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KOOB & MAGOOLAGHAN Attorneys for Plaintiff By: Alexander A. Reinert 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X
ABDUL SHARIFF, on behalf of himself and all others similarly situated,
Plaintiff,
- against -
GLENN GOORD, Commissioner of the New York State Department of Correctional Services, individually and in his official capacity; LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/Chief Medical Officer of the New York State Department of Correctional Services, individually and in his official capacity; THOMAS POOLE, Superintendent of Five Points Correctional Facility, individually and in his official capacity; PETER GREGOIRE, M.D., Medical Director of Five Points Correctional Facility, individually and in his official capacity; CORRECTION OFFICER B. WILLIAMS; and NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES.
Defendants. -------------------------------------------------------------------------X

COMPLAINT
JURY TRIAL DEMANDED

PRELIMINARY STATEMENT

1.

Plaintiff ABDUL SHARIFF, a prisoner who is currently confined at Five Points

Correctional Facility (“Five Points”), and the class of prisoners he seeks to represent suffer from

serious and debilitating medical conditions from which they are paralyzed and as a result of

which they require a wheelchair for mobility. As a result, Plaintiff and the putative class require

ongoing treatment and care from medical care providers who have the requisite training and

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expertise. As Plaintiff and other similarly-situated prisoners are currently under the care and

custody of the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

(“DOCS”), and confined at numerous correctional facilities throughout the State, they are

entirely dependent upon DOCS and outside medical care providers for their treatment.

Nevertheless, despite the severity of their medical needs, Plaintiff and other prisoners who

require a wheelchair for mobility are compelled to travel from the facility to outside medical

providers in wheelchairs that do not meet minimal safety standards and in vans that are unsafe

and incapable of protecting them from injury. Therefore, Plaintiff ABDUL SHARIFF, an

individual with a disability under federal law, commences this action on behalf of himself and all

others similarly situated to challenge the highly dangerous and discriminatory manner in which

persons with disabilities are transported by DOCS and its employees to outside medical care

facilities. Relief is sought under the Americans with Disabilities Act, 42 U.S.C. '' 12132,

12182, Section 504 of the Rehabilitation Act, 29 U.S.C. '' 794 et seq., and 42 U.S.C. ' 1983 for

violations of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the

Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

JURISDICTION AND VENUE

2.

Jurisdiction is conferred upon this Court by 28 U.S.C. '' 1331, 1343. Venue is

based upon the Defendants= domiciliary.

THE PARTIES

3.

Plaintiff ABDUL SHARIFF is a citizen of the United States and is a qualified

individual with a disability under federal law. At all times relevant to the instant action ABDUL

SHARIFF was in the custody of DOCS and confined at Green Haven Correctional Facility

(“Green Haven”) or Five Points. 2

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4.

Plaintiff and the class he seeks to represent are prisoners with disabilities under

federal law, confined to the care and custody of DOCS, who require a wheelchair for mobility.

5.

Defendant GLENN GOORD is and was at all relevant times herein the

Commissioner of DOCS and as such is and was the chief executive officer of DOCS. He is and

was responsible for the supervision and administration of DOCS, including but not limited to the

provision of medical services to the State=s inmates, including ABDUL SHARIFF. He is sued in

his individual and official capacity.

6. Defendant LESTER WRIGHT, M.D., M.P.H., is and was as at all relevant times

herein the Associate Commissioner/Chief Medical Officer of DOCS and as such is and was

responsible for the supervision, and administration of the provision of medical services at the

State’s correctional facilities. As such, he is and was responsible for the supervision and

administration of the provision of medical services to ABDUL SHARIFF. He is sued in his

individual and official capacity.

7.

Defendant THOMAS POOLE is and was at all relevant times herein the

Superintendent of Five Points and as such is and was the chief administrative officer of Five

Points. He is and was responsible for the supervision and management of Five Points including

but not limited to the provision of medical services to prisoners confined therein, including

ABDUL SHARIFF. He is sued in his individual and official capacity.

8.

Defendant PETER GREGOIRE, M.D. is and was at all relevant times herein the

Medical Director at Five Points and as such is and was responsible for the delivery of medical

services to prisoners confined at Five Points, including ABDUL SHARIFF. He is sued in his

individual and official capacity.

9.

Upon information and belief, CORRECTION OFFICER B. WILLIAMS is and

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was at all relevant times employed as a correction officer at Five Points. 10. Defendant NEW YORK STATE DEPARTMENT OF CORRECTIONAL
SERVICES is the agency created by the State of New York for the purpose of operating prison facilities within New York State. Upon information and belief, at all relevant times herein, DOCS received federal financial assistance for the operation of prison facilities within New York State, including Five Points.
FACTUAL ALLEGATIONS 11. At all relevant times, ABDUL SHARIFF has been incarcerated at either Green Haven or Five Points. 12. At the time of his entry into Green Haven, and at all relevant times since, ABDUL SHARIFF was and has been paralyzed from the waist down and has required a wheelchair for mobility. 13. ABDUL SHARIFF is a qualified individual with a disability, as defined under the Americans with Disabilities Act, 42 U.S.C. ' 12102(2) and the Rehabilitation Act, 29 U.S.C. ' 705(20). 14. Upon information and belief, because of the seriousness of ABDUL SHARIFF=s medical condition, and the recognition that ABDUL SHARIFF requires a housing facility that is accessible to individuals in wheelchairs, ABDUL SHARIFF was housed in the Unit for the Physically Disabled in Green Haven until on or about May 23, 2003. 15. On or about May 23, 2003, Mr. SHARIFF was transferred to Five Points and he remains confined there. 16. Upon information and belief, prisoners housed in DOCS facilities occasionally must leave the facility to receive necessary medical care.
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17. While housed at Green Haven and Five Points, Mr. SHARIFF has been taken outside of each facility to receive necessary medical care.
18. Upon information and belief, DOCS has arranged for outside medical providers to provide necessary medical services to prisoners when such services are unavailable at the facility at which the prisoners are incarcerated.
19. Upon information and belief, DOCS has arranged for outside medical providers to provide medical services to prisoners incarcerated at Five Points who require medical care that cannot be delivered at Five Points.
20. Upon information and belief, prisoners with serious physical disabilities, including ABDUL SHARIFF and other prisoners who require a wheelchair for mobility, often require necessary medical treatment that is unavailable at the facility at which they are incarcerated.
21. During the time ABDUL SHARIFF spent confined at Green Haven, he received medical treatment at outside facilities on numerous occasions.
22. Since ABDUL SHARIFF entered Five Points, he has received medical treatment at an outside facility and reasonably expects to receive medical treatment at an outside facility in the future.
Unsafe Transportation to and from Outside Medical Providers for Prisoners Who Require A Wheelchair for Mobility 23. Upon information and belief, when a prisoner who uses a wheelchair for mobility must travel to an outside provider for a medical appointment, DOCS and its employees transport the prisoner in a van.
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24. Upon information and belief, many of the vans used by DOCS are manifestly unsafe for individuals in wheelchairs, as they do not ensure that transport will occur without the risk of serious physical harm occurring. Specifically, upon information and belief, many of the vans do not adequately secure each prisoner in his wheelchair, creating the risk that a prisoner will be expelled from the wheelchair, causing the prisoner serious bodily injury.
25. Upon information and belief, when DOCS prisoners are transported in the van used by each facility, they are restrained with handcuffs, leg irons, and/or additional restraints.
26. Upon information and belief, in the event a prisoner falls from his wheelchair during transportation, his ability to protect himself is substantially diminished by being restrained.
27. Upon information and belief, DOCS and its employees provide wheelchairs to prisoners who require a wheelchair for mobility.
28. Upon information and belief, DOCS, GOORD, and WRIGHT are responsible for deciding which wheelchairs will be provided to DOCS prisoners, and DOCS, GOORD, WRIGHT, POOLE, and/or GREGOIRE are responsible for deciding which wheelchairs will be provided to prisoners at Five Points.
29. Upon information and belief, the wheelchairs which DOCS, GOORD, WRIGHT, POOLE, and/or GREGOIRE issue to each prisoner are not approved for use as a seating surface within a motor vehicle, creating additional risk of serious bodily injury.
30. Upon information and belief, ABDUL SHARIFF was issued a wheelchair by DOCS, GOORD, and/or WRIGHT that carries a sticker containing the following language: “No wheelchair has been approved for use as a seating surface within a motor vehicle.”
31. Upon information and belief, each wheelchair issued to prisoners by DOCS and 6

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its employees carries a sticker containing the language referenced in paragraph 30. 32. Upon information and belief, the Owner=s Operator and Maintenance Manual
issued by the manufacturer of the wheelchair issued to ABDUL SHARIFF by DOCS, GOORD, and/or WRIGHT contains the following language: “Invacare recommends that wheelchair users NOT be transported in vehicles of any kind while in wheelchairs. As of this date, the Department of Transportation has not approved any tie-down system for transportation of a user while in a wheelchair, in a moving vehicle of any type. It is Invacare=s position that users of wheelchairs should be transferred into appropriate searing in vehicles for transportation and use be made of the restraints made available by the auto industry. Invacare cannot and does not recommend any wheelchair transportation systems. AS REGARDS RESTRAINTS B SEAT POSITIONING STRAPSB IT IS THE OBLIGATION OF THE DME DEALER, THERAPISTS AND OTHER HEALTHCARE PROFESSIONALS TO DETERMINE IF A SEATING RESTRAINT IS REQUIRED TO ENSURE THE SAFE OPERATION OF THIS EQUIPMENT BY THE USER. SERIOUS INJURY CAN OCCUR IN THE EVENT OF A FALL FROM A WHEELCHAIR.”
33. Upon information and belief, the Owner=s Operator and Maintenance Manual for each of the wheelchairs issued to prisoners by DOCS and its employees contains the same language as referenced in paragraph 32.
Plaintiff=s First Lawsuit Related to DOCS= Failure to Provide Safe Transport to and From Green Haven 34. Upon information and belief, as a result of inadequate training and supervision, inadequate wheelchairs, use of restraints, and use of an inadequate wheelchair van, ABDUL SHARIFF suffered serious physical harm on September 28, 2000, while being transported from
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St. Agnes Hospital to Green Haven. 35. Upon information and belief, while restrained in his wheelchair, the van plaintiff
was traveling in made a sharp turn, causing Plaintiff=s wheelchair to collapse. As a result, Mr. SHARIFF was thrust forward where his forehead stuck a support beam within the vehicle, injuring his head and neck.
36. Upon information and belief, Plaintiff=s injuries would not have occurred had the wheelchair van been properly equipped, had Plaintiff not been restrained, had the wheelchair been appropriate for use as a seating device in a vehicle, and/or had correction officers received appropriate supervision and training.
37. Upon information and belief, prior to the date of Plaintiff=s accident, other prisoners in the custody of DOCS who require a wheelchair for mobility had been injured while being transported in the same manner as ABDUL SHARIFF.
38. On or about February 14, 2001, after being injured, Plaintiff, proceeding pro se, filed a complaint in the Southern District of New York.
39. Plaintiff secured the representation of counsel and filed a First Amended Complaint on or about September 6, 2002, against Defendants GOORD, DOCS, and others not named in the instant Complaint.
40. The First Amended Complaint contained allegations similar or identical to the allegations contained above in paragraphs 1 -- 37.
41. The First Amended Complaint sought, inter alia, injunctive relief requiring Defendants GOORD, DOCS, and others not named in the instant Complaint to transport disabled prisoners who require the use of a wheelchair, including ABDUL SHARIFF, in a safe manner.
42. On or about May 6, 2003, ABDUL SHARIFF moved The Honorable Deborah A. 8

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Batts, Southern District of New York, for a preliminary injunction, asking that defendants be ordered to transport plaintiffs in a safe manner and with procedures and equipment that are consistent with the ADA.
43. In support of his motion for preliminary injunction, ABDUL SHARIFF submitted a report prepared by wheelchair transportation expert Dr. Gina Bertocci, Ph.D.
44. Dr. Bertocci is an Assistant Professor in the University of Pittsburgh=s School of Health and Rehabilitation Sciences.
45. Dr. Bertocci has held the position of Director of the Rehabilitation Engineering Research Center on Wheelchair Transportation Safety since on or about November, 2001.
46. On March 28, 2003, Dr. Bertocci conducted an inspection of the wheelchair transport van used at Green Haven.
47. This inspection included a review of the equipment used by Green Haven to transport prisoners who use wheelchairs for mobility, the wheelchairs used during such transport, and the wheelchair securement and occupant restraint techniques used by correction officers responsible for transporting prisoners who use wheelchairs for mobility.
48. Upon information and belief, the equipment and techniques used at Green Haven are the same as those used at Five Points.
49. As a result of this inspection, Dr. Bertocci came to the following conclusions: (a) the wheelchair being used to transport ABDUL SHARIFF is not intended for use as a motor vehicle seat and does not meet current American National Standards Institute/Rehabilitation Engineering and Assistive Technology Society of North America (“ANSI/RESNA”) standards; (b) the technique used by defendants to secure wheelchair-bound prisoners exposes them to a higher risk of injury; and (c) the failure to properly use the Wheelchair Tiedown and Occupant
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Restraint System (“WTORS”) exposes wheelchair-bound prisoners to a higher risk of injury. 50. Dr. Bertocci concluded that the procedures demonstrated by Green Haven
personnel were in violation of ADA regulations, industry recommended practice, and guidelines provided by the WTORS manufacturer which are posted in the vehicle.
51. Dr. Bertocci concluded that the inappropriate wheelchair used to transport passengers, in combination with the poor procedure, will lead to an increased risk of injury during either normal driving maneuvers, emergency driving maneuvers, or a crash.
52. Dr. Bertocci concluded that to reduce the injury risk, ANSI/RESNA WC-19 compliant wheelchairs should be used for transporting inmates and that those responsible for wheelchair transportation undergo appropriate training.
53. On or about May 23, 2003, ABDUL SHARIFF was transferred from Green Haven to Five Points.
54. Upon information and belief, ABDUL SHARIFF did not request or consent to this transfer.
55. On or about June 9, 2003, Defendants GOORD, DOCS, and others not named in the instant Complaint filed their opposition to Plaintiff=s motion for preliminary injunction.
56. Defendants GOORD and DOCS argued that Plaintiff=s motion was moot because ABDUL SHARIFF had been removed from the facility.
57. Defendants GOORD and DOCS did not dispute any of Dr. Bertocci=s conclusions, nor did they present expert testimony of their own.
58. On or about August 8, 2003, The Honorable Deborah A. Batts entered an Order denying Mr. SHARIFF=s motion for preliminary injunction, finding that his transfer to Five Points mooted the action.
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The Continued Failure of DOCS to Provide Safe Transport at Five Points 59. Upon information and belief, ABDUL SHARIFF was transported from Green Haven to Five Points in the same unsafe manner as on his trips to ST. AGNES HOSPITAL. 60. Since his arrival at Five Points, ABDUL SHARIFF has sought assurances that he would be safely transported to outside medical appointments. 61. Upon information and belief, no such assurances have been given. 62. Accordingly, until February 10, 2004, ABDUL SHARIFF did not travel outside Five Points for any medical appointments. 63. On or about February 10, 2004, ABDUL SHARIFF was transported in a van to Auburn Correctional Facility to visit a urology specialist. 64. Upon information and belief, Defendant WILLIAMS was assigned to transport ABDUL SHARIFF to and from the Auburn Correctional Facility. 65. Upon information and belief, upon leaving and returning to Five Points on February 10, 2004, Defendant WILLIAMS failed to properly restrain ABDUL SHARIFF with lap and shoulder belts and used a “black box” to restrain him, putting him at a higher risk of injury as documented by Dr. Bertocci’s expert report. 66. A “black box” is a restraint device, used in the transport of prisoners, by which Correction Officers shackle prisoners’ hands and feet together and to the device to prevent the possibility of escape. 67. Upon information and belief, the use of a black box for the transport of wheelchair-bound prisoners serves no legitimate security purpose and subjects wheelchair-bound prisoners to a heightened risk of injury. 68. Upon information and belief, it is medically inappropriate to transport ABDUL
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SHARIFF in a motor vehicle while restrained by a black box. 69. Upon information and belief, the use of a black box while transporting paraplegic
prisoners is prohibited at Green Haven. 70. Upon information and belief, such prohibition is pursuant to policy to reduce the
risk of injury to paraplegic prisoners such as ABDUL SHARIFF. 71. ABDUL SHARIFF informed Defendant WILLIAMS that due to his medical
condition, he is not to be shackled to a black box during transport. 72. Upon information and belief, Defendant WILLIAMS shackled ABDUL
SHARIFF to a black box during the transport despite his protests. 73. Upon information and belief, Defendant WILLIAMS shackled ABDUL
SHARIFF to a black box without confirming that the Five Points medical department approved of using the black box during transport.
74. Upon information and belief, ABDUL SHARIFF was seated in the van in the same wheelchair deemed unsafe for transport by Dr. Bertocci in her undisputed expert report.
75. Upon information and belief, Defendant WILLIAMS did not secure ABDUL SHARIFF with a lap or shoulder belt, a technique deemed unsafe by Dr. Bertocci in her undisputed expert report, and which WILLIAMS knew or should have known exposed Mr. SHARIFF to an unnecessary risk of serious physical harm.
76. Upon information and belief, Defendant WILLIAMS crashed the vehicle on the return from the off-site location.
77. Upon information and belief, ABDUL SHARIFF was thrown from his wheelchair when the accident occurred.
78. As a result of the accident, Mr. SHARIFF suffered serious physical injuries to his 12

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right wrist, neck and ribs. 79. Upon information and belief, Mr. SHARIFF’s injuries would have been less
severe and/or nonexistent if he had been properly restrained while transported in the van. 80. Upon information and belief, after the accident, Dr. GREGOIRE willfully and
maliciously failed to provide adequate treatment of Mr. SHARIFF’s wrist injury from the accident.
81. Upon information and belief, Dr. GREGOIRE repeatedly ignored Mr. SHARIFF’s complaints of wrist pain.
82. Upon information and belief, Dr. GREGOIRE informed Mr. SHARIFF that he must live with the pain.
83. Upon information and belief, GREGOIRE informed Mr. SHARIFF that he may have ligament damage or arthritis in the wrist, but for more than eight months made no other effort to diagnose or treat Mr. SHARIFF’s wrist injury.
84. Upon information and belief, GREGOIRE offered Mr. SHARIFF insufficient pain medication for his wrist and nothing else.
85. Upon information and belief, Mr. SHARIFF’s wrist injury causes him extreme pain because Mr. SHARIFF uses his wrist to transfer in and out of his wheelchair.
86. Upon information and belief, DOCS, GOORD, WRIGHT, POOLE, and GREGOIRE have provided inadequate training and/or supervision of correction officers who are responsible for operating the wheelchair van.
87. Upon information and belief, Defendants= use of unsafe restraints and unsafe wheelchairs, and Defendants= failure to properly train and/or supervise correction officers responsible for transporting prisoners in wheelchairs has resulted in serious harm and the
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foreseeable risk of future serious harm to prisoners with disabilities who require a wheelchair for mobility, solely because of their disabilities.
88. In callous disregard of this substantial risk of bodily harm, DOCS, GOORD, WRIGHT, POOLE, and GREGOIRE continue to provide for the transport of wheelchair-using prisoners while restrained in unsafe wheelchairs, using unsafe restraints, with inadequate training and/or supervision of the officers responsible for transport.
89. Upon information and belief, prisoners who do not require a wheelchair for mobility are transported to outside medical providers in a safe manner.
90. Upon information and belief, Defendants DOCS, GOORD, WRIGHT POOLE, and GREGOIRE knew or should have known the danger to which ABDUL SHARIFF and other prisoners who require a wheelchair for mobility were and are exposed by the inadequate training, use of dangerous restraint mechanisms, inadequate shoulder and lap restraints, and inadequate wheelchairs.
91. Upon information and belief, as a matter of policy and practice, Defendants DOCS, GOORD, WRIGHT, POOLE, and GREGOIRE have failed to remedy this manifestly dangerous situation by providing appropriate training and equipment.
92. Upon information and belief, Defendants DOCS, GOORD, WRIGHT, POOLE, and GREGOIRE maintained their policy and practice of discrimination in the face of the substantial risk of serious physical harm to ABDUL SHARIFF and other prisoners who require a wheelchair for mobility.
93. Upon information and belief, the policy and practice of DOCS, GOORD, WRIGHT, POOLE, and GREGOIRE bears no rational relationship to any legitimate governmental interest and/or is motivated by ill will or animus toward prisoners with disabilities
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who require a wheelchair for mobility, including ABDUL SHARIFF. 94. Upon information and belief, evidence of DOCS, GOORD, WRIGHT, POOLE,
and GREGOIRE’s callous indifference to the risks posed to prisoners who use wheelchairs for mobility consists of, inter alia : (1) DOCS, GOORD, and WRIGHT’s failure, despite being presented with expert evidence that DOCS was using unsafe means to transport prisoners in wheelchairs, to conduct an independent investigation or secure any outside expert opinion as to how to remove the substantial dangers; (2) DOCS and GOORD transferring Mr. SHARIFF to a new facility rather than addressing the substance of his earlier complaint; and (3) DOCS, GOORD, WRIGHT, POOLE, and GREGOIRE continuing to transport prisoners in an unsafe manner for no legitimate penological purpose.
95. Defendants GOORD, WRIGHT GREGOIRE, POOLE, and WILLIAMS, acting under color of state law, by their actions and/or omissions, demonstrated deliberate indifference to ABDUL SHARIFF=s life and safety and/or serious medical needs and deliberate indifference to the life and safety and/or serious medical needs of other prisoners who require a wheelchair for mobility.
96. Defendants GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS each either knew or should have known of the deficiencies alleged herein which were and are within his/her jurisdiction.
97. Defendants GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS each knew or should have known that there was a foreseeable risk of serious harm as a result of the deficiencies alleged herein.
98. As a result of Defendants= GOORD, WRIGHT, GREGOIRE, POOLE, WILLIAMS, and DOCS= mistreatment, ABDUL SHARIFF, solely because of his disability,
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experienced extreme pain and suffering, emotional distress, and currently suffers permanent injury.
99. ABDUL SHARIFF has exhausted his available administrative remedies, to the extent required, by filing and appealing grievances relating to the injuries he received on February 10, 2004.
100. Although plaintiff disputes that filing a complaint with the United States Department of Justice is an available administrative remedy under 42 U.S.C. ' 1997e(a), plaintiff has filed a complaint with the United States Department of Justice.
CLASS ACTION ALLEGATIONS 101. Plaintiff bring this action on his own behalf and, pursuant to Rule 23(b)(1), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure, on behalf of all prisoners with disabilities, as defined in 29 U.S.C. ' 705(20) and 42 U.S.C. ' 12102, who require a wheelchair for mobility, and who are now, have been within the past three years, or will in the future be in DOCS custody.
a. The exact size of the class is unknown to Plaintiff but he believes there are at least 100 class members and the size of the class is so numerous that joinder of all members is impracticable. b. The conditions, practices and omissions that forms the basis of this complaint are common to all members of the class and the relief sought will apply to all of them. c. The claims of Plaintiff are typical of the claims of the entire class. d. The prosecution of separate actions by individual members of the class would create a risk of inconsistent and varying adjudications that would
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establish incompatible standards of conduct for the Defendants. e. The prosecution of separate actions by individual members of the class would create a risk of adjudications with respect to individual members which would, as a practical matter, substantially impair the ability of other members to protect their interests. f. Defendants have acted or refused to act on grounds generally applicable to the class, making appropriate monetary, injunctive, and declaratory relief with respect to the class as a whole. g. There are questions of law and fact common to the members of the class, including Defendants= violations of the Constitution of the United States, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, based on their failure to provide prisoners who require a wheelchair for mobility with equal access to safe transportation and humane medical care. h. The questions of law and fact common to the members of the class predominate over questions affecting individual class members. i. Proceeding as a class action is superior to other available methods for the fair and efficient adjudication of the controversy. j. The named Plaintiff is capable of fairly and adequately representing the class and protecting its interests. Koob & Magoolaghan, counsel for Plaintiff, is a private civil rights law firm experienced in prisoners= civil rights litigation that, through prior litigation, has secured court-ordered institutional reform within several DOCS-operated prisons.
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FIRST CLAIM 102. Plaintiff repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 101. 103. Defendants DOCS, GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS= failure to provide safe transportation to prisoners who require a wheelchair for mobility, including ABDUL SHARIFF, demonstrated deliberate indifference and/or willful neglect to Plaintiff=s serious medical needs constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. 104. As a result of Defendants= violation of Plaintiff=s constitutional rights, Plaintiff has suffered severe pain and suffering, including unnecessary pain and discomfort, permanent disability and mental distress, and accordingly Plaintiff is entitled to compensatory damages against GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS jointly and severally in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive relief against DOCS, GOORD, WRIGHT, GREGOIRE, and POOLE, including but not limited to the provision of appropriate equipment and training to DOCS employees.
SECOND CLAIM 105. Plaintiff repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 104. 106. Defendants DOCS, GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS= failure to provide safe transportation to prisoners who require a wheelchair for mobility, including ABDUL SHARIFF, deprived Plaintiff of liberty and property without due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution.
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107. As a result of Defendants= violation of Plaintiff=s constitutional rights, Plaintiff has suffered severe pain and suffering, including unnecessary pain and discomfort, permanent disability and mental distress, and accordingly Plaintiff is entitled to compensatory damages against GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS jointly and severally in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive relief against DOCS, GOORD, WRIGHT, GREGOIRE, and POOLE, including but not limited to the provision of appropriate equipment and training to DOCS employees.
THIRD CLAIM 108. Plaintiff repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 107. 109. Defendant DOCS, GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS= failure to provide safe transportation to prisoners who require a wheelchair for mobility, including ABDUL SHARIFF, discriminates against qualified individuals with disabilities, including Plaintiff ABDUL SHARIFF, in violation of the Americans with Disabilities Act, 42 U.S.C. ' 12132. 110. As a result of DOCS, GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS= violation of Plaintiff=s rights, Plaintiff has suffered severe pain and suffering, including unnecessary pain and discomfort, permanent disability and mental distress, and accordingly Plaintiff is entitled to compensatory damages against DOCS, GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive relief against DOCS, GOORD, WRIGHT, GREGOIRE, and POOLE, including but not limited to the provision of appropriate
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equipment and training to DOCS employees. FOURTH CLAIM
111. Plaintiff repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 110.
112. Defendant DOCS, GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS= failure to provide safe transportation to prisoners who require a wheelchair for mobility, including ABDUL SHARIFF, discriminates against qualified individuals with disabilities, including Plaintiff ABDUL SHARIFF, solely by reason of their disability, in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. ' 794.
113. As a result of DOCS, GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS= violation of Plaintiff=s rights, Plaintiff has suffered severe pain and suffering, including unnecessary pain and discomfort, permanent disability and mental distress, and accordingly Plaintiff is entitled to compensatory damages against DOCS, GOORD, WRIGHT, GREGOIRE, POOLE, and WILLIAMS in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive relief against DOCS, GOORD, WRIGHT, GREGOIRE, and POOLE, including but not limited to the provision of appropriate equipment and training to DOCS employees.
FIFTH CLAIM 114. Plaintiff repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 113. 115. Defendant GREGOIRE’s failure to provide adequate treatment of Mr. SHARIFF’s wrist injury demonstrated deliberate indifference and/or willful neglect to Plaintiff=s serious medical needs constituting cruel and unusual punishment in violation of the Eighth and
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Fourteenth Amendments of the United States Constitution. 116. As a result of Defendant GREGOIRE’s violation of Plaintiff=s constitutional
rights, Plaintiff has suffered severe pain and suffering, including unnecessary pain and discomfort, permanent disability and mental distress, and accordingly Plaintiff is entitled to compensatory damages against GREGOIRE in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive relief against GREGOIRE, including but not limited to the immediate provision of treatment of Mr. SHARIFF’s wrist injury.
SIXTH CLAIM 117. Plaintiff repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 116. 118. Defendant GREGOIRE’s failure to provide adequate treatment of Mr. SHARIFF’s wrist injury demonstrated deliberate indifference and/or willful neglect to Plaintiff=s serious medical needs and deprived Plaintiff of liberty and property without due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution. 119. As a result of Defendant GREGOIRE’s violation of Plaintiff=s constitutional rights, Plaintiff has suffered severe pain and suffering, including unnecessary pain and discomfort, permanent disability and mental distress, and accordingly Plaintiff is entitled to compensatory damages against GREGOIRE in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive relief against GREGOIRE, including but not limited to the immediate provision of treatment of Mr. SHARIFF’s wrist injury.
JURY TRIAL DEMANDED 21

Case 6:04-cv-06621-CJS-JWF Document 1 Filed 12/20/2004 Page 22 of 22
WHEREFORE, Plaintiffs respectfully request that this Court enter an Order granting Plaintiff=s request for certification of this action as a class action; granting Plaintiff compensatory and punitive damages against Defendants in an amount to be proved at trial on the first through sixth causes of action; appropriate injunctive relief against Defendants on the first through fourth causes of action; granting all Plaintiff=s reasonable attorneys= fees, costs and disbursements pursuant to the Civil Rights Attorney=s Fees Award Act of 1976, 42 U.S.C. '1988, the Americans with Disabilities Act, 42 U.S.C. ' 12205, and the Rehabilitation Act, 29 U.S.C. ' 794a; and granting such other and further relief as to this Court may seem just and proper.
Dated: December 10, 2004 New York, New York
KOOB & MAGOOLAGHAN Attorneys for Plaintiffs By: s:/ Alexander A. Reinert Alexander A. Reinert 19 Fulton Street, Suite 408 New York, New York 10038 Tel.: (212) 406-3095 aar@kmlaw-ny.com
22

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

ABDUL SHARIFF,
Plaintiff,
-vs-
GLENN S. GOORD, Commissioner of the New York State Department of Correctional Services, et. al.,
Defendants

DECISION & ORDER 04 -CV-6621

APPEARANCES

For Plaintiff:

Alexander A. Reinert, Esq. Koob & Magoolaghan 19 Fulton St., Suite 408 New York, NY 10038

For Defendants:

Gary M. Levine, A.A.G. New York State Office of the Attorney General 144 Exchange Boulevard Suite 200 Rochester, NY 14614

INTRODUCTION This is an action in which plaintiff alleges violations of his rights as guaranteed by the Fifth, Eighth, and Fourteenth amendments to the United States Constitution, as well as by Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Now before the Court is defendants’ motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), all causes of action set forth in the complaint,

Page 1 of 11

except plaintiff’s “First Claim” as it pertains to defendant Williams and plaintiff’s “Fifth Claim” which pertains only to defendant Gregoire. Alternatively, as to defendants Goord and New York State Department of Correctional Services (“DOCS”), defendants move to dismiss pursuant to the “first-filed” rule. For the reasons stated below, defendants’ application is granted in part and denied in part.
BACKGROUND According to his complaint, plaintiff is presently an inmate within the New York State Department of Correctional Services, and has been during all times relevant to this litigation. In addition, plaintiff has been confined to a wheelchair during his entire period of incarceration. On September 28, 2000, plaintiff was housed at the Green Haven Correctional Facility (Green Haven”) in Stormville, New York. On that date, while in his wheelchair, plaintiff maintains that he was transported by van to an outside medical facility, and that he was injured when the van in which he was traveling made a sharp turn. He claims that the wheelchair he had been issued was not suitable to provide for his safe transport in the van, and that defendant DOCS and defendant, Goord, the Commissioner the DOCS, were aware of the unsuitability. On February 14, 2001, in connection with this incident, plaintiff commenced an action in the Southern District of New York. During the course of that lawsuit, plaintiff moved for a preliminary injunction requiring defendants to transport plaintiff using procedures and equipment consistent with the ADA. In support of his application, plaintiff submitted a report prepared by an expert on wheelchair transportation, Dr. Gina Bertocci, Ph.D. The report, which resulted from Dr. Bertocci’s March 28, 2003, inspection of the equipment and techniques used at Green Haven for the transportation of prisoners requiring wheelchairs, indicates the following:
Page 2 of 11

that the wheelchair used by Green Haven to transport plaintiff is not intended for use as a motor vehicle seat, and does not meet the current standards of the American National Standards Institute/Rehabilitation Engineering and Assistive Technology Society of North America (“ANSI/RESNA”); that the technique used to secure wheelchair-bound inmates exposes them to a higher risk of injury; and that the failure to properly use the Wheelchair Tiedown and Occupant Restraint System (“WTORS”) exposes wheelchair-bound inmates to a higher risk of injury. Dr. Bertocci concluded: that the procedures demonstrated by Green Haven personnel were in violation of ADA regulations, industry recommended practice, and guidelines provided by the WTORS manufacturer, which are posted in the vehicle; that use of the wheelchair that is inappropriate for vehicular transport, together with the poor procedures in place, will lead to an increased risk of injury during normal driving maneuvers, emergency driving maneuvers, or a crash; and that to reduce the risk of injury, ANSI/RESNA WC-19 compliant wheelchairs should be used for the vehicular transportation of wheelchair-bound inmates, and that those responsible for such transportation should undergo appropriate training. Neither Goord or DOCS disputed any of Dr. Bertocci’s conclusions, or presented expert testimony of their own. However, on May 23, 2003, plaintiff was transferred to Five Points Correctional Facility (“Five Points”) in Romulus, New York, and subsequently, on August 8, 2003, the Southern District entered an order denying injunctive relief, on the grounds that plaintiff’s transfer rendered such application moot.
On February 10, 2004, while incarcerated at Five Points, plaintiff was again transported by van, while in his wheelchair, to another outside medical facility. He claims that, on this occasion, he was injured when the van became involved in a motor vehicle
Page 3 of 11

accident. He also claims that he was not afforded proper medical care for the injuries he received as a result of the accident. Plaintiff further maintains that the equipment and procedures, which are the subject of the action before this Court, are the same as those employed at Green Haven on September 28, 2000.
STANDARDS OF LAW A. Motion to Dismiss-Failure to State a Cause of Action
To prevail on a motion for dismissal under Rule 12, a defendant must show that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE’S FEDERAL PRACTICE, § 12.34[1][a] (Matthew Bender 3d ed.). “In considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). The Court must view the complaint, and draw all reasonable inferences, in the light most favorable to the non-moving party. Id.; see also 2 MOORE’S FEDERAL PRACTICE, § 12.34[1][b] (Matthew Bender 3d ed.) (court must accept plaintiff’s factual allegations as true). Under the modern rules of pleading, a plaintiff need only provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), and that “all pleadings shall be so construed as to do substantial justice,” FED. R. CIV. P. 8(f). On a Rule 12(b)(6) motion, the issue before the Court “is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to
Page 4 of 11

support the claim.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
Finally, while the plaintiff need not set out in detail the facts upon which he bases a claim, he must provide the “defendant fair notice of the nature of the claim and the grounds upon which it rests.” Washington v. James, 782 F.2d 1134, 1140 (2d Cir. 1986) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 [1957]). Where the allegations are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, they are meaningless as a practical matter and legally insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)(citing Ostrer v. Aronwald, 567 F.2d 551, 553 [2d Cir. 1977]).
Parisi v. Coca-Cola Bottling Co., 995 F. Supp. 298, 300–01 (E.D.N.Y. 1998).
B. Motion to Dismiss -The First-To-File Rule
The parties agree that the claims made in the complaint against defendants Goord
and DOCS in this case are similar to those made against them, by the same plaintiff, in the
previously filed lawsuit in the Southern District of New York. Defendants claim that based
on this, the Court should dismiss the claims against these defendants.
The first to file rule embodies considerations of judicial administration and conservation of resources.
[W]here there are two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience . . . or . . . special circumstances . . . giving priority to the second." (quoting Motion Picture Lab. Technicians Loc. 780 v. McGregor & Werner, Inc., 804 F.2d 16, 19 (2d Cir. 1986)).
Balancing factors of convenience is essentially an equitable task. For that reason, an "ample degree of discretion" is afforded to the district courts in determining a suitable forum. (quoting Kerotest Mfg. Co., 342 U.S. 180, at 183-84 (1952)).
First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 76, 79-80 (1989). Thus, there is a
“presumption in favor of allowing the controversy to be adjudicated in the forum where it
was first filed” (Id. at 80), and while a “balance of convenience . . . or . . . special
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circumstances” may warrant allowing the second suit to go forward, mere concern of an unfavorable outcome is insufficient. Rather the relevant concern is whether the issue can be fully adjudicated in the original forum. Id. at 80.
In First City, the Second Circuit, upon affirming the dismissal without prejudice of the second suit, noted the following:
We agree . . . that there are no facts or circumstances in this case which compel departure from the well-settled principle favoring the forum wherein a suit was first filed. Accordingly, the decisions dismissing without prejudice . . . are affirmed. We note the possibility that the outcome of the [first] action may prompt plaintiff to renew its suit in New York. Should that occur, our holding would not preclude the [plaintiff from doing so].
Subsequently, in Curtis v. Citibank, N.A., 226 F.3d 133 (2d Cir. 2000), the Circuit, while affirming, pursuant to the first-to-file rule, the lower court’s dismissal of claims that were, in fact, duplicative,” reversed as to one claim, “to the extent [it arose] out of events occurring subsequent to the filing of the first . . . complaint . . . ” Id. at 140.
DISCUSSION A. Motion to Dismiss-Failure to State a Cause of Action
1. Second and Sixth Causes of Action The parties agree that the second and sixth causes of action are to be dismissed. 2. First Cause of Action The defendants maintain that the § 1983 claim as alleged against DOCS in plaintiff’s first cause of action and as alleged against individual defendants in their official capacities should be dismissed pursuant to the Eleventh Amendment of the United States Constitution. It is, of course, well settled that “absent waiver by the State or valid
Page 6 of 11

congressional override, the Eleventh Amendment bars a damages action against a State in federal court.
The Eleventh Amendment bar, however, applies only to suits for damages; State officials may be sued in their official capacity for injunctive relief.
"[N]either a State nor its officials acting in their official capacities are 'persons' under [42 U.S.C.]§ 1983." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, state officials cannot be sued in their official capacities for retrospective relief under section 1983. See id. Nonetheless, state officials can be subject to suit in their official capacities for injunctive or other prospective relief. Id. at 71 n10. Suit can also be brought against them under section 1983 in their individual capacities for both prospective and retrospective relief. See Hafer v. Melo, 502 U.S. 21, 23 (1991); Posr v. Court Officer Shield # 207, 180 F.3d 409, 414 (2d Cir.1999). Huminski v. Corsones, 396 F.3d 53, 70 (2d Cir. 2005). Defendants cite Shariff v. Coombe, 2002 U.S. Dist. Lexis 11422 (S.D.N.Y. 2002), which was an unrelated lawsuit, previously initiated by the plaintiff in the instant case, in support of their contention that the claims against defendants in their official capacities are barred by the Eleventh Amendment. In Coombe, however, the court only dismissed “claims for monetary relief pursuant to § 1983 against the . . . [d]efendants in their official capacities.” Id. In this case, in addition to money damages, plaintiff is also seeking injunctive relief. Therefore, the Court declines to dismiss, as to such relief, either DOCS or the named defendants in their official capacities. As to the first claim, defendants further argue that, with respect to defendants Goord, Wright, and Poole, plaintiff’s “simple allegation that these individuals failed to train and supervise, without more is insufficient [to properly allege personal involvement].” (Defs.’ Mem. of Law at 12). While this may be correct, plaintiff has also alleged that these
Page 7 of 11

defendants exhibited deliberate indifference in their failure to train and supervise. (Pl.’s
Compl. ¶ 95). The U.S. Supreme Court has ruled that this may serve as a “basis for § 1983
liability . . . .” City of Canton v. Harris, 489 U.S. 378 (1989) (holding that the inadequacy of
police training may serve as the basis for § 1983 liability where the failure to train amounts
to deliberate indifference to the rights of persons with whom the police come into contact.).
Furthermore,
It is well settled in . . . [the Second] Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal quotation marks omitted). Personal involvement of a supervisory official may be established "by evidence that: (1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring." Id.
Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). The Court
agrees with plaintiff that he has made allegations that are sufficient under more than one
of these alternatives. In that regard, plaintiff has set forth in his complaint the findings of
Dr. Bertocci, discussed above, relating to wheelchair safety. These were provided to DOCS
and went undisputed well in advance of the incident that forms the basis of this lawsuit.
Plaintiff allegations that Goord, the Commissioner of DOCS, Wright, an Associate
Commissioner and Chief Medical Officer of DOCS, and Poole, the Superintendent of Five
Points were aware of or should have been aware of the danger posed by the use of a
wheelchair inappropriate for vehicle transport and by inadequate training of DOCS
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personnel are sufficient to establish personal involvement at the pleading stage where "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d at 378.
3. Third and Fourth Causes of Action It is well settled that neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials. However, beyond individual capacity suits, defendants argue that Title II of the ADA and § 504 of the Rehabilitation Act do not allow state actors to be sued in their official capacities. The Court disagrees. Defendants do not dispute that, pursuant to the holding in Garcia v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir. 2001), the Eleventh Amendment does not bar a claim against action against DOCS for money damages under either the ADA or Rehabilitation Act. Since the Eleventh Amendment only shields individual defendants in their official capacities to the same extent that it shields DOCS, it follows that the individual defendants may be sued in their official capacities for violating the ADA and Rehabilitation Act. Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d at 107.
With respect to plaintiff’s ADA and Rehabilitation Act claims, defendants further argue that his allegations on these causes of action are insufficient. While in paragraphs 93 and 94 of his complaint, plaintiff references defendants’ “ill will or animus toward prisoners with disabilities who require a wheelchair for mobility” and “callous indifference to the risks posed to prisoners who use wheelchairs for mobility,” defendants contend that these assertions are not enough, that “plaintiff must allege ‘irrational discriminatory animus or ill will’ and ‘deliberate indifference’ to plead a valid cause of action.” However, defendants offer no authority to substantiate their contentions. In any event, the Court finds
Page 9 of 11

that, at the pleading stage, the difference between what defendants claim plaintiff should have alleged, and what plaintiff did allege, amounts to a distinction without a difference.
Additionally, defendants contend that plaintiff, in order to support a Title II ADA claim, must show he was “excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability . . . .” (Pl.’s Mem. of Law at 11) (quoting Johnson v. Goord, 2004 U.S. Dist. LEXIS 19658 (S.D.N.Y.)). Defendants maintain that plaintiff fails to make the necessary allegations, claiming only that the manner in which he was transported to receive medical services was improper. The Second Circuit has held that “[t]he ADA requires only that a particular service provided to some not be denied to disabled people.” Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999). The court must “focus on the particular services provided by [defendants] . . . .” Id. The service in the instant case is not medical care, but the safe transportation to receive it. Plaintiff has made detailed allegations regarding the unsafe nature of his transportation for medical care. He has also alleged that inmates that are not wheelchair-bound are transported safely. Therefore, plaintiff has met his burden with respect to claiming a denial of a service for reason of his disability. B. Motion to Dismiss-First-To-File Rule
Defendants argue that the claims against Goord and DOCS that are before this Court are virtually the same as the claims pending in the Southern District in connection with the September 28, 2000 incident, and therefore should be dismissed as duplicative pursuant to the first-to-file rule. The Court disagrees. In this action, plaintiff seeks injunctive relief against Goord and DOCS, which the Southern District has declined to consider as
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moot, since plaintiff was transferred from Green Haven. Moreover, this case involves an event that occurred subsequent to plaintiff’s filing in the Southern District., Additionally, this action involves claims of money damages against Goord and DOCS that will remain regardless of the result in the Southern District.
CONCLUSION Accordingly, defendants’ motion to dismiss is granted with respect to the second and sixth causes of action, and otherwise denied. IT IS SO ORDERED. Dated: July 27, 2005
Rochester, New York ENTER. /s/ Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge
Page 11 of 11

 
 Shariff v. Goord, 235 F.R.D. 563 (2006)
235 F.R.D. 563 United States District Court,
W.D. New York. Abdul SHARIFF, on behalf of himself and all
others similarly situated, Plaintiff, v.
Glenn GOORD, Commissioner of the New York State Department of Correctional Services,
individually and in his official capacity, et al., Defendant.
No. 04CV6621 CJS(F). | April 5, 2006. | As Amended July 20, 2006.
Attorneys and Law Firms
*564 Alexander A. Reinert, Esq., Koob & Magoolaghan, South Street Seaport, New York, NY, for plaintiff.
Gary M. Levine, Esq., New York State Office of the Attorney General, Rochester, NY, for defendants.
Opinion
DECISION and ORDER
SIRAGUSA, District Judge.
INTRODUCTION
This prisoner civil rights case is before the Court on plaintiff’s motion for class certification pursuant to Federal Rule of Civil Procedure 23. The proposed class is “all prisoners in the custody of the New York State Department of Correctional Services who must *565 now or in the future use a wheelchair for mobility....” (Pl.’s Notice of Motion at 1–2.) For the reasons that follow, plaintiff’s motion (# 27) is granted.
BACKGROUND
The following information is taken from plaintiff’s complaint. During the period encompassed by this lawsuit, plaintiff has been incarcerated within the New York State Department of Correctional Services (“DOCS”), confined at either Green Haven Correctional Facility (“Green Haven”), or Five Points Correctional Facility (“Five

Points”). Plaintiff is paralyzed from the waist down and requires a wheelchair for mobility. He alleges that he is a qualified individual with a disability, as defined under the Americans with Disabilities Act, 42 U.S.C. § 12102(2) and the Rehabilitation Act, 29 U.S.C. § 705(20). He further states that because of his medical condition, he requires a facility that is accessible to individuals in wheelchairs. Consequently, he was housed in the Unit for the Physically Disabled in Green Haven until on or about May 23, 2003. Then he was transferred to Five Points.
Plaintiff alleges that DOCS has arranged for outside providers to furnish necessary medical services to prisoners, when such services are unavailable at the facility at which the prisoners are incarcerated. Prisoners with serious physical disabilities, including plaintiff and others who require a wheelchair for mobility, often need necessary medical treatment that is unavailable at the facility in which they are incarcerated. During the time plaintiff spent confined at Green Haven, he received medical treatment at outside facilities on numerous occasions. Moreover, since he entered Five Points, he has received, and expects to receive in the future, medical treatment outside the prison.
Plaintiff further alleges that when prisoners who use wheelchairs for mobility must travel to an outside medical provider, DOCS transports them in a van. He also asserts that many of the vans used by DOCS are manifestly unsafe for individuals in wheelchairs, since they do not ensure that transport will occur without the risk of serious physical harm. Specifically, plaintiff contends that many of the vans fail to provide that a wheelchair-bound prisoner is adequately secured, and that this failure creates the risk that the prisoner will be expelled from the wheelchair during transport. Further, plaintiff asserts that when prisoners in wheelchairs are transported, they are restrained in such manner that, in the event a prisoner falls from his wheelchair during transport, his ability to protect himself is substantially diminished.
Plaintiff also contends that defendants Goord and Wright are generally responsible for deciding which wheelchairs will be provided to DOCS’ prisoners, and that defendants Goord, Wright, Poole, and/or Gregoire are specifically responsible for deciding which wheelchairs will be provided to prisoners at Five Points. Furthermore, plaintiff asserts that the wheelchairs themselves create additional risk of serious bodily injury, since they are not approved for seating use within a motor vehicle.
Plaintiff goes on to allege he was issued a wheelchair by DOCS, Goord, and/or Wright that carries a sticker containing the following language: “No wheelchair has been approved for use as a seating surface within a motor vehicle.” He further alleges, that each wheelchair issued by DOCS carries a sticker containing the same language.
1

Shariff v. Goord, 235 F.R.D. 563 (2006)

In addition, plaintiff asserts that the Owner’s Operator and Maintenance Manual issued by the manufacturer of the wheelchair issued to him, and all other inmates, contains the following language:

Invacare recommends that

wheelchair users NOT be

transported in vehicles of any kind

while in wheelchairs. As of this

date, the Department of

Transportation has not approved

any tie-down system for

transportation of a user while in a

wheelchair, in a moving vehicle of

any type. It is Invacare’s position

that users of wheelchairs should be

transferred into appropriate sea

[t]ing in vehicles for transportation

and use be made of the restraints

made available by the auto industry.

Invacare cannot and does not

recommend any wheelchair

transportation systems. AS

REGARDS

RESTRAINTS—SEAT

POSITIONING STRAPS—IT IS

THE OBLIGATION OF THE

DME DEALER, THERAPISTS

AND OTHER HEALTHCARE

*566 PROFESSIONALS TO

DETERMINE IF A SEATING

RESTRAINT IS REQUIRED TO

ENSURE

THE

SAFE

OPERATION

OF

THIS

EQUIPMENT BY THE USER.

SERIOUS INJURY CAN OCCUR

IN THE EVENT OF A FALL

FROM A WHEELCHAIR.

(Compl.¶ 32.) Plaintiff further contends that the Owner’s Operator and Maintenance Manual for each of the wheelchairs issued to prisoners by DOCS and its employees contains the same language as referenced above.
With regard to his specific injury, plaintiff alleges that as a result of inadequate training and supervision, an inadequate wheelchair, inadequate means of transportation, and due to the use of restraints, he suffered serious physical harm on September 28, 2000, while being transported from St. Agnes Hospital to Green Haven. While restrained in his wheelchair, plaintiff states that the van in which he was traveling made a sharp turn, causing his wheelchair to collapse. As a result, plaintiff claims he was thrust forward and that his forehead stuck a support beam within the vehicle, injuring his head and neck. Plaintiff also maintains that, prior to the date of the

incident, other prisoners in DOCS’s custody who required a wheelchair for mobility, had been injured in a similar fashion.
As a result of the September 2000 incident, plaintiff states that, on February 14, 2001, he filed a pro se complaint in the Southern District of New York. After obtaining counsel in that action, he filed a First Amended Complaint on or about September 6, 2002, against Defendants Goord, DOCS, and others not named in this case. That First Amended Complaint contained allegations similar or identical to the allegations contained in paragraphs 1–37 of the complaint here. Through his Southern District lawsuit, plaintiff states that he sought, inter alia, injunctive relief requiring the named defendants, including Goord, and DOCS, to transport disabled prisoners who require the use of a wheelchair in a safe manner. Then, on or about May 6, 2003, plaintiff moved The Honorable Deborah A. Batts, Southern District of New York, for a preliminary injunction, asking that defendants be ordered to transport plaintiffs in a safe manner and with procedures and equipment that are consistent with the ADA.
In support of his motion for preliminary injunction in the Southern District lawsuit, plaintiff submitted a report prepared by Gina Bertocci, Ph.D., whom plaintiff identified as a wheelchair transportation expert. According to the complaint, Dr. Bertocci is an Assistant Professor in the University of Pittsburgh’s School of Health and Rehabilitation Sciences. Dr. Bertocci has held the position of Director of the Rehabilitation Engineering Research Center on Wheelchair Transportation Safety since on or about November, 2001. On March 28, 2003, Dr. Bertocci conducted an inspection of the wheelchair transport van used at Green Haven. This inspection included a review of the equipment used by Green Haven1 to transport prisoners who use wheelchairs for mobility, the wheelchairs used during such transport, and the wheelchair securement and the occupant restraint techniques used by corrections officers responsible for transporting such prisoners.

1

Plaintiff contends in his complaint in this lawsuit the

equipment and techniques used at Green Haven are the

same as those used at Five Points.

As a result of this inspection, Dr. Bertocci came to the following conclusions: (a) the wheelchair being used to transport plaintiff is not intended for use as a motor vehicle seat and does not meet current American National Standards Institute/Rehabilitation Engineering and Assistive Technology Society of North America (“ANSI/RESNA”) standards; (b) the technique used by defendants to secure wheelchair-bound prisoners exposes them to a higher risk of injury; and (c) the failure to
2

Shariff v. Goord, 235 F.R.D. 563 (2006)
properly use the Wheelchair Tiedown and Occupant Restraint System (“WTORS”) exposes wheelchair-bound prisoners to a higher risk of injury. Dr. Bertocci concluded that the procedures demonstrated by Green Haven personnel were in violation of ADA regulations, industry recommended practice, and guidelines provided by the WTORS manufacturer which are posted in the vehicle. Dr. Bertocci further concluded that the inappropriate wheelchair used to transport passengers, in combination with the poor procedure, will lead to an increased risk of injury during either normal driving *567 maneuvers, emergency driving maneuvers, or a crash. Dr. Bertocci recommended that to reduce the injury risk, ANSI/RESNA WC–19 compliant wheelchairs should be used for transporting inmates and that those responsible for wheelchair transportation undergo appropriate training.
On or about May 23, 2003, plaintiff was transferred from Green Haven to Five Points. Plaintiff asserts that he did not request or consent to this transfer. On or about June 9, 2003, defendants filed their opposition to plaintiff’s motion for preliminary injunction in the Southern District lawsuit, arguing that plaintiff’s application was moot because he had been removed from Green Haven. In his complaint in this case, plaintiff maintains that Goord and DOCS in the Southern District lawsuit, did not dispute any of Dr. Bertocci’s conclusions. On or about August 8, 2003, Judge Batts entered an Order denying plaintiff’s motion for preliminary injunction, finding that his transfer to Five Points did moot the action. Order, Shariff v. Greiner, No. 01–CV–1140–DAB–DFE (S.D.N.Y. Aug. 8, 2003).
Plaintiff claims that he was transported from Green Haven to Five Points in the same unsafe manner as complained of in the Southern District action. He alleges that since his arrival at Five Points, he has sought assurances that he would be safely transported to outside medical facilities, but no such assurances have been given. Accordingly, until February 10, 2004, plaintiff states that he did not travel outside Five Points for any medical appointments.
On or about February 10, 2004, plaintiff was transported in a van to Auburn Correctional Facility (“Auburn”) to visit a urology specialist. Defendant Williams was assigned to transport him to and from Auburn. Upon leaving and returning to Five Points on February 10, 2004, plaintiff alleges that Williams failed to properly secure him and that Williams used a “black box”2 to restrain him. Plaintiff contends that, based upon by Dr. Bertocci’s expert report, Williams’ conduct put him at a higher risk of injury. Moreover, plaintiff also alleges that the use of a black box while transporting paraplegic prisoners is prohibited at Green Haven. Plaintiff states, that although he informed Williams that due to his medical condition he should not be shackled to a black box during transport, Williams ignored his protests and shackled him to the

black box anyway. Plaintiff further contends that was transported in the same type of wheelchair deemed unsafe for transport by Dr. Bertocci in her report, and that Williams did not secure plaintiff with a lap or shoulder belt. Because of this, plaintiff alleges that Williams knew or should have known that he was exposing plaintiff to a serious risk of harm.

2

Plaintiff explains in his complaint that, “a ‘black box’ is

a restraint device, used in the transport of prisoners, by

which Correction Officers shackle prisoners’ hands and

feet together and to the device to prevent the possibility

of escape.” (Compl. ¶ 66.)

Plaintiff alleges that while returning to Five Points, Williams crashed the vehicle, causing plaintiff to be thrown from his wheelchair. He maintains that as a result, he suffered serious physical injuries to his right wrist, neck and ribs.
Plaintiff’s complaint contains six causes of action. Plaintiff alleges that defendants’ failure to provide safe transportation to prisoners who require a wheelchair for mobility, including plaintiff: (1) demonstrated deliberate indifference and/or willful neglect to plaintiff’s serious medical needs constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution; (2) deprived plaintiff of liberty and property without due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution; (3) discriminates against qualified individuals with disabilities, including plaintiff, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12132; (4) discriminates against qualified individuals with disabilities, including plaintiff, solely by reason of their disability, in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; (5) Dr. Gregoire’s failure to provide adequate treatment of plaintiff’s wrist injury demonstrated deliberate indifference and/or willful neglect to plaintiff’s serious medical needs constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States *568 Constitution; and (6) Defendant Gregoire’s failure to provide adequate treatment of plaintiff’s wrist injury demonstrated deliberate indifference and/or willful neglect to his serious medical needs and deprived him of liberty and property without due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution. For each of his causes of action, plaintiff seeks compensatory and punitive damages, as well as appropriate injunctive relief.

THE RULE 23 STANDARD 3

Shariff v. Goord, 235 F.R.D. 563 (2006)
[1] [2] Plaintiffs have moved for class certification pursuant to Federal Rule of Civil Procedure 23, subparagraphs (a), (b)(1)(A), (b)(1)(B) and (b)(2), which state:
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
Fed.R.Civ.P. 23(a), (b)(1)(A), (b)(1)(B) and (b)(2) (2006). The party seeking class certification has the burden of demonstrating that Rule 23’s requirements are satisfied. Caridad v. Metro–North Commuter Railroad, 191 F.3d 283, 291 (2d Cir.1999) (citation omitted), cert. denied, 529 U.S. 1107, 120 S.Ct. 1959, 146 L.Ed.2d 791 (2000); see also, 5 James Wm. Moore et al., MOORE’S FEDERAL PRACTICE § 23.60[2] (“[A] class action must satisfy each of the requirements of Rule 23, and the plaintiff must plead more than a simple reiteration of those requirements in conclusory allegations. Instead, the plaintiff should allege facts demonstrating that all of the requirements for bringing a class action are fulfilled.”) (citation omitted). It is well settled that before certifying a class, a district court must conduct a “rigorous analysis” to determine whether or not Rule 23’s requirements have been met.3 Caridad v. Metro–North Commuter Railroad, 191 F.3d at 291. However, the court should not inquire into the merits of the plaintiffs’ underlying *569 claims.

Id. (citation omitted). Moreover, courts are required to construe Rule 23’s requirements liberally. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir.1968). Courts should resolve doubts about whether or not Rule 23 has been satisfied in favor of certification. In re Industrial Diamonds Litigation, 167 F.R.D. 374, 378 (S.D.N.Y.1996) (citations omitted).

3

Neither Rule 23, nor the vast majority of cases

interpreting it identifies a particular burden of proof on

the plaintiff. See, e.g., Shepherd v. Babcock & Wilcox

of Ohio, No. C–3–98–391, 2000 WL 987830 at *1 n. 5

(S.D.Ohio, Mar.3, 2000)(“Although many ... reported

decisions state that the party seeking certification

carries this burden, research has found only one

reported case which defines that burden, whether as

being the preponderance of evidence or otherwise.”).

According to a leading treatise on the subject of class

actions, that is because “[b]urden of proof concepts are

generally more applicable to proof of facts or evidence

and do not comfortably fit in determinations respecting

whether a particular procedural device has been

properly invoked or should be permitted to be

maintained.” 2 Herbert B. Newberg & Alba Conte,

Newberg on Class Actions § 7.17 (3d ed.1992). The

Newberg treatise further indicates that the plaintiff’s

burden under Rule 23 is merely a burden to plead facts

indicating that Rule 23 is satisfied, which then creates a

rebuttable presumption in favor of class certification.

Id. at §§ 7.19–7.20. If the defendant rebuts this

presumption by producing contrary evidence, the

burden of production then shifts back to the plaintiff to

produce counter-affidavits or other evidence. Id. at §

7.26 The Court must then exercise its discretion to

determine whether class certification is appropriate. Id.

at § 7.27

ANALYSIS
Timeliness of the Motion to Certify [3] The Court must first address defendants’ argument that plaintiff’s motion to certify a class is untimely. Western District of New York Local Rule of Civil Procedure 23 states in pertinent part as follows:
Within 120 days after the filing of a pleading alleging a class action, unless this period is extended on motion for good cause filed prior to the expiration of said 120–day period or in the scheduling order, the party seeking class certification shall move for a determination under Federal Rule of Civil Procedure 23(c)(1) as to whether
4

Shariff v. Goord, 235 F.R.D. 563 (2006)
the case is to be maintained as a class action.
W.D.N.Y. Loc. R. Civ. P. 23(d) (2003). The complaint in this case was filed on December 20, 2004, and the motion for class certification was filed on October 4, 2005, 288 days later. However, as counsel notes in his affirmation, defendants moved to dismiss the case in lieu of filing an answer. Consequently, issue was not fully joined until July 21, 2005, after the Court adjudicated defendants’ motion to dismiss. Additionally, plaintiff’s counsel raised the issue of class certification at a July 14, 2005 conference with the undersigned, and the Court advised the parties to discuss the possibility of settling plaintiff’s injunctive claims before bringing a motion for class certification. Plaintiff’s counsel thereafter initiated settlement negotiations by letter dated June 8, 2005, and the Court ordered the parties to report within thirty days of the conference. By letter dated August 25, 2005, counsel for defendants advised the Court and plaintiff’s counsel that settlement was not a viable possibility. Therefore, consistent with the Court’s instructions, plaintiff’s counsel filed the instant motion 82 days after the Court’s direction at the July 14, 2005 conference. Furthermore, on September 7, 2005, the parties met with Judge Feldman, to whom the case had been referred pursuant to 28 U.S.C. § 636, and at that conference, they discussed the schedule for filing the class certification motion. (Reinert Affirmation ¶ 45.) Court and counsel agreed that plaintiff would file his motion for class certification within 30 days of the September 7 conference. (Id.) The instant motion is filed within that time period.
Accordingly, the Court determines that plaintiff has filed his motion in a timely manner, since the scheduling instructions from the two judges involved in this case extended the time for filing a motion for class certification for good cause shown.
Article III Case or Controversy—Standing [4] Defendants argue that the only controversy involved in this plaintiff’s case is not connected with “the alleged systematic improprieties....” (Def.s’ Mem. of Law at 10.) In that regard, defendants contend that “plaintiff can only show harm from failing to wear a seatbelt[.]” Therefore, they argue that the remainder of his allegations about DOCS’s transportation methods are abstract, that he has not suffered an injury in fact, and, consequently, he does not have standing to represent the class. (Id. at 11.) Thus, defendants maintain that the Court is without jurisdiction under Article III of the Constitution to grant the class certification sought by plaintiff. The Court disagrees.
It is certainly true, as plaintiff himself concedes, in order to have standing to act as the class representative, he must

first,
have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical[.]’ ” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and footnote omitted).
*570 [5] However, as plaintiff also points out, the Second Circuit held, in Baur v. Veneman, 352 F.3d 625, 633–34 (2d Cir.2003), a case involving food and drug safety, that, “threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes.” See also Motorola Credit Corp. v. Uzan, 388 F.3d 39, 55 (2d Cir.2004) (“defendants’ dilution and eventual destruction of plaintiffs’ collateral amounts to the requisite ‘injury-in-fact’ for Article III purposes, even if that injury is not sufficiently definite for RICO purposes.”); Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 574 (6th Cir.2005) (“Sutton has alleged sufficient facts, when accepted as true, to suggest an increased risk of future harm resulting from being implanted with St. Jude’s device. Whether Sutton is likely to prevail on the merits is not a proper consideration at this time.”); Harvey v. Veneman, 396 F.3d 28, 34 (1st Cir.2005) (“Harvey alleges that he has suffered an injury in fact because the challenged regulations weaken the integrity of the organic program and the standards it sets forth. This weakening harms Harvey as a consumer of organic foods because it degrades the quality of organically labeled foods. The magistrate judge properly held that this claimed harm represents concrete, redressable injury sufficient to confer Article III standing with respect to most of the counts in Harvey’s complaint.”).
The Court finds that plaintiff’s allegations meet the requirements of an justiciable controversy and that he has standing to represent the class he seeks to certify. He has alleged an invasion of a legally protected interest which is concrete and particularized, and actual or imminent, not conjectural or hypothetical. He has also alleged a causal connection between the injury complained of and defendants’ conduct and it is likely that the injury will be redressed by a favorable decision.
Rule 23(a) and (b) Factors
5

Shariff v. Goord, 235 F.R.D. 563 (2006)
The Court will now proceed to analyze the four requisite factors for class certification as set forth in Rule 23(a) have been satisfied, and then whether plaintiff has met any of the alternative requirements of Rule 23(b).
Rule 23(a)(1) Numerosity Plaintiff’s proposed class is described in the complaint as follows:
Plaintiff bring this action on his own behalf and, pursuant to Rule 23(b)(1), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure, on behalf of all prisoners with disabilities, as defined in 29 U.S.C. § 705(20) and 42 U.S.C. § 12102, who require a wheelchair for mobility, and who are now, have been within the past three years, or will in the future be in DOCS custody.
(Compl.¶ 110.) Plaintiff alleges that the actual size of the class is unknown, but that “he believes there are at least 100 class members and the size of the class is so numerous that joinder of all members is impracticable.” (Compl.¶ 110a.) A plaintiff need not establish the precise number of class members in order to satisfy the numerosity requirement. McNeill v. New York City Housing Authority, 719 F.Supp. 233, 252 (S.D.N.Y.1989); Ellender v. Schweiker, 550 F.Supp. 1348, 1359 (S.D.N.Y.1982), app. dism’d 781 F.2d 314 (2d Cir.1986). “It is permissible for [a] plaintiff to rely on reasonable inferences drawn from the available facts. Furthermore, the lack of knowledge as to the exact number of affected persons is not a bar to maintaining a class action where the defendants alone have access to such data. See Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y.1980).” McNeill, 719 F.Supp. at 252. Defendants do not specifically dispute that plaintiff’s allegations meet the numerosity requirement, but to the extent that their arguments could be construed as putting this requirement in issue, the Court finds that plaintiff’s allegations of approximately 100 potential class members, as well as the effect on future wheelchair-bound inmates, meets the numerosity requirement.
Rule 23(a)(2) Commonality [6] [7] Rule 23(a)(2)’s commonality requirement “is met if plaintiffs’ grievances share a common question of law or of fact.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997) (citations omitted). Commonality will not be “defeated by the possibility that the proof required to demonstrate ‘injury’ *571 might be highly

individualized.” In re Sumitomo Copper Litigation v. Credit Lyonnais Rouse Ltd., 262 F.3d 134, 141 (2d Cir.2001) (citations omitted). Here, the defense specifically argues that plaintiff will be unable to show commonality because the Court must consider the available defenses to individual claim when determining whether class certification is appropriate. (Def.s’ Mem. of Law at 7.) Plaintiff counters that the only unique defenses relevant to the Court’s consideration on this motion are any that go to his claims for injunctive relief. (Pl.’s Reply Mem. of Law at 3.) The Southern District has held that where the “claims of all proposed class members derive from the same ... policies and procedures, and are based on the same legal theories,” the commonality requirement is met. McNeill, 719 F.Supp. at 252. “There is no requirement that ‘the factual background of each named plaintiff’s claim be identical to that of all class members.’ Caridad [v. Metro–North Commuter R.R., 191 F.3d 283,] 29[3] [(2d Cir.1999).]; see Cromer [Finance Ltd. v. Berger,] 205 F.R.D. [113,] 122 (S.D.N.Y.2001).” Ingles v. City of New York, No. 01 Civ. 8279, 2003 WL 402565, *5 (S.D.N.Y. Feb. 20, 2003). In the instant case, the Court finds that plaintiff has demonstrated the existence of several common issues, most notably the allegation that defendants have failed and will continue to fail to safely transport prisoners who use wheelchairs in violation of the Americans with Disabilities Act, the Rehabilitation Act, and the Eighth Amendment. (Pl.’s Mem. of Law at 10.) Plaintiff has explained that he seeks class certification only on his claims for declaratory and injunctive relief, not the damages claims for his alleged injuries after he was transported in a wheel chair without a safety restraint. (Id.) Accordingly, Rule 23(a)(2) is satisfied.
Rule 23(a)(3) Typicality Defendants argue that plaintiff has not met the typicality requirement of Rule 23(a)(3) since plaintiff’s “lawsuit is nothing more than a negligence claim for failing to use a seat belt on an inmate in a wheelchair and should not be allowed to become a federal class action lawsuit.” (Def.s’ Mem. of Law at 1.) It is well settled that
Rule 23(a)(3)’s typicality requirement is satisfied when each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations
6

Shariff v. Goord, 235 F.R.D. 563 (2006)
in the fact patterns underlying individual claims.
Robidoux v. Celani, 987 F.2d 931, 936–37 (2d Cir.1993) (citations omitted). Moreover, “[d]ifferences in the damages sustained by individual class members does not preclude a showing of typicality, nor defeat class certification.” In re Playmobil Antitrust Litigation, 35 F.Supp.2d 231, 242 (E.D.N.Y.1998) (citations omitted). In the instant case, it is clear that the typicality requirement is satisfied.
As to typicality, defendants maintain “[p]laintiff’s lawsuit will face unique factual and legal defenses....” (Def.s’ Mem. of Law at 8.) In that regard, defendants ask the Court to examine the merits of plaintiff’s claim. However, at this stage of the proceedings, it is well settled that a court should not examine the merits. As the Supreme Court cautioned in Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974):
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed to obtain a determination on the merits of the claims advanced on behalf of the class without any assurance that a class action may be maintained. This procedure is directly contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class action may be maintained as such ‘(a)s soon as practicable after the commencement of (the) ac *572 tion....’ In short, we agree with Judge Wisdom’s conclusion in Miller v. Mackey International, 452 F.2d 424 (5th Cir.1971), where the court rejected a preliminary inquiry into the merits of a proposed class action:
‘In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.’ Id. at 427.
Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice to a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable to civil trials. The court’s tentative findings, made in the absence of established safeguards, may

color the subsequent proceedings and place an unfair burden on the defendant.
Eisen, 417 U.S. at 177–78, 94 S.Ct. 2140. In any event, as plaintiff correctly points out, “the ‘unique defenses’ alleged by defendants to exist ... boil down to an argument about causation of plaintiff’s injuries.” (Pl.’s Reply Mem. of Law at 3.) That is, the “unique defenses” relate only the incident of September 28, 2000. Here, as plaintiff argues, “[a]ny prisoner who uses a wheelchair for mobility will be harmed by defendants’ failure to take adequate steps to assure that safe transportation services are provided to such prisoners.” (Pl.’s Mem. of Law at 11.) Accordingly, the Court finds that Rule 23(a)(3) is satisfied since all claims arise out of the same practices alleged to be illegal and unconstitutional in plaintiff’s complaint and that Rule 23(a)(3) is satisfied.
Rule 23(a)(4) Adequacy To satisfy Rule 23(a)(4), a plaintiff must demonstrate that “class counsel is qualified, experienced, and generally able to conduct the litigation,” and that “there is no conflict of interest between the named plaintiffs and other members of the plaintiff class.” Marisol A., 126 F.3d at 378 (Citations omitted). Defendants’ papers do not object to plaintiff’s choice of counsel, and the Court finds that counsel is adequate. (See Reinert Affirmation ¶ 33, Ex. A.)
[8] To determine whether plaintiff is an adequate class representative, the Court must consider two factors: “(1) absence of conflict and (2) assurance of vigorous prosecution.” Robinson v. Metro–North Commuter Railroad, 267 F.3d 147, 170 (2d Cir.2001) (citation omitted), cert. denied 535 U.S. 951, 122 S.Ct. 1349, 152 L.Ed.2d 251 (2002). “Courts do not require the representative plaintiff to be the best of all possible plaintiffs or to be especially knowledgeable, intelligent, or possessing a detailed understanding of the legal or factual basis on which a class action can be maintained.” In re Playmobil Antitrust Litigation, 35 F.Supp.2d at 242 (citation omitted). In this Circuit, it is clear that class representatives need not be especially knowledgeable, although “class representative status may properly be denied where the class representatives have so little knowledge of and involvement in the class action that they would be unable and unwilling to protect the interests of the class against the possibly competing interests of the attorneys.” Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 222 F.3d 52, 61 (2d Cir.2000) (citation omitted). In this case, plaintiff is a paraplegic who relies on a wheelchair for mobility and is frequently transported outside the prison in motor vehicles under the conditions about which he complains. (See Compl. ¶ 1.) The Court finds that plaintiff is sufficiently knowledgeable, able, and motivated to represent the class
7

Shariff v. Goord, 235 F.R.D. 563 (2006)
and, has, therefore, satisfied the requirements of Rule 23(a)(4).
Rule 23(b)
[9] The Court will now turn its attention to whether plaintiff has satisfied one of the alternate requisites of Rule 23(b). On this issue, the only argument defendants offer as to why plaintiff has not satisfied the requirements of Rule 23(b) are as follows: (1) the Eleventh Amendment bars the relief plaintiff is seeking (addressed by the Court below); and (2) that, “[t]he Court will have to determine if the class is ascertainable,” (Def.s’ Mem. of Law at 17). As to this latter point, defendants also suggest that any allowed class be limited to “DOCS inmates who use a wheelchair during vehicular transportation.” Plaintiff has not opposed this suggestion and *573 the Court finds that it accurately defines the population plaintiff seeks to represent in this lawsuit. Therefore, the Court need only consider defendants’ Eleventh Amendment argument.
Defendants contend in their memorandum in opposition to class certification that the Eleventh Amendment bars plaintiff’s request for equitable relief in the form of training for DOCS employees. (Def.s’ Mem. of Law at 17.) However, the Court finds defendants’ argument to be unpersuasive. In Armstrong v. Davis, 275 F.3d 849, 875–76 (9th Cir.2001) the Ninth Circuit permitted injunctive relief requiring the California Board of Prison Terms (the state parole authority) to “provide training for all persons under its jurisdiction....” Id. at 876. Additionally, the Ninth Circuit found an independent basis for effectively granting injunctive relief against the State of California. The Court wrote:
Furthermore, Garrett makes clear that there is another, independent basis for the implementation of the injunction: there is no barrier to the injunction against Nielson in his official capacity as Secretary of the Board. Garrett, explicitly stated that “our holding here ... does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by ... private individuals in actions for injunctive relief under Ex parte Young, 209 U.S. 123[, 28 S.Ct. 441, 52 L.Ed. 714] (1908).” Board of Trustees v. Garrett, 531 U.S. 356, 121 S.Ct. at 968, n. 9[, 148 L.Ed.2d 866]. Because the injunction requires Secretary Nielsen to comply with its provisions, it would remain in force even if relief could not be ordered against the Board, and its effect would, for all practical purposes be the same. For the reasons set forth above, the state is not immune from suit. Moreover, the injunction would be effective as to

Secretary Nielsen in any event. Armstrong, 275 F.3d at 879. Furthermore, as plaintiff points out in his Reply Memorandum, the Court’s focus at this stage in the litigation is not whether the relief sought will be granted, but, rather, whether plaintiff has asked for relief that would benefit the purported class. See Brown v. Giuliani, 158 F.R.D. 251, 269 (E.D.N.Y.1994) (“Plaintiffs’ complaint falls within Rule 23(b)(2)[.] Defendants’ failure to act is said to be institutional not merely a cumulation of individual cases. The final injunctive and declaratory relief requested here would inure to the benefit of all class members in gaining a timely processing of their applications for benefits.”). Plaintiff’s claims, therefore, satisfy the requirements of Rule 23(b)(2).4

4

Since the Court has determined that the class can be

certified under Rule 23(b)(2), it will not address

plaintiff’s alternative arguments that the class can also

be certified under Rule 23(b)(1)(A) and (b)(1)(B) as

well.

Appointment of Counsel Plaintiff seeks to have Alexander A. Reinert, Esq., of Koob & Magoolaghan, South Street Seaport, 19 Fulton Street Suite 408, New York, N.Y. 10038, appointed counsel for the class pursuant to Rule 23(g). The Court has examined Mr. Reinert’s qualifications (see Reinert Affirmation, Ex. A) and notes also that defendants have not imposed any objection to this request. Accordingly, the Court appoints Mr. Reinert as class counsel.
CONCLUSION
Based upon all of the foregoing, the Court finds that plaintiff has satisfied the requirements of Rule 23(a) and 23(b)(2). Accordingly, the Court hereby grants plaintiff Abdul Shariff’s motion (# 27) for class certification. The class consists of DOCS inmates who use a wheelchair during vehicular transportation. Further, the Court appoints Alexander A. Reinert, Esq., as class counsel. Pursuant to Federal Rule of Civil Procedure 23(c)(2)(A), the Court does not order that notice be made to the class.
IT IS SO ORDERED.
	  

8

Shariff v. Goord, 235 F.R.D. 563 (2006) 9

 
 Case 6:04-cv-06621-CJS-JWF Document 64 Filed 10/20/11 Page 1 of 6 UNITED STATES DISTRIC~T'COLJRT WESTERN DISTRICT OF NEW YORK

ABDUL SHARIFF, -vs

Plaintiff,

GLENN GOORD, Commissioner of the New York State Department of Correctional Services, et aI.,

STIPULATION & ORDER OF SETTLEMENT 04~CV-6621 CJS

Defendants.

WHEREAS, plaintiff, Abdul Shariff, filed a complaint on December 20, 2004, alleging that defendants violated plaintiff's constitutional, statutory and/or civil rights during plaintiff's incarceration in the New York State Correctional Services system; and
WHEREAS, the parties are interested in resolving all the remaining issues·· alleged in the complaint in this action, and have negotiated in good faith for that purpose; and
WHEREAS, none of the parties to the above-captioned action is an infant or incompetent person; and
WHEREAS, the parties in the above captioned matter are desirous of discontinuing the litigation;
IT IS HEREBY STIPULATED AND AGREED by and between the parties and their respective counsel as follows:

Case 6:04-cv-06621-CJS-JWF Document 64 Filed 10/20/11 Page 2 of 6 1. The parties 'hereby agree that the hereinabove captioned action is disrtHssed' ,
and discontinued with prejudice in accordance with Federal Rules of Civil Procedure Rule 41 Voluntary Stipulation of Partial dismissal subject to conditions executed by and between the parties. 2. This stipulation is intended to be entered into simultaneously with the class action stipulation. 3. Any and all of the claims for damages by plaintiff which are the subject of this action or otherwise arise out of any of the incidents alleged in the complaint are hereby settled for the sum of Twenty Thousand Dollars ($20,000.00) in full satisfaction of all claims for damages and Seventy Four Thousand, Nine Hundred Forty Two Dollars and Eleven Cents ($74,942.11) in full satisfaction of all claims for costs, disbursements and legal fees in this court and in any other court. 4. The sum stated in paragraph 3 for costs, disbursements and legal fees is also stated in the class action stipulation of partial dismissal. Although the amount is stated in both documents it is intended that there be only one payment to plaintiff's counsel of $74,942.11. 5. Plaintiff agrees that by this stipulation he agrees to discontinue all his pending litigation with DaGGS and its employees except for Shariff, et al v. Goord, etal, 05-cv-6504 (WDNY), which is not being discontinued at this time. Plaintiff specifically stipulates that this settlement discontinues Shariff v. Poole, 05-cv6025 (WDNY)(retaliation claim), Shariff v. Goord, _05-cv-2903 (SDNY)(failure to protect claim) and Shariff v. Greiner, 01-cv-1140 (SDNY)(motor vehicle wheelchair accident claim) .
2

Case 6:04-cv-06621-CJS-JWF Document 64 Filed 10/20/11 Page 3 of 6 6. The parties 'agree that this stipulation is to be entered simultaneously "",ith the·
stipulation discontinuing the class action from this same caption, Shariff v. Goord, et ai, 04-cv-6621 (W.O. N.Y.). The class action stipulation addresses issues relating to the class whereas this stipulation relates to plaintiff's personal injuries. 7. The Twenty Thousand Dollar ($20,000.00) check in payment of the sum recited in paragraph 3 hereinabove shall be drawn to the order of the plaintiff's attorney ("Koob & Magoolaghan, as attorneys, to Abdul Shariff") and mailed to plaintiff's attorney: Koob & Magoolaghan, Joan Magoolaghan, of counsel, 221 Devoe Avenue, Yonkers, New York, 10705. 8. In consideration of the payment of the sum recited in paragraph 3 hereinabove the plaintiff, Abdul Shariff, hereby releases each of the defendants and any and all currynt or former employees of the New York State Department of Corrections and Community Supervision in their individual and official capacities, and their heirs, executors, administrators and assigns, and the State of New York and the New York State Department of Corrections and Community Supervision, from any and all claims, liabilities and causes of action including but not limited to claims related to or arising out of any alleged violation of plaintiff's constitutional rights, and all other causes of action and claims of liability arising out of the circumstances set forth in the complaint in the above-captioned action as well as all other cases plaintiff may have pending with New York State Department of Corrections and Community Supervision and it's employees, including any Court of Claims action. The only
3

Case 6:04-cv-06621-CJS-JWF Document 64 Filed 10/20/11 Page 4 of 6 exception is' Shariff, wet al v. Goord, etal, 05-cv-6504 (WDNY) which is I"telt being discontinued by this stipulation.
9. Nothing in this So Ordered Stipulation of Settlement shall be constructed as an admission or concession of liability whatsoever by any of the defendants or the New York State Department of Corrections and Community Supervision regarding any of the allegations made by the plaintiff in his complaint herein including but not limited to claims that the plaintiff's rights under the Federal or New York State Constitutions or Statutes had been violated and all other claims set forth in the complaint.
10. Payment of the amount recited in paragraph 3 hereinabove is subject to the approval of all appropriate New York State officials in accordance with the provisions for indemnification under New York Public Officers Law Section 17.
11. Payment of the amounts recited in paragraph 3 hereinabove will be made within one hundred twenty (120) days after the approval of this stipulation by the Court and receipt by defendants' counsel of a copy of the fully executed soordered stipulation of settlement as entered by the Court. In the event that the aforesaid payment is not made within the one hundred twenty (120) day period, interest shall accrue on the outstanding principal balance at the rate set forth in 28 U.S.C. §1961 beginning on the one hundred twenty-first (121) day after receipt by defendants' counsel of a copy of the fully executed so-ordered stipulation of settlement.
12. This Stipulation of Settlement and any Order entered thereon shall have no precedential value or effect whatsoever and shall not be admissible in any other
4

Case 6:04-cv-06621-CJS-JWF Document 64 Filed 10/20/11 Page 5 of 6 action or proceeding" as evidence or for any other purpose except in aM action· or proceeding to enforce this Stipulation of Settlement.
13. That plaintiff agrees that the defendants and the New York State Department of Corrections and Community Services and the State of New York shall not be responsible for any further liens of any kind which may have attached to the proceeds from this settlement and further that both plaintiff and his/her/their attorney agree that they will defend, indemnify and hold harmless the defendants and the New York State Department of Corrections and Community Services and the State of New York, its officers, agents and employees and the State of New York for the satisfaction of any such liens.
14. This Stipulation and Order of Settlement embodies the entire agreement. Dated: New York, New York
October ~, 2011

Dated: Yonkers, New York
October l.L, 2011

KOOB & MAGOOLAGHAN Attorneys for Plaintiff Class
~!evJl

5

Case 6:04-cv-06621-CJS-JWF Document 64 Filed 10/20/11 Page 6 of 6 Dated: Rochester,"Nevtf York
October--a,2011
HaN. ERIC T. SCHNEIDERMAN

SO ORDERED:

Dated: Rochester, New York

~T) 19

,2011

Assist nt Attorney General of Counsel NYS Office of the Attorney General 144 Exchange Boulevard, Suite 200 Rochester, New York 14614 Telephone: (585) 546-7430 gary.levine@ag.ny.gov

6

 
 Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

ABDUL SHARIFF, on behalf of himself and all others similarly situated,
Plaintiff,

vs. GLENN GOORD, et aI.,

Defendants.

RULE 41 VOLUNTARY STIPULATION OF PARTIAL DISMISSAL SUBJECT TO CONDITIONS 04aCV-6621 (CJS)

The parties, by their attorneys, hereby stipulate and agree as follows:
WHEREAS Plaintiff commenced this action on December 10, 2004 on behalf of himself and a class of others similarly situated ("the class") to challenge Defendants' alleged policy and practice of transporting inmates in wheelchairs without the use of appropriate wheelchairs, vans and restraint equipment; and
WHEREAS Plaintiff Abdul Shariff also seeks compensatory damages on behalf of himself but not on behalf of the class; and
WHEREAS Plaintiff alleged that the challenged policies and practices violate the Americans with Disabilities Act ("ADA") 42 U.S.C. § 12132,12182, Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq., and 42 U.S.C. § 1983 for violations of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; and
WHEREAS the Defendants have answered the Complaint and denied that they have violated the ADA and/or Section 504 and/or the Fifth, Eighth or Fourteenth Amendments to the United States Constitution; and
WHEREAS the plaintiff class of all prisoners in the custody of the New York State Department of Correctional Services who use a wheelchair during vehicular transportation was certified by the Court on April 5, 2006; and

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 2 of 12
WHEREAS the Defendants now utilize transport vehicles that have Vehicular Restraint Systems and Security Restraint equipment; and
WHEREAS the Defendants have purchased fifteen (15) new WG19 compliant wheelchairs to transport wheelchair using prisoners who do not have a particularized need for a custom-fit wheelchair that can address his/her postural stability (hereinafter referenced as the "generic WGi9" wheelchairs); and
WHEREAS the transportation safety needs of the vast majority of wheelchair using inmates are met with transportation in a generic WG19 compliant wheelchair; and
WHEREAS a small subset of the wheelchair using prisoners have a particularized need for a custom-fit wheelchair to address his/her postural stability; and
WHEREAS the Defendants have placed the fifteen (15) new WG19 compliant wheelchairs at the following correctional facilities: Livingston (2); Five Points (4); Green Haven (6); Bedford Hills (3); and
WHEREAS the New York State Department of Corrections and Community Supervision (DaCCS) routinely confines wheelchair using prisoners to correctional facilities other than Livingston, Five Points, Green Haven and Bedford Hills; and
WHEREAS DaGGS seeks to evaluate the use of the fifteen (15) new WC19 compliant wheelchairs before it proceeds to purchase additional WC19 compliant wheelchairs for use through those DaCCS facilities where wheelchair using prisoners are confined; and
WHEREAS counsel for the Plaintiff and the Defendants, without conceding any infirmity in their claims or defenses, have subsequently engaged in negotiations to resolve several of the Plaintiff's claims on behalf of the class; and
WHEREAS the within agreement relates only to the claims for injunctive relief brought by Plaintiff on behalf of the class, but not to any individual claims for damages; and
WHEREAS counsel for both parties have agreed to seek the Court's approval of the settlement of several issues of this case, in accordance with Rule 23(e) of the Federal Rules of Civil Procedure, and to file this Voluntary Stipulation of Partial
2

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 3 of 12
Dismissal Subject to Conditions (herein "Voluntary Stipulation" or "Voluntary Stipulation of Partial Dismissal") with the Court as the statement identifying the agreement made between the parties in connection with the proposed settlement pursuant to FRCP Rule 23(e)(2); and·
WHEREAS for the purpose of this agreement, the parties have agreed to the following definitions:
A WC19 compliant wheelchair is a wheelchair that has: a) at least,four (4) permanently labeled securement points that can withstand the forces of a 30 mph, 20 g impact; b) specific securement point geometry that will accept a securement strap end fitting hook; c) a clear path of travel for allowing proper placement of vehicle mounted occupant safety restraints next to the body; d) anchor points for an optional wheelchair anchored pelvic safety belt, that is designed to withstand a 30 mph, 20 g impact and; e) a standard interface on the pelvic belt to connect to a vehicle-anchored shoulder belt.
Vehicular restraint systems refers to the mechanical restraint system installed in vans and buses for the purpose of physically attaching a wheelchair to the vehicle, usually by means of a four (4) point restraint system and the occupant of the wheelchair to the wheelchair by means of a shoulder harness and lap belt.
Security restraint equipment refers to devices used by correction officers . and other security personnel to maintain custody and control of prisoners.
Such devices include, but are not limited to handcuffs, leg irons, waist chains and black boxes.
Wheelchair using prisoners refers to prisoners who use wheelchairs for ambulation and cannot independently and safely transfer to a regular vehicle seat.
Substantial noncompliance refers to a systemic failure to comply with the term of the agreement that is more substantial and pervasive than an isolated instance of non-compliance.
It is STIPULATED AND AGREED by and between the parties and their respective counsel as follows;
1. Defendants' WC1 9 compliant wheelchairs will not be assigned to any individual prisoner for his/her personal use, but instead shall be used for transportation of any wheelchair using prisoner.
3

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 4 of 12
2. Defendants will transport wheelchair using prisoners confined in the Livingston Correctional Facility, the Five Points Correctional Facility, the Green Haven Correctional Facility, and the Bedford Hills Correctional Facility (hereinafter referred to as the "pilot facilities") in WC19 compliant wheelchairs, unless the prisoner is transported via ambulance.
3. Defendants will transport all wheelchair using prisoners in their c'ustody in vehicles equipped with appropriate vehicular restraint systems for wheelchair occupants.
4. When transporting any wheelchair using prisoner in a wheelchair, Defendants will apply vehicular restraint systems to the prisoner's wheelchairs which at minimum meet the SAE J2249 Standard for Wheelchair Tiedowns and Occupant Restraint Systems, including securing the wheelchair to the vehicle and the application of the seatbelt and shoulder harness to the wheelchair occupant.
5. While transporting individual prisoners, defendants shall proceed in accordance with DOCCS' Directive 4901 "Transporting Prisoners" and other Department protocol.
6. Defendants shall train all Bid Transport Officers, Temporary Bid Transportation Officers, and Resource Staff ("transportation staff") assigned to facilities where wheelchair using prisoners are confined, as that term is used in this Agreement, in the proper orientation of a wheelchair in a vehicle and the proper application of vehicular restraint systems, including securement of the wheelchair to the vehicle and the correct positioning of the shoulder harness and seat belt. Such training will be part of the annual training for all transportation staff at those facilities. The training referred to in this paragraph will at a minimum instruct officers: a) that at pilot facilities wheelchair using prisoners must be transported in WC 19 compliant wheelchairs; b) in the proper use of any vehicular restraint system in use in any van used by DaGGS to transport wheelchair using prisoners; c) that wheelchairs must always face forward in the vehicle and; d) that wheelchair using prisoners should be secured with a lap belt and shoulder harness.
7. Notwithstanding any other provision of this agreement, where an emergency medical transport is required, and/or where an ambulance is used to transport a prisoner for any reason, the wheelchair using prisoner may be transported in accordance with DOCGS' protocols for utilizing an ambulance.
8. The Defendants will review and analyze accident reports, complaints and grievances involving the transportation of wheelchair using inmates to determine the success of the WG19 compliant wheelchairs at the pilot facilities within six
4

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 5 of 12
(6) months of the date this Stipulation is So Ordered, and upon completion of its review will serve a written report upon plaintiff's counsel and the Court. Upon receipt of the written report counsel will confer in regard to any modifications needed to the pilot program, and plan the expansion of the program into all other DOCCS facilities where wheelchair using prisoners are regularly confined. In the event that the parties are unable to reach agreement in regard to the expansion of the pilot program, then Plaintiff's counsel may request a meeting with all parties before the Honorable Charles J. Siragusa, United States District Court for the Western District of New York, or another Judge of said Court if Judge Siragusa is unavailable, to discuss the possible filing of a motion to reinstate the issues of this lawsuit, as provided for in paragraph 14 infra.
9. Upon the signing of this Voluntary Stipulation of Partial Dismissal, the parties will jointly move the Court for entry of an Order dismissing those portions of this action having to do with any injunctive relief and will attach a copy of this Voluntary Stipulation to such motion. This dismissal shall be without prejudice to Plaintiff's right to move to reinstate those portions of the action pursuant to Paragraph 15 below within one hundred twenty (120) days following a meeting held between counsel for the parties in accordance with the provisions of Paragraph 14 below. Should the Court deny the parties' motion for dismissal as provided herein, this Voluntary Stipulation of Partial Dismissal shall become null and void.
10. Within sixty (60) days of the entry of the Order referred to in Paragraph 9, pilot facilities will provide a copy of the Notice, attached hereto as Exhibit A, to each wheelchair using inmate, prior to transport.
11. Within sixty (60) days of the entry of the Order referred to in Paragraph 9, each member of the class will be provided with a copy of the Notice attached hereto as Exhibit B.
12. Notwithstanding any other provision herein, any class member who believes that he/she has a particularized need for a custom-fit WC19 wheelchair to address his/her postural stability during transport may request a reasonable accommodation pursuant to DOCCS' Directive 2614 in regard to his/her specific transportation needs. DOCeS shall assign a qualified staff member to conduct the evaluation of the class member's particularized transportation needs, and shall report the findings in writing to the class member, and, in the event the request is denied, shall contemporaneously provide the class member with the name, address and phone number of class counsel. Consent to purchase an
5

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 6 of 12
individual Wei 9 compliant wheelchair for a wheelchair using prisoner who has a
particularized need for a custom-fit wheelchair to address his/her postural stability during transport shall not be unreasonably withheld.
13. Within a period of one (1) year from the time this Voluntary Stipulation of Partial Dismissal is signed by the parties, if Plaintiff's counsel believes that the Defendants are not in substantial compliance with the terms of this Voluntary Stipulation of Partial Dismissal, Plaintiff's counsel may request a meeting with counsel for Defendants and DOCCS counsel at a mutually agreeable time and place to discuss and attempt to resolve the dispute(s). Any such request made by Plaintiff's counsel shall be made in writing. The parties will use their best efforts to schedule and attend such meeting(s) within sixty (60) days of Defendants' receipt of Plaintiff's written request for a meeting pursuant to this Paragraph. Nothing said by either party or counsel for either party during those meetings may be used by the opposing party in any subsequent litigation in this or any other lawsuit or for any purpose other than implementing the provisions of paragraphs 1 through 8 of this agreement. Plaintiff's counsel will request a meeting(s) pursuant to this Paragraph only upon Plaintiff's counsel's good faith belief that there is a failure on the part of Defendants to comply with the terms of this Voluntary Stipulation that is more substantial and pervasive than an isolated instance of a prisoner in a wheelchair being transported in a fashion which is not in accordance with this agreement.
14. If, after sixty (60) days following any meeting held pursuant to Paragraph 13 above, Plaintiff's counsel believes that Defendants have not complied with the terms of this Voluntary Stipulation, Plaintiff's counsel may request a meeting with all parties before the Honorable Charles J. Siragusa, United States District Court for the Western District of New York, or another Judge of said Court if Judge Siragusa is unavailable, to discuss the possible filing of a motion to reinstate the issues of this lawsuit which are the subject of this Voluntary Stipulation of Partial Dismissal, as provided in Paragraph 15 below. Plaintiff's counsel may request such a meeting with the Court no earlier than three (3) months from the date this Voluntary Stipulation of Partial Dismissal is signed by the parties. Plaintiff's counsel will request a meeting(s) pursuant to this Paragraph only upon Plaintiff's counsel's good faith belief that there is a failure on the part of Defendants to comply with the terms of this Voluntary Stipulation that is more substantial and pervasive than an isolated instance of a prisoner in a wheelchair being transported in a fashion which is not in accordance with this agreement.
15. Following any meeting with the Court as set forth in Paragraph 14 above, Plaintiff's counsel may file a motion with the Court for an Order reinstating the
6

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 7 of 12
issues of this lawsuit which are the subject of this Voluntary Stipulation of Partial Dismissal. Plaintiff may not file such a motion without first requesting a premotion meeting with the Defendants and the Court as provided in Paragraphs 13 and 14 above and, if granted by the Court, participating in such meeting. Plaintiff shall make such a motion for reinstatement only upon Plaintiff's counsel's good faith belief that there is a failure on the part of Defendants to comply with the terms of this Voluntary Stipulation that is more substantial and pervasive than an isolated instance of a prisoner in a wheelchair being transported in a fashion which is not in accordance with this agreement.
16. The terms of this Voluntary Stipulation of Partial Dismissal shall remain in effect for a period of one (1) year from the date this Voluntary Stipulation of Partial Dismissal is signed by the parties or one hundred twenty (120) days following a meeting held between counsel for the parties pursuant to Paragraph 13 above, whichever date is later, and shall be binding on the parties, their successors, agents, employees and all persons acting in concert with them. After the above stated period of time, the terms and conditions of this Voluntary Stipulation of Partial Dismissal shall automatically cease to bind the parties, as well as their successors, agents, employees, assigns and those acting in concert with them; all claims on behalf of the plaintiff resolved by the Voluntary Stipulation are discontinued and dismissed with prejudice; and the jurisdiction of the Court over the issues in this action covered by the Voluntary Stipulation shall automatically end.
17. This Voluntary Stipulation of Partial Dismissal is a "private settlement agreement" as that term is used in the Prison Litigation Reform Act (PLRA), 18 USCA 3626(c). If any provision of this Voluntary Stipulation of Partial Dismissal is declared invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect, unaffected and unimpaired.
18. This Voluntary Stipulation of Partial Dismissal shall resolve all claims or potential claims for injunctive relief identified in the Complaint having to do with the use of vehicles, vehicular restraint systems for wheelchairs, training of corrections staff and the use of the "Black Box" on prisoners in wheelchairs. This Voluntary Stipulation is not intended to restrict any defenses that may be available to Defendants to any future claims, or the legal requirements, procedures, or standards to be employed in determining any such future claims.
19. Defendants agree to reimburse Plaintiff's counsel the sum of Seventy-Four Thousand, Nine Hundred Forty-Two Dollars and Eleven Cents ($74,942.11) for attorney's fees and disbursements which shall be payable out of the fund
7

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 8 of 12

established pursuant to Section 17 of the NYS Public Officer's Law. This amount is also stated in plaintiff's stipulation and order of settlement and will be paid only once to counsel. Reimbursement for Plaintiff's attorneys' fees and costs expended on behalf of the class related to the monitoring of defendants' compliance with this agreement as defined in paragraph 8-15 shall not exceed forty-thousand dollars ($40,000.00) absent a further showing of good cause. Payment of the above amounts is subject to the approval of all appropriate New York State officials in accordance with the provisions for indemnification under New York Public Officers Law, Section 17, subdivision 3(a). Should such approval be denied, this Voluntary Stipulation of Partial Dismissal shall become null and void. In the event payment of these sums is not made within one hundred twenty (120) days after the receipt by Defendants' counsel from Plaintiff's counsel of a copy of this Voluntary Stipulation of Partial Dismissal, fully executed and "So Ordered" as entered by the Court, interest shall accrue on the outstanding principal balance at the rate set forth iii 28 U.S.C. sec. 1961, beginning on the one hundred twenty-first day after said receipt by Defendants' counsel of the fully executed l'SO Ordered" Voluntary Stipulation of Partial Dismissal and continuing until payment is made.

20. This Voluntary Stipulation of Partial Dismissal does not constitute a) an admission of liability by any Defendant of any violation of law or wrongdoing; b) an admission by any Defendant that any standard, policy, practice, or procedure addressed in this action violated or failed to comply with either the language or the intent of any applicable law, rule or regulation; or c) an admission by any Defendant that its position in this litigation was not substantially justified. This agreement and its terms shall have no preclusive effect except between the parties to the agreement.

21. This Voluntary Stipulation of Partial Dismissal may not be used for any purpose

other than enforcement of the provisions of this Voluntary Stipulation and shall

not in any way be construed as precedent for any other present or future

litigation.

.

22. This Voluntary Stipulation of Partial Dismissal contains the entire agreement of the parties in these matters and no oral agreement entered into at any time, nor any written agreement entered into prior to the execution of this Voluntary

8

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 9 of 12
Stipulation of Partial Dismissal regarding these issues, shall be deemed to exist or to bind the parties hereto or to vary the terms and conditions contained herein. Dated: Yonkers, New York
September.1Q.,2011 KOOB & MAGOOLAGHAN Attorneys for Plaintiff Class

Dated: Rocheste~~ew York
October-l&-' 2011
HON. ERIC T. SCHNEIDERMAN

SO ORDERED:

Dsijed: Rochester, New York

LJ<:;T" 19

,2011

Assist· nt Attorney General of Counsel NYS Office of the Attorney General 144 Exchange Boulevard, Suite 200 Rochester, New York 14614 Telephone: (585) 546-7430 gary.levine@ag.ny.gov

9

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 10 of 12
ExhihitA
If you are traveling in this van and seated in a wheelchair, you should be aware that, as a result of litigation in the lawsuit Shariff v. Goord, 04 Civ. 6621 (N.D.N.Y.), the New York State Department of Corrections and Community Supervision ("DaCeS") has agreed to take the following steps when transporting wheelchair-using prisoners; that is, prisoners who use wheelchairs for ambulation and cannot independently and safely transfer to a regular vehicle seat.
1. Daccs has agreed to initiate a pilot program at the Livingston Correctional Facility, the Five Points Correctional Facility, the Green Haven Correctional Facility, and the Bedford Hills Correctional Facility (hereinafter referred to as the "pilot facilities") regarding the use of WC19 compliant wheelchairs during the transport of wheelchair using prisoners. DaeCS will transport all wheelchair using prisoners confined in the pilot facilities in We19 compliant wheelchairs, unless the prisoner is transported via ambulance.
2. DaeCS has agreed that wheelchairs will be secured to the floor of this vehicle at four (4) different points, in such a way that the wheelchair will not move back and forth with the motion of the vehicle.
3. DaCeS has agreed to transport wheelchair using prisoners so that the prisoner is facing forward.
4. DaeeS has agreed that a lap belt and shoulder harness will be used for any prisoner who is transported in a wheelchair.
5. DaGGS has agreed to transport wheelchair using prisoners in accordance with
DaGCS' Directive 4901 "Transporting Prisoners" and other Department protocol..
If you are traveling in a vehicle operated by DaGGS while seated in a wheelchair, and
any of these steps are not taken, you may contact class counsel in Shariff v. Goord at the following address: Koob & Magoolaghan, 221 Devoe Avenue, Yonkers, New York 10705.
[Spanish translation on same page]
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Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 11 of 12

Exhibit B
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

ABDUL SHARIFF, on behalf of himself and all others similarly situated,
Plaintiff,

vs. GLENN GOORD, et aI.,

Defendants.

NOTICE TO CLASS MEMBERS 04-CV~6621 (CJS)(JWF)

NOTICE TO ALL WHEELCHAIR USING PRISONERS
On April 5, 2006, the Honorable Charles J. Siragusa, United States District Court, Western District of New York, ordered that this action, Shariff v. Goord, 04 Civ. 6621, proceed as a class action. The case concerns the methods used by the New York State Department of Corrections and Community Supervision ("OOCCS") to transport wheelchair using prisoners. The named plaintiff alleges that the defendants' policies and practices of transporting wheelchair using prisoners violate the United States Constitution and other federal laws. If you are a New York State wheelchair using prisoner as that term is defined below, you are a member of the class.
Wheelchair using prisoners refers to prisoners who use wheelchairs for ambulation and cannot independently and safely transfer to a regular vehicle seat.
The purpose of this notice is to advise you that the parties have reached a tentative agreement to settle some of the claims brought on behalf of the class. In summary, the proposed settlement provides that the defendants will take the following steps: a) ensure that wheelchair using prisoners at the Livingston Correctional Facility, the Five Points Correctional Facility, the Green Haven Correctional Facility, and the Bedford Hills Correctional Facility (hereinafter referred to as the "pilot facilities") are transported in WC19 compliant wheelchairs, unless they are transported via ambulance; b) analyze the success of the WC19 compliant wheelchairs at the pilot facilities within six (6) months of the date the Court So Orders the parties Stipulation of Settlement, and plan the expansion of the program into all other DOCCS facilities where wheelchair using prisoners are regularly confined; c) evaluate a request for a reasonable
11

Case 6:04-cv-06621-CJS-JWF Document 65 Filed 10/20/11 Page 12 of 12
accommodation by any class member who believes that he/she has a particularized need for a custom-fit WC19 wheelchair to address his/her postural stability during transport; d) ensure that all vehicles used to transport prisoners in wheelchairs will have the appropriate equipment necessary to safely secure the wheelchair to the floor of the transport vehicle; e) train all correctional officers who participate in prisoner transportation in the proper use of the equipment used to secure wheelchairs to the floor of the transport vehicle, facing forward; f) train all correctional officers who participate in prisoner transportation to use a lap belt and shoulder belt on the prisoner whenever transporting prisoners in wheelchairs; and g) transport wheelchair using prisoners in accordance with DaCCS' Directive 4901 "Transporting Prisoners" and other Department protocol. This agreement only relates to changes in policy, equipment, and training and not to any claims that you may have for damages as a result of the past policies and practices.
Any class member has a right to receive notice of the terms of the proposed settlement agreement and to make objections to the agreement. Class members should contact the law firm Koob & Magoolaghan to inquire about the terms of the proposed settlement or about anything else regarding the case. You may contact Koob & Magoolaghan by writing: Koob & Magoolaghan, Attn: Shariff Class Action, 221 Devoe Avenue, Yonkers, New York 10705, (914) 964-8888.
All class members are entitled to state any objections that they may have to the proposed settlement. Such objections must be in writing and may be sent either to the lawyers for the class at the address stated above or directly to the Court. The address
for the Court is: Hon. Charles J. Siragusa, United States District Courthouse, 1360
United States Courthouse, 100 State Street, Rochester NY 14614.
12

 
 Shariff v. Goord, Not Reported in F.Supp.2d (2005)
2005 WL 1863560 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Abdul SHARIFF, Plaintiff, v.
Glenn S. GOORD, Commissioner of the New York State Department of Correctional Services, et. al.,
Defendants. No. 04-CV-6621. | Aug. 4, 2005.
Attorneys and Law Firms
Alexander A. Reinert, Koob & Magoolaghan, New York, NY, for Plaintiff.
Gary M. Levine, A.A.G., New York State Office of the Attorney General, Rochester, NY, for Defendants.
Opinion
AMENDED DECISION & ORDER
SIRAGUSA, J.
INTRODUCTION
*1 This is an action in which plaintiff alleges violations of his rights as guaranteed by the Fifth, Eighth, and Fourteenth amendments to the United States Constitution, as well as by Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Now before the Court is defendants’ motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), all causes of action set forth in the complaint, except plaintiff’s “First Claim” as it pertains to defendant Williams and plaintiff’s “Fifth Claim” which pertains only to defendant Gregoire. Alternatively, as to defendants Goord and New York State Department of Correctional Services (“DOCS”), defendants move to dismiss pursuant to the “first-to-file” rule. For the reasons stated below, defendants’ application is granted in part and denied in part.
BACKGROUND

According to his complaint, plaintiff is presently an inmate within the New York State Department of Correctional Services, and has been during all times relevant to this litigation. In addition, plaintiff has been confined to a wheelchair during his entire period of incarceration. On September 28, 2000, plaintiff was housed at the Green Haven Correctional Facility (“Green Haven”) in Stormville, New York. On that date, while in his wheelchair, plaintiff maintains that he was transported by van to an outside medical facility, and that he was injured when the van in which he was traveling made a sharp turn. He claims that the wheelchair he had been issued was not suitable to provide for his safe transport in the van, and that defendant DOCS and defendant, Glen S. Goord (“Goord”), the Commissioner of DOCS, were aware of the unsuitability. On February 14, 2001, in connection with this incident, plaintiff commenced an action in the Southern District of New York.
During the course of that lawsuit, plaintiff moved for a preliminary injunction requiring defendants to transport plaintiff using procedures and equipment consistent with the ADA. In support of his application, plaintiff submitted a report prepared by an expert on wheelchair transportation, Gina Bertocci, Ph.D. The report, which resulted from Dr. Bertocci’s March 28, 2003, inspection of the equipment and techniques used at Green Haven for the transportation of prisoners requiring wheelchairs, indicates the following: that the wheelchair used by Green Haven to transport plaintiff is not intended for use as a motor vehicle seat, and does not meet the current standards of the American National Standards Institute/Rehabilitation Engineering and Assistive Technology Society of North America (“ANSI/RESNA”); that the technique used to secure wheelchair-bound inmates exposes them to a higher risk of injury; and that the failure to properly use the Wheelchair Tiedown and Occupant Restraint System (“WTORS”) exposes wheelchair-bound inmates to a higher risk of injury. Dr. Bertocci concluded: that the procedures demonstrated by Green Haven personnel were in violation of ADA regulations, industry recommended practice, and guidelines provided by the WTORS manufacturer, which are posted in the vehicle; that use of the wheelchair that is inappropriate for vehicular transport, together with the poor procedures in place, will lead to an increased risk of injury during normal driving maneuvers, emergency driving maneuvers, or a crash; and that to reduce the risk of injury, ANSI/RESNA WC-19 compliant wheelchairs should be used for the vehicular transportation of wheelchair-bound inmates, and that those responsible for such transportation should undergo appropriate training.
*2 Neither Goord or DOCS disputed any of Dr. Bertocci’s conclusions, or presented expert testimony of their own. However, on May 23, 2003, plaintiff was transferred to
1

Shariff v. Goord, Not Reported in F.Supp.2d (2005)
Five Points Correctional Facility (“Five Points”) in Romulus, New York, and subsequently, on August 8, 2003, the Southern District entered an order denying injunctive relief, on the grounds that plaintiff’s transfer rendered such application moot.
On February 10, 2004, while incarcerated at Five Points, plaintiff was again transported by van, while in his wheelchair, to another outside medical facility. He claims that, on this occasion, he was injured when the van became involved in a motor vehicle accident. He also claims that he was not afforded proper medical care for the injuries he received as a result of the accident. Plaintiff further maintains that the equipment and procedures, which are the subject of the action before this Court, are the same as those employed at Green Haven on September 28, 2000.
STANDARDS OF LAW
A. Motion to Dismiss-Failure to State a Cause of Action To prevail on a motion for dismissal under Rule 12, a defendant must show that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE’S FEDERAL PRACTICE, § 12.34[1][a] (Matthew Bender 3d ed.). “In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). The Court must view the complaint, and draw all reasonable inferences, in the light most favorable to the non-moving party. Id.; see also 2 MOORE’S FEDERAL PRACTICE, § 12.34[1] [b] (Matthew Bender 3d ed.) (court must accept plaintiff’s factual allegations as true). Under the modern rules of pleading, a plaintiff need only provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), and that “all pleadings shall be so construed as to do substantial justice,” FED. R. CIV. P. 8(f). On a Rule 12(b)(6) motion, the issue before the Court “is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). Finally, while the plaintiff need not set out in detail the facts upon which he bases a claim, he must provide the “defendant fair notice of the nature of the claim and the grounds upon which it rests.” Washington v. James, 782 F.2d 1134, 1140 (2d Cir.1986) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 [1957] ).

Where the allegations are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, they are meaningless as a practical matter and legally insufficient to state a claim. Barr v.. Abrams, 810 F.2d 358, 363 (2d Cir.1987)(citing Ostrer v. Aronwald, 567 F.2d 551, 553 [2d Cir.1977] ).
*3 Parisi v. Coca-Cola Bottling Co., 995 F.Supp. 298, 300-01 (E . D.N.Y.1998).
B. Motion to Dismiss-The First-to-File Rule The parties agree that the claims made in the complaint against defendants Goord and DOCS in this case are similar to those made against them, by the same plaintiff, in the previously-filed lawsuit in the Southern District of New York. Defendants claim that based on this, the Court should dismiss the claims against these defendants. The Second Circuit has held that, “[t]he first to file rule embodies considerations of judicial administration and conservation of resources.” First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d 76, 80 (1989). In that case, the court also wrote: “[w]here there are two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience ... or ... special circumstances ... giving priority to the second.” Motion Picture Lab. Technicians Loc. 780 v. McGregor & Werner, Inc ., 804 F.2d 16, 19 (2d Cir.1986)....
Balancing factors of convenience is essentially an equitable task. For that reason, an “ample degree of discretion” is afforded to the district courts in determining a suitable forum. Kerotest Mfg. Co., 342 U.S. 180, at 183-84 (1952)....
Id. at 79 (some internal citations omitted). Thus, there is a “presumption in favor of allowing the controversy to be adjudicated in the forum where it was first filed,” and while a “balance of convenience ... or ... special circumstances” may warrant allowing the second suit to go forward, mere concern of an unfavorable outcome is insufficient. Id. at 80. Rather the relevant concern is whether the issue can be fully adjudicated in the original forum. Id.
In First City Nat’l Bank & Trust Co., the Second Circuit, upon affirming the dismissal without prejudice of the second suit, noted the following:
We agree ... that there are no facts or circumstances in this case which compel departure from the well-settled principle favoring the forum wherein a suit was first filed. Accordingly, the decisions dismissing
2

Shariff v. Goord, Not Reported in F.Supp.2d (2005)
without prejudice ... are affirmed. We note the possibility that the outcome of the [first] action may prompt plaintiff to renew its suit in New York. Should that occur, our holding would not preclude the [plaintiff from doing so].
First City Nat’l Bank & Trust Co., 878 F.2d at 80. Subsequently, in Curtis v. Citibank, N.A., 226 F.3d 133, 140 (2d Cir.2000), the circuit court, while affirming, pursuant to the first-to-file rule, the lower court’s dismissal of claims that were, in fact, duplicative, reversed as to one claim, “to the extent [it arose] out of events occurring subsequent to the filing of the first ... complaint....”
DISCUSSION
A. Motion to Dismiss-Failure to State a Cause of Action
1. Second and Sixth Causes of Action The parties agree that the second and sixth causes of action are to be dismissed.
2. First Cause of Action *4 Defendants maintain that the § 1983 claim as alleged against DOCS in plaintiff’s first cause of action and as alleged against individual defendants in their official capacities should be dismissed pursuant to the Eleventh Amendment of the United States Constitution. It is, of course, well settled that “absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court. Kentucky v.. Graham, 473 U.S. 159, 160 (1985).
The Eleventh Amendment bar, however, applies only to suits for damages; State officials may be sued in their official capacity for injunctive relief. “[N]either a State nor its officials acting in their official capacities are ‘persons’ under [42 U.S.C.] § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, state officials cannot be sued in their official capacities for retrospective relief under section 1983. See id. Nonetheless, state officials can be subject to suit in their official capacities for injunctive or other prospective relief. Id. at 71 n10. Suit can also be brought against them under section 1983 in their individual capacities for both prospective and retrospective relief. See Hafer v. Melo, 502 U.S. 21, 23 (1991); Posr v. Court Officer Shield #

207, 180 F.3d 409, 414 (2d Cir.1999).
Huminski v. Corsones, 396 F.3d 53, 70 (2d Cir.2005).
Defendants cite Shariff v. Coombe, No. 96 Civ. 3001(BSJ), 2002 U.S. Dist. Lexis 11422 (S.D.N.Y. Jun. 26, 2002), which was an unrelated lawsuit, previously initiated by the plaintiff in the instant case, in support of their contention that the claims against defendants in their official capacities are barred by the Eleventh Amendment. In Coombe, however, the court only dismissed “claims for monetary relief pursuant to § 1983 against the ... [d]efendants in their official capacities.” Id. In this case, in addition to money damages, plaintiff is also seeking injunctive relief. Therefore, the Court declines to dismiss, as to such relief, either DOCS or the named defendants in their official capacities.
As to the first claim, defendants further argue that, with respect to defendants Goord, Wright, and Poole, plaintiff’s “simple allegation that these individuals failed to train and supervise, without more is insufficient” to properly allege personal involvement. (Defs.’ Mem. of Law at 12). “It is well settled in ... [the Second] Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (internal quotation marks omitted). Personal involvement of a supervisory official may be established “by evidence that: (1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring.” Id.
*5 Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir.2001).
While defendants’ assertion regarding personal involvement may be correct, plaintiff has also alleged that these defendants exhibited deliberate indifference in their failure to train and supervise. (Pl .’s Compl. ¶ 95.) The U.S. Supreme Court has ruled that this may serve as a “basis for § 1983 liability....” City of Canton v. Harris, 489 U.S. 378 (1989) (holding that the inadequacy of police training may serve as the basis for § 1983 liability where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.).
3

Shariff v. Goord, Not Reported in F.Supp.2d (2005)
The Court agrees with plaintiff that he has made allegations that are sufficient under more than one of these alternatives. In that regard, plaintiff has set forth in his complaint the findings of Dr. Bertocci, discussed above, relating to wheelchair safety. These were provided to DOCS and went undisputed well in advance of the incident that forms the basis of this lawsuit. Plaintiff allegations that Goord, Wright, an Associate Commissioner and Chief Medical Officer of DOCS, and Poole, the Superintendent of Five Points, were aware of or should have been aware of the danger posed by the use of a wheelchair inappropriate for vehicle transport and by inadequate training of DOCS personnel are sufficient to establish personal involvement at the pleading stage where “the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d at 378.
3. Third and Fourth Causes of Action It is well settled that neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials. However, beyond individual capacity suits, defendants argue that Title II of the ADA and § 504 of the Rehabilitation Act do not allow state actors to be sued in their official capacities. The Court disagrees. Defendants do not dispute that, pursuant to the holding in Garcia v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir.2001), the Eleventh Amendment does not bar an action against DOCS for money damages under either the ADA or Rehabilitation Act. Since the Eleventh Amendment only shields individual defendants in their official capacities to the same extent that it shields DOCS, it follows that the individual defendants may be sued in their official capacities for violating the ADA and the Rehabilitation Act. See id. at 107.
With respect to plaintiff’s ADA and Rehabilitation Act claims, defendants further argue that his allegations on these causes of action are insufficient. While in paragraphs 93 and 94 of his complaint, plaintiff references defendants’ “ill will or animus toward prisoners with disabilities who require a wheelchair for mobility” and “callous indifference to the risks posed to prisoners who use wheelchairs for mobility,” defendants contend that these assertions are not enough, that “plaintiff must allege ‘irrational discriminatory animus or ill will’ and ‘deliberate indifference’ to plead a valid cause of action.” (Defs.’ Mem. of Law at 10.) However, defendants offer no authority to substantiate their contentions. In any event, the Court finds that, at the pleading stage, the difference between what defendants claim plaintiff should have alleged, and what plaintiff did

allege, amounts to a distinction without a difference.
*6 Additionally, defendants contend that plaintiff, in order to support a Title II ADA claim, must show he was “excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability....” (Pl.’s Mem. of Law at 11 (quoting Johnson v. Goord, No. 01 Civ. 9587(PKC), 2004 U.S. Dist. Lexis 19658 (S.D.N.Y. Sep. 29, 2004)).) Defendants maintain that plaintiff fails to make the necessary allegations, claiming only that the manner in which he was transported to receive medical services was improper. The Second Circuit has held that “[t]he ADA requires only that a particular service provided to some not be denied to disabled people.” Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir.1999). The court must “focus on the particular services provided by [defendants]....” Id. The service in the instant case is not medical care, but the safe transportation to receive it. Plaintiff has made detailed allegations regarding the unsafe nature of his transportation for medical care. He has also alleged that inmates that are not wheelchair-bound are transported safely. Therefore, plaintiff has met his burden with respect to claiming a denial of a service for reason of his disability.
B. Motion to Dismiss-First-to-File Rule Defendants argue that the claims against Goord and DOCS that are before this Court are virtually the same as the claims pending in the Southern District in connection with the September 28, 2000, incident, and therefore should be dismissed as duplicative pursuant to the first-to-file rule. The Court disagrees. In this action, plaintiff seeks injunctive relief against Goord and DOCS, which the Southern District has declined to consider, because plaintiff’s transfer from Green Haven rendered it moot. Moreover, this case involves an event that occurred subsequent to plaintiff’s filing in the Southern District. Additionally, this action involves claims of money damages against Goord and DOCS that will remain regardless of the result in the Southern District.
CONCLUSION
Accordingly, defendants’ motion to dismiss (# 8) is granted with respect to the second and sixth causes of action, and otherwise denied.
IT IS SO ORDERED.
	  
4

Shariff v. Goord, Not Reported in F.Supp.2d (2005) 5

 
 Shariff v. Goord
United States District Court for the Western District of New York July 20, 2006, Decided ; July 20, 2006, Filed 04-CV-6621 CJS(F)

Reporter: 2006 U.S. Dist. LEXIS 49957 ABDUL SHARIFF, on behalf of himself and all others similarly situated, Plaintiff, -vs- GLENN GOORD, Commissioner of the New York State Department of Correctional Services, individually and in his official capacity, et al., Defendant.
Prior History: Shariff v. Goord, 235 F.R.D. 563, 2006 U.S. Dist. LEXIS 31964 (W.D.N.Y., 2006)
Counsel: [*1] For plaintiff: Alexander A. Reinert, Esq., Koob & Magoolaghan, New York, NY.
For defendants: Gary M. Levine, Esq., New York State Office of the Attorney General, Rochester, NY.
Judges: Charles J. Siragusa, United States District Judge.

wheelchairs. Consequently, he was housed in the Unit for the Physically Disabled in Green Haven until on or about May 23, 2003. Then he was transferred to Five Points.
Plaintiff alleges that DOCS has arranged for outside providers to furnish necessary medical services to prisoners, when such services are unavailable at the facility at which the prisoners are incarcerated. Prisoners with serious physical disabilities, including plaintiff and others who require a wheelchair for mobility, often need necessary medical treatment that is unavailable at the facility in which they are incarcerated. During the time plaintiff spent confined at Green Haven, he received medical treatment at outside facilities on numerous occasions. Moreover, since he entered Five Points, he has received, and expects to receive in the future, medical [*3] treatment outside the prison.

Opinion by: Charles J. Siragusa
Opinion
AMENDED DECISION and ORDER
INTRODUCTION
This prisoner civil rights case is before the Court on plaintiff's motion for class certification pursuant to Federal Rule of Civil Procedure 23. The proposed class is "all prisoners in the custody of the New York State Department of Correctional Services who must now or in the future use a wheelchair for mobility…." (Pl.'s Notice of Motion at 1-2.) For the reasons that follow, plaintiff's motion (# 27) is granted.
BACKGROUND
The following information is taken from plaintiff's complaint. During the period encompassed by this lawsuit, plaintiff has been incarcerated within the New York State Department of Correctional Services ("DOCS"), confined at either Green Haven Correctional Facility ("Green Haven"), or Five Points Correctional Facility ("Five Points"). Plaintiff is paralyzed from the waist down and requires a wheelchair [*2] for mobility. He alleges that he is a qualified individual with a disability, as defined under the Americans with Disabilities Act, 42 U.S.C. § 12102(2) and the Rehabilitation Act, 29 U.S.C. § 705(20). He further states that because of his medical condition, he requires a facility that is accessible to individuals in

Plaintiff further alleges that when prisoners who use wheelchairs for mobility must travel to an outside medical provider, DOCS transports them in a van. He also asserts that many of the vans used by DOCS are manifestly unsafe for individuals in wheelchairs, since they do not ensure that transport will occur without the risk of serious physical harm. Specifically, plaintiff contends that many of the vans fail to provide that a wheelchair-bound prisoner is adequately secured, and that this failure creates the risk that the prisoner will be expelled from the wheelchair during transport. Further, plaintiff asserts that when prisoners in wheelchairs are transported, they are restrained in such manner that, in the event a prisoner falls from his wheelchair during transport, his ability to protect himself is substantially diminished.
Plaintiff also contends that defendants Goord and Wright are generally responsible for deciding which wheelchairs will be provided to DOCS' prisoners, and that defendants Goord, Wright, Poole, and/or Gregoire are specifically responsible for deciding which wheelchairs will be provided to prisoners at Five Points. Furthermore, [*4] plaintiff asserts that the wheelchairs themselves create additional risk of serious bodily injury, since they are not approved for seating use within a motor vehicle.
Plaintiff goes on to allege he was issued a wheelchair by DOCS, Goord, and/or Wright that carries a sticker containing the following language: "No wheelchair has been approved for use as a seating surface within a motor

2006 U.S. Dist. LEXIS 49957, *4

Page 2 of 9

vehicle." He further alleges, that each wheelchair issued by Southern District of New York. After obtaining counsel in

DOCS carries a sticker containing the same language. In that action, he filed a First Amended Complaint on or about

addition, plaintiff asserts that the Owner's Operator and September 6, 2002, against Defendants Goord, DOCS, and

Maintenance Manual issued by the manufacturer of the others not named in this case. That First Amended Complaint

wheelchair issued to him, and all other inmates, contains the contained allegations similar or identical to the allegations

following language:

contained in paragraphs 1-37 of the complaint here. Through

his Southern District lawsuit, plaintiff states that he sought,

Invacare recommends that wheelchair users NOT be inter alia, injunctive relief requiring the named defendants,

transported in vehicles of any kind while in including Goord, and DOCS, to transport disabled prisoners

wheelchairs. As of this date, the Department of who require the use of a wheelchair in a safe manner. Then,

Transportation has not approved any tie-down on or about May 6, 2003, plaintiff moved The Honorable

system for transportation of a user while in a Deborah A. Batts, Southern District of New York, for a

wheelchair, in a moving vehicle of any type. It is preliminary injunction, asking that defendants be ordered to

Invacare's position that users of wheelchairs should transport plaintiffs in a safe manner and with procedures and

be transferred into appropriate sea[t]ing in vehicles equipment that are consistent with the ADA.

for transportation and use be made of the restraints made available by the auto industry. Invacare cannot [*5] and does not recommend any wheelchair transportation systems. AS REGARDS RESTRAINTS -- SEAT POSITIONING STRAPS -IT IS THE OBLIGATION OF THE DME DEALER, THERAPISTS AND OTHER HEALTHCARE PROFESSIONALS TO DETERMINE IF A SEATING RESTRAINT IS REQUIRED TO ENSURE THE SAFE OPERATION OF THIS EQUIPMENT BY THE USER. SERIOUS INJURY CAN OCCUR IN THE EVENT OF A FALL FROM A WHEELCHAIR.(Compl. P32.) Plaintiff further contends that the Owner's Operator and Maintenance Manual for each of the wheelchairs issued to prisoners by DOCS and its employees contains the same language as referenced above.

[*7] In support of his motion for preliminary injunction in the Southern District lawsuit, plaintiff submitted a report prepared by Gina Bertocci, Ph.D., whom plaintiff identified as a wheelchair transportation expert. According to the complaint, Dr. Bertocci is an Assistant Professor in the University of Pittsburgh's School of Health and Rehabilitation Sciences. Dr. Bertocci has held the position of Director of the Rehabilitation Engineering Research Center on Wheelchair Transportation Safety since on or about November, 2001. On March 28, 2003, Dr. Bertocci conducted an inspection of the wheelchair transport van used at Green Haven. This inspection included a review of the equipment used by Green Haven 1 to transport prisoners who use wheelchairs for mobility, the wheelchairs used during such transport, and the wheelchair securement and the occupant restraint techniques used by corrections officers responsible for transporting such prisoners.

With regard to his specific injury, plaintiff alleges that as a result of inadequate training and supervision, an inadequate wheelchair, inadequate means of transportation, and due to the use of restraints, he suffered serious physical harm on September 28, 2000, while being transported from St. Agnes Hospital to Green Haven. While restrained in his wheelchair, plaintiff states that the van in which he was traveling made a sharp turn, causing his wheelchair to collapse. As a result, plaintiff claims he was thrust forward and that his forehead stuck a support beam within the vehicle, injuring his head [*6] and neck. Plaintiff also maintains that, prior to the date of the incident, other prisoners in DOCS's custody who required a wheelchair for mobility, had been injured in a similar fashion.

[*8] As a result of this inspection, Dr. Bertocci came to the following conclusions: (a) the wheelchair being used to transport plaintiff is not intended for use as a motor vehicle seat and does not meet current American National Standards Institute/Rehabilitation Engineering and Assistive Technology Society of North America ("ANSI/RESNA") standards; (b) the technique used by defendants to secure wheelchair-bound prisoners exposes them to a higher risk of injury; and (c) the failure to properly use the Wheelchair Tiedown and Occupant Restraint System ("WTORS") exposes wheelchair-bound prisoners to a higher risk of injury. Dr. Bertocci concluded that the procedures demonstrated by Green Haven personnel were in violation of ADA regulations, industry recommended practice, and guidelines provided by the WTORS

As a result of the September 2000 incident, plaintiff states

that, on February 14, 2001, he filed a pro se complaint in the

1 Plaintiff contends in his complaint in this lawsuit the equipment and techniques used at Green Haven are the same as those used at Five Points.

2006 U.S. Dist. LEXIS 49957, *8

Page 3 of 9

manufacturer which are posted in the vehicle. Dr. Bertocci the same type of wheelchair deemed unsafe for transport by

further concluded that the inappropriate wheelchair used to Dr. Bertocci in her report, [*11] and that Williams did not

transport passengers, in combination with the poor procedure, secure plaintiff with a lap or shoulder belt. Because of this,

will lead to an increased risk of injury during either normal plaintiff alleges that Williams knew or should have known

driving maneuvers, emergency driving maneuvers, or a crash. that he was exposing plaintiff to a serious risk of harm.

Dr. Bertocci recommended that to reduce the injury risk, ANSI/RESNA WC-19 compliant [*9] wheelchairs should be used for transporting inmates and that those responsible for wheelchair transportation undergo appropriate training.

Plaintiff alleges that while returning to Five Points, Williams crashed the vehicle, causing plaintiff to be thrown from his wheelchair. He maintains that as a result, he suffered serious physical injuries to his right wrist, neck and ribs.

On or about May 23, 2003, plaintiff was transferred from Green Haven to Five Points. Plaintiff asserts that he did not Plaintiff's complaint contains six causes of action. Plaintiff

request or consent to this transfer. On or about June 9, 2003, alleges that defendants' failure to provide safe transportation

defendants filed their opposition to plaintiff's motion for to prisoners who require a wheelchair for mobility, including

preliminary injunction in the Southern District lawsuit, arguing that plaintiff's application was moot because he had been removed from Green Haven. In his complaint in this case, plaintiff maintains that Goord and DOCS in the Southern District lawsuit, did not dispute any of Dr. Bertocci's

plaintiff: (1) demonstrated deliberate indifference and/or willful neglect to plaintiff's serious medical needs constituting cruel [*12] and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution; (2) deprived plaintiff of liberty and property

conclusions. On or about August 8, 2003, Judge Batts entered without due process of law in violation of the Fifth and

an Order denying plaintiff's motion for preliminary injunction, finding that his transfer to Five Points did moot the action. Order, Shariff v. Greiner, No. 01-CV-1140-DABDFE (S.D.N.Y. Aug. 8, 2003).

Fourteenth Amendments of the United States Constitution; (3) discriminates against qualified individuals with disabilities, including plaintiff, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12132; (4) discriminates against qualified individuals with disabilities, including plaintiff,

Plaintiff claims that he was transported from Green Haven to solely by reason of their disability, in violation of Section 504

Five Points in the same unsafe manner as complained of in of the Rehabilitation Act, 29 U.S.C. § 794; (5) Dr. Gregoire's

the Southern District action. He alleges that since his arrival failure to provide adequate treatment of plaintiff's wrist injury

at Five Points, he has sought assurances that he would be demonstrated deliberate indifference and/or willful neglect to

safely transported [*10] to outside medical facilities, but no plaintiff's serious medical needs constituting cruel and

such assurances have been given. Accordingly, until February unusual punishment in violation of the Eighth and Fourteenth

10, 2004, plaintiff states that he did not travel outside Five Amendments of the United States Constitution; and (6)

Points for any medical appointments.

Defendant Gregoire's failure to provide adequate treatment of

plaintiff's wrist injury demonstrated deliberate indifference

On or about February 10, 2004, plaintiff was transported in a van to Auburn Correctional Facility ("Auburn") to visit a urology specialist. Defendant Williams was assigned to transport him to and from Auburn. Upon leaving and returning to Five Points on February 10, 2004, plaintiff

and/or willful neglect to his serious medical needs and deprived him of liberty [*13] and property without due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution. For each of his causes of action, plaintiff seeks compensatory and

alleges that Williams failed to properly secure him and that punitive damages, as well as appropriate injunctive relief. Williams used a "black box" 2 to restrain him. Plaintiff

contends that, based upon by Dr. Bertocci's expert report, THE RULE 23 STANDARD

Williams' conduct put him at a higher risk of injury. Moreover, plaintiff also alleges that the use of a black box while transporting paraplegic prisoners is prohibited at Green Haven. Plaintiff states, that although he informed Williams

Plaintiffs have moved for class certification pursuant to Federal Rule of Civil Procedure 23, subparagraphs (a), (b)(1)(A), (b)(1)(B) and (b)(2), which state:

that due to his medical condition he should not be shackled to

a black box during transport, Williams ignored his protests

(a) Prerequisites to a Class Action. One or more

and shackled him to the black box anyway. Plaintiff further

members of a class may sue or be sued

contends that was transported in

2 Plaintiff explains in his complaint that, "a 'black box' is a restraint device, used in the transport of prisoners, by which Correction Officers shackle prisoners' hands and feet together and to the device to prevent the possibility of escape." (Compl. P66.)

2006 U.S. Dist. LEXIS 49957, *13

Page 4 of 9

as representative parties on behalf of all only if (1) burden of demonstrating that Rule 23's requirements are

the class is so numerous that joinder of all members satisfied. Caridad v. Metro-North Commuter Railroad,

is impracticable, (2) there are questions of law or fact 191 F.3d 283, 291 (2d Cir. 1999)(citation omitted), cert.

common to the class, (3) the claims or defenses of denied,529 U.S. 1107, 120 S. Ct. 1959, 146 L. Ed. 2d

the representative parties are typical of the claims or 791 (2000); see also, 5 James Wm. Moore et al.,

defenses of the class, and (4) the representative MOORE'S FEDERAL PRACTICE § 23.60 [*15] [2]

parties will fairly and adequately protect the interests ("[A] class action must satisfy each of the requirements

of the class.

of Rule 23, and the plaintiff must plead more than a

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

simple reiteration of those requirements in conclusory allegations. Instead, the plaintiff should allege facts demonstrating that all of the requirements for bringing a class action are fulfilled.") (citation omitted). It is well

(1) the prosecution of separate actions by or

settled that before certifying a class, a district court

against individual members [*14] of the

must conduct a "rigorous analysis" to determine

class would create a risk of

whether or not Rule 23's requirements have been met.

3Caridad v. Metro-North Commuter Railroad, 191 F.3d

(A) inconsistent or varying adjudications

at 291. However, the court should not inquire into the

with respect to individual members of the

merits of the plaintiffs' underlying claims. Id. (citation

class which would establish incompatible standards of conduct for the party opposing

omitted). Moreover, courts are required to construe Rule 23's requirements liberally. Eisen v. Carlisle &

the class, or

Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968). Courts

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to

should resolve doubts about whether or not Rule 23 has been satisfied in favor of certification. In re Industrial Diamonds Litigation, 167 F.R.D. 374, 378 (S.D.N.Y. 1996)(citations omitted).

the adjudications or substantially impair or impede their ability to protect their

[*16] ANALYSIS

interests; or

Timeliness of the Motion to Certify

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
Fed. R. Civ. P. 23(a), (b)(1)(A), (b)(1)(B) and (b)(2) (2006). The party seeking class certification has the

The Court must first address defendants' argument that plaintiff's motion to certify a class is untimely. Western District of New York Local Rule of Civil Procedure 23 states in pertinent part as follows:
Within 120 days after the filing of a pleading alleging a class action, unless this period is

3 Neither Rule 23, nor the vast majority of cases interpreting it identifies a particular burden of proof on the plaintiff. See, e.g., Shepherd v. Babcock & Wilcox of Ohio,2000 U.S. Dist. LEXIS 6349, No. C-3-98-391, 2000 WL 987830 at *1 n. 5 (S.D. Ohio, Mar. 3, 2000)("Although many . . . reported decisions state that the party seeking certification carries this burden, research has found only one reported case which defines that burden, whether as being the preponderance of evidence or otherwise."). According to a leading treatise on the subject of class actions, that is because "[b]urden of proof concepts are generally more applicable to proof of facts or evidence and do not comfortably fit in determinations respecting whether a particular procedural device has been properly invoked or should be permitted to be maintained." 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 7.17 (3d ed. 1992). The Newberg treatise further indicates that the plaintiff's burden under Rule 23 is merely a burden to plead facts indicating that Rule 23 is satisfied, which then creates a rebuttable presumption in favor of class certification. Id. at §§ 7.19-7.20. If the defendant rebuts this presumption by producing contrary evidence, the burden of production then shifts back to the plaintiff to produce counter-affidavits or other evidence. Id. at § 7.26 The Court must then exercise its discretion to determine whether class certification is appropriate. Id. at § 7.27

2006 U.S. Dist. LEXIS 49957, *16

Page 5 of 9

extended on motion for good cause filed prior to the failing to wear a seatbelt[.]" Therefore, they argue that the

expiration of said 120-day period or in the remainder of his allegations about

scheduling order, the party seeking class certification DOCS's transportation methods are abstract, that he has not

shall move for a determination under Federal Rule of suffered an injury in fact, and, consequently, he does not have

Civil Procedure 23(c)(1) as to whether the case is to standing to represent the class. (Id. at 11.) Thus, defendants

be maintained as a class action.W.D.N.Y. Loc. R. maintain that the Court is without jurisdiction under Article

Civ. P. 23(d) (2003). The complaint in this case was III of the Constitution to grant the class certification sought by

filed on December 20, 2004, and the motion for class plaintiff. The Court disagrees.

certification was filed on October 4, 2005, 288 days later. However, as counsel notes in his affirmation, defendants moved to dismiss the case in lieu of filing

It is certainly true, as plaintiff himself concedes, in order to have standing to act as the class representative, he must first,

an answer. Consequently, issue was not fully joined

until July 21, 2005, after the Court adjudicated

have suffered an "injury in fact"--an invasion of a

defendants' motion to dismiss. Additionally,

legally protected interest which is (a) concrete

plaintiff's counsel raised the issue of class

and [*19] particularized, and (b) "actual or

certification [*17] at a July 14, 2005 conference

imminent, not 'conjectural' or 'hypothetical[.]'"

with the undersigned, and the Court advised the

Second, there must be a causal connection between

parties to discuss the possibility of settling plaintiff's

the injury and the conduct complained of--the injury

injunctive claims before bringing a motion for class certification. Plaintiff's counsel initiated settlement

has to be "fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of]

negotiations by letter dated June 8, 2005, and the

the independent action of some third party not before

Court ordered the parties to report within thirty days

the court." Third, it must be "likely," as opposed to

of the conference. By letter dated August 25, 2005,

merely "speculative," that the injury will be

counsel for defendants advised the Court and

"redressed by a favorable decision."Lujan v.

plaintiff's counsel that settlement was not a viable

Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.

possibility. Therefore, consistent with the Court's

Ct. 2130, 119 L. Ed. 2d 351 (1992) (citations and

instructions, plaintiff's counsel filed the instant

footnote omitted).

motion 82 days after the Court's direction at the July 14, 2005 conference. Furthermore, on September 7, 2005, the parties met with Judge Feldman, to whom the case had been referred pursuant to 28 U.S.C. § 636, and at that conference, they discussed the schedule for filing the class certification motion. (Reinert Affirmation P45.) Court and counsel agreed that plaintiff would file his motion for class certification within 30 days of the September 7 conference. (Id.) The instant motion is filed within that time period.

However, as plaintiff also points out, the Second Circuit held, in Baur v. Veneman, 352 F.3d 625, 633-34 (2d Cir. 2003), a case involving food and drug safety, that, "threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes." See also Motorola Credit Corp. v. Uzan, 388 F.3d 39, 55 (2d Cir. 2004) ("defendants' dilution and eventual destruction of plaintiffs' collateral amounts to the requisite 'injury-in-fact' for Article III purposes, even if that injury is not sufficiently definite [*20] for RICO purposes."); Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 574 (6th Cir. 2005) ("Sutton has

Accordingly, the Court determines that plaintiff [*18] has alleged sufficient facts, when accepted as true, to suggest an

filed his motion in a timely manner, since the scheduling increased risk of future harm resulting from being implanted instructions from the two judges involved in this case with St. Jude's device. Whether Sutton is likely to prevail on

extended the time for filing a motion for class certification for the merits is not a proper consideration at this time."); Harvey

good cause shown.

v. Veneman, 396 F.3d 28, 34 (1st Cir. 2005) ("Harvey alleges

that he has suffered an injury in fact because the challenged

Article III Case or Controversy -- Standing

regulations weaken the integrity of the organic program and

Defendants argue that the only controversy involved in this plaintiff's case is not connected with "the alleged systematic improprieties…." (Def.s' Mem. of Law at 10.) In that regard, defendants contend that "plaintiff can only show harm from

the standards it sets forth. This weakening harms Harvey as a consumer of organic foods because it degrades the quality of organically labeled foods. The magistrate judge properly held that this claimed harm represents concrete, redressable injury sufficient to confer Article III standing with respect to most of

the counts in Harvey's complaint.").

2006 U.S. Dist. LEXIS 49957, *20

Page 6 of 9

The Court finds that plaintiff's allegations meet the class members, as well as the effect on future wheelchair-

requirements of an justicable controversy and that he has bound [*23] inmates, meets the numerosity requirement.

standing to represent the class he seeks to certify. He has alleged an invasion of a legally protected interest which is Rule 23(a)(2) Commonality

concrete and particularized, and actual or [*21] imminent, not conjectural or hypothetical. He has also alleged a causal connection between the injury complained of and defendants' conduct and it is likely that the injury will be redressed by a favorable decision.

Rule 23(a)(2)'s commonality requirement "is met if plaintiffs' grievances share a common question of law or of fact." Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (citations omitted). Commonality will not be "defeated by the possibility that the proof required to demonstrate 'injury'

Rule 23(a) and (b) Factors

might be highly individualized." In re Sumitomo Copper Litigation v. Credit Lyonnais Rouse Ltd., 262 F.3d 134, 141

The Court will now proceed to analyze the four requisite (2d Cir. 2001) (citations omitted). Here, the defense

factors for class certification as set forth in Rule 23(a) have specifically argues that plaintiff will be unable to show

been satisfied, and then whether plaintiff has met any of the commonality because the Court must consider the available

alternative requirements of Rule 23(b).

defenses to individual claim when determining whether class

Rule 23(a)(1) Numerosity

certification is appropriate. (Def.s' Mem. of Law at 7.) Plaintiff counters that the only unique defenses relevant to the

Court's consideration on this motion are any that go to his

Plaintiff's proposed class is described in the complaint as claims for injunctive relief. (Pl.'s Reply Mem. of Law at 3.)

follows:

The Southern District has held that where the "claims of all

Plaintiff bring this action on his own behalf and, pursuant to Rule 23(b)(1), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure, on behalf of all prisoners with disabilities, as defined in 29 U.S.C. § 705(20) and 42 U.S.C. § 12102, who require a wheelchair for mobility, and who are now, have been within the past three years, or will in the future be in DOCS custody.(Compl. P110.) Plaintiff alleges that the actual size of the class is unknown, but that "he believes there are at [*22] least 100 class members and the size of the class is so numerous that joinder of all members is impracticable." (Compl. P110a.) A plaintiff need not establish the precise number of class members in order to satisfy the numerosity requirement. McNeill v. New York City Housing Authority, 719 F. Supp. 233, 252 (S.D.N.Y. 1989); Ellender v. Schweiker, 550 F. Supp. 1348, 1359 (S.D.N.Y.1982), app. dism'd781 F.2d 314 (2d Cir.1984). "It is permissible for [a] plaintiff to rely on reasonable inferences drawn from the available facts. Furthermore, the lack

proposed class members derive from the same … policies and procedures, and are based on the same legal theories," the commonality requirement [*24] is met. McNeill, 719 F. Supp. at 252. "There is no requirement that 'the factual background of each named plaintiff's claim be identical to that of all class members.' Caridad [v. Metro-North Commuter R.R., 191 F.3d 283(2d Cir.1999).]; see Cromer [Finance Ltd. v. Berger,] 205 F.R.D. [113,] 122 (S.D.N.Y.2001)." Ingles v. City of New York,2003 U.S. Dist. LEXIS 2453, No. 01 Civ. 8279, 2003 WL 402565, *5 (S.D.N.Y. Feb. 20, 2003). In the instant case, the Court finds that plaintiff has demonstrated the existence of several common issues, most notably the allegation that defendants have failed and will continue to fail to safely transport prisoners who use wheelchairs in violation of the Americans with Disabilities Act, the Rehabilitation Act, and the Eighth Amendment. (Pl.'s Mem. of Law at 10.) Plaintiff has explained that he seeks class certification only on his claims for declaratory and injunctive relief, not the damages claims for his alleged injuries after he was transported in a wheel chair without a safety restraint. (Id.) Accordingly, Rule 23(a)(2) is satisfied.

of knowledge as to the exact number of affected Rule 23(a)(3) Typicality

persons is not a bar to maintaining a class action

where the defendants alone have access to such data. Defendants argue [*25] that plaintiff has not met the

See Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y. typicality requirement of Rule 23(a)(3) since plaintiff's

1980)." McNeill, 719 F. Supp. at 252. Defendants do "lawsuit is nothing more than a negligence claim for failing to

not specifically dispute that plaintiff's allegations use a seat belt on an inmate in a wheelchair and should not be

meet the numerosity requirement, but to the extent allowed to become a federal class action lawsuit." (Def.s'

that their arguments could be construed as putting Mem. of Law at 1.) It is well settled that

this requirement in issue, the Court finds that

plaintiff's allegations of approximately 100 potential

Rule 23(a)(3)'s typicality requirement is satisfied

when each class member's claim

2006 U.S. Dist. LEXIS 49957, *25

Page 7 of 9

arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993) (citations omitted). Moreover, "[d]ifferences in the damages sustained by individual class members does not preclude a showing of typicality, nor defeat class certification." In re Playmobil Antitrust Litigation, 35 F. Supp. 2d 231, 242 (E.D.N.Y. 1998)(citations omitted). In the instant case, it [*26] is clear that the typicality requirement is satisfied.
As to typicality, defendants maintain "[p]laintiff's lawsuit will face unique factual and legal defenses…." (Def.s' Mem. of Law at 8.) In that regard, defendants ask the Court to examine the merits of plaintiff's claim. However, at this stage of the proceedings, it is well settled that a court should not examine the merits. As the Supreme Court cautioned in Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974):

Id. at 427.
Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice to a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable to civil trials. The court's tentative findings, made in the absence of established safeguards, may color the subsequent proceedings and place an unfair burden on the defendant.Eisen, 417 U.S. at 177-78. In any event, as plaintiff correctly points out, "the 'unique defenses' alleged by defendants to exist … boil down to an argument about causation of plaintiff's [*28] injuries." (Pl.'s Reply Mem. of Law at 3.) That is, the "unique defenses" relate only the incident of September 28, 2000. Here, as plaintiff argues, "[a]ny prisoner who uses a wheelchair for mobility will be harmed by defendants' failure to take adequate steps to assure that safe transportation services are provided to such prisoners." (Pl.'s Mem. of Law at 11.) Accordingly, the Court finds that Rule 23(a)(3) is satisfied since all claims arise out of the same practices alleged to be illegal and unconstitutional in plaintiff's complaint and that Rule 23(a)(3) is satisfied.

We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed to obtain a determination on the merits of the claims advanced on behalf of the class without any assurance that a class action may be maintained. This procedure is directly contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class [*27] action may be maintained as such '(a)s soon as practicable after the commencement of (the) action….' In short, we agree with Judge Wisdom's conclusion in Miller v. Mackey International, 452 F.2d 424 (5th Cir. 1971), where the court rejected a preliminary inquiry into the merits of a proposed class action:
'In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.'

Rule 23(a)(4) Adequacy
To satisfy Rule 23(a)(4), a plaintiff must demonstrate that "class counsel is qualified, experienced, and generally able to conduct the litigation," and that "there is no conflict of interest between the named plaintiffs and other members of the plaintiff class." Marisol A., 126 F.3d at 378 (Citations omitted). Defendants' papers do not object to plaintiff's choice of counsel, and the Court finds that counsel is adequate. (See Reinert Affirmation P33, Ex. A.)
To determine whether plaintiff is an adequate class representative, the Court must consider two [*29] factors: "(1) absence of conflict and (2) assurance of vigorous prosecution." Robinson v. Metro-North Commuter Railroad, 267 F.3d 147, 170 (2d Cir. 2001) (citation omitted), cert. denied535 U.S. 951, 122 S. Ct. 1349, 152 L. Ed. 2d 251 (2002). "Courts do not require the representative plaintiff to be the best of all possible plaintiffs or to be especially knowledgeable, intelligent, or possessing a detailed understanding of the legal or factual basis on which a class action can be maintained." In re Playmobil Antitrust Litigation, 35 F. Supp. 2d at 242 (citation omitted). In this Circuit, it is clear that class

2006 U.S. Dist. LEXIS 49957, *29

Page 8 of 9

representatives need not be especially knowledgeable,

the injunction: there is no barrier to the injunction

although "class representative status may properly be denied

against Nielson in his

where the class representatives have so little knowledge of

official capacity as Secretary of the Board. Garrett,

and involvement in the class action that they would be unable

explicitly stated that "our holding here … does not

and unwilling to protect the interests of the class against the

mean that persons with disabilities have no federal

possibly competing interests of the attorneys." Baffa v.

recourse against discrimination. Title I of the ADA

Donaldson, Lufkin & Jenrette Securities Corp., 222 F.3d 52,

still prescribes standards applicable to the States.

61 (2d Cir.2000)(citation omitted). In this case, plaintiff is a

Those standards can be enforced by … private

paraplegic who relies on a wheelchair for mobility and is

individuals [*32] in actions for injunctive relief

frequently [*30] transported outside the prison in motor

under Ex parte Young, 209 U.S. 123, 28 S. Ct. 441,

vehicles under the conditions about which he complains. (See

52 L. Ed. 714 (1908)." Board of Trustees v. Garrett,

Compl. P1.) The Court finds that plaintiff is sufficiently

531 U.S. 356, 121 S. Ct. at 968, 148 L. Ed. 2d 866 n.

knowledgeable, able, and motivated to represent the class and,

9. Because the injunction requires Secretary Nielsen

has, therefore, satisfied the requirements of Rule 23(a)(4).

to comply with its provisions, it would remain in

Rule 23(b)

force even if relief could not be ordered against the Board, and its effect would, for all practical purposes

The Court will now turn its attention to whether plaintiff has satisfied one of the alternate requisites of Rule 23(b). On this issue, the only argument defendants offer as to why plaintiff has not satisfied the requirements of Rule 23(b) are as follows: (1) the Eleventh Amendment bars the relief plaintiff is seeking (addressed by the Court below); and (2) that, "[t]he Court will have to determine if the class is ascertainable," (Def.s' Mem. of Law at 17). As to this latter point, defendants also suggest that any allowed class be limited to "DOCS inmates who use a wheelchair during vehicular transportation." Plaintiff has not opposed this suggestion and the Court finds that it accurately defines the population plaintiff seeks to represent in this lawsuit. Therefore, the Court need only consider defendants' Eleventh Amendment argument.

be the same. For the reasons set forth above, the state is not immune from suit. Morever, the injunction would be effective as to Secretary Nielsen in any event.Armstrong, 275 F.3d at 879. Furthermore, as plaintiff points out in his Reply Memorandum, the Court's focus at this stage in the litigation is not whether the relief sought will be granted, but, rather, whether plaintiff has asked for relief that would benefit the purported class. See Brown v. Giuliani, 158 F.R.D. 251, 269 (E.D.N.Y. 1994) ("Plaintiffs' complaint falls within Rule 23(b)(2)[.] Defendants' failure to act is said to be institutional not merely a cumulation of individual cases. The final injunctive and declaratory relief requested here would inure to the benefit of all class members in [*33] gaining a timely processing of their applications for

Defendants contend in their memorandum [*31] in opposition to class certification that the Eleventh Amendment

benefits."). Plaintiff's claims, therefore, satisfy the requirements of Rule 23(b)(2). 4

bars plaintiff's request for equitable relief in the form of Appointment of Counsel training for DOCS employees. (Def.s' Mem. of Law at 17.)

However, the Court finds defendants' argument to be unpersuasive. In Armstrong v. Davis, 275 F.3d 849, 875-76 (9th Cir. 2001) the Ninth Circuit permitted injunctive relief requiring the California Board of Prison Terms (the state parole authority) to "provide training for all persons under its jurisdiction…." Id. at 876. Additionally, the Ninth Circuit found an independent basis for effectively granting injunctive relief against the State of California. The Court wrote:

Plaintiff seeks to have Alexander A. Reinert, Esq., of Koob & Magoolaghan, South Street Seaport, 19 Fulton Street Suite 408, New York, NY 10038, appointed counsel for the class pursuant to Rule 23(g). The Court has examined Mr. Reinert's qualifications (see Reinert Affirmation, Ex. A and notes also that defendants have not imposed any objection to this request. Accordingly, the Court appoints Mr. Reinert as class counsel.

Furthermore, Garrett makes clear that there is another, independent basis for the implementation of

CONCLUSION
Based upon all of the foregoing, the Court finds that plaintiff has satisfied the requirements of Rule 23(a) and

4 Since the Court has determined that the class can be certified under Rule 23(b)(2), it will not address plaintiff's alternative arguments that the class can also be certified under Rule 23(b)(1)(A) and (b)(1)(B) as well.

2006 U.S. Dist. LEXIS 49957, *33

23(b)(2). Accordingly, the Court hereby grants

plaintiff [*34] Abdul Shariff's motion (# 27) for class Dated: July 20, 2006

certification. The class consists of DOCS inmates who use a wheelchair during vehicular transportation. Further, the Court Rochester, New York

appoints Alexander A. Reinert, Esq., as class counsel. Pursuant to Federal Rule of Civil Procedure 23(c)(2)(A), the ENTER:

Court does not order that notice be made to the class.

/s/ Charles J. Siragusa

IT IS SO ORDERED.

United States District Judge

Page 9 of 9

 
 Case: 6:04-cv-6621 As of: 02/24/2014 11:28 AM EST 1 of 8
CLOSED,CASREF,CLOSED_2013,JWF,ProSe
U.S. DISTRICT COURT U.S. District Court, Western District of New York (Rochester)
CIVIL DOCKET FOR CASE #: 6:04−cv−06621−CJS−JWF

Shariff v. Goord et al Assigned to: Hon. Charles J. Siragusa Referred to: Hon. Jonathan W. Feldman Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Abdul Shariff on behalf of himself and all others similarly situated

Date Filed: 12/22/2004 Date Terminated: 01/08/2013 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Alexander A. Reinert Koob &Magoolaghan 221 Devoe Avenue Yonkers, NY 10705 212−406−3095 Fax: 212−349−4658 Email: aar@kmlaw−ny.com TERMINATED: 10/22/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth L. Koob Koob &Magoolaghan 221 Devoe Avenue Yonkers, NY 10705 212−406−3095 Fax: 212−349−4658 Email: elk@kmlaw−ny.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joan M. Magoolaghan Koob &Magoolaghan 221 Devoe Avenue Yonkers, NY 10705 914−964−8888 Fax: 914−964−8801 Email: jm@kmlaw−ny.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Glenn Goord Commissioner of the New York State Department of Correctional Services, INdividually and in his official capacity
Defendant Lester N. Wright, M.D. M.P.H., Associate Commissioner/Chief Medical Officer of the New York State

represented by Gary M. Levine New York State Office of the Attorney General 144 Exchange Boulevard Suite 200 Rochester, NY 14614 585−327−3223 Fax: 585−546−7514 Email: gary.levine@oag.state.ny.us ATTORNEY TO BE NOTICED
represented by Gary M. Levine (See above for address) ATTORNEY TO BE NOTICED

Case: 6:04-cv-6621 As of: 02/24/2014 11:28 AM EST 2 of 8

Department of Correctional Services, Individually and in his official capacity

Defendant
Thomas Poole Superintendent of Five Points Correctional , Individually and in his official capacity

represented by Gary M. Levine (See above for address) ATTORNEY TO BE NOTICED

Defendant
Peter Gregoire M.D. Medical Director of Five Points Correctional Facility, Individualy and in his official capacity

represented by Gary M. Levine (See above for address) ATTORNEY TO BE NOTICED

Defendant Correction Officer B Williams

represented by Gary M. Levine (See above for address) ATTORNEY TO BE NOTICED

Defendant
New York State Department of Correctional Services

represented by Gary M. Levine (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/20/2004
12/22/2004 02/25/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005 03/14/2005
03/22/2005

# Docket Text
1 COMPLAINT against Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services ( Filing fee $ 150 receipt number 67124.), filed by Abdul Shariff.(TO, ) (Entered: 12/22/2004)
Summons Issued as to Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services. (TO, ) (Entered: 12/22/2004)
2 SUMMONS Returned Executed by Abdul Shariff. New York State Department of Correctional Services served on 1/31/2005, answer due 2/22/2005. (Reinert, Alexander) (Entered: 02/25/2005)
3 SUMMONS Returned Executed by Abdul Shariff. Glenn Goord served on 1/31/2005, answer due 2/22/2005. (Reinert, Alexander) (Entered: 02/25/2005)
4 SUMMONS Returned Executed by Abdul Shariff. Lester N. Wright, MD served on 1/31/2005, answer due 2/22/2005. (Reinert, Alexander) (Entered: 02/25/2005)
5 SUMMONS Returned Executed by Abdul Shariff. Peter Gregoire served on 2/8/2005, answer due 2/28/2005. (Reinert, Alexander) (Entered: 02/25/2005)
6 SUMMONS Returned Executed by Abdul Shariff. Thomas Poole served on 2/8/2005, answer due 2/28/2005. (Reinert, Alexander) (Entered: 02/25/2005)
7 SUMMONS Returned Executed by Abdul Shariff. Correction Officer B Williams served on 2/8/2005, answer due 2/28/2005. (Reinert, Alexander) (Entered: 02/25/2005)
CALENDAR CALL NOTICE FOR TUESDAY, MARCH 22, 2005 AT 9:00 A.M. IN COURTROOM NUMBER 1, 100 STATE STREET, ROCHESTER, NY 14614.The purpose of this calendar call is to ascertain status. Specific information as to case status must be provided. Someone with knowledge of the case and attorneys' schedules must appear. (KAR, ) (Entered: 03/14/2005)
8 MOTION to Dismiss 12(b) Notice of Motion by Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York

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03/22/2005
04/01/2005
05/12/2005 07/14/2005
07/21/2005 07/21/2005 07/21/2005 07/21/2005 07/21/2005 07/21/2005 07/27/2005
07/27/2005 08/01/2005 08/04/2005 09/06/2005 09/07/2005

State Department of Correctional Services.(Levine, Gary) (Entered: 03/22/2005)
9 MEMORANDUM/BRIEF re 8 MOTION to Dismiss 12(b) Notice of Motion by Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services. (Attachments: # 1 Exhibit A)(Levine, Gary) (Entered: 03/22/2005)
10 MOTION SCHEDULING ORDER re 8 MOTION to Dismiss 12(b) Notice of Motion filed by New York State Department of Correctional Services,, Lester N. Wright, M.D., Glenn Goord,, Peter Gregoire,, Thomas Poole,, Correction Officer B Williams, Responses due by 5/13/2005 Oral Argument set for 7/14/2005 03:00 PM before Hon. Charles J. Siragusa.. Signed by Hon. Charles J. Siragusa on 4/1/05. (KAR, ) (Entered: 04/01/2005)
11 MEMORANDUM in Opposition re 8 MOTION to Dismiss 12(b) Notice of Motion filed by Abdul Shariff. (Attachments: # 1 Exhibit # 2 Certificate of Service)(Reinert, Alexander) (Entered: 05/12/2005)
12 Minute Entry for proceedings held before Judge Charles J. Siragusa : Appearances: Alexander Reineret appears for the plaintiff. Gary Levine appears for the defendant.Matter on for oral argument on defendant motion to dismiss (#8). Court denies motion and will issue a written decision. Defendant has 30 days to file answer and parties have 30 days to submit a status report as to settlement. (Court Reporter Karen Winter.) (MSH, ) (Entered: 07/15/2005)
13 ANSWER to Complaint with Jury Demand by New York State Department of Correctional Services.(Levine, Gary) (Entered: 07/21/2005)
14 ANSWER to Complaint with Jury Demand by Glenn Goord.(Levine, Gary) (Entered: 07/21/2005)
15 ANSWER to Complaint with Jury Demand by Peter Gregoire.(Levine, Gary) (Entered: 07/21/2005)
16 ANSWER to Complaint with Jury Demand by Thomas Poole.(Levine, Gary) (Entered: 07/21/2005)
17 ANSWER to Complaint with Jury Demand by Correction Officer B Williams.(Levine, Gary) (Entered: 07/21/2005)
18 ANSWER to Complaint with Jury Demand by Lester N. Wright, MD.(Levine, Gary) (Entered: 07/21/2005)
19 DECISION AND ORDER granting in part and denying in part 8 Motion to Dismiss Defendants' motion to dismiss is granted with respect to the second and sixth causes of action, and otherwise denied. Signed by Judge Charles J. Siragusa on 7/27/05. (KAR, ) (Entered: 07/27/2005)
20 ORDER REFERRING CASE to Magistrate Judge Jonathan W. Feldman . Signed by Hon. Charles J. Siragusa on 7/27/05. (MSH, ) (Entered: 07/28/2005)
21 ORDER Scheduling Conference set for 9/7/2005 at 03:30 PM before Hon. Jonathan W. Feldman. Signed by Hon. Jonathan W. Feldman on 8/1/2005. (RO) (Entered: 08/01/2005)
22 AMENDED DECISION AND ORDER re 19 Order on Motion to Dismiss. Signed by Hon. Charles J. Siragusa on 8/2/05. AMENDED DECISION FILED TO CORRECT TYPOGRAPHICAL ERRORS.(KAR, ) (Entered: 08/04/2005)
23 DISCOVERY PLAN by Abdul Shariff. (Attachments: # 1 Letter to Magistrate Judge Feldman re: Proposed Discovery Plan)(Reinert, Alexander) (Entered: 09/06/2005)
E−Filing Error: FILED IN ERROR − proposed order to be directly emailed or mailed to the judge for approval 23 DISCOVERY PLAN by Abdul Shariff. (Attachments: # 1 Letter to Magistrate Judge Feldman re: Proposed Discovery Plan)(Reinert, Alexander) (TO, ) (Entered: 09/07/2005)

Case: 6:04-cv-6621 As of: 02/24/2014 11:28 AM EST 4 of 8

09/07/2005 09/07/2005 09/07/2005 09/08/2005
10/04/2005 01/04/2006 01/18/2006 01/18/2006 02/14/2006 03/17/2006 03/17/2006 03/22/2006 03/23/2006 03/24/2006 03/27/2006 03/30/2006

24 RULE 26 DISCLOSURE by Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services.(Levine, Gary) (Entered: 09/07/2005)
NOTICE of MANUAL FILING by Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services re 24 Exhibits A through C are being filed manually due to volume and confidentiality (Levine, Gary) (Entered: 09/07/2005)
25 Minute Entry for proceedings held before Judge Jonathan W. Feldman : Scheduling Conference held on 9/7/2005. (RO) (Entered: 09/07/2005)
26 SCHEDULING ORDER: Mandatory disclosure due by 9/21/2005. Discovery due by 3/31/2006. Expert reports due by 5/12/2006. Rebuttal expert reports due by 5/26/2006. Join Parties/Amend Pleadings due by 11/11/2005. Motions due by 6/23/2006. Signed by Hon. Jonathan W. Feldman on 9/8/2005. (RO) (Entered: 09/08/2005)
27 MOTION to Certify Class by Abdul Shariff. (Attachments: # 1 Certificate of Service # 2 Memorandum in Support # 3 Certificate of Service)(Reinert, Alexander) (Entered: 10/04/2005)
28 NOTICE to Take Deposition of Abdul Shariff (plaintiff) by Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services.(Levine, Gary) (Entered: 01/04/2006)
29 MOTION SCHEDULING ORDER re 27 MOTION to Certify Class filed by Abdul Shariff. Signed by Hon. Charles J. Siragusa on 1/17/06. (KAR, ) (Entered: 01/18/2006)
Set Deadlines/Hearings: Responses due by 2/17/2006 Motion Hearing set for 3/30/2006 03:00 PM before Hon. Charles J. Siragusa. (KAR, ) (Entered: 01/18/2006)
30 LETTER ORDER re 27 MOTION to Certify Class filed by Abdul Shariff, Responses due by 3/17/2006. Signed by Hon. Charles J. Siragusa on 2/14/06. (KAR, ) (Entered: 02/14/2006)
31 DECLARATION signed by Gary M. Levine filed by Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services. (Levine, Gary) (Entered: 03/17/2006)
32 MEMORANDUM IN OPPOSITION re 27 MOTION to Certify Class by Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services. (Levine, Gary) (Entered: 03/17/2006)
33 Joint MOTION for Extension of Time to Complete Discovery by Abdul Shariff.(Reinert, Alexander) (Entered: 03/22/2006)
E−Filing Notification: E−FILED LETTERS ARE NOT ACCEPTED PLEASE SUBMIT LETTER IN PAPER FORM TO THE JUDGE 33 Joint MOTION for Extension of Time to Complete Discovery (TO, ) (Entered: 03/23/2006)
34 AMENDED SCHEDULING ORDER: Discovery due by 5/31/2006. Expert reports due by 7/14/2006. Rebuittal expert reports due by 7/28/2006. Motions due by 8/25/2006. Signed by Hon. Jonathan W. Feldman on 3/24/2006. (RO) (Entered: 03/24/2006)
35 REPLY to Response to Motion re 27 MOTION to Certify Class filed by Abdul Shariff. (Attachments: # 1 Certificate of Service)(Reinert, Alexander) (Entered: 03/27/2006)
36 Minute Entry for proceedings held before Judge Charles J. Siragusa : Motion Hearing held on 3/30/2006 re 27 MOTION to Certify Class filed by Abdul Shariff,. (Court Reporter Frank Leogrande.) (MSH, ) (Entered: 03/31/2006)

Case: 6:04-cv-6621 As of: 02/24/2014 11:28 AM EST 5 of 8

04/06/2006 05/31/2006 06/01/2006 06/02/2006 07/20/2006 08/29/2006 09/01/2006 05/21/2007 05/21/2007
05/23/2007
06/26/2007 06/27/2007
06/27/2007 06/29/2007 07/10/2007
07/12/2007

37 DECISION AND ORDER granting 27 Motion to Certify Class. Signed by Judge Charles J. Siragusa on 4/5/06. (KAR, ) (Entered: 04/06/2006)
38 Consent MOTION to Adjourn Discovery Deadlines in Light of Ongoing Settlement Discussions by Abdul Shariff.(Reinert, Alexander) (Entered: 05/31/2006)
E−Filing Notification: letters are to be submitted in paper form directly to the judge or file document in proper pleading format (see Rule 10 form of papers in our Local Rules CP) 38 Consent MOTION to Adjourn Discovery Deadlines in Light of Ongoing Settlement Discussions (TO, ) (Entered: 06/01/2006)
39 ORDER staying discovery deadlines until the parties have exhausted the prospect of settlement. Parties to advise the court in writing the status of settlement negotiations no later than 8/1/2006. Signed by Hon. Jonathan W. Feldman on 6/2/06. (TO, ) (Entered: 06/05/2006)
40 AMENDED DECISION AND ORDER re 37 Order on Motion to Certify Class. Signed by Hon. Charles J. Siragusa on 7/20/06. (KAR, ) (Entered: 07/20/2006)
41 Minute Entry for proceedings held before Judge Charles J. Siragusa : Settlement Conference held in chambers on 8/29/2006. (MSH, ) (Entered: 08/31/2006)
42 SCHEDULING ORDER Discovery due by 3/1/2007. Motions due by 5/29/2007.. Signed by Hon. Charles J. Siragusa on 8/31/06. (KAR, ) (Entered: 09/01/2006)
43 MEMORANDUM/BRIEF Seeking Stay of Discovery by Abdul Shariff. (Reinert, Alexander) (Entered: 05/21/2007)
E−Filing Notification: This district does not allow parties to file letters to the Court. Letters are to be submitted in paper form directly to the judge or file document in proper pleading format (see Rule 10 form of papers in our Local Rules CP) 43 MEMORANDUM/BRIEF Seeking Stay of Discovery by Abdul Shariff. (Reinert, Alexander) (TO, ) (Entered: 05/22/2007)
44 ORDER staying discovery deadlines until the parties have exhausted the prospect of settlement. Councel shall advise the court in writing on or before 6/29/2007 the status of settlement, in the event settlement is not achieved, a new scheduling order will be issued.. Signed by Hon. Jonathan W. Feldman on 5/23/07. (TO, ) (Entered: 05/23/2007)
45 STATUS REPORT Letter to Magistrate Judge Feldman by Abdul Shariff. (Reinert, Alexander) (Entered: 06/26/2007)
E−Filing Notification: ***User name and signature do not match, document to be re−filed for username and signature (user name and password serve as the signature on all electronic documents, see Administrative Procedures Guide pages 6 and 7 g. iii. re: signatures) ***This district does not allow parties to file letters to the Court. Letters are to be submitted in paper form directly to the judge or file document in proper pleading format (see Rule 10 form of papers in our Local Rules CP) RE: 45 STATUS REPORT Letter to Magistrate Judge Feldman by Abdul Shariff. (Reinert, Alexander) (TO) (Entered: 06/27/2007)
46 STATUS REPORT Letter to Magistrate Judge by Abdul Shariff. (Reinert, Alexander) (Entered: 06/27/2007)
47 ORDER staying discovery deadlines until the parties have exhausted the prospect of settlement. Signed by Hon. Jonathan W. Feldman on 6/29/07. (TO) (Entered: 06/29/2007)
48 Minute Entry for proceedings held before Judge Charles J. Siragusa : Status Conference held on 7/10/2007. Parties will depose the experts. All expert discovery, including depositions and expert reports are to be completed by 11−30−07. Status Conference set for 12/7/2007 02:00 PM before Hon. Charles J. Siragusa. (Court Reporter Joanne Galloway.) (MSH) (Entered: 07/10/2007)
49 SCHEDULING ORDER Parties are to have all expert discovery, including depositions and expert reports, completed by November 30,2 007. Status Conference is set for 12/7/2007 02:00 PM before Hon. Charles J. Siragusa.. Signed by Hon. Charles J. Siragusa on 7/11/07. (KAR) (Entered: 07/12/2007)

Case: 6:04-cv-6621 As of: 02/24/2014 11:28 AM EST 6 of 8

09/14/2007 10/19/2007 11/07/2007 11/21/2007 12/12/2007 02/27/2008 03/27/2008
10/20/2008 10/24/2008 10/29/2008 11/07/2008 10/01/2009 10/13/2009
11/06/2009

50 ORDER that the courts 49 scheduling Order deadlines are stayed until further order, Joint Status Report due by 11/1/2007.. Signed by Hon. Charles J. Siragusa on 9/14/07. (TO) (Entered: 09/17/2007)
51 NOTICE of Change of Address by Elizabeth L. Koob (Koob, Elizabeth) (Entered: 10/19/2007)
52 LETTER ORDER granting defendant's letter application for extension of time to file joint status report.Status Report due by 12/3/2007. Signed by Hon. Charles J. Siragusa on 11/6/07. (KAR) (Entered: 11/07/2007)
53 AMENDED SCHEDULING ORDER: the stay on expert discovery is vacated; Status Conference set for 3/4/2008 02:00 PM before Hon. Charles J. Siragusa; Discovery completed by 2/28/2008.. Signed by Hon. Charles J. Siragusa on 11/21/07. (TO) (Entered: 11/21/2007)
54 RESPONSE to Discovery Request from Gary M. Levine (Defendants' Response to Plaintiff's Demand for Expert Disclosure) by Glenn Goord, Lester N. Wright, MD, Thomas Poole, Peter Gregoire, Correction Officer B Williams, New York State Department of Correctional Services.(Levine, Gary) (Entered: 12/12/2007)
55 LETTER ORDER granting counsel's joint request for adjournment of status conference. Status Conference set for 5/6/2008 03:45 PM before Hon. Charles J. Siragusa. Signed by Hon. Charles J. Siragusa on 2/26/08. (KAP) (Entered: 02/27/2008)
56 TEXT ORDER in response to Plaintiff's request in a letter dated March 26, 2008, a settlement conference is hereby scheduled for 2:45 p.m. on Friday, April 4, 2008. The conference will be held at Courtroom 1560, U.S. Courthouse, 100 State Street, Rochester, New York, 14614, (585) 613−4050, to discuss Plaintiffs concern about the repaired wheelchair in which he could be transported to outside medical care and his request that the wheelchair be replaced with one that is WC19 compliant. ( Settlement Conference set for 4/4/2008 02:45 PM before Hon. Charles J. Siragusa.) Signed by Hon. Charles J. Siragusa on 3/26/08. (KAP) (Entered: 03/27/2008)
NOTICE of Hearing: Status Conference set for 10/29/2008 03:45 PM before Hon. Charles J. Siragusa. (KAP) (Entered: 10/20/2008)
NOTICE of Hearing: Status Conference set for 10/29/2008 03:00 PM before Hon. Charles J. Siragusa. PLEASE NOTE TIME CHANGE. DATE REMAINS THE SAME.(KAP) (Entered: 10/24/2008)
57 Minute Entry for proceedings held before Hon. Charles J. Siragusa. Joan Magoolaghan appearing telephonically on behalf of plaintiffs. Gary Levine appearing on behalf of defendants. Status Conference held on 10/29/2008. Further Status Conference set for 11/7/2008 10:00 AM before Hon. Charles J. Siragusa. (Court Reporter FTR (raz).) (RAZ) (Entered: 10/31/2008)
58 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Telephone Conference held on 11/7/2008. Plaintiff's counsel to confer with experts and defendants' counsel and report back to court. Appearances: J. Magoolaghan, Esq. via telephone, G. Levine, Esq. (Court Reporter Digital Recording.) (MS) (Entered: 11/07/2008)
NOTICE of Hearing: Status Conference set for 10/13/2009 03:45 PM before Hon. Charles J. Siragusa. Parties are given permission to appear telephonically. Court will initiate conference call.(KAP) (Entered: 10/01/2009)
59 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Joan Magoolaghan appearing via telephone on behalf of plaintiff. Gary Levine appearing via telephone on behalf of defendants. Telephone Conference held on 10/13/2009. Defense counsel to inquire about electric wheelchair and report back to court by letter on or before 10/16/09. Court sets control date of 11/20/09 with regard to proposed stipulation. (Court Reporter Karen Bush.) (KJA) (Entered: 10/14/2009)
60 LETTER ORDER granting defendants' request for extension of time to 12/31/09 to respond to proposed settlement stipulation. Signed by Hon. Charles J. Siragusa on

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03/02/2010 03/02/2010 03/26/2010 03/18/2011 03/28/2011 10/20/2011 10/20/2011 10/26/2011
10/26/2011

11/6/09. (KAP) (Entered: 11/06/2009)
NOTICE of Hearing: Settlement Conference set for 3/25/2010 11:15 AM before Hon. Charles J. Siragusa. (KAP) (Entered: 03/02/2010)
AMENDED NOTICE of Hearing: Settlement Conference set for 3/26/2010 02:45 PM before Hon. Charles J. Siragusa. (KAP) (Entered: 03/02/2010)
61 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Elizabeth Koob and Joan Magoolaghan appearing on behalf of plaintiff. Gary Levine appearing on behalf of defendants. Settlement Conference held in chambers on 3/26/2010. (Court Reporter Karen Bush.) (KJA) (Entered: 03/31/2010)
62 *VACATED* ORDER TO SHOW CAUSE issued 3/18/2011 by the Clerk of Court pursuant to Local Rule 41.2 why this case should not be dismissed for failure to prosecute. Show Cause Response due by 4/18/2011.(SMO) Modified on 3/29/2011 (TO). (Entered: 03/18/2011)
63 LETTER ORDER vacating 62 Order to Show Cause. Signed by Hon. Charles J. Siragusa on 3/25/11. (KAP) (Entered: 03/28/2011)
64 STIPULATION AND ORDER OF SETTLEMENT. Signed by Hon. Charles J. Siragusa on 10/19/11. (KAP) (Entered: 10/20/2011)
65 RULE 41 VOLUNTARY STIPULATION AND ORDER OF PARTIAL DISMISSAL SUBJECT TO CONDITIONS. Signed by Hon. Charles J. Siragusa on 10/19/11. (KAP) (Entered: 10/20/2011)
66 ORDER. ORDERED, that the Clerk is directed to enter judgment in Shariff v. Poole, No. 05−CV−6504−CJS−JWF and close the Poole case; and it is furtherORDERED, that since Plaintiff has not settled his lawsuit in Shariff v. Goord, No. 05−CV−6504−CJS−JWF (W.D.N.Y.), that case remains open; and it is furtherORDERED, that counsel shall file the joint motion described in the Rule 41 Voluntary Stipulation within thirty days of this Order is docketed; and it is furtherORDERED, that the joint motion be accompanied by a proposed Order granting the same; and it is furtherORDERED, that any extension of time for the filing of a joint motion be made in writing to the Court prior to the expiration of the deadline set forth above pursuant to Federal Rule of Civil Procedure 6; and it is furtherORDERED, that Plaintiffs counsel notify the Court of any meetings convened as a result of paragraph 13 of the Rule 41 Voluntary Stipulation which may extend the time of the Courts supervision of the provisions of the Rule 41 Voluntary Stipulation beyond one year from October 18, 2011 pursuant to the terms of paragraph 16 of the Rule 41 Voluntary Stipulation; and it is furtherORDERED, that this case remain open for one year pursuant to the terms of the Rule 41 Voluntary Stipulation and that on October 19, 2012, this case will be closed by the Clerk without further order of the Court.. Signed by Hon. Charles J. Siragusa on 10/26/11. CLERK OF COURT TO FOLLOW UP.(KAP) (Entered: 10/26/2011)
67 CORRECTED ORDER. ORDERED, that the Clerk is directed to enter judgment in Shariff v. Poole, No. 05−CV−6504−CJS−JWF and close the Poole case; and it is furtherORDERED, that since Plaintiff has not settled his lawsuit in Shariff v. Goord, No. 04−CV−6621−CJS−JWF (W.D.N.Y.), that case remains open; and it is furtherORDERED, that counsel shall file the joint motion described in the Rule 41 Voluntary Stipulation within thirty days of this Order is docketed; and it is furtherORDERED, that the joint motion be accompanied by a proposed Order granting the same; and it is furtherORDERED, that any extension of time for the filing of a joint motion be made in writing to the Court prior to the expiration of the deadline set forth above pursuant to Federal Rule of Civil Procedure 6; and it is furtherORDERED, that Plaintiffs counsel notify the Court of any meetings convened as a result of paragraph 13 of the Rule 41 Voluntary Stipulation which may extend the time of the Courts supervision of the provisions of the Rule 41 Voluntary Stipulation beyond one year from October 18, 2011 pursuant to the terms of paragraph 16 of the Rule 41 Voluntary Stipulation; and it is furtherORDERED, that this case remain open for one year pursuant to the terms of the Rule 41 Voluntary Stipulation and that on October 19, 2012, this case will be closed by the Clerk without further order of the Court. Signed by Hon. Charles J.

Case: 6:04-cv-6621 As of: 02/24/2014 11:28 AM EST 8 of 8

05/21/2012

Siragusa on 10/26/11. (KAP) (Entered: 10/26/2011)
68 Report pursuant to paragraph 8 of the 65 Stipulation and Order (TO) (Entered: 05/22/2012)

 
 Shariff v. Goord, Not Reported in F.Supp.2d (2004)

2004 WL 1944681 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Abdul SHARIFF, et al., Plaintiffs, v.
Glenn S. GOORD, Commissioner of the Department of Correctional Services, et al.,
Defendants.
No. 03Civ.7664(DAB)(HBP). | Aug. 31, 2004.
Opinion
MEMORANDUM OPINION AND ORDER
PITMAN, Magistrate J.
*1 By motion dated August 31, 2003 (Docket Item 2), plaintiffs move for pro bono counsel.1 For the reasons set forth below, the motion is denied without prejudice to renewal.
The factors to be considered in ruling on a motion for pro bono counsel are well settled and include “the merits of plaintiff’s case, the plaintiff’s ability to pay for private counsel, [plaintiff’s] efforts to obtain a lawyer, the availability of counsel, and the plaintiff’s ability to gather the facts and deal with the issues if unassisted by counsel.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1986). Of these, “[t]he factor which command[s]

the most attention [is] the merits.” Id. Accord Odom v. Sielaff, 90 Civ. 7659(DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.
Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.1997) (“ ‘In deciding whether to appoint counsel ... the district judge should first determine whether the indigent’s position seems likely to be of substance.” ’).
Even if I assume that plaintiffs, incarcerated inmates, lack the financial resources to retain counsel, their application establishes none of the other relevant factors.
Accordingly, plaintiffs’ motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit that specifically addresses the relevant factors set forth above and provides details sufficient to establish that the foregoing factors are satisfied.
	  

Footnotes

1

In a civil case, such as this, the Court cannot actually “appoint” counsel for a litigant. Rather, in appropriate cases, the Court

submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides whether he or she

will volunteer to represent the plaintiffs. If no panel member agrees to represent the plaintiffs, there is nothing more the Court can

do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in cases where the Court finds it is

appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent plaintiffs.

	  

1

 
 Shariff v. Goord, Not Reported in F.Supp.2d (2004)
2004 WL 2339781 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Abdul SHARIFF, et al., Plaintiffs, v.
Glenn S. GOORD, Commissioner of the Department of Correctional Services, et al.,
Defendants.
No. 03 Civ. 7664 DABHBP. | Oct. 15, 2004.
Opinion
MEMORANDUM OPINION AND ORDER
PITMAN, Magistrate J.
*1 By Memorandum Opinion and Order dated August 27, 2004, I denied without prejudice plaintiffs’ application to have their case added to the list of cases considered by the Court’s Pro Bono Panel. In light of an additional submission made by plaintiffs, I hereby vacate my Memorandum Opinion and Order dated August 27, 2004 and direct that this case be added to the list of cases considered by the Pro Bono Panel.
By a Notice of Motion that is dated August 25, 2004, was mailed September 27, 2004 and received by my chambers

on October 4, 2004, plaintiffs seek a preliminary injunction. In support of this application, plaintiffs, who are wheelchair-bound incarcerated inmates, allege that they suffer from a variety of physical disabilities that require them to use a catheter to eliminate urine. Plaintiffs also allege that they have been issued the wrong sized catheters, have been issued an insufficient number of catheters and have been compelled to reuse single-use catheters without even having hot water to wash the used catheters. In addition to causing unnecessary pain, plaintiffs allege that the foregoing incidents have caused them to suffer from urinary tract infections. In support of their motion, plaintiffs have submitted a memo from defendant Goodwin in which he claims that catheters marked “For Single Use Only” can be reused by the same patient “with proper washing,” and states that “[t]his is the ‘community standard’ nationwide.” At least preliminarily, this practice appears to be inconsistent with the manufacturer’s directions.
At this point, I need not decide whether plaintiffs will be successful in their action or their motion; the only issue is whether the action appears to have sufficient merit to warrant the submission of the case to the Pro Bono Panel. Based on the allegations in plaintiffs’ recently filed motion, I conclude that plaintiffs have met this threshold and direct that this case be added to the list of cases considered by the Pro Bono Panel.
SO ORDERED
	  

1

 
 Shariff v. Goord, Not Reported in F.Supp.2d (2005)
2005 WL 2087840 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Abdul SHARIFF, James West, Divine Allah, and Jose Torres, Plaintiffs, v.
Glenn S. GOORD, Commissioner, New York State Department of Correction Services; Lester Wright,
M.D., M.O.H., Associate Commissioner/Chief Medical Officer, Department of Correctional
Services; Stephen Bernardi, Deputy Commissioner, Policy and Compliance Review,
Department of Correctional Services; Donna Masterson, Americans with Disabilities Act Coordinator, Department of Corrections; William E. Phillips, Superintendent, Green Haven Correctional Facility; Carol Koenigsmann, M.D., Medical Director, Green Haven Correctional Facility; William Mazzuca, Superintendent, Fishkill Correctional Facility; J. Peter Gregoire, M.D., Medical Director, Five Points Correctional Facility; David Dobies, M.D., Former Medical Director, Five Points Correctional Facility; Samuel
Stornelli, M.D., Physician, Five Points Correctional Facility; Nancy O’Conner, RN, Nurse Administrator, Five Points Correctional Facility;
David Goodwin, RN, Assistant Nurse Administrator, Five Points Correctional Facility;
Robert Macomber, Physician Assistant at Five Points Correctional Facility, Defendants.
No. 03 Civ. 7664(DAB). | Aug. 26, 2005.
Opinion
MEMORANDUM & ORDER
BATTS, J.
*1 Plaintiffs Abdul Shariff (“Shariff”), James West (“West”), Divine Allah (“Allah”), and Jose Torres (“Torres”) (collectively “Plaintiffs”), proceeding pro se, bring this action seeking both equitable relief and monetary damages under 42 U.S.C. § 1983 against various Defendants sued in their individual and official capacities who are currently or were previously employed by the New York Department of Corrections.1 Plaintiffs allege in the Amended Complaint that Defendants failed to provide them with adequate medical care, thereby violating their rights under the Fifth, Eighth, and

Fourteenth Amendments of the United State Constitution, and that Defendants discriminated against them by failing to construct wheelchair-amenable cells and failing to provide recreational activities, in violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973 (“Rehabilitation Act”). Currently before the Court are two motions. Plaintiffs Shariff, West, and Allah move for a preliminary injunction to enjoin Defendants from violating their civil rights and requiring Defendants (1) to provide Plaintiffs with one disposable catheter per use, (2) to provide a sterilization method consistent with the catheter manufacturer’s instructions, and (3) to provide access to urologists for adequate bladder care and treatment. (Pls’ Preliminary Injunction Memorandum of Law at 2.) Defendants move pursuant to Federal Rules of Civil Procedure 12(b)(3) and (6) to dismiss the action for improper venue, and for failure to state a claim upon which relief may be granted, or, in the alternative, Defendants move to transfer venue pursuant to 28 U.S.C. § 1404(a) or § 1406(a). For the reasons stated below, Defendants’ motion to dismiss based on improper venue is denied; and Defendants’ motion to transfer is granted, therefore, the Court does not reach the merits of Plaintiff’s Preliminary Injunction Motion or Defendants’ 12(b)(6) motion.
I. BACKGROUND Except where indicated, the facts below are drawn from the Amended Complaint and are presumed true for the purposes of this decision. Plaintiffs are all wheelchair-bound prisoners currently incarcerated in correctional facilities run by the New York State Department of Correctional Services (“DOCS”). (Amended Complaint ¶¶ 12-13 (hereinafter “Am. Compl.”).) “All, or some, has a loss of volition control of his bowel and bladder and lacks sensation tolerance for pressure on his skin, and is prone to skin breakdowns ( [bed sores] ), urinary [tract] infections (UTI) and other serious medical complications.” (Id. ¶ 33.)
Three of the Plaintiffs presently are incarcerated at Five Points Correctional Facility (“Five Points”), which is located in Seneca County, in the Western District of New York. According to Defendants, Plaintiff Torres was transferred to Orleans Correctional Facility in Orleans County, also in the Western District of New York, on or about April 22, 2004. (Defs.’ Mem. of Law at 3.) Plaintiffs allege that they all have been injured by using inaccessible toilets, showers, sinks, or beds at the Five Points facility. (Am.Compl.¶ 62.) The Plaintiffs also claim that throughout their confinement at Five Points, Defendants Goord, Wright, Gregoire, O’Conner, and Goodwin “have failed and refused to provide medical care
1

Shariff v. Goord, Not Reported in F.Supp.2d (2005)
consistent with good and accepted medical treatment to the Plaintiffs.” (Id. ¶ 79.)
*2 All four Plaintiffs seek monetary and injunctive relief for claims arising from their incarceration at Five Points. Plaintiff Shariff also brings claims arising out of his incarceration at Green Haven Correctional Facility and Plaintiff Allah brings claims arising out of his incarceration at Fishkill Correctional Facility (id. ¶¶ 60-61), both of which are located in the Southern District of New York. Out of the fifteen Defendants, Defendants Phillips and Koenigsmann work at Green Haven; Defendant Mazzuca works at Fishkill; Defendants Goord, Wright, Bernardi and Masterson are DOCS administrative officials employed in Albany; and Defendants Dobies, Stornelli, Gregoire, O’Connor, Goodwin, Macomber, Walker, and Poole were or are employed at Five Points. (Am. Compl. ¶¶ 15-27; Defs.’ Mem. Law at 4.)
At the time the Amended Complaint was filed, all four Plaintiffs were confined in Five Points, in the Western District of New York. All of them have filed grievances and exhausted all administrative remedies available to them. (Am.Com pl.¶¶ 65-67, 116.)
A. Plaintiff Shariff
1. Green Haven Plaintiff Shariff, who currently is imprisoned at Five Points, previously was imprisoned at Green Haven, where he was placed in “Administrative Segregation” and housed in a room in the Inpatient Care Unit (“ICU”), which is a “pre-fab” building that is “unsafe and a hazard to non-ambulatory prisoners.” (Id. ¶ 46 .) While there, he dislocated his shoulder while attempting “to transfer from the toilet.” (Id. ¶ 47.) He also was treated differently than able-bodied prisoners by being placed in solitary confinement. (Id. ¶ 48.)
The ventilation and heating system in the pre-fab building was deficient, which caused extreme fluctuations in hot and cold temperatures, and which put the Plaintiff’s health at risk and caused him to become ill. (Id. ¶ 49.) Plaintiff Shariff suffered from nose bleeds and colds because of the ventilation system. (Id.) In addition to the flawed heating system, the ventilation system’s in-take ducts outside the building were located near the exhaust pipe of a mobile truck, which caused exhaust to fill the isolation rooms and caused Shariff to become nauseous, light-headed, and dizzy. (Id. ¶ ¶ 50-51.)
Plaintiff Shariff claims that Defendants Goord, Phillips, Wright, and Koenigsmann were made aware “by way of letter or grievance” of the inaccessibility of the toilets, showers and sinks within the isolation rooms, as well as the faulty heating system. (Id. ¶ 55.)

2. Five Points Plaintiff Shariff was transferred on May 23, 2003 from Green Haven to Five Points, where he was placed in the facility’s infirmary. (Am.Compl.¶ 80.) The nursing staff at Five Points informed him the day after he arrived that the facility did not carry size 12 catheters, and provided him with size 14 catheters instead, which caused him to bleed. (Id. ¶ 81.) Shariff informed the nurse that the catheters were too large, and the nurse contacted Defendant Dr. Gregoire, who ordered that Shariff continue to use the catheters until he could be examined. (Id. ¶ 82.) Plaintiff was examined by Gregoire five days after his arrival at Five Points, and Gregoire “acknowledged the problem of improper catheters and ordered ... that Plaintiff continue using the size-14 catheters until the size-12 [catheters were] delivered.” (Id. ¶ 83.) Plaintiff allegedly asked for a supply of catheters to be able to use a new one each time, but this request was denied. (Id.) As a result of using the oversized catheters and as a result of using them multiple times, Plaintiff contracted a urinary tract infection and experienced “excrutiating bladder spasm pain.” (Id. ¶ 84.) As a result of the infection and the pain, Plaintiff was examined by Gregoire, who decided not to conduct a urine culture test and also did not allow Plaintiff to be examined by a urologist. (Id. ¶ 84.) He prescribed medication for the spasms and Tylenol for Plaintiff’s pain. (Id. ¶ 84.) After Plaintiff Shariff complained about the number of catheters he was provided, the quantity was increased from four per week to fifteen for fourteen days, which is equivalent to five uses per catheter. (Id. ¶ 85.)
*3 Plaintiff Shariff complained about having to use the “single-use” catheters multiple times, and about his inability to properly sterilize the catheters in conformity with the manufacturer’s instructions. (Id. ¶ 86.) Shariff voiced these complaints to Gregoire, who told him that soap and water were sufficient for sterilization. (Id. ¶ 86.)
Plaintiff Shariff also states that he defecated on himself because of the inaccessibility of the toilets in the Program Building at Five Points. (Id. ¶ 71.) Shariff also was injured on or about July 6, 2003 while showering at Five Points, because of the “metal slab seat” upon which he was forced to sit. (Id. ¶ 72.)
Soon after Plaintiff Shariff arrived at Five Points, his specialized wheelchair cushion seat broke. (Id. ¶ 87.) Shariff requested that he be provided with another specialized cushion, which Gregoire refused. (Id. ¶ 87.) Instead, Shariff was provided with a standard wheelchair cushion provided to all Five Points inmates, regardless of their disability. (Id. ¶ 87.) As a result of the non-specialized cushion, Shariff experienced several pressure sores. (Id. ¶ 88.) Dr. Gregoire examined the
2

Shariff v. Goord, Not Reported in F.Supp.2d (2005)
sores, but did not treat them. (Id. ¶ 88.) Thereafter, Shariff “submitted a sick call slip” and was treated by non-Defendant nurse Ritchie-Carter and physician assistant Macomber, who dressed his wound. (Id. ¶ 89.) Macomber also provided Shariff with a prescription for antibiotics. (Id. ¶ 89.) Shariff continued to experienced pressure sores, but was informed by Gregoire that he would not be provided with another cushion. (Id. ¶ 90.) Plaintiff Shariff also alleges that at Green Haven he was prescribed a wheelchair back support to minimize his back pain, which he asked Goodwin, O’Conner and Gregoire at Five Points to reassemble on his wheelchair, but they informed him that it “could not be found.” (Id. ¶ 92.) Without the back support, Shariff suffers from “excrutiating pain.” (Id. ¶ 92.) Plaintiff Shariff wrote letters to Goord, Wright, Poole, Gregoire, O’Conner and Goodwin about his various problems. (Id. ¶ 93.)
Plaintiff Shariff submitted an affidavit in support of his Motion for a Preliminary Injunction, in which he reiterates many of the facts stated in the Amended Complaint. (See Shariff Affidavit in Support of Motion for Preliminary Injunction at 1-3 (hereinafter “Shariff Aff.”).) In the affidavit, he adds that he filed a grievance about the multiple use of single-use catheters, and filed several grievances and complaints to Dr. Wright, Commissioner Goord, Superintendent Poole, Deputy of Administration Brown, and Dr. Gregoire about the lack of hot water in his cell. (Shariff Aff. at 2-3.) He states that the urinary tract infections he has experienced since his arrival at Five Points are the worst he has ever had since becoming paralyzed. (Id. at 3.)
Also attached to Plaintiffs’ memorandum of law in support of the Preliminary Injunction are several letters written on behalf of Plaintiff Shariff by various lawyers. They include a June 16, 2003 letter from James I. Meyerson to Superintendent [Poole] regarding lack of medical supplies, wrong-sized catheters, and problematic conditions for wheelchair-bound individuals. (Pls.’ Mem. Law in Support of Preliminary Injunction, Exhbt C.) Poole responded to the letter from Meyerson on July 8, 2003, and assured him that Shariff’s medical supplies had been ordered and received, that Shariff was receiving proper medical care, that the facility health services director and the acting nurse administrator had met with Shariff and inspected his cell, and that Five Points had been inspected and verified to be in compliance with the ADA requirements. (Id.) Poole also informed Meyerson that, “The inmate was also advised of the new statewide policy on self-catheterizations and supplies for same.”2 (Id.)
*4 Attorney John Beck wrote to Defendant Dr. Peter Gregoire on July 2, 2003 on Shariff’s behalf, regarding the significant health risk of re-using single-use catheters, and explaining the proper disinfecting procedures according to federal infectious disease control, which

includes rinsing the inside of the catheter with a syringe and boiling the catheter for 15 minutes. (Id. at Exhbt D .) Another attorney, Alexander Reinert, also wrote a letter to Dr. Gregoire (date unknown) regarding the dangers of reusing the catheters and informing Gregoire that his own conversations with the manufacturer did not confirm that “single use” referred to use by only one patient. (Id. at Exhbt E.) Another attorney, Betsy Ginsberg, wrote a letter to Defendant Lester Wright on December 1, 2003 about the dangers of reusing single-use catheters, and Shariff’s right to a new wheelchair cushion. (Id. at Exhbt F.)
Plaintiff’s attachments also include a memorandum from Defendant Goodwin in regard to Grievance # 8025-03, which states, “It has been confirmed with the manufacturer that the phrase ‘for single use only’, is intended that the catheter would only be used by one patient. They agreed with proper washing reuse is appropriate. This is the ‘community standard’ nationwide.” (Pls.’ Mem. Law in Support of Preliminary Injunction, Exhbt B.)
B. Plaintiff Allah
1. Fishkill On or about February 25, 2003, Plaintiff Allah was transferred from Green Haven3 to Fishkill’s SHU because of the broken heating system.4 (Id. ¶ 60.) He requested the use of a wheelchair-accessible toilet in his cell. (Id.) The nurse who was present used the shower-chair to create a makeshift toilet-chair, however, Allah injured his head and back using the makeshift chair. (Id.) He states that Defendants Goord and Mazzuca were aware of the design of the cell and its inaccessibility for disabled prisoners. (Id. ¶ 61.)
2. Five Points Plaintiff Allah arrived at Five Points on June 12, 2003. (Am.Compl.¶ 103.) Upon his arrival, Allah requested to see a physician, but instead was escorted to a housing unit and told to submit a “sick call slip.” (Id. ¶ 103.) Plaintiff Allah submitted several slips to see a physician, but was not examined for a month, when, on July 11, 2003, he was examined by physician assistant Macomber. (Id. ¶ 103.) Allah complained about his catheters, leg bags, fleets enemas, and urinary tract infections. (Id. ¶ 105.) He was provided with prescriptions for the catheters and fleets enemas, but did not receive them for weeks. (Id. ¶ 105.) Furthermore, Allah only was given four catheters per week; after he complained to Gregoire, he was given fourteen catheters for fourteen days, and was forced to reuse each one multiple times. (Id. ¶ 106.) Allah’s request to see a urologist was denied. (Id. ¶ 108.) Plaintiff Allah also asked Defendant Gregoire if he could be moved to a
3

Shariff v. Goord, Not Reported in F.Supp.2d (2005)
cell with a wheelchair-accessible shower, toilet and bed, however, Allah was moved to another wheelchair-inaccessible cell. (Id. ¶ 109.) His request to have his wheelchair repaired also was denied. (Id.)
C. Plaintiff Torres *5 Plaintiff Torres arrived at Five Points on February 28, 2003 from Downstate Correctional Facility’s infirmary. (Id. ¶ 110.) The Downstate infirmary supplied Torres with six catheters, which it considered a day’s use of catheters. (Id. ¶ 111.) The Downstate facility also had prescribed Torres pain medication. (Id . ¶ 112.) Plaintiff Torres was placed in the Five Points infirmary upon his arrival, but was not examined by a physician. (Id. ¶ 112.) He submitted several sick call slips before he was seen by Defendant Macomber, who informed Torres that his pain medication would be discontinued, due to the facility’s “no narcotic policy.” (Id. ¶¶ 112-13.) Plaintiff Torres asked to be re-evaluated by a doctor, but this request was denied. (Id. ¶ 113.)
Plaintiff Torres was provided with seven single-use catheters per week. (Id. ¶ 114.) He experienced several painful urinary tract infections, for which he requested an examination by a urologist, and these requests were denied. (¶ 115.) Plaintiff Torres also suffered an injury to his arm because he fell in the shower under similar circumstances as Shariff. (Id. ¶ 73.) He states that Defendants Goord, Bernardi, Masterson and Poole “knew or should have known of the problems alluded to herein.” (Id. at ¶ 75.)
D. Plaintiff West On or about February 18, 2002, Plaintiff West was transferred from Upstate Correctional Facility to Five Points, by court order, because of Upstate’s inability to provide him with proper medical care and attention. (Am.Compl.¶ 94.) Upon his arrival at Five Points, he was interviewed and examined by Defendant Dobies, who provided him with the wrong-sized catheters. (Id. ¶¶ 96-97.) Plaintiff West complained to Dobies about the size of the catheters, and also about the fact that they are labeled “For Single Use Only,” and that he lacked the proper sterilization methods to clean them. (Id. ¶¶ 97-98.) Dobies told West to continue to use the improper catheters until proper ones were delivered. (Id. ¶ 97.) As a result of using the improper catheters multiple times, Plaintiff West experienced massive bleeding and contracted a urinary tract infection. (Id. ¶¶ 97-99.) Plaintiff West requested an examination by a urologist because of his urinary tract infection, but this request was denied. (Id. ¶ 100.) West alleges that Defendants Poole, Wright, Dobies, Walker, Stornelli, O’Conner, and Goodwin disregarded the court order to provide him with

proper and adequate medical supplies and care. (Id. ¶¶ 101-02.)
Plaintiff West also submitted an affidavit in support of his motion for a preliminary injunction. (West Affidavit in Support of Motion for Preliminary Injunction.) In his affidavit, West adds that Defendant Gregoire tried to “intimidate me, harass me, verbally abuse me, because I would not [consent] to re-using ‘single-use catheters.” ’ (Id. ¶ 9.)
II. DISCUSSION *6 As a preliminary matter, the Court notes that where plaintiffs proceed pro se, a court must liberally construe the complaint and “ ‘interpret [it] to raise the strongest arguments that [it] suggests,” ’ Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)), thus holding the pro se pleading “ ‘to less stringent standards than formal pleadings drafted by lawyers.” ’ Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam)); see also Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994).
Defendants argue that Plaintiffs’ action should be dismissed for improper venue pursuant to Fed. R. Civ. Pro. 12(b)(3) and 28 U.S.C. § 1406(a), or, in the alternative, transferred to the Western District of New York pursuant to 28 U.S.C. § 1404(a) or § 1406(a). In their Memorandum in Opposition to the Motion to Dismiss, Plaintiffs argue that the Southern District is not an improper venue for the case. (Pls.’ Opp. Mem. Law at 5.)
Rule 12(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 1404(a), 1406(a) permit the Court to dismiss a claim where venue is improper. The requirement of proper venue “serves the purpose of protecting a defendant from the inconvenience of having to defend an action in a trial that is either remote from the defendant’s residence or from the place where the acts underlying the controversy occurred.” Leon C. Baker, P.C. v. Bennett, 942 F.Supp. 171, 175 (S.D.N.Y.1996) (internal quotations and citations omitted). When venue is challenged, Plaintiff “bears the burden of demonstrating that ‘a substantial part of the events or omissions giving rise to the claim occurred’ in this district.” G.F.C. Fashions v. Goody’s Family Clothing, No. 97 Civ. 0730, 1998 U.S. Dist. LEXIS 1989, *5, 1998 WL 78292 (S.D.N.Y. Feb. 24, 1998) (quoting D’Anton Jos, S.L. v. Doll Factory, Inc., 937 F.Supp. 320, 321 (S.D.N.Y.1996)). When considering such a motion, the Court must accept the facts alleged in the complaint as true, and draw all reasonable inferences in the plaintiff’s favor. See Rey-Willis v. Citibank, N.A., No. 23 Civ.2006, 2003 U.S. Dist. LEXIS
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12760, at *10, 2003 WL 21714947 (S.D.N.Y. July 23, 2003); Imagineering, Inc. v. Lukingbeal, No. 94 Civ. 2589, 1996 U.S. Dist. LEXIS 3939, *5, 1996 WL 148431 (S.D.N.Y. Apr. 2, 1996) (internal quotations and citations omitted).
Where jurisdiction is based on a federal question, venue is appropriate in “a judicial district where any defendant resides, if all defendants reside in the same state.” 28 U.S.C. § 1391(b)(1). For the purposes of venue in an action under 42 U.S.C. § 1983, defendants who are sued in their official capacity “reside” where they perform their official duties. See Amaker v. Haponik, 198 F.R.D. 386, 391 (S.D.N.Y.2000) (citing Iman Saifuallah Akbar v. Cuomo, No. 94 Civ. 7757, 1995 U.S. Dist. LEXIS 13007, at *2, 1995 WL 539638 (S.D.N.Y. Sept. 8, 1995)).
*7 Because three of the Defendants “reside” in the Southern District of New York, the Southern District is not an improper venue for the claims seeking monetary damages, and the Court denies Defendants’ motion to dismiss on this basis.
Under 28 U.S.C. § 1404(a), “for the convenience of the parties, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” “[M]otions for transfer lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis.” In re Cuyahoga Equip. Corp ., 980 F.2d 110, 117 (2d Cir.1992). “The burden of demonstrating the desirability of transfer lies with the moving party, and in considering the motion for transfer, a court should not disturb a plaintiff’s choice of forum unless the defendants make a clear and convincing showing that the balance of convenience favors defendants’ choice.” Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F.Supp.2d 203, 208 (S.D.N.Y.1998) (internal quotations and citations omitted); In re Nematron Corp. Secs. Litig., 30 F.Supp.2d 397, 400 (S.D.N.Y.1998) (same).
The inquiry on a motion to transfer is two-fold: the first step is for the court to determine whether the case could have been brought originally in the proposed transferee district. See, e.g., Foot Locker Retail, Inc. v. SBH, Inc., No. 03 Civ. 5050, 2005 U.S. Dist. LEXIS 599, at *24 (S.D.N.Y. Jan. 18, 2005). If the answer to this question is “yes”, then the court must determine whether, considering the convenience of the parties and witnesses and the interest of justice, a transfer is appropriate. See id . In making this second determination, a district court generally considers the following factors: (1) convenience of witnesses; (2) convenience of the parties; (3) location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties;

(7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiff’s choice of forum; and (9) judicial economy and the interests of justice. See Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., No. 04 Civ. 7369, 2004 U.S. Dist. LEXIS 20548, at *2, 2004 WL 2314424 (S.D.N.Y. Oct. 13, 2004) (quoting Herbert Ltd. P’ship v.. Electronic Arts Inc., 325 F.Supp.2d 282, 285-86 (S.D.N.Y.2004)). “The convenience of the parties and witnesses is considered ‘the essential criteria under the venue statute.” ’ Baker v. Coughlin, No. 93 Civ. 1084, 1993 U.S. Dist. LEXIS 12445, at *12, 1993 WL 356852 (quoting First City Federal Savings Bank v. Register, 677 F.Supp. 236, 237 (S.D.N.Y.1988)).
Because there is no question that Plaintiffs could have brought the action in the Western District, where most of the Defendants reside, the Court will proceed to examine the most relevant convenience/fairness factors. All the Plaintiffs currently reside in the Western District of New York, and the eight Five Points Defendants reside in the Western District. Five Points clearly is the center of gravity for this lawsuit, as it is the common facility among all four Plaintiffs, and most of the facts alleged, involving a majority of the Defendants, occurred there. Furthermore, Plaintiffs seek injunctive relief at Five Points. Venue in the Western District would be far more convenient for any witnesses, parties, and evidence in any hearing that might be held on the preliminary injunction, and any subsequent trial. Furthermore, the Western District is the locus of the operative facts, and there is no question that the Western District is equally familiar with governing law as the Southern District. Although the Southern District is their choice of forum, which is a strong factor to consider, Plaintiffs cannot demonstrate that a substantial part of events giving rise to their cause of action occurred in the Southern District of New York. Only two of the Plaintiffs, Shariff and Allah, have claims properly venued in the Southern District, against only three Southern District Defendants, for which the relief sought is limited to damages. See Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir.1996) (holding that it is well settled in this Circuit “that a transfer from a prison facility moots an action for injunctive relief against the transferring facility.”) (citations omitted). Thus, the claims of Plaintiff Shariff and Allah seeking injunctive relief for actions allegedly occurring in the Southern District of New York are dismissed as moot. In the interests of justice and judicial economy, as well as relying on notions of fairness and convenience to all the parties, the Court finds a transfer to the Western District to be appropriate. Accordingly, weighing all the factors, especially convenience to the parties and the fact that injunctive relief is requested at Five Points, the motion to transfer the case to the Western District of New York is GRANTED, and Plaintiffs Shariff’s and Allah’s claims seeking injunctive relief in the Southern District of New York are dismissed as moot.
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III. CONCLUSION *8 For the reasons stated above, Defendants’ motion to dismiss the case in its entirety for improper venue is DENIED. Defendants’ motion to dismiss claims of Plaintiffs Shariff and Allah seeking injunctive relief in the Southern District of New York is GRANTED.

Defendants’ motion to transfer venue to the Western District of New York is GRANTED. The Clerk of the Court is directed to transfer the entire remaining action to the Western District of New York.
SO ORDERED.
	  

Footnotes

1

Defendants point out in their memorandum of law in support of their Motion to Dismiss the Complaint that the caption of the

Amended Complaint includes thirteen individuals, but the body of the Amended Complaint identifies two additional Defendants,

Superintendent Thomas Poole and Dr. Leslie Walker, who were never served with summonses, and therefore are not proper parties

to this action. (Defendants’ Memorandum of Law at 1, n. 1.) In addition, the Court’s records indicate that Defendant David Dobies,

M.D. was never properly served with a summons, therefore, he, too is not a proper party. However, the Amended Complaint

clearly identifies these three Defendants, and the Office of the Attorney General has been authorized to accept service on their

behalf. Accordingly, the Court has jurisdiction over all fifteen Defendants for the purposes of this Order.

2

No further information about this “statewide policy” was provided to the Court.

3

The Amended Complaint appears to argue in paragraphs 46 through 55 that both Shariff and Allah suffered from the same

conditions at Green Haven, but Plaintiffs’ memorandum of law in opposition to Defendants’ Motion to Dismiss states in reference

to Allah, “This Plaintiff make[s] no claim against Green Haven concerning ADA accessibility within the [ ] Amended Complaint.”

(Pls’ Opp. Mem. at 6 .) Accordingly, there is no claim by Allah against Green Haven to consider.

4

The Amended Complaint states that both Shariff and Allah were transferred to Fishkill, but Shariff does not appear to allege that he

suffered any injuries during his stay, accordingly, only Allah’s claims are considered.

	  

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