneys collectively billed 577.74 hours to prepare and attend trial.65
We resolved the post-trial equitable relief considering the changed policy. After trial, Berks County filed two status reports detailing progress on its trial-eve policy changes to the Trusty inmate housing conditions.66 The Class continued seeking prospective relief arguing Berks County’s trial-eve changes did not moot their claim because of a reasonable probability the unconstitutional conduct would recur. The Class submitted a proposed injunction arguing each of the extensive proposed terms met the needs-narrowness-intrusiveness standard of the Prison Litigation Reform Act. Berks County opposed the injunction request—claiming their
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trial-eve policy changes mooted the request—and, even if ripe, the proposed terms of the injunction failed the needs-narrowness-intrusiveness test.
On January 15, 2020, we granted Mses. Victory’s and Velazquez-Diaz’s request for a permanent injunction, ordering Berks County to provide Trusty women and men substantially equivalent treatment with respect to daily out-of-cell time; access to phones, microwaves, and showers; visitation conditions; and, access to furloughs.67 We also declined the Class’s additional requested conditions as failing the needs-narrowness-intrusive standard under the PLRA and we denied the request for a declaratory judgment.68 II. Analysis
Class Counsel now moves for reasonable attorney’s fees and costs arguing the Class and Mses. Victory and Velasquez (on their individual claims) are prevailing parties. Congress authorizes awards of reasonable attorney’s fees and costs to “prevailing parties” in lawsuits brought under 42 U.S.C. § 1983.69 Plaintiffs argue they are prevailing parties entitled to an award of reasonable attorney’s fees of $ 536,756.05 and costs of $ 3,399.41 incurred from litigating successful Equal Protection challenges under Section 1983.70 Berks County objects to the petition for attorney’s fees on several specific grounds.71 It does not object to the billed costs.
Counsel seek fees under Section 1988(b) “based on the lodestar, which is the product of the attorney's hours and rate.”72 We apply a “strong presumption that the lodestar is a reasonable fee.”73 We “may adjust this figure upward or downward when the lodestar is unreasonable.”74 We “apply a burden-shifting analysis to calculate the lodestar.”75 Mses. Victory and Velazquez-Diaz “must produce evidence that the hours spent and rate charged are reasonable.”76 After making this showing, “the burden shifts to the respondent [Berks County] to challenge the attorney's hours, hourly rate, and the reasonableness of the product of those numbers.”77
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Counsel submit attorney time entries (including hours and rate) allowing us to calculate the lodestar, while also attaching declarations supporting why the lodestar is reasonable. They filed a timesheet of the attorneys’ billing with approximately 1,355 time entries, totaling 2,381 hours, submitted by seven different lawyers—five from the Pennsylvania Institutional Law Project and two from Dechert LLP. They offer two types of rates: one is limited by Congress in the Prison Litigation Reform Act to 150 percent of Community Justice Act rates ($220.50), and the other is the lawyer’s general fair market value.78 The Class seeks rates consistent with the Prison Litigation Reform Act for time dedicated to its claims. Ms. Victory seeks each attorney’s fair market value for time dedicated solely to her compensatory damages claim, ranging from $220.50 to $995.00.79 They request $536,756.10 in total: $500,683.10 in representing the Class and $36,073.00 in fees billed at the lawyer’s respective fair market values for Ms. Victory’s individual claim.80 Mses. Victory and Velazquez-Diaz submit ample evidence showing their requests for fees and costs are the reasonable lodestar. The burden then shifts to Berks County.
Berks County, accepting the burden shift, raises several objections to the lodestar petition based largely on the amount of time spent compared to the results. In sum, it thinks the amount of fees are unreasonable compared to the results as if this case should be measured as a contingency representation with fees limited by the amount of recovery. Berks County first objects to certain time as failing the threshold “prevailing party” requirement. It then argues certain charged rates are unreasonable because the billing event is not an attorney task. Berks County then posits several direct challenges to alleged vague, duplicative, or excessive time. It never argues the hourly rates are incorrect under the PLRA or are unreasonable compared to the market value. After deducting these hours, it argues the requested fees are unreasonable compared to the limited success.
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We scrutinize each stated objection. Crucial to our scrutiny is understanding the limited scope of review. Our review is limited to Berks County’s objections. We cannot sua sponte strike time and rate if otherwise reasonable unless Berks County objects. Our Court of Appeals precludes us from “reduc[ing] counsel fees sua sponte as ‘excessive, redundant, or otherwise unnecessary’ in the absence of a sufficiently specific objection to the amount of fees requested.”81 Our Court of Appeals explained “[t]he rationale for this prohibition on sua sponte fee award reductions is twofold. First, sua sponte reduction deprives the applicant of the right ‘to offer evidence in support of the reasonableness of the request.’”82 And, “[s]econd because statutory fee litigation is adversarial litigation, there is no need to allow the district court to reduce a fee award on its own initiative.”83 While we may have certain concerns with other aspects of the billing, we cannot sua sponte strike time or rates if the paying opposing party does not object on these grounds.84 With this guidance in mind, we turn to each stated objection to calculate the lodestar.85
A. Counsel is entitled to reasonable fees in representing the prevailing party. In addition to seeking $36,073.00 for the time incurred in securing Mses. Victory’s and Velazquez’s individual claims, the Class petitions for attorney time pursuing the Equal Protection challenge, including time spent dedicated to pursuing claims filed by former named plaintiffs Mses. Huntington and Sanders. Berks County objects to approximately 170 hours of time dedicated to Mses. Huntington’s and Sanders’s claims arguing this time is not requested by a “prevailing party.” Berks County cites our February 15, 2019 Order dismissing Mses. Huntington’s and Sanders’s cases as proof these two former female Trusty inmates are not prevailing parties.86 Berks County does not attempt to distinguish the successful class claim from claims asserted by
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Mses. Huntington and Sanders. It does not argue time spent pursuing Mses. Huntington’s and Sanders’s claims was unnecessary to Class success.
Congress authorizes an award of reasonable attorneys’ fees and costs to “prevailing parties” in lawsuits brought under 42 U.S.C. § 1983.87 “Prevailing parties” are those who “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”88 To determine whether a party is the “prevailing party,” we must ask whether: (1) there is a material alteration of the legal relationship of the parties; and (2) whether the material alteration is judicially sanctioned.89
“Regarding the first inquiry, a plaintiff must ‘receive at least some relief on the merits of his claim before he can be said to prevail.’”90 This “inquiry does not turn on the magnitude of the relief obtained.”91 “[E]ven an award of nominal damages will satisfy this test.”92 As to the second inquiry, “enforceable judgments on the merits” are judicially sanctioned.93 Berks County does not dispute the Class is a prevailing party. The Class received relief on the merits and an enforceable judgment on the merits.
Berks County instead attempts to distinguish Mses. Huntington’s and Sanders’s efforts pursuing the successful Equal Protection challenge from the Class. Mses. Victory and VelazquezDiaz concede Mses. Huntington and Ms. Sanders failed on their individual claims. But they argue we should still award attorneys’ fees for the time expended on their claims because they were class members and the pursuit of their individual claims contributed to the Class’s ultimate success in this litigation. They argue litigation of Mses. Huntington’s and Sanders’s preliminary injunction motion, their depositions, and the evidentiary hearing on their exhaustion of administrative remedies adduced evidence later used in pursuing class-wide relief found by us and the jury.94
13

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 14 of 49
“The class as a prevailing party is entitled to recover attorney fees.”95 We must decide if Mses. Huntington’s and Sanders’ claims fall within the Class recovery. While today presents somewhat of a unique question, we are guided by persuasive reasoning from the Court of Appeals for the Eighth Circuit in Catlett v. Missouri Highway and Transportation Commission.96 In Catlett, female applicants for highway maintenance positions sued claiming sex discrimination individually and as a class. At trial, certain individual claimants lost, but the class prevailed in proving a pattern or practice of discrimination against women. The Court of Appeals for the Eighth Circuit held the class could recover for individual claims: “[w]e also conclude, however, that fees were properly awarded for time spent pursuing the unsuccessful individual claims.”97 “A court should not disallow attorney hours related and necessary to successful claims,” if the claims are relevant.98
We overrule Berks County’s objection to fees for work furthering the Class representative and individual claims of Mses. Huntingdon and Sanders. These efforts related to the successful claims. These two female Trusty inmates provided evidence and testimony detailing ongoing conduct after Ms. Victory’s release. They suffered the same harm and their temporal relationship to ongoing conduct proved necessary for the injunctive relief. Berks County would not modify its polices despite Orders requiring compliance. For example, after releasing Ms. Victory at the term of her one-year sentence, Berks County ignored our specific findings and continued the same conduct. It continued the same policy until the eve of trial and then promised to work to adopt and implement new policies after trial. We entered injunctive relief to ensure Berks County did not resort to its long-held vigorously defended policies even after we (and then the jury) found its policies violated the Equal Protection Clause. Mses. Huntingdon and Sanders offered evidence of continuing violations after our initial preliminary injunction. They did not proceed to trial only
14

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 15 of 49
because of either being released from custody or failing to exhaust an administrative remedy. Counsel represented the prevailing Class and work for Class members providing testimony and proof of Berks County’s intransigence in the face of an injunction is both relevant and necessary for our findings of a need for the specific equitable relief.
B. We partially grant Berks County’s objection to the reasonableness of the charged rate by counsel for paralegal or clerical tasks.99
Berks County objects the Class and Ms. Victory seek an unreasonably high hourly attorney’s rate for “easily delegable non-legal work.”100 The Class and Ms. Victory respond by arguing it is “self-evident . . . that the reasonable attorney’s fee provided for by statute should compensate the work of paralegals, as well as that of attorneys.”101
In Jenkins, the Supreme Court permitted an award under Section 1988 to paralegals, law clerks, and recent law school graduates at prevailing rates.102 The Court listed the many important tasks paralegals may complete, including “factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence.”103 The Court observed many of these tasks “lie[] in a gray area of tasks that might appropriately be performed either by an attorney or a paralegal.”104 The Court further observed, however, “purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.”105 Judge Schiller, applying Jenkins, commented “an attorney may not recover legal fees for easily delegable non-legal work” and ruled to disregard certain time for filing documents because “the logistics of filing a document with the court do not require an attorney's legal knowledge and training.” 106
To rule on this objection, we must determine the nature of work performed. If it is work properly performed by a lawyer, we will overrule the objection to the proposed rate. If it is work
15

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 16 of 49

which unquestionably should have been performed paralegal, we will grant the objection to reduce the rate to the prevailing paralegal rate ($200). If we deem the work to be delegable non-legal work, we will grant the objection and strike the fee request.
Berks County’s specifically objects the rates billed as:

Challenged time entries with bolded or italicized sustained objections

Date of Service 11/30/2018
12/7/2018

Attorney
Matthew A. Feldman Jim Davy

12/11/2018 Matthew A. Feldman
12/28/2018 Jim Davy

1/2/2019 Jim Davy

2/7/2019 4/17/2019

Matthew A. Feldman Matthew A. Feldman

4/18/2019 4/26/2019 4/29/2019

Matthew A. Feldman Matthew A. Feldman Matthew A. Feldman

4/29/2019 4/30/2019

Matthew A. Feldman Matthew A. Feldman

5/2/2019 Matthew A. Feldman

Time Spent
1

Activity Code Filing Papers (GB)

Activity Details File complaint

1

Filing Papers (GB) Filing PI Motion and Brief;

talking to Matt

about same, and service

1

Document

printing/mailing motion to

Preparation/Review exceed page limit for PI

(G)

brief

1

Document

compile/Bates stamp

Preparation/Review documents for production

(G)

2

Consult with

Conversations w/Matt and

Colleagues (CC)

Bates stamping

new production

0.5 Prepare for Hearing prep exhibit binders for PI

(J)

hearing

0.5 Case Related General write up research assignment

(A)

for intern &

discuss w/ SMY

0.5 Case Related General scan & send medical

(A)

releases

0.5 Case Related General investigating/booking

(A)

interpreter

2

Document

redact cl's journal for RPD

Preparation/Review

(G)

0.3 Case Related General logistics re bringing

(A)

interpreter to Jail

0.2 Prepare for Hearing phone call & email re

(J)

interpreter for 5/15

hrg

0.5 Document

Bates stamping

Preparation/Review

(G)

16

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 17 of 49

5/2/2019 Matthew A. Feldman

5/8/2019 Matthew A. Feldman

5/9/2019 Matthew A. Feldman

5/9/2019 Matthew A. Feldman

5/10/2019 Matthew A. Feldman

5/21/2019 Matthew A. Feldman

5/21/2019 Matthew A. Feldman

5/28/2019 5/30/2019

Matthew A. Feldman Matthew A. Feldman

6/4/2019 Matthew A. Feldman

6/4/2019 Matthew A. Feldman

6/6/2019 6/10/2019 6/12/2019

Matthew A. Feldman Matthew A. Feldman Matthew A. Feldman

6/12/2019 Matthew A. Feldman

6/18/2019 6/21/2019

Matthew A. Feldman Matthew A. Feldman

1

Document

revise interrog responses;

Preparation/Review certs of service

(G)

0.3 Case Related General phone call & email to Lois

(A)

Weaver

(interpreter)

0.2 Case Related General arrange for rental car and

(A)

interpreter for

5/14 client visit

4.6 Document

review Ds' disco responses &

Preparation/Review assemble exhibits for PI hrg

(G)

1.5 Document

compile exhibits for PI hrg

Preparation/Review

(G)

1

Document

review/Bates stamp/produce

Preparation/Review medical records

(G)

0.3 Case Related General calls to clerk's office and

(A)

chambers re

injunction bond

1

Consult with

discuss class cert brief w/

Colleagues (CC)

SMY & interns

0.2 Case Related General review interns’ notes on

(A)

transcripts and

give feedback

1

Filing Papers (GB) print and file courtesy copy

of class cert

materials

0.3 Filing Papers (GB) print and prepare class cert

docs for paper

filing

0.2 Consult with

assignment email to intern re

Colleagues (CC)

contempt

0.2 Consult with

discuss assignments w/

Colleagues (CC)

Annie (intern)

0.2 Consult with

convo w/ interns re MSJ

Colleagues (CC)

response

statement of facts

0.2 Case Related General read mail from Alice; scan,

(A)

copy, & email

write-ups

0.6 Filing Papers (GB) courtesy copy of MSJ

materials

0.3 Letter/Correspondenc mail recent filings to cl

e (F)

17

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 18 of 49

6/24/2019 6/24/2019 7/9/2019

Matthew A. Feldman Matthew A. Feldman Matthew A. Feldman

7/9/2019 7/22/2019 7/23/2019

Matthew A. Feldman Matthew A. Feldman Matthew A. Feldman

7/24/2019 7/24/2019

Matthew A. Feldman Matthew A. Feldman

7/25/2019 Matthew A. Feldman

7/25/2019 Matthew A. Feldman

8/16/2019 8/19/2019 9/3/2019

Matthew A. Feldman Matthew A. Feldman Matthew A. Feldman

9/11/2019 Matthew A. Feldman

9/11/2019 Matthew A. Feldman

9/17/2019 Matthew A. Feldman

9/27/2019 Angus Love

0.3 Consult with

assignment emails to interns

Colleagues (CC)

0.6 Consult with

convos w/ SMY and interns

Colleagues (CC)

0.3 Case Related General scan & read docs from Alice

(A)

and send to

SMY & AL

0.4 Consult with

talk to interns & MB about

Colleagues (CC)

contempt hrg

0.2 Case Related General scan letter from cl (AVD)

(A)

and email SMY

0.2 Case Related General arrange for rental car and

(A)

interpreter for

7/26 client visit

0.2 Case Related General arranging interpreter for

(A)

client visit

0.3 Case Related General assignment email to intern re

(A)

appealability

of contempt order

0.3 Case Related General phone calls w/ Lois Weaver

(A)

& Berks

County Jail re

interpretation/visits

0.4 Case Related General phone calls/emails re

(A)

interpreter for client

visit

0.5 Investigation of Facts look up CRC men on

(D)

Vinelink

0.5 Investigation of Facts look up CRC men on

(D)

Vinelink

0.3 Document

Bates stamp and produce

Preparation/Review docs re furlough data

(G)

3

Document

compiling MSJ appendix

Preparation/Review

(G)

2.2 Document

compiling MSJ appendix

Preparation/Review

(G)

0.5 Filing Papers (GB) print and file courtesy copy

of MSJ

materials

3.5 Interview/Advise Client (CB)

trip to Reading to get affidavit

18

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 19 of 49

9/30/2019 Su Ming Yeh

9/30/2019 Su Ming Yeh

10/8/2019 Matthew A. Feldman

10/15/2019 10/21/2019

Matthew A. Feldman Matthew A. Feldman

10/22/2019 10/24/2019

Matthew A. Feldman Matthew A. Feldman

10/29/2019 10/31/2019 10/31/2019

Matthew A. Feldman Matthew A. Feldman Matthew A. Feldman

10/31/2019 Matthew A. Feldman

11/6/2019 Matthew A. Feldman

11/19/2019 12/10/2019

Matthew A. Feldman Alexandra Morgan-Kurtz

0.5 Document Preparation/Review (G)
0.3 Filing Papers (GB)

0.3 Document

Preparation/Review

(G)

4

Prepare for Hearing

(J)

0.5 Document

Preparation/Review

(G)

0.5 Case Related General

(A)

0.5 Case Related General

(A)

0.8 Case Related General

(A)

0.2 Case Related General

(A)

0.7 Document

Preparation/Review

(G)

0.6 Document

Preparation/Review

(G)

0.2 Document

Preparation/Review

(G)

1

Case Related General

(A)

0.1 Case Related General

(A)

TOTAL = 48 Hours

Compile suppl jt appx
File motion for extension, fax letter to court prepare courtesy copy of reply brief, cover letter
exhibit list
prepare cover letter and courtesy copies of exhibits & transcripts download Ds' filings
print and deliver courtesy copies of contested exhibits subpoenas for witnesses
email to ST re setting up visits with witnesses download and review MIL orders; email to AMK & SMY subpoena for AOPC employee; amended PT Memo notice re writs for incarcerated witnesses
witness checks
filings

We partially grant Berks County’s objections to the billing of attorney rates for paralegal

or clerical tasks. We appreciate the diligent efforts from the Pennsylvania Institutional Law

Project. Its lawyers, paralegals, and staff vigorously advocate for those in custody. The lawyers

in this case addressed each issue shown to us with exemplary professionalism and matched a

19

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 20 of 49
commercial law firm retained by Berks County in each aspect of this difficult case. Berks County did not alter its policies, notwithstanding our several findings resulting in injunctions, until the eve of trial.
But we cannot approve attorney hourly rates for services which should be billed by paralegals or not billed as staff tasks considered part of overhead. For example, as bolded above, we cannot reimburse for time spent in “copying,” “filing,” “downloading,” and arranging for rental cars. We deduct 7.0 hours (or $1,543.50) spent on these clerical tasks which should not have been billed by lawyers or paralegals. We also reduce the attorney hourly rate to the paralegal approved rate of $200 for paralegal tasks. For example, and as italicized in the chart above, we reduce the hourly rate to the experienced paralegal rate of $200 for Bates-stamping, compiling appendices, preparing notices, and filing the complaint and initial papers. There can be no dispute the billing attorneys would be considered as having the skill of an experienced paralegal as to these billing entries. We reduce the attorney hourly rate to $200 for the 9.7 hours billed by attorneys for paralegal tasks and deduct another $198.85 from the total recovery. We recognize this time may have been for more detailed tasks or involved professional judgment of an attorney, but the lawyers’ billing entries did not adequately describe this level of care.
C. We partially sustain Berks County’s challenges to the reasonableness of the number of hours billed. 1. We overrule the “limited success” objection.
Berks County argues the total attorney’s fee award must be reduced because many claims failed, and hours billed to those dismissed claims should be discounted. They point to unsuccessful claims dismissed on summary judgment, including Ms. Victory’s First Amendment retaliation claim. They argue Ms. Victory’s $2,800 compensatory damages award is only a limited success. The Class and Ms. Victory respond by arguing they excluded hours expended exclusively on failed
20

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 21 of 49
claims in their fee petition. They further argue the size of the damages award obtained by Ms. Victory is not an appropriate basis on which to reduce Plaintiffs’ fee award for work performed solely on her behalf.
As the Class and Ms. Victory concede, they achieved “only limited success,” and we should “award only that amount of fees that is reasonable in relation to the results obtained.”107 The Class and Ms. Victory explicitly exclude time expended on unsuccessful claims. Berks County does not dispute this. But Berks County disputes the overall success of the litigation by highlighting failed claims to show the “results cannot be considered [a] significant success in light of the hours, quantity, and quality of the attorneys representing Plaintiffs in this matter.”108 But as our Court of Appeals observed by looking to Hensley: “there is ‘no precise rule or formula’ in making [a limited success] determination but advised district courts that they ‘may attempt to identify specific hours that should be eliminated, or [ ] simply reduce the award to account for the limited success.’”109
As the Supreme Court directs, “when ... a material alteration in the legal relationship of the parties has occurred, ‘the degree of the plaintiff’s overall success goes to the reasonableness of the award … not to the availability of a fee award vel non.’”110
When a plaintiff’s claims for relief “involve a common core of facts or [are] based on related legal theories … the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.”111 “Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee.”112 This is especially true where counsel “carefully separate[s] the time spent on … unsuccessful claims from that spent on successful claims and d[oes] not even seek reimbursement for them.”113 “[W]here a plaintiff achieved only limited
21

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 22 of 49
success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.”114
Berks County also wishes to reduce the fee allocated to Ms. Victory’s individual recovery because “the jury award for Ms. Victory was a meager $2,800.00.”115 In Washington, our Court of Appeals held “a court may not diminish counsel fees in a section 1983 action to maintain some ratio between the fees and the damages awarded.”116 In reaching this holding, our Court of Appeals looked to the Supreme Court’s plurality in City of Riverside v. Rivera where Justice Brennan stated:
[u]nlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. ... Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards.117 Nevertheless, “the amount of the compensatory damages award may be taken into account when awarding attorneys' fees to a civil rights plaintiff.”118 We may, but are not required to, consider settlement negotiations in awarding attorney’s fees. “[S]ettlement negotiations may be relevant in measuring success” but we are “also free to reject such evidence as not bearing on success.”119 Berks County argues we should discount fees relating to Ms. Victory’s compensatory damages claim because she initially requested $160,000. But Ms. Victory responds Berks County never offered a meaningful counteroffer to this demand. We overrule Berks County’s objection to the size of the Class success – especially after Berks County conceded most of the requested equitable relief on the last business day before trial. Every case has theories which may not proceed to trial or win at trial. A judge’s role is to narrow the issues if necessary, before trial. Our narrowing of the Class claims does not equate to frivolousness of the dismissed claims. Unlike cases where a judge may discount hours spent on frivolous theories unrelated to the success, all of Ms. Victory’s claims are directly related to the
22

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 23 of 49
Class success and her verdict. Berks County’s policy equally affected her and the Class. Class Counsel sought to stop this policy. Class Counsel overwhelmingly succeeded. Class Counsel did not include time entries unrelated to the core questions presented in the successful summary judgment cross-motion and to the jury. Ms. Victory’s monetary award is a testament, not an indictment, of her theory. She and Ms. Velasquez are entitled to fees for winning the civil rights case. The jury returned a compensatory damage verdict based on the evidence of her damages. The Class succeeded on its claims. It did not lose a claim which would have afforded it more expansive equitable relief. We find nothing “limited” in the Class success.
2. We strike vague descriptions. Berks County argues certain entries in the Class and Ms. Victory’s petition are not specific enough to allow us to determine the reasonableness of the work performed. The Class and Ms. Victory concede certain entries are insufficiently specific,120 but otherwise argue their entries are sufficiently specific to allow us to evaluate the reasonable of the entries. Entries must “be specific enough to allow the district court to determine if the hours claimed are unreasonable for the work performed.”121 In Clemens, our Court of Appeals explained “entries billing for attorney services described as ‘Other,’ ‘Communicate,’ or ‘Communicateother’ … [and] ‘Attorney review,’ ‘Analysis/Strategy,’ or ‘Review/analyze’ with no additional explanation regarding the subject or necessity of the review … [are] nowhere near specific enough” to allow a District Judge to determine reasonableness.122 Our Court of Appeals found entries such as “att[entio]n to papers” and “att[entio]n to status” without indicating “what ‘papers’ or ‘status’” to which the attorney attended, and entries such as “e-mails,” “conference call,” “correspondence” and “review papers” are insufficient to determine if the hours claimed are unreasonable for the work performed.123 “[S]pecificity should only be
23

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 24 of 49

required to the extent necessary for the district court to determine if the hours claimed are unreasonable for the work performed.”124
We inspect the entries Berks County claims are insufficiently specific:

Challenged time entries with bolded or italicized sustained objections

Date of Service 8/30/2018

Attorney Angus Love

11/1/2018 Jim Davy

11/16/2018 Jim Davy

11/19/2018 Jim Davy

11/26/2018 Jim Davy

11/28/2018 Jim Davy

12/11/2018 Angus Love

12/13/2018 Angus Love

12/13/2018 Angus Love

12/13/2018 12/17/2018

Matthew A. Feldman Jim Davy

12/17/2018 Jim Davy

12/18/2018 Angus Love

12/20/2018 Jim Davy 1/2/2019 Angus Love 1/9/2019 Angus Love 1/14/2019 Angus Love

Time Spent
2 1 2.5 1.2
0.8 2 1 1 3 0.8 1.5 1 2
2 3 7 2

Activity Code

Activity Details

File Maintenance (AA) Consult with Colleagues (CC) Consult with Colleagues (CC) Consult with Colleagues (CC)
Consult with Colleagues (CC) Consult with Colleagues (CC) Consult with Colleagues (CC) Legal Staff Supervision (M) Consult with Colleagues (CC) Consult with Colleagues (CC) Telephone Conference\(E) Consult with Colleagues (CC) Document Preparation/Review (G) Consult with Colleagues (CC) Consult with Colleagues (CC) Prepare for Hearing (J) Investigation of Facts (D)

misc, consult colleagues
Call w/co-counsel
Corr. w/Matt
Call w/Angus, Matt, Theresa, other counsel Corr. w/Matt
Call w/Angus/Matt/WLP
discuss
conference call
discuss and research
conference call w/ Jim, Su Ming, Angus Status conference and debrief Status conference prep
misc, mail, telephone, e mail etc.
Talk w/Matt and Angus
staff meeting
hearing tomorrow
post PI hrg misc

24

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 25 of 49

1/16/2019 1/18/2019 1/21/2019

Matthew A. Feldman Angus Love
Angus Love

1/25/2019 1/30/2019 2/11/2019 3/5/2019 3/14/2019 3/18/2019 3/19/2019 3/22/2019 3/27/2019 4/16/2019 4/17/2019 4/17/2019
4/26/2019 5/1/2019 5/2/2019 5/8/2019
5/9/2019 5/10/2019

Matthew A. Feldman Matthew A. Feldman Jim Davy
Angus Love
Matthew A. Feldman Angus Love
Matthew A. Feldman Su Ming Yeh
Matthew A. Feldman Angus Love
Angus Love
Matthew A. Feldman
Matthew A. Feldman Matthew A. Feldman Angus Love
Matthew A. Feldman
Angus Love
Angus Love

1 Consult with

discuss next steps

Colleagues (CC)

3 Consult with

misc/ motions/strategy

Colleagues (CC)

3 Document

reviewed memo, misc.

Preparation/Review

(G)

1 Consult with

discuss case w/ Jim

Colleagues (CC)

0.5 Case Related General misc. post-dep tasks and

(A)

emails

1.5 Consult with

Debrief w/Matt and Su

Colleagues (CC)

Ming

4 Interview/Advise

interview at BCJ

Client (CB)

0.2 Consult with

discuss w/ SMY & AL

Colleagues (CC)

4 Interview/ Advise Interview her and others

Client

0.3 Consult with

discussions w/ AL, SMY

Colleagues (CC)

0.2 Consult with

Discuss case strategy w-

Colleagues (CC)

MF, AL

0.5 Consult with

emails w/ AL & SMY

Colleagues (CC)

1 Consult with

discuss next steps

Colleagues (CC)

1 Consult with

misc

Colleagues (CC)

0.5 Case Related General write up research

(A)

assignment for intern &

discuss w/ SMY

0.2 Consult with

email to WLP

Colleagues (CC)

0.2 Consult with

update AL

Colleagues (CC)

1 Consult with

consult colleagues

Colleagues (CC)

1.5 Case Related General misc organizational tasks

(A)

(printing docs,

tracking deadlines, etc)

1 Consult with

plan for next hearing

Colleagues (CC)

1 Consult with

review materials

Colleagues (CC)

25

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 26 of 49

5/13/2019 Matthew A.

0.4 Consult with

convos w/ SMY

Feldman

Colleagues (CC)

5/22/2019 Alexandra

0.4 Document

ems & rvg ext req L

Morgan-Kurtz

Preparation/Review

(G)

5/24/2019 Angus Love

1 Consult with

discuss case

Colleagues (CC)

5/24/2019 Matthew A.

0.7 Consult with

discuss case w/ SMY

Feldman

Colleagues (CC)

5/28/2019 Angus Love

0.5 Consult with

discuss

Colleagues (CC)

5/29/2019 Angus Love

1 Investigation of Facts prep for visits

(D)

6/6/2019 Angus Love

1 Consult with

discuss case

Colleagues (CC)

6/12/2019 Matthew A.

0.3 Consult with

phone call w/ SMY

Feldman

Colleagues (CC)

6/21/2019 Angus Love

1 Consult with

misc

Colleagues (CC)

6/24/2019 Matthew A.

0.3 Consult with

assignment emails to

Feldman

Colleagues (CC)

interns

6/24/2019 Matthew A.

0.6 Consult with

Convos / SMY and

Feldman

Colleagues (CC)

interns

6/26/2019 Mathew A.

0.3 Consult with

Convos w/ SMY

Feldman

Colleagues

7/9/2019 Matthew A.

0.4 Consult with

talk to interns & MB

Feldman

Colleagues (CC)

about contempt hrg

7/10/2019 Angus Love

2 Consult with

review file

Colleagues (CC)

7/17/2019 Alexandra

0.1 Consult with

ems re amicus brief

Morgan-Kurtz

Colleagues (CC)

7/22/2019 Angus Love

1 Consult with

misc

Colleagues (CC)

7/24/2019 Angus Love

1 Consult with

misc

Colleagues (CC)

7/29/2019 Angus Love

1 Consult with

discussed case

Colleagues (CC)

10/15/2019 Matthew A.

0.5 Case Related General prep for jail visit

Feldman

(A)

10/15/2019 Matthew A.

4 Prepare for Hearing exhibit list

Feldman

(J)

10/25/2019 Angus Love

0.5 File Maintenance

review e mails

(AA)

10/28/2019 Matthew A.

0.2 Legal Research (H) Edmo v. Corizon

Feldman

26

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 27 of 49

10/30/2019 Angus Love

1 File Maintenance

misc, consult colleagues

(AA)

10/31/2019 Matthew A.

1 Prepare for Hearing trial prep

Feldman

(J)

11/1/2019 Matthew A.

1.4 Prepare for Hearing trial prep

Feldman

(J)

11/3/2019 Matthew A.

8 Prepare for Hearing trial prep

Feldman

(J)

11/5/2019 Alexandra

0.3 Document

NoA

Morgan-Kurtz

Preparation/Review

(G)

11/6/2019 Will Sachse

8.9 NA

Trial preparation

11/7/2019 Cory Ward

13.4 NA

Trial preparation

11/7/2019 Matthew A.

7 Prepare for Hearing trial prep

Feldman

(J)

11/7/2019 Will Sachse

6.6 NA

Trial preparation

11/8/2019 Alexandra

0.1 Case Related General notice

Morgan-Kurtz

(A)

11/8/2019 Alexandra

0.7 Consult with

ems

Morgan-Kurtz

Colleagues (CC)

11/8/2019 Cory Ward

12.8 NA

Trial preparation; read

background materials;

review trial exhibits;

review background

material; prepare direct

examinations

11/8/2019 Matthew A.

14 Prepare for Hearing trial prep

Feldman

(J)

11/8/2019 Will Sachse

5.9 NA

Trial preparation

11/9/2019 Cory Ward

1.2 NA

Trial preparation; read

background material;

review trial exhibits;

review motions and

responses; prepare direct

examinations.

11/9/2019 Matthew A.

8 Prepare for Hearing trial prep

Feldman

(J)

11/9/2019 Will Sachse

7.1 NA

Trial preparation

11/10/2019 Cory Ward

5.6 NA

Trial preparation; prepare

direct examinations.

11/10/2019 Will Sachse

6.4 NA

Trial preparation

11/11/2019 Alexandra

5.4 Prepare for Hearing trial prep

Morgan-Kurtz

(J)

11/11/2019 Matthew A.

12 Prepare for Hearing trial prep

Feldman

(J)

27

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 28 of 49

11/11/2019 11/12/2019 11/12/2019 11/12/2019 11/13/2019 11/14/2019 11/14/2019 11/14/2019 11/15/2019 11/15/2019 11/19/2019 11/20/2019 12/10/2019

Will Sachse Alexandra Morgan-Kurtz Alexandra Morgan-Kurtz Matthew A. Feldman Matthew A. Feldman Alexandra Morgan-Kurtz Matthew A. Feldman Matthew A. Feldman Alexandra Morgan-Kurtz Alexandra Morgan-Kurtz Matthew A. Feldman Matthew A. Feldman Alexandra Morgan-Kurtz

10.6 NA 4.9 Prepare for Hearing
(J) 3.3 Prepare for Hearing
(J) 5 Prepare for Hearing
(J) 3 Prepare for Hearing
2.7 Prepare for Hearing (J)
2 Consult with Colleagues (CC)
1.5 Prepare for Hearing (J)
1.8 Consult with Colleagues (CC)
0.3 Prepare for Hearing (J)
0.2 Consult with Colleagues (CC)
0.3 Case Related General (A)
0.1 Case Related General (A)
TOTAL = 241.1 HOURS

Trial preparation trial prep
trial team strategy meeting & prep trial prep
Trial prep
trial prep/strategy meeting
team meeting
trial prep
trial debrief discussions
trial/hearing prep
email to external colleague outreach re next steps
filings

As noted in the sustained objections bolded or italicized above, we agree with many of Berks County’s objections. Counsel seeking court approval of their fees should bill as though the Court is the paying client. Experienced counsel must know the days of rubber-stamping attorney invoices (if ever there was such a day) are certainly over for experienced clients and courts. This same rule applies to non-profit legal organizations. It is a fundamental tenet of client communications. We need to know what you did for the time you are billing. The days of block time billing with no description of purpose or subject other than an action such as “confer” or “prep” or “email” need to stop. We are not aware of experienced clients paying for this type of

28

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 29 of 49
billing and would hope counsel would not pay their personal contractors for “work” or “prep” without knowing what the contractors are doing.
We strike the bolded entries above equating to 59.9 hours in their entirety and deduct $13,207.95 as we simply cannot imagine what the lawyers were doing for the time billed in those bolded entries. We have no subject matter whatsoever. We discount the italicized entries equating to 140 hours above by fifty percent and deduct $15,435.00. We credit half of the time billed in these italicized entries as we can appreciate “trial” involves a great number of tasks and we witnessed counsel prepared and ready to address every issue. Counsel demonstrated skill and experience borne of hard work. They certainly did not “wing-it.” But we cannot find the entire amount of italicized time billed is reasonable when the entries do not tell us what counsel did during this billed time. Counsel should detail the subject matter of their action. They did so in many instances. For example, we overrule Berks County’s objections to “trial preparation; prepare direct examination.” In this entry, we understand (at least can fairly infer) what the billing lawyer did on November 10, 2019 for the 5.6 hours of “trial prep.” We cannot otherwise guess for so many of the challenged entries.
We sustain Berks County’s objection to vague entries to the extent of $28,642.95 discounted from the petition representing time not adequately described leaving us with vague understanding of what the lawyers were doing for those time entries. We recognize this is an expensive lesson for counsel, but their billing practices leave us no choice. Billing time for timesheet credit is not our concern. When you are asking someone to pay for your time, you need to describe it. If you are going to work so hard for this success, you should describe your efforts both as to action and purpose. Why hide your effort? Why not take the extra minute (albeit often
29

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 30 of 49
after a long day) to specifically describe your hard work? If you want people to pay for your work, you should describe your effort so they know what you did for their benefit.
3. Excessive time. Berks County also argues certain time billed by Mses. Victory and Velazquez-Diaz’s counsel is excessive. We must specifically consider the amount of time billed to rule on these objections. Mses. Victory and Velazquez-Diaz oppose this objection but accept if any reduction must be applied it should be a ten percent reduction. Before our specific review, we note there is often a “thin line … between a reasonable and unreasonable expenditure of time in pursuit of a client’s cause,” and sometimes the benefit of the doubt must be given to the plaintiff’s counsel that, as “officers of the court,” they have exercised the requisite “billing judgment.”125 Our Court of Appeals has “emphasize[d]” that defendants “cannot merely allege in general terms that the time spent was excessive.”126
i. Consulting with colleagues. Berks County specifically objects to Mses. Victory and Velazquez-Diaz’s 372 time entries billing approximately 205 hours for “consulting with colleagues.”127 Supporting this objection, Berks County cites Citibank, N.A. v. Hicks.128 In Hicks, Judge Yohn granted summary judgment for Citibank who then petitioned for attorney’s fees. Judge Charles Smith ruled on Citibank’s petition. In his Memorandum, Judge Smith explained Mr. Hicks objected to many of Citibank’s requests, including for “attorney conferencing.” Judge Smith considered 111.4 hours attributed to attorney conferencing out of the approximately 430 hours submitted in the fee petition to be plainly excessive and applied a one-half reduction to this time.
30

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 31 of 49

Berks County asks for the same one-half reduction as applied in Hicks. Mses. Victory and Velazquez-Diaz oppose this request. They argue this time is not unwarranted especially because “Defendants litigated the case in a particularly unyielding manner.”129
Berks County identifies excessive time spent consulting with colleagues:

Challenged time entries for consulting as bolded for sustained objections

Date of Service 11/9/2018

Attorney Jim Davy

11/21/2018 Jim Davy

11/26/2018 Jim Davy

12/6/2018 Jim Davy

12/7/2018 Jim Davy

Time Spent
2
2
1
2
1

Activity Code
Legal Research (H)
Document Preparation/Review (G) Document Preparation/Review (G) Document Preparation/Review (G) Filing Papers (GB)

Activity Details
Conversation w/Matt re: Rinaldi and exhaustion Edit draft complaint/talk w/Matt and Angus re: Theresa and facts Edit most recent version of complaint/corr. w/Matt
Reviewing Brief for PI/commenting on it and talking w/Matt Filing PI Motion and Brief; talking to Matt about same, and service

12/12/2018 Matthew A. Feldman
12/12/2018 Su Ming Yeh
12/18/2018 Su Ming Yeh
12/26/2018 Matthew A. Feldman
12/28/2018 Su Ming Yeh
1/2/2019 Su Ming Yeh

3.2 Case Related General consult w/ Jim, Su Ming

(A)

re next steps,

work on PI brief

0.3 Telephone

Call w-M.Feldman re

Conference

prelim inj brief

(E)

1.1 Document

Review/edit/comment on

Preparation/Review discovery requests,

(G)

discuss w-MF, AL

0.2 Letter/Correspondenc review letter from cl. and

e (F)

discuss w/

Angus

1.3 Document

Review discovery

Preparation/Review responses, documents, and

(G)

email MF

1.1 Prepare for Hearing Discuss pre-hearing

(J)

memo w-MF, review

documents

31

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 32 of 49

1/3/2019 1/9/2019

Su Ming Yeh Su Ming Yeh

1/16/2019 Su Ming Yeh

1/16/2019 Su Ming Yeh

1/17/2019 Jim Davy

1/24/2019 Angus Love 1/28/2019 Jim Davy

2/7/2019 2/8/2019

Su Ming Yeh Su Ming Yeh

2/8/2019 Su Ming Yeh

2/10/2019 Jim Davy

2/27/2019 Su Ming Yeh 2/27/2019 Su Ming Yeh

1 Hearing (K)

Hearing prep and strategy

w-AL, MF

9 Prepare for Hearing Prep for PI hearing--draft

(J)

outlines, review exhibits,

investigation, meet w-co-

counsel

1 Document

Review motion for stay,

Preparation/Review motion to seal, motion for

(G)

reconsideration, emails to

co-

counsel re motions

0.2 Letter/Correspondenc Emails to/fro co-counsel

e (F)

re ct order,

findings of fact,

conclusions of law

1.5 Legal Research (H) Research new PI theories

post-Theresa

discipline and corr.

w/Matt

2

Interview/Advise

client called, updated her,

Client (CB)

discussed with

colleagues

6 Document

Research/write Motion for

Preparation/Review a Protective Order and Br.

(G)

re: Theresa's deposition

and conversations w/Matt

0.2 Letter/Correspondenc Emails w-MF re possible

e (F)

MIL on witnesses

1 Document

Prep for hearing, discuss

Preparation/Review hearing strategy w-MF,

(G)

discuss arg against stay

0.4 Document

Review Ds motion to stay,

Preparation/Review emails/texts to JD, MF re

(G)

motion

5 Prepare for Hearing Strategy w/Su Ming and

(J)

Matt; research stay

arguments; review records

for

exhaustion stuff

0.3 Document

Review court order,

Preparation/Review download R.26(f) form,

(G)

discuss case management

conference w-AL

1.1 Document

Draft and discuss initial

Preparation/Review disclosures w-AL, MF

(G)

32

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 33 of 49

3/28/2019 Su Ming Yeh 0.8 Document

Review discovery draft,

Preparation/Review emails to MF

(G)

4/8/2019 Matthew A.

2 Case Related General review MTD decision and

Feldman

(A)

emails to cl.,

WLP, AMK

4/11/2019 Su Ming Yeh 0.6 Document

Review/research motions

Preparation/Review to amend Compl, email

(G)

and discuss w-MF

4/17/2019 Matthew A.

0.5 Case Related General write up research

Feldman

(A)

assignment for intern &

discuss w/ SMY

4/18/2019 Su Ming Yeh 0.8 Letter/Correspondenc Email sample stips to MF,

e (F)

review draft

stipulation, discuss w-MF

4/26/2019 Su Ming Yeh 1.2 Conference (C)

Mtg w-AL, MF re Victory

discovery, deadlines,

depositions, scheduling,

clients

4/26/2019 Su Ming Yeh 0.6 Document

Review draft discovery

Preparation/Review requests, discuss w- MF,

(G)

discuss dep strategy w-

MF

4/29/2019 Su Ming Yeh 1.2 Document

Draft 30(b)(6) notice,

Preparation/Review discuss w-MF, email w-

(G)

MF, AL

4/30/2019 Matthew A.

0.2 Legal Research (H) time to respond to Ds'

Feldman

motion to seal &

email to SMY & AL

5/6/2019 Su Ming Yeh 0.1 Letter/Correspondenc Emails w-MF re

e (F)

protective order stip

5/8/2019 Su Ming Yeh 0.1 Letter/Correspondenc Emails w-MF re stip of

e (F)

dismissal (for Dealba)

5/12/2019 Su Ming Yeh 0.1 Telephone

Call w-MF re

Conference

transcripts/exhibits for

(E)

hearing

5/13/2019 Alexandra

0.3 Case Related General convo MF, SMY issues,

Morgan-Kurtz

(A)

rvw MTC

5/22/2019 Matthew A.

0.3 Letter/Correspondenc letter to cl re PI decision,

Feldman

e (F)

print materials to send,

email to Becca to translate

5/29/2019 Su Ming Yeh 0.4 Document

Review D motion to stay,

Preparation/Review email discuss w- MF, AL;

(G)

email to AMK re motion

33

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 34 of 49

5/30/2019 Matthew A. Feldman
5/30/2019 Su Ming Yeh 5/30/2019 Su Ming Yeh
6/3/2019 Su Ming Yeh
6/4/2019 Su Ming Yeh
6/12/2019 Matthew A. Feldman
6/12/2019 Su Ming Yeh
6/13/2019 Su Ming Yeh 6/15/2019 Su Ming Yeh
6/21/2019 Su Ming Yeh
6/24/2019 Su Ming Yeh
6/25/2019 Matthew A. Feldman
6/25/2019 Su Ming Yeh
6/27/2019 Su Ming Yeh 6/27/2019 Su Ming Yeh

0.2 Case Related General review interns' notes on

(A)

transcripts and

give feedback

0.2 Investigation of Facts Discuss CRC w-AL, MF

(D)

1.6 Letter/Correspondenc Emails w-colleagues re

e (F)

issues of stays pending

appeal; review their

suggestions;

discuss issue w-MF

0.2 Document

Review Ct's denial of Ds

Preparation/Review motion to stay opinion;

(G)

discuss w-MF

0.3 Document

Review Ds filed

Preparation/Review affidavit/plan, discuss

(G)

strategy w-MF, AL

0.2 Telephone

phone call w/ opposing

Conference (E)

counsel re contempt and

follow up email to AL &

SMY

0.6 Document

Review/edit motion for

Preparation/Review contempt; discuss issues

(G)

related to br w-MF

0.6 Conference (C)

Mtg w-MF, AM, GR re

Stmt of Facts

2.2 Document

Draft response to

Preparation/Review statement of facts for SJ

(G)

response, discuss w-MF

0.2 Document

Discuss petition for writ

Preparation/Review w-MF, review petition

(G)

0.8 Document

Review, edit reply to class

Preparation/Review cert motion, discuss a fn

(G)

w-MF

0.3 Case Related General review orders re

(A)

continuance and 3d Cir

briefing and email WLP

0.3 Telephone

Discuss motion for

Conference (E)

contempt hearing w- MF;

strategy, timing, required

memo

0.1 Letter/Correspondenc Review colleague email re

e (F)

contempt

0.4 Telephone

Consult colleague re

Conference

contempt

(E)

34

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 35 of 49

6/27/2019 Su Ming Yeh 6/28/2019 Su Ming Yeh 7/2/2019 Su Ming Yeh
7/8/2019 Su Ming Yeh 7/9/2019 Su Ming Yeh 7/11/2019 Su Ming Yeh

7/15/2019 Angus Love 7/16/2019 Angus Love

7/19/2019 Su Ming Yeh

7/29/2019 8/1/2019

Matthew A. Feldman Matthew A. Feldman

8/1/2019 Su Ming Yeh

8/16/2019 Su Ming Yeh 8/23/2019 Su Ming Yeh

0.3 Telephone

Consult colleague re

Conference

contempt

(E)

0.2 Letter/Correspondenc Emails to AL re update on

e (F)

contempt hearing, strategy

0.2 Legal Research (H) Legal research and

discuss w-MF re daily

rate of possible sanctions

to P

0.2 Letter/Correspondenc Review ct order on

e (F)

SJ/class cert, email w-

MF re issues from order

0.5 Letter/Correspondenc Read Ct's opinion on

e (F)

SJ/Class cert, discuss

w-MF via email

0.2 Letter/Correspondenc Review ct orders on

e (F)

contempt, plan; emails w-

MF re timing of

inspection,

objections

3

File Maintenance

review orders, consult

(AA)

colleagues

2

File Maintenance

review court order,

(AA)

consult with

colleagues

0.1 Document

Review Ct's order

Preparation/Review granting stay, email to

(G)

MF, AL

0.4 Case Related General email external colleague

(A)

and prep for call

3.7 Travel (N)

to/from Berks County Jail

for inspection; strategy

discussion w/ SMY

3.7 Travel (N)

Travel to BCJS

inspection/tour and

discuss

case strategy w-MF

0.8 Document

Review D reply brief,

Preparation/Review discuss w-MF

(G)

0.8 Document

Review discovery

Preparation/Review production from Ds,

(G)

emails to opp counsel;

emails to co-

counsel re docs

35

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 36 of 49

8/28/2019 9/3/2019

Su Ming Yeh Su Ming Yeh

9/23/2019

Matthew A. Feldman

9/25/2019 Matthew A. Feldman

9/29/2019 Su Ming Yeh

10/4/2019 Su Ming Yeh

10/7/2019 10/8/2019

Matthew A. Feldman Su Ming Yeh

10/11/2019 10/15/2019

Matthew A. Feldman Matthew A. Feldman

10/15/2019 Su Ming Yeh
10/16/2019 Matthew A. Feldman
10/16/2019 Su Ming Yeh

10/18/2019 Su Ming Yeh
10/25/2019 Su Ming Yeh
10/30/2019 Matthew A. Feldman

0.6 Letter/Correspondenc Emails to colleagues re

e (F)

moot argument

0.2 Document

Review motion for ext of

Preparation/Review time; discuss w- MF

(G)

0.5 Case Related General discuss response to

(A)

statement of facts w/

Noah (extern)

0.6 Case Related General discuss response to

(A)

statement of facts w/

Noah (extern)

0.2 Document

Discuss extension request

Preparation/Review w-MF

(G)

0.2 Telephone

Call w-MF re brief,

Conference

continuance request,

(E)

trial prep

0.2 Case Related General discuss jury instructions

(A)

w/ Noah

0.1 Document

Review ct order for

Preparation/Review conference, emails w- AL,

(G)

MF

0.4 Case Related General discuss jury instructions

(A)

w/ Noah

0.6 Case Related General review draft jury

(A)

instructions and email

Noah w/ follow-up

assignment

0.2 Letter/Correspondenc Emails re legal visits w-

e (F)

clients

3.5 Travel (N)

to/from BCJ & strategy

discussions w/

SMY

3.5 Travel (N)

Travel to-from BCJS and

discuss case

strategy/witness prep w-

MF

3.6 Document

Discuss w-MF and draft

Preparation/Review pre-trial memo

(G)

0.3 Document

Review Ds MIL; discuss

Preparation/Review w-MF

(G)

1.5 Document

download and review

Preparation/Review MIL filings; email to

(G)

AMK

36

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 37 of 49

10/30/2019 Su Ming Yeh 0.3 Document

Review Ct orders and

Preparation/Review discuss w-MF

(G)

10/31/2019 Alexandra

0.8 Case Related General rvw PT stmts, M2Bi R,

Morgan-Kurtz

(A)

ems re trial prep

10/31/2019 Matthew A.

0.2 Case Related General email to ST re setting up

Feldman

(A)

visits with

witnesses

10/31/2019 Matthew A.

0.7 Document

download and review

Feldman

Preparation/Review MIL orders; email to

(G)

AMK & SMY

11/4/2019 Matthew A.

12 Prepare for Hearing prep witnesses for trial;

Feldman

(J)

discuss strategy

w/ SMY

11/4/2019 Su Ming Yeh

9 Prepare for Hearing Prep 2 witnesses,

(J)

T.Victory (non-dmgs

claim) in diff locations in

Berks, incl travel w-case

strategy discussions w-

MF

11/5/2019 Su Ming Yeh 0.2 Document

Discuss legal visits w-

Preparation/Review class members w-MF

(G)

11/6/2019 Cory Ward

10.3 NA

Prepare, travel, and

participate in depositions

of F. Quainoo and N.

Mankoski; participate in

strategy call; draft

summary regarding

impact of Garrett on

Plaintiff's claims

11/6/2019 Matthew A.

3.4 Travel (N)

to/from Berks County Jail

Feldman

for witness prep

& strategy discussions w/

SMY

11/6/2019 Su Ming Yeh

7.5 Interview/Advise

Interview Trusty women

Client (CB)

at BCJS, incl travel and

case strategy/witness prep

discussions w-MF

11/7/2019 Su Ming Yeh 0.4 Document

Discuss letter w-MF,

Preparation/Review revise, email to opp

(G)

counsel

11/8/2019 Su Ming Yeh 1.2 Telephone

Call w-legal team re D

Conference

Notice, MIL, dmgs

(E)

issues

37

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 38 of 49

11/8/2019 Su Ming Yeh 11/9/2019 Su Ming Yeh 11/10/2019 Matthew A.
Feldman 11/10/2019 Su Ming Yeh
11/11/2019 Cory Ward
11/11/2019 Su Ming Yeh 11/13/2019 Cory Ward
11/13/2019 Su Ming Yeh 11/13/2019 Su Ming Yeh 11/14/2019 Cory Ward

1.7 Document

Review draft of dmgs

Preparation/Review brief, edit/legal research

(G)

on expert issue; discuss

w-MF,

AMK

3.9 Telephone

Call w- legal team re

Conference

witness' tmy

(E)

3.5 Travel (N)

to Reading &

Lenhartsville for witness

prep; strategy discussions

w/ SMY

12 Prepare for Hearing Prep 3 witnesses in Berks

(J)

County (prep time for

non-dmgs claim for

T.Victory), incl travel w-

strategy

discussion/witness prep

w-MF

9.7 NA

Review trial exhibits and

preliminary injunction

hearing transcripts;

research case law; prepare

for trial; prepare direct

examination notes; confer

with trial team regarding

strategy.

1.1 Prepare for Hearing Discuss trial issues w-MF,

(J)

review proposed

prelim instructions

10.8 NA

Prepare for and attend

trial; direct exam of F.

Quainoo; prepare for

cross examinations;

confer with trial team

regarding strategy for

following day of

trial.

1.1 Prepare for Hearing Legal team prep mtg

(J)

(excludes time on

dmgs claim)

1 Prepare for Hearing Legal team prep mtg (on

(J)

dmgs claim only)

6.0 NA

Prepare for and participate

in trial; confer with trial

team regarding strategy

38

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 39 of 49

11/14/2019 Cory Ward

11/14/2019 Su Ming Yeh 11/15/2019 Cory Ward

11/15/2019 Su Ming Yeh

11/15/2019 Su Ming Yeh

11/19/2019 Alexandra Morgan-Kurtz
12/9/2019 Su Ming Yeh

1/29/2020 2/19/2020

Su Ming Yeh Su Ming Yeh

for

remaining witnesses.

4.5 NA

Participate in trial; confer

with trial team regarding

strategy

2 Prepare for Hearing Legal team prep mtg

(J)

3.0 NA

Participate in trial; confer

with trial team regarding

strategy

1 Prepare for Hearing Discuss trial w-legal team,

(J)

discuss trial feedback,

legal issues re prosp relief

1.6 Prepare for Hearing Prep for trial day 4;

(J)

discuss prosp relief w-

MF

0.3 Legal Research (H) ems re PLRA & VC

1.1 Document Preparation/Review (G)
0.2 Letter/Correspondenc e (F)
0.3 Letter/Correspondenc e (F)
Total = 204.1 Hours

Review edit brief on prosp relief; call w- MF re filing on ECF Emails w-MF, AMK re fee petition Respond to MF email re fee petition

As with vagueness, we sustain Berks County’s objections to “consults” without a purpose or subject. We deduct the bolded time entries equating to 10.1 hours spent on consults with no described purpose. We deduct $ 2,431.55 from the petition for these undescribed consults.
But we overrule objections based solely on colleagues discussing matters. Class Counsel undertook a difficult task in challenging a long-entrenched policy at Berks County where the elected officials and those charged with working with inmates refused to appreciate the constitutional problems. Berks County refused to follow our Orders. Berks County elected to fight at every turn. Berks County retained experienced civil rights lawyers who tried every argument. We expect those lawyers consulted with each other. We saw them consult with each

39

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 40 of 49
other in the courtroom, including handing notes to the questioning lawyer during witness examination. We expect this type of collaboration. A single lawyer would have a herculean task in answering Berks County’s resources and law firm.
ii. We overrule the objection to excessive time on three motions. Berks County objects to the amount of time counsel for Mses. Victory and Velazquez-Diaz spent on certain motions filed over the course of the litigation. Without citing precedent, Berks County specifically requests a two-third reduction in three separate motions: (1) 51.9 hours spent between three attorneys drafting the initial motion for injunctive relief; (2) 60.1 hours drafting their response to Defendants’ Motion for summary judgment; and, (3) 79 hours on the motion for summary judgment for the Class claims. Berks County claims many of the entries billing time for these briefs unreasonably includes two or three attorneys. We overrule this objection to the amount of time Class Counsel considered advisable to meet their professional obligations on these three case-defining submissions. The initial injunction defined the case, the scope of discovery, and the need for immediate relief given the relatively shorter-term sentences for inmates classified as Trusty. Defendants’ Motion for summary judgment raised a great variety of issues; Class Counsel argued to preserve its integral Equal Protection claims based largely on inmate recollections and having to work with records created and maintained solely by Berks County. Class Counsel also needed to invest time to sustain the Class claims. As demonstrated in the number of our extensive memoranda, the parties presented well-considered legal positions. Given Berks County’s strategy and amount of resources it invested in its defense, we will not second-guess experienced counsels’ work effort so long as it is adequately described. Berks County challenged the descriptions and we sustained many of those
40

Case 5:18-cv-05170-MAK Document 348 Filed 04/07/20 Page 41 of 49
vagueness objections. We will not now further discount with second-guessing the lawyers’ professional judgment as to necessary resources.
iii. We overrule objections to multiple attorneys at same hearing. Berks County objects to excessive time billed by counsel for Mses. Victory and VelazquezDiaz by having multiple attorneys attend trial hearings and depositions. It argues five attorneys appearing for trial is excessive. Berks County also points to the preliminary injunction hearings where three attorneys attended for the Plaintiffs. Berks County also cites multiple attorneys appearing at depositions and site inspections. Berks County argues five attorneys appearing for trial is excessive because “[t]wo of these attorneys were responsible for a single witness and did not conduct any other part of the trial.” They note each of the five attorneys prepared and attended trial and billed a total of 577.74 hours (115.59 hours each). They ask for the total number of hours in preparation and trial be reduced to the average for three attorneys for a total of 346.64 hours. As with the objection to time invested in motions, we will not second-guess lawyers’ professional judgment as to the need for an attorney at a hearing. We already reduced 145.5 trial “prep” or “trial” hours by 50% (140 hours of vague entries and 4.1 hours of consulting colleague time) due to vagueness. Berks County does not explain why multiple attorneys appearing at depositions, hearings, or site inspections is necessarily excessive. They ask for a general reduction for these entries. We decline to do so further. III. Conclusion Berks County’s objections to attorneys billing for paralegal or clerical tasks and for vagueness are well grounded. Its objections seeking to reduce the fees because two Class members are not prevailing parties is not well grounded. Either are its objections characterizing this hard-
41

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fought equitable relief success as “limited” or challenging the allocation of attorneys on motions, depositions, and hearings. Berks County chose to pay its lawyers to vigorously (at one point to a civil contempt finding) defend a policy it later changed on the trial eve while knowing the civil rights plaintiffs, should they prevail, are entitled to reasonable fees and costs. Having made its choice of litigation strategies, we will not now second-guess Class Counsel’s need to represent their clients with vigor as well. We grant the Class Counsel’s petition for reasonable fees and costs in large part in the accompanying Order. Berks County shall pay, as part of the Judgment entered today, $507,330.61 consisting of $503,939.20 in reasonable attorney’s fees and $ 3,399.41 in uncontested costs.
1 The acrimonious tone during the parties’ progress resulted in our issuing several extensive memoranda from January 2019 until January 2020. Non-parties interested in the procedural history, multiple disputes, including several appeals and a partial civil contempt (later vacated on other grounds), may look to several to our decisions on preliminary injunctive relief, motions to dismiss, class certification, civil contempt, summary judgment, and post-trial permanent injunctive relief. See e.g., Victory v. Berks Cnty., 355 F. Supp. 3d 239 (E.D. Pa. 2019), appeal dismissed, 789 F. App’x 328 (3d Cir. 2019); Victory v. Berks Cnty., No. 18-5170, 2019 WL 2368579 (E.D. Pa. June 3, 2019); Victory v. Berks Cnty., No. 18-5170, 2019 WL 3068991 (E.D. Pa. July 11, 2019), rev'd 789 F. App’x 328 (3d Cir. 2019); Victory v. Berks Cnty., No. 18-5170, 2019 WL 5266147 (E.D. Pa. Oct. 17, 2019); Victory v. Berks Cnty., No. 18-5170, 2020 WL 236911 (E.D. Pa. Jan. 15, 2020). 2 ECF Doc. No. 114. 3 Id. 4 Id. 5 Id. Ms. Victory also alleged several Berks County employees retaliated against her in violation of the First Amendment. We dismissed these claims on summary judgment, and her counsel does not seek fees for litigating this claim. 6 ECF Doc. No. 343-3. 7 ECF Doc. No. 343-4.
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8 ECF Doc. No. 343-3. 9 ECF Doc. Nos. 343-2, 343-6. 10 ECF Doc. No. 343-5. 11 ECF Doc. No. 343-4. 12 ECF Doc. Nos. 343-4, 343-6. 13 ECF Doc. No. 1. 14 ECF Doc. No. 9. 15 ECF Doc. No. 88, at p. 3. 16 ECF Doc. No. 39. 17 ECF Doc. No. 72. 18 ECF Doc. No. 47. 19 Id. at ¶ 24. 20 ECF Doc. No. 53. 21 ECF Doc. No. 71. 22 ECF Doc. No. 101, at 3. 23 ECF Doc. No. 92. 24 ECF Doc. No. 114. 25 ECF Doc. No. 115. 26 ECF Doc. No. 165, at 3. 27 ECF Doc. No. 135. 28 ECF Doc. No. 137. As detailed in our Memorandum granting a permanent injunction (see ECF Doc. No. 338), Berks County also appealed our July 16, 2019 Order compelling compliance with the preliminary injunction (see ECF Doc. No. 197), our July 11, 2019 Order finding Berks County and Warden Janine Quigley in civil contempt (see ECF Doc. No. 199), and our August 7, 2019 Order granting preliminary injunctive relief to the Class (see ECF Doc. No 218). Our Court of Appeals consolidated four appeals for argument and disposition and resolved the fifth summarily.
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29 ECF Doc. No. 114. 30 ECF Doc. No. 148. 31 ECF Doc. Nos. 185, 186. 32 ECF Doc. No. 187. 33 Id. 34 Id. 35 Id. 36 ECF Doc. No. 114. 37 ECF Doc. No. 150. 38 Id. 39 ECF Doc. No. 157. 40 ECF Doc. No. 160, Ex. A. 41 ECF Doc. No. 188. 42 ECF Doc. No. 191. 43 ECF Doc. No. 191. Our Court of Appeals vacated our contempt Order after finding the Order forming the basis of the contempt—the injunction awarded to Ms. Velazquez-Diaz—was without legal effect because the parties did not seek needs-narrowness-intrusiveness findings required to enter preliminary prospective relief under the PLRA. Victory v. Berks County, Nos. 19-1329, 192193, 19-2648, 19-2695, 2019 WL 5095755 (3d Cir. Oct. 11, 2019). 44 ECF Docs. No. 222, 225. 45 ECF Doc. No. 221. 46 ECF Doc. No. 246. 47 ECF Doc. No. 247. 48 Id. at 31. 49 ECF Doc. No. 256.
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50 ECF Doc. No. 257. 51 ECF Doc. Nos. 294, 296. 52 ECF Doc. No. 343-7; ECF Doc. No 343-8. 53 ECF Doc. No. 345, at p. 69. 54 Id. 55 Id. 56 Id. 57 ECF Doc. No. 314. 58 ECF Doc. No. 297. 59 ECF Doc. No. 306. Friday, November 8 was the last business day before the Veterans Day Weekend and trial beginning on November 12, 2019. 60 ECF Doc. No. 321. 61 Id. 62 ECF Doc. No. 323. 63 ECF Doc. Nos. 329, 330, 331, 332. 64 Id. 65 ECF Doc. No. 346. 66 ECF Doc. Nos. 328, 333. 67 ECF Doc. No. 339. 68 Id. 69 Truesdell v. Phila. Housing Auth., 290 F.3d 159, 163 (3d Cir. 2002). 70 The Class and Ms. Victory submit attorney declarations (an affidavit and individual timesheet) from Attorneys Love, Yeh, Feldman, Davy, Morgan-Kurtz, Sachse, and Ward. ECF Doc. No. 343. The Class and Ms. Victory then, upon our request, submitted a combined attorney timesheet. ECF Doc. No. 345. We rely on this combined attorney timesheet throughout this Memorandum.
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We also rely on the Class and Ms. Victory’s submission in their Motion for “attorneys’ fees and costs in the amount of $541,565.11” including $3,399.41 in costs. See ECF Doc. No. 342. In their reply, the Class and Ms. Victory withdraw $1,609.95 in requested fees responsive to Berks County’s objections. They “request [an] award of attorneys’ fees in the amount $540,155.46.” ECF Doc. No. 347. While the Class and Ms. Victory do not reference costs in this updated figure, we must calculate their attorneys’ fee and costs requests by looking to the initial request net of the withdrawn fees.
71 ECF Doc. No. 346.
72 Dee v. Borough of Dunmore, 548 F. App’x 58, 60 (3d Cir. 2013).
73 Id. (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)).
74 Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
75 Id.
76 Id. (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990)).
77 Id. (citing Rode, 892 F.2d at 1183).
78 ECF Doc. No. 343, at 7 (citing 42 U.S.C. § 1997e(d)).
79 Ms. Victory argues the Prison Litigation Reform Act rate cap does not apply to her claims because she was no longer a prisoner when she and Ms. Velazquez-Diaz filed the second amended complaint. ECF Doc. No. 343, at 8 (citing Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019), cert. pending, No. 19-867 (filed Jan. 8, 2020)). In Garrett, our Court of Appeals ruled a prisoner who amended his complaint under Rule 15 after his release did not need to meet the PLRA exhaustion requirement because he was no longer a “prisoner” as defined by the Act. Garrett, 938 F.3d at 82 (interpreting 42 U.S.C. § 1997e(a)). Ms. Victory argues the reasoning in Garrett applies to the attorney’s fee provision of the Act which also limits fees requested by a “prisoner.” 42 U.S.C. § 1997e(d)(1). Berks County does not dispute Ms. Victory’s argument; it chose not to brief the issue. Without a stated objection from Berks County, we apply the rates proposed by Ms. Victory and decline to raise a sua sponte objection. Thus, while we consider the requested rates and stated objections to certain requests, we need to not specifically address Garrett’s applicability.
80 Because Attorney Feldman’s fair market rate does not exceed the PLRA rate cap, Mses. Victory and Velazquez-Diaz do not separately delineate how many hours he spent on Ms. Victory’s compensatory damages claim. Based on Attorney Feldman’s timesheet, we estimate he spent approximately 45.3 hours on the individual damages claim amounting to approximately $10,000.
81 United States v. Eleven Vehicles, Their Equip. & Accessories, 200 F.3d 203, 211-12 (3d Cir. 2000).
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82 Id. (quoting Bell v. United Princeton Props., 884 F.2d 713, 719 (3d Cir. 1988)).
83 Id. (quoting Bell, 884 F.2d at 719).
84 For instance, Berks County does not raise a specific objection to Dechert LLP lawyers serving as Class Counsel despite never seeking our approval for Class Counsel status under Rule 23. See generally ECF Doc. No. 346. As observed by Judge Bartle recently, a lawyer who assists class counsel with research on a contract basis cannot claim entitlement to class fees. Langer v. Capital One Auto Fin., No. 16-6130, 2019 WL 6348445, at *2 (E.D. Pa. Nov. 27, 2019); but see Aamco Automatic Transmissions, Inc. v. Tayloe, 82 F.R.D. 405, 417–18 (E.D. Pa. 1979) (noting “[f]or purposes of recovering attorneys’ fees, there is no principled distinction between attorneys who are counsel of record and those who are not[.]”). While Dechert LLP’s efforts may be distinguishable from Langer, we do not consider its holding sua sponte. 85 “After calculating the lodestar,” we “may deviate from it, but only in the ‘rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.’” Souryavong v. Lackawanna Cty., 872 F.3d 122, 128 (3d Cir. 2017) (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553-54 (2010)). We may deviate “on the back end of a lodestar’s calculation [by applying the Johnson factors], as long as they are not already subsumed in the lodestar calculation.” Id. Berks County does not separately urge us to apply the Johnson factors, and we consider our lodestar analysis to “subsume” potential arguments raised under the Johnson factors. Our lodestar adequately accounts for all properly considered factors in determining a reasonable fee.
86 ECF Doc. No. 93.
87 Truesdell v. Phila. Housing Auth., 290 F.3d 159, 163 (3d Cir. 2002).
88 Hensley, 461 U.S. at 433.
89 Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-05 (2001).
90 Raab v. City of Ocean City, New Jersey, 833 F.3d 286, 293 (3d Cir. 2016) (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987)).
91 Id. (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)).
92 Id. (citing Buckhannon, 532 U.S. at 604).
93 Raab, 833 F.3d at 293.
94 See ECF Doc. No. 184. 95 Catlett v. Missouri Highway & Transp. Comm'n, 828 F.2d 1260, 1270 (8th Cir. 1987) (citing Hensley, 461 U.S. at 429).
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96 Id. 97 Id. 98 Id. 99 The Class and Ms. Victory concede that the time expended consulting with a non-testifying expert can be excluded from their fee award. But they argue Defendants miscalculated the number of applicable hours by including entries for time spent talking to Ms. Victory’s treating physician, not a potential expert witness. We agree with the distinction and grant the objection to the 4.3 conceded hours. At an hourly rate of $220.50, this is a reduction of $948.15. We do not include this amount in the requested fee above. 100 ECF Doc. No. 346, at p. 9. 101 Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989) (internal quotations omitted). 102 Id. 103 Id. at 288 n. 10. 104 Id. 105 Id. 106 Buss v. Quigg, No. 01-3908, 2002 WL 31262060, at *10 (E.D. Pa. Oct. 9, 2002), aff'd, 91 F. App’x 759 (3d Cir. 2004). 107 Truesdell, 290 F.3d at 166 (quoting Hensley, 461 U.S. at 433). 108 ECF Doc. No. 346, at 8. 109 Truesdell, 290 F.3d at 166. 110 Raab, 833 F.3d at 293 (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989)). 111 Hensley, 461 U.S. at 435. 112 Id. 113 Graham v. Sauk Prairie Police Com., 915 F.2d 1085, 1109-10 (7th Cir. 1990). 114 Hensley, 461 U.S. at 435. 115 ECF Doc. No. 346.
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116 Washington v. Phila. Cnty. Ct. of Common Pleas, 89 F.3d 1031, 1041 (3d Cir. 1996). 117 Id. (quoting City of Riverside v. Rivera, 477 U.S. 56 (1986)) (Brennan, J., plurality). 118 Id. 119 Lohman v. Duryea Borough, 574 F.3d 163, 169 (3d Cir. 2009) (emphasis omitted). 120 Mses. Victory and Velazquez-Diaz concede the entries consisting only of the word “misc.” and are not submitted under the “Consult with Colleagues” activity code are insufficiently specific and agree that these entries should be disregarded. These entries total 3.0 hours. At an hourly rate of $220.50, this is a reduction of $661.50. We do not include this figure in the requested $ 536,756.05 in attorney’s fees. 121 Clemens v. New York Cent. Mut. Fire Ins. Co., 903 F.3d 396, 401 (3d Cir. 2018). 122 Id. 123 Tenalfy Eruv Ass’n, Inc. v. Borough of Tenafly, 195 F.App’x 93, 100-01 (3d Cir. 2006) (quoting Washington, 89 F.3d at 1037). 124 Washington, 89 F.3d at 1037. 125 W. Va. Univ. Hosps. v. Casey, 898 F.2d 357, 365 (3d Cir. 1990). 126 UAW Local 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 291 (3d Cir. 2007). 127 Berks County references 266.9 hours consulting with colleagues in their briefing. ECF Doc. No. 346, at 10. Berks County then identifies its specific consulting objections in Exhibit 5. See id. at Ex. A-5. We study the objections and calculate the total consulting hours to be 204.3 (albeit excluding conceded or otherwise granted objections). To the extent Berks County objects to consulting hours not identified in Exhibit A-5, we overrule the objection for failing to sufficiently specify the grounds for the objection. 128 Citibank, N.A. v. Hicks, No. 03-2283, 2004 WL 1895189, at *2 (E.D. Pa. Aug. 24, 2004). 129 ECF Doc. No. 347, at 11 (citing City of Riverside, 477 U.S. at 575; Commc’n Workers of Am. v. Ector Cnty. Hosp. Dist., 392 F.3d 733, 749-50 (5th Cir. 2004); Brown v. Lawn Enforcement Agency, Inc., 369 F. Supp. 3d 1224, 1229 (N.D. Fla 2019)).
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