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

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CARLOS ROSARIO, ROGER ZYDOR, MARSHALL

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ROSADO, DONALD SMITH, WORLEY HALL,

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VINCENT RIOS, GILBERT SANTIAGO

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CHRISTOPHER ALDRICH, RODERICK REYES,

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individually and on behalf of all others similarly

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situated,

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: 03 CIV 0859 (CLB)(LMS)

Plaintiffs,

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AMENDED

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COMPLAINT

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vs.

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NEW YORK STATE DEPARTMENT OF CORRECTIONAL :

SERVICES (“DOCS”), GLENN S. GOORD, DOCS

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Commissioner, FRANK HEADLY, DOCS Deputy Commissioner :

for Programs, STEPHEN BERNARDI, DOCS Deputy

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Commissioner of Policy and Compliance Review, DONNA

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MASTERSON, DOCS Americans with Disabilities Act

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Coordinator, LESTER WRIGHT, DOCS Deputy Commissioner :

and Chief Medical Officer, WILLIAM MAZZUCA,

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Superintendent, Fishkill Correctional Facility (“CF”),KENNETH :

PERLMAN, Superintendent, Mohawk CF, EDWARD

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DONNELLY, Superintendent, Wende CF, JIMMY HARRIS, :

Deputy Superintendent for Programs, Fishkill CF, JIM MANCE, :

Deputy Superintendent for Programs, Mohawk CF, HELEN

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DEAN, Deputy Superintendent for Programs, Wende CF, ANNE :

COLE, Deputy Superintendent for the Correctional Health Care :

Facility, Fishkill CF, JOAN ROSADO, Deputy Superintendent for:

the Correctional Health Care Facility, Walsh RMU, SUSAN POST,:

Deputy Superintendent for the Correctional Health Care Facility, :

Wende CF

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Defendants.

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Plaintiffs, prisoners with disabilities of the state of New York, bring this complaint against Defendants and allege as follows:
PRELIMINARY STATEMENT 1. This is a class action for injunctive relief brought under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act to redress the Defendants’ failure to provide access to prison programs, services and activities to prisoners with disabilities who are in the custody of the Department of Correctional Services and housed in its Regional Medical Units (RMUs). Plaintiffs seek to represent a class of individuals with disabilities housed in the Fishkill, Walsh and Wende RMUs, who are not provided access to prison programs available to non-disabled prisoners, such as educational, vocational, work and substance abuse programs, including those that would qualify them for an earlier release from prison.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343(3) and (4). The matters in controversy arise under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 3. Venue properly lies in this District pursuant to 28 U.S.C. § 1391(b)(2).
PARTIES PLAINTIFFS
4. Plaintiffs are members of and they seek to represent a class of individuals, under the custody and control of the New York State Department of Correctional Services (DOCS), who have physical impairments that substantially limit one or more of their major life activities.
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They have been and continue to be denied access to the programs, services and activities run by defendants because of their disabilities and have been confined in facilities operated by and under the control of DOCS. Class members are all housed in RMUs at Fishkill Correctional Facility, Wende Correctional Facility and in the Walsh RMU on the grounds of Mohawk Correctional Facility.
5. All Plaintiffs are “individuals with disabilities” as that term is defined in Section 504 of the Rehabilitation Act of 1973 , 29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. § 12102(2). They all, with or without reasonable accommodations, meet the essential eligibility requirements for receiving services or participating in programs or activities provided by DOCS.
6. Carlos Rosario a. Plaintiff Carlos Rosario is currently housed in the RMU at Fishkill Correctional Facility. b. Mr. Rosario is paraplegic and requires a wheelchair for mobility. c. Despite his ability to participate in prison vocational programs and outdoor recreation, he has been and continues to be denied participation in these programs.
7. Roger Zydor a. Plaintiff Roger Zydor is currently housed in the RMU at Fishkill Correctional Facility. b. Mr. Zydor has a respiratory impairment. c. He is otherwise eligible for the Merit Time program, except that he has
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been denied participation in any programs, participation in which is required for an inmate to qualify him for Merit Time. d. Despite his ability to participate in prison programs that would make him eligible for Merit Time, he has been and continues to be denied participation in these programs. He has also been and continues to be denied participation in outdoor recreation. 8. Donald Smith a. Plaintiff Donald Smith is currently housed in the RMU at Fishkill Correctional Facility. b. Mr. Smith has asthma and cardiac problems. c. Despite his ability to participate in prison vocational and educational programs and outdoor recreation, he has been and continues to be denied participation in these programs. 9. Worley Hall a. Plaintiff Worley Hall is currently housed in the RMU at Fishkill Correctional Facility. b. Mr. Hall has diabetes and hypertension. c. Despite his ability to participate in prison vocational and educational programs and outdoor recreation, he has been and continues to be denied participation in these programs. 10. Gilbert Santiago a. Plaintiff Gilbert Santiago is currently housed in the RMU at Fishkill
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Correctional Facility. b. Mr. Santiago has neuropathy caused by a chronic condition and has a
limited ability to ambulate. c. Despite his ability to participate in prison vocational programs and outdoor
recreation, he has been and continues to be denied participation in these programs. 11. Marshall Rosado a. Plaintiff Marshall Rosado is currently housed in the RMU at Fishkill Correctional Facility. b. Mr. Rosado has spastic paralysis secondary to chronic cerebral palsy. He requires a wheelchair for mobility. c. Despite his ability to participate in prison vocational programs and outdoor recreation, he has been and continues to be denied participation in these programs. 12. Vincent Rios a. Plaintiff Vincent Rios is currently housed in the RMU at Fishkill Correctional Facility. b. Mr. Rios has neuropathy caused by a chronic condition and requires a wheelchair for mobility. c. He is otherwise eligible for the Merit Time program, except that he has been denied participation in any programs, participation in which is required for an inmate to qualify him for Merit Time.
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d. Despite his ability to participate in prison programs that would make him eligible for Merit Time, he has been and continues to be denied participation in these programs. He has also been and continues to be denied participation in outdoor recreation.
13. Christopher Aldrich a. Plaintiff Christopher Aldrich is currently housed in the R.M.U at Wende Correctional Facility. b. Mr. Aldrich has coronary artery disease and a respiratory impairment. He also has a limited ability to ambulate. c. He has been and continues to be denied access to vocational programs and the Alcohol and Substance Abuse Treatment program.
14. Roderick Reyes a. Plaintiff Roderick Reyes is housed in the Walsh RMU at Mohawk Correctional Facility. b. Mr. Reyes has sickle cell anemia. c. Despite his ability to participate in prison vocational and therapeutic programs as well as outdoor recreation, he has been and continues to be denied participation in these programs.
15. All of the above-named plaintiffs have requested participation in educational programs, vocational programs and/or outdoor recreation and have exhausted the administrative remedies available to them.
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DEFENDANTS 16. Defendant DOCS is the agency created by the State of New York for the purpose
of operating prison facilities within New York State. 17. Defendant Glenn S. Goord is the Commissioner of DOCS and is sued in his
official capacity. As DOCS Commissioner, Mr. Goord is responsible for the operation and administration of all facilities within DOCS.
18. Defendant Frank Headley is the DOCS Deputy Commissioner for Program Services and is sued in his official capacity. As Deputy Commissioner, Mr. Headley is responsible for the administration of programs, including vocational, work and educational programs, provided in the DOCS system.
19. Defendant Stephen Bernardi is the DOCS Deputy Commissioner of Policy and Compliance Review and is sued in his official capacity. As Deputy Commissioner, Mr. Bernardi is responsible for ensuring that the policies of DOCS and all of its institutions comply with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.
20. Defendant Donna Masterson is the DOCS Americans with Disabilities Act (“ADA”) Coordinator and is sued in her official capacity. As ADA Coordinator, Ms. Masterson is responsible for ensuring that all programs, activities and services operated by and under the control of DOCS comply with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.
21. Defendant Lester Wright, M.D., M.P.H., is the DOCS Deputy Commissioner and Chief Medical Officer and is sued in his official capacity. As Deputy Commissioner and Chief Medical Officer, Dr. Wright is responsible for ensuring that medical staff conduct an
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individual assessment of a prisoner’s disability, including his or her ability to perform the tasks required by program participation.
22. Defendant William Mazzuca is the Superintendent at Fishkill Correctional Facility and is sued in his official capacity. As Superintendent, Mr. Mazzuca is responsible for the operation and administration of Fishkill Correctional Facility and the Fishkill RMU.
23. Defendant Jimmy Harris is the Deputy Superintendent for Programs at Fishkill Correctional Facility and is sued in his official capacity. Mr. Harris is responsible for overseeing the provision of prison programs at Fishkill as well as for overseeing the provisions of reasonable accommodations and compliance with the DOCS directive on reasonable accommodations.
24. Defendant Anne Cole is the Deputy Superintendent for the Correctional Health Care Facility at Fishkill Correctional Facility and is sued in her official capacity. Ms. Cole is the chief administrative officer of the RMU at Fishkill and oversees its operations.
25. Defendant Kenneth Perlman is the Superintendent at Mohawk Correctional Facility and is sued in his official capacity. As Superintendent, Mr. Perlman is responsible for the operation and administration of Mohawk Correctional Facility, including Walsh RMU, located on the grounds of Mohawk.
26. Defendant Jim Mance is the Deputy Superintendent for Programs at Mohawk Correctional Facility and is sued in his official capacity. Mr. Mance is responsible for overseeing the provision of prison programs at Mohawk and the Walsh RMU as well as for overseeing the provision of reasonable accommodations and compliance with the DOCS directive on reasonable accommodations.
27. Defendant Joan Rosado is the Deputy Superintendent for the Correctional
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Health Care Facility at the Walsh RMU and is sued in her official capacity. Ms. Rosado is the chief administrative officer of the RMU at Walsh and oversees its operations.
28. Defendant Edward Donnelly is the Superintendent at Wende Correctional Facility and is sued in his official capacity. As Superintendent, Mr. Donnelly is responsible for the operation and administration of Wende Correctional Facility and the Wende RMU.
29. Defendant Helen Dean is the Deputy Superintendent for Programs at Wende Correctional Facility and is sued in her official capacity. Ms. Dean is responsible for overseeing the provision of prison programs at Wende, as well as for overseeing the provisions of reasonable accommodations and compliance with the DOCS directive on reasonable accommodations.
30. Defendant Susan Post is the Deputy Superintendent for the Correctional Health Care Facility at Wende Correctional Facility and is sued in her official capacity. Ms. Post is the chief administrative officer of the RMU at Wende and oversees its operations.
FACTS COMMON TO THE CLASS 31. Regional Medical Units are facilities operated by the Department of Correctional Services that exist to provide long-term skilled nursing care and rehabilitative services to prisoners whose disabilities require that they be housed in such a setting or whose medical condition requires that they receive a higher level of care than is available in the general population. Prisoners are sometimes transferred from an RMU in one facility to an RMU in another. 32. It is the policy and practice of DOCS to deny vocational, educational, work and the complete Alcohol and Substance Abuse Treatment (“ASAT”) program to prisoners with disabilities who are housed in the Fishkill, Walsh and Wende RMUs. Instead of providing an
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individualized assessment of each prisoner’s ability to perform in prison programs and their needs for reasonable accommodations, DOCS denies these programs to all of the prisoners with disabilities who are housed in these RMUs.
33. DOCS has stated in writing its policy of not providing any “classroom-type programs,” including ASAT and vocational programs in the RMUs, in responses to grievances filed by the named Plaintiffs at the institutional level as well as in responses given by the DOCS Central Office Review Committee, the entity within DOCS responsible for the agency’s final disposition of prisoner grievances.
34. The named Plaintiffs are physically and mentally able to participate in the programs to which they have requested and been denied access.
35. DOCS prisoners housed in the general population are offered the opportunity to participate in programs, including educational programs, vocational classes, work program and substance abuse treatment. Programs comparable to those offered in the general population are not offered to Plaintiffs at Fishkill, Walsh and Wende RMUs.
36. Merit Time allowances are awarded to prisoners serving indeterminate sentences for certain non-violent crimes who also meet certain other eligibility criteria. The Merit Time allowance is one-sixth of the minimum term or period imposed by the court. When granted, Merit Time allowances enable prisoners to appear before the Board of Parole for possible release on their merit eligibility dates.
37. One of the requirements prisoners must satisfy in order to be eligible for Merit Time is the successful completion of one of several program requirements, including receiving an ASAT certificate, receiving a vocational trade certificate, earning a general equivalency diploma
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or performing at least 400 hours of service on a community work crew. It is the policy and practice of DOCS not to offer any of these qualifying programs to prisoners housed in the Fishkill, Walsh and Wende RMUs.
38. It is the policy and practice of DOCS not to provide prisoners with disabilities housed in the RMUs with reasonable accommodations that would allow them access to the benefits of Merit Time allowances.
39. DOCS prisoners not confined to disciplinary housing are generally afforded daily outdoor recreation in a prison yard. Prisoners housed in the Fishkill RMU are not provided with outdoor recreation. Instead they are permitted only to congregate on a small second-story porch that is enclosed by a ceiling, solid walls on three sides and wire mesh on the fourth side.
CLASS ACTION ALLEGATIONS 40. Plaintiffs bring this action on their own behalf and, pursuant to Rule 23(b)(1) and Rule 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all prisoners with physical disabilities, as defined in 29 U.S.C. § 705(20) and 42 U.S.C. § 12102, who are now, or will in the future be, under the custody of DOCS and housed in the Fishkill, Walsh or Wende RMU. a. The Fishkill, Walsh and Wende RMUs together house approximately 252 prisoners
at any given time. b. Upon information and belief, a significant portion of prisoners housed in these
RMUs are qualified individuals with disabilities as defined by the ADA and Section 504 of the Rehabilitation Act. All of them are denied access to prison programs as well as the benefit of an individualized assessment of their disability to determine which prison programs they are able to participate in. Because the
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size of the class is so numerous and because the membership of the class continuously changes, joinder of all members is impracticable. c. The conditions, practices and omissions that form the basis of this complaint are common to all members of the class and the relief sought will apply to all of them. d. The claims of the Plaintiffs are typical of the claims of the entire class. e. The prosecution of separate actions by individual members of the class would create a risk of inconsistent and varying adjudications that would establish incompatible standards of conduct for the Defendants. Fed. R. Civ .P. 23(b)(1)(A). f. 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.R.C.P. 23(b)(1)(B). g. Defendants have acted or refused to act on grounds generally applicable to the class, making appropriate injunctive and declaratory relief with respect to the class as a whole. F.R.C.P. 23(b)(2). h. There are questions of law and fact common to the members of the class, including whether defendants have violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, based on their failure to provide prison programs to prisoners with disabilities housed in the RMUs. i. The named Plaintiffs are capable of fairly and adequately representing the class and protecting its interests. The Legal Aid Society, Prisoners’ Rights Project, counsel for Plaintiffs, is a legal services organization experienced in prisoners’ civil rights
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litigation that, through prior such litigation, has secured court-ordered institutional reform within several DOCS operated prisons.
CAUSES OF ACTION FIRST CAUSE OF ACTION Violations of the Americans with Disabilities Act
41. Plaintiffs are qualified individuals with disabilities as defined in the Americans with Disabilities Act. They have physical impairments that substantially limit one or more major life activity, including but not limited to walking, breathing, performing manual tasks and self-care; they have records of having such an impairment; or they are regarded as having such an impairment. As state prisoners, all plaintiffs meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by defendants DOCS. 42 U.S.C. § 12102(2); 42 U.S.C. § 12131 (2).
42. Defendants discriminate against physically disabled prisoners by denying access to prison educational, vocational and work programs, substance abuse treatment and outdoor recreation in the RMUs.
43. Defendants discriminate against Plaintiffs on the basis of their disabilities in violation of 42 U.S.C. § 12132.
44. Defendants are agents or officials of public entities and/or public entities as that term is defined under 42 U.S.C. § 12131(1)(B).
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SECOND CAUSE OF ACTION Violations of Section 504 of the Rehabilitation Act (Section 504)
45. Plaintiffs are qualified individuals with disabilities as defined in Section 504 of the Rehabilitation Act. They have physical impairments that substantially limit one or more major life activity, including but not limited to walking, breathing, performing manual tasks and self-care; they have records of having such an impairment; or they are regarded as having such an impairment. As state prisoners, all plaintiffs meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by defendants DOCS. 42 U.S.C. § 12102(2); 42 U.S.C. § 12131 (2); 29 U.S.C. § 794.
46. Defendants discriminate against Plaintiffs solely on the basis of their disabilities by failing to provide access to prison educational, vocational and work programs, substance abuse treatment and outdoor recreation.
47. DOCS receives federal financial assistance.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court grant them the following relief: 48. Adjudge and declare that the policies, practices, omissions and conditions described above are in violation of the rights of the Plaintiffs and the class they seek to represent under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act; 49. Permanently enjoin Defendants, their agents, employees and all persons acting in concert with them, from subjecting Plaintiffs and the putative class to the illegal policies, practices, omissions and conditions described above;
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50. Order Defendants, their agents, employees and all persons acting in concert with them, to perform individualized assessments of all prisoners housed in the Fishkill, Walsh and Wende RMUs to determine the extent of their abilities to participate in programs and the reasonable accommodations that they will need to do so.
51. Order Defendants, their agents, employees and all persons acting in concert with them, to take all necessary action to provide a full range of programming options, including educational, vocational and work programs as well as outdoor recreation, to prisoners with disabilities housed in the Fishkill, Walsh and Wende RMUs.
52. Order Defendants, their agents, employees and all persons acting in concert with them to provide reasonable accommodations to prisoners with disabilities housed in the Fishkill, Walsh and Wende RMUs so that they will be afforded program opportunities equivalent to those made available to other prisoners in DOCS custody.
53. Order Defendants, their agents, employees and all persons acting in concert with them to accommodate prisoners with disabilities housed in the Fishkill, Walsh and Wende RMUs by protecting them from any collateral consequences resulting from DOCS’ failure to allow them access to prison programs that would have been available to them had they not been housed in an RMU.
54. Award Plaintiffs, pursuant to 29 U.S.C. § 794(b) and 42 U.S.C. § 12205, the costs of this suit and reasonable attorneys’ fees and litigation expenses.
55. Retain jurisdiction of this case until defendants have fully complied with the orders of this Court, and there is a reasonable assurance that defendants will continue to comply in the future; and
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56. Award such other and further relief as the Court deems just and proper.

Dated:

April ___, 2003 New York, N.Y.

__________________________
BETSY R. GINSBERG (BG-9890) JOHN BOSTON JOHN A. BECK Attorneys for Plaintiffs The Legal Aid Society The Prisoners’ Rights Project One Battery Park Plaza, 27th floor New York, N.Y. 10004 212-577-3530

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 Rosario v. N.Y. State Dept. of Correctional Services, Not Reported in F.Supp.2d (2003)

KeyCite Red Flag - Severe Negative Treatment Vacated and Remanded by Rosario v. Goord, 2nd Cir.(N.Y.), March 2, 2005
2003 WL 22429271 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Carlos ROSARIO, Vincent Kimbro, Roger Zydor, Marshall Rosado, Donald Smith, Worley Hall, Vincent Rios, Gilbert Santiago, Roderick Reyes, Individually and on behalf of all others similarly situated, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES (“DOCS”)
Commissioner of Policy and Compliance Review, Donna Masterson, DOCS Americans with
Disabilities Act Coordinator, Lester Wright, DOCS Deputy Commissioner and Chief Medical Officer,
William Massuca, Superintendent, Fishkill Correctional Facility (“CF”), Kenneth Perlman, Superintendent, Mohawk CF, Edward Donnelly, Superintendent, Wende CF, Anne Cole, Deputy Superintendent for the Correctional Health Care
Facility, Fishkill CF, Joan Rosado, Deputy Superintendent for the Correctional Health Care
Facilty, Walsh Rmu, Susan Post, Deputy Superintendent for the Correctional Health Care
Facility, Wende CF, Defendants.
No. 03–CIV–859 (CLB). | Sept. 24, 2003.
In action by State prisoners, alleging New York State Department of Correctional Services denied them access to prison programs because of their disability, prisoners sought class certification and State sought to dismiss. The District Court, Brieant, J., held that prisoners were required to exhaust administrative remedies available through Department of Justice (DOJ) for complaints filed under Americans With Disabilities Act (ADA).
Action dismissed.
West Headnotes (1)
[1] Civil Rights Criminal law enforcement;   prisons
State prisoners, alleging that New York State Department of Correctional Services denied

them access to prison programs because of their disability, were required to exhaust Americans With Disabilities Act (ADA) procedures of Department of Justice (DOJ) in order to satisfy exhaustion requirements of Prison Litigation Reform Act of 1995 (PLRA), even if process was largely advisory and DOJ lacked authority to provide relief. Civil Rights of Institutionalized Persons Act, § 7, 42 U.S.C.A. § 1997e; 42 U.S.C.A. § 12101 et seq.; 28 C.F.R. §§ 35.170(a), 35.172.
3 Cases that cite this headnote
Opinion
Memorandum and Order
BRIEANT, J.
*1 On June 27, 2003, two separate motions, Documents 8 and 19, were argued and fully submitted for decision. By motion filed on May 21, 2003 (Docket # 8), Plaintiffs seek certification of a class pursuant to Fed.R.Civ.P. 23 consisting of all present and future prisoners with disabilities housed in the Fishkill, Walsh and Wende Regional Medical Units of the New York State Correctional System. By motion filed June 12, 2003 (Docket # 19), Defendants seek to dismiss the action pursuant to Fed .R. Civ. P. 12(b)(1), (b)(6) and (c), for failure to exhaust all available administrative remedies prior to commencing the action as required by 42 U.S.C. § 1997(e).
The Court considers the Defendants’ motion to dismiss first.
Plaintiffs sue for themselves and others similarly situated who are state prisoners with significant physical impairments that substantially limit one or more of their major life activities. They are or were housed in a regional medical unit (RMU) operated at one of the three state correctional facilities: Fishkill Correctional Facility (Fishkill), Wende Correctional Facility (Wende) or the Walsh Regional Medical Unit (Walsh). Regional Medical Units have been established by the Department of Correctional Services (DOCS) to provide long term nursing care and rehabilitative services to inmates whose condition requires a higher level of care than is available in the general prison population. Plaintiffs claim that,
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Rosario v. N.Y. State Dept. of Correctional Services, Not Reported in F.Supp.2d (2003)

because of their disability, they have been denied access to prison programs available to prisoners who are not disabled. Among the programs said to have been denied are vocational, educational and work programs as well as the complete alcohol and substance abuse treatment program known as SAAT. As a result of being denied the benefits of the programs, members of the putative class are prevented from earning merit time for their voluntary participation that would be personally beneficial and might qualify them for earlier release.
Plaintiffs claim that they and the class members are physically and mentally able to participate in some or all of the programs to which they have been denied access and that Defendants engaged in no individualized assessment of any particular class member’s ability to participate but rather have denied program access to all inmates housed in RMU’s.
Defendants take the position that Plaintiffs have not adequately exhausted the internal remedies available to them under the Inmate Grievance Program and also they have not pursued the administrative remedies available through the United States Department of Justice.
Our Court of Appeals has held at least by implication that exhaustion of administrative remedies is not jurisdictional. See Jenkins v. Haubert, 179 F.3d 19, 28–29 (2d Cir.1999); Snider v. Melindez, 199 F.3d 108–112 (2d Cir.1999). In any event, the Amended Complaint founds subject matter jurisdiction on 42 U.S.C. § 12101 et seq. the Americans With Disabilities Act, U.S.C. §§ 1331 and 1343(3) and (4). This Court has subject matter jurisdiction of all such cases. So much of the motion as is based on Rule 12(b)(1) is denied. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
*2 Whether the Amended Complaint states a claim upon which relief may be granted is cognizable under Rule 12(b)(6) and is discussed below. An issue of substantive law is presented as to whether the Plaintiff in such a case can prevail on the merits if he or she has not exhausted administrative remedies. That issue goes to the merits, and may be decided on a Rule 12(b)(6) motion. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir.1998).
The Court is required to read a complaint generously, drawing all reasonable inferences from the complaint’s allegations. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). “In ruling on a motion to dismiss for failure to state a claim upon which relief may be granted, the court is required to accept the material facts alleged in the complaint as true.” Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir.1991). Dismissal under Rule 12(b)(6) is appropriate only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
Administrative Exhaustion Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) requires prisoners to exhaust administrative remedies prior to bringing suit in federal court. “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, or other correction facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court, in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), rev’g Nussle v. Willette, 224 F.3d 95 (2d Cir.2000), ruled that “[a]ll available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be plain speedy and effective.” Id. at 524 (internal quotations omitted). Exhaustion is required even if the relief the prisoner seeks is not available in grievance or other administrative proceedings. Id. The Court noted that the 1996 amendment expanded exhaustion requirements beyond § 1983 claims to “all actions ... brought with respect to prison conditions, whether under § 1983, or any other federal law.” Id. (internal quotations omitted).
Defendants move to dismiss Plaintiffs’ claims for failure to exhaust administrative remedies in accordance with PLRA § 1997e(a). Defendants argue that Plaintiffs did not properly exhaust the internal procedures established by the DOCS regulations and that Plaintiffs failed to pursue an available remedy through the United States Department of Justice. (See Defs.’ Mem. in Supp. of Mot. to Dismiss at 3–4 (“Defs.’ Mem.”)).
Although it is unclear whether all Plaintiffs exhausted the internal DOCS grievance process (see Pl.s’ Memo at 2, Def.’s Memo at 3), Plaintiffs admit that they have not exhausted the Department of Justice (DOJ) administrative procedures for disability complaints. (Pl.s’ Memo at 3). Plaintiffs assert that the exhaustion requirement in section 1997e(a) of the PLRA does not require Plaintiffs to exhaust external administrative procedures such as those offered prisoners by the DOJ. Rather, they believe that the exhaustion requirement of the PLRA applies only to administrative remedies within prison systems, i.e. internal prison grievance procedures. (Pl.’s mem. at 3).
*3 Title 42 of the U.S.C. § 12134(a) authorizes the United States Attorney General and the United States Department of Justice to establish procedures for the resolution of complaints filed under the ADA. Complaints may be filed with the DOJ on behalf of individuals or a specified class of individuals who believe they have been subjected to discrimination in the services provided by a state agency.
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Rosario v. N.Y. State Dept. of Correctional Services, Not Reported in F.Supp.2d (2003)

28 C.F.R. § 35.170(a). The DOJ must either resolve the complaint or issue a “Letter of Findings containing findings of fact and conclusions of law and a description of a remedy for each violation found.” 28 C.F.R. § 35.172. By its plain meaning, the statute and the Regulation extend to the ADA complaints of the plaintiff class.
While there are clearly established procedures for filing a claim, the ADA does not require exhaustion of those procedures prior to bringing a private lawsuit.
Some courts have held that under the PLRA, State external administrative remedies need not be exhausted, see, e.g., Rumbles v. Hill, 82 F.3d 1064 (9 th Cir.1999) (holding that a prisoner was not required to exhaust state tort claim procedures prior to bringing a § 1983 lawsuit); Blas v. Endicot, 31 F.Supp.2d 1131 (E.D.Wis.1999). These cases were decided prior to the Supreme Court’s decisions concerning exhaustion in Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) and in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), and do not relate to federal administrative remedies. In footnote 6, the Court in Booth held:
That Congress has mandated exhaustion in either case defeats the argument of Booth and supporting amici that this reading of § 1997e (1994 ed., Supp. V) is at odds with traditional doctrines of administrative exhaustion, under which a litigant need not apply to an agency that has “no power to decree ... relief,” Reiter v. Cooper, 507 U.S. 258, 269, 113 S.Ct. 1213, 122 L.Ed.2d 604,(1993), or need not exhaust where doing so would otherwise be futile. See Brief for Petitioner 24–27; Brief for Brennan Center for Justice et al. as Amici Curiae. Without getting into the force of this claim generally, we stress the point (which Booth acknowledges, see Reply Brief for Petitioner 4) that we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.

the ADA is not an “available” remedy within the meaning of the PLRA, because “[a] remedy that is available on paper but does not in practice respond to the kind of complaint that prisoners seek to litigate is not an available remedy within the meaning of the PLRA.” (Pl.’s mem. at 13). In making this argument, Plaintiffs cite our Court of Appeals decision in Snider v. Melindez, 199 F.3d 108 (1999), which held that when a court is considering a dismissal for non-exhaustion, it must “establish the availability of an administrative remedy from a legally sufficient source.” Id. at 114. The Court in Snider was not presented with the issue of whether a prisoner must pursue administrative procedures that were inadequate as a practical matter, but rather procedures that were wholly inapplicable to the subject matter of the prisoner’s complaint. In any event, Snider was decided prior to the Supreme Court’s ruling in Nussle and must be deemed overruled as to that point.
*4 The ADA, which is in pari materia with the Rehabilitation Act, also relied on, is implemented by a regulatory scheme that specifically makes an administrative remedy available to state prisoners. Whether the ADA procedures are “adequate” in providing Plaintiffs with their desired relief is not material in light of the Supreme Court’s holding in Nussle. “Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit ... And unlike the previous provisions which encompassed only § 1983 suits, exhaustion is now required for all ‘action[s] ... brought with respect to prison conditions[.]” ’ Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12.
Plaintiffs must exhaust the DOJ’s ADA procedures, even if the process, as Plaintiffs contend, is largely “advisory” and lacks the authority actually to provide relief. Accordingly, this Court concludes that Plaintiffs must exhaust their available administrative remedies including federal administrative remedies extraneous to the prison system, prior to commencing a lawsuit.
Conclusion
The action is dismissed without prejudice and without costs for failure of exhaustion. No purpose will be served by deciding Plaintiff’s motion for class certifications at this time. The Clerk shall file a final judgment.

Booth, 532 U.S. at 741, n. 6. Plaintiffs’ contend that the DOJ remedial procedure under

SO ORDERED.
	  

3

Rosario v. N.Y. State Dept. of Correctional Services, Not Reported in F.Supp.2d (2003) 4

 
 .. ,,

<!

......

·I

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
' -----------~---------------------------------------------------)(

CARLOS ROSARIO, et al.,

Plaintiffs,

RULE4JVOLUNTARY

STIPULATION OF DISMISSAL

vs.

SfU?BJEoCaT.

TO CONDITIONS pEr(

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, et al.

03 Civ. 0859 (CLB)(LMS)

Defendants.

----------------------------------------------------------------){ The parties, by their attorneys, hereby stipulate and agree as follows:

WHEREAS Plaintiffs commenced this action on February 6, 2003 on behalf of themselves and a class of others similarly situated to challenge Defendants' alleged policy and practice of refusing to provide adequate programs to prisoners housed in the Department of Correctional Services' ("DOCS") Regional Medical Units. Plaintiffs alleged that the challenged policies and practices violate the Americans with Disabilities Act ("ADA") 42 U.S.C. § 12131
and Section 504 of the Rehabilitation Act 29 U.S.C. § 794; and

WHEREAS the Defendants have answered the Complaint and denied that they have violated the ADA and/or Section 504; and

WHEREAS the plaintiff class of all qualified individuals with disabilities who are now .or, ..

will in the future be housed in the Fishkill Regional Medical Unit ("RMU;') was certified by the ··•·

Court on September 15, 2005; and

c;

f;/i
WHEREAS the parties are in agreement that "qualified individuals" wlm "<;ljs,;lbi~es," as those terms are defined in the ADA, housed in the Fishkill RMU (herefn "H'!;jhat~' or
"prisoners" or "inmate-class member(s)") should be provided, to the extenf!]JrajSI;jcal~ith

opportunities for meaningful program activities, including those programs that 'rttay<:aSsisM'hem in earning credits that may enhance their suitability for release on parole or thlH- el~bilrfl for

Presumptive Release, Merit Time and Earned Eligibility, with the understailtling:r.ihaJ-<heir

medical treatment must always remain the highest priority; and

~

J

WHEREAS counsel for the Plaintiffs and the Defendants, without conceding any infirmity in their claims or defenses, have subsequently engaged in negotiations to resolve the Plaintiffs' claims; and
WHEREAS counsel for both parties have agreed to seek the Court's approval of the settlement of this case, in accordance with Rule 23(e) of the Federal Rules of Civil Procedure, and to file this Voluntary Stipulation of Dismissal Subject to Conditions (herein "Voluntary Stipulation" or "Voluntary Stipulation of 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);
It is STIPULATED AND AGREED by and between the parties and their respective counsel as follows;
1. DOCS will conduct an individualized assessment of each inmate-class member's ·programming needs and capabilities for each inmate-class member currently housed in the RMU and for each inmate-class member who is admitted to the RMU during the term ofthis agreement as follows:
a. For each inmate-class member currently housed in the RMU, an individualizec;l assessment will be completed within 60 days of the signing of this document. For all inmate-class members admitted to the long term care unit of the RMU after the signing of the agreement, individualized assessments shall take place within 30 days of their placement in the RMU. For all inmate-class members admitted to the infirmary of the RMU after the signing of the agreement, individualized assessments shall take place within 90 days of their placement in the RMU.
b. These assessments will be conducted by an interdisciplinary committee consisting of staff members who are familiar with the inmate-class member's condition, medical needs, security classification and program plan ("Committee"). The Committee's assessments will take each inmate-class member's condition, medical needs, security classification and program plan into account when making its assessment. At least one medical clinician (doctor, physician's assistant, or nurse practitioner) or registered nurse and one member of the counseling staff familiar with the inmate-class member's needs shall take part in the assessment.
c. The inmate-class member shall be afforded the opportunity to have input in the individualized assessment process as it pertains to the inmate-class member himself, including the opportunity to appear personally before the Committee to express his views about whether he can or cannot attend programs.
2

d. pocs shall maintain a policy concerning the individualized assessment of
inmate-class members in the RMU that is consistent with this agreement. Attached to that policy shall be a form that is used by the Committee, which must call for the Committee's assessments and include the reasons supporting the assessment and procedures for contesting the assessment.

e.

An inmate-class member or DOCS staff member may request that the Committee

reevaluate the inmate-class member's assessment because he or she believes that

the inmate-class member's medical condition has changed; provided, however,

that an inmate-class member may not request any more than three (3) such

reevaluations per year. Inmate-class members and DOCS staff may make such a request at the time of the inmate-class member's quarterly review. Upon such a

request, the Committee will review its prior assessment in light of the alleged changes in the inmate-class member's condition; provided, however, that the

Committee is not bound to consider any more than three (3) such requests per

year from any individual inmate-class member.

f.

Committee members will share information concerning inmate-class members'

health in accordance with the provisions of the Health Information Portability and

Accountability Act (HIPAA).

·

2. An Paragraph

inmate-class member one and will have the

will be informed of the Committee's assessment described opportunity to contest it. Each inmate-class member will

in

receive a copy of the assessment form stating the Committee's assessment, the reasons

supporting it, and the procedures for contesting the assessment.

3.

The Alcohol and Substance Abuse Treatment program (ASAT) will be available on site

in the RMU provided there are inmate-class members in the Fishkill RMU who meet the

eligibility requirements of that program and those inmate-class members have been or are

expected to be housed in the Fishkill Fishkill RMU will meet on days and

RMU for 90 days or longer. The ASAT program for time periods generally comparable to the days

in the and times

the ASAT program meets DOCS may alter the days

at Fishkill for general population inmates, provided however that and times an individual inmate-class member attends ASAT to account

for the inmate-class member's needs, abilities and medical condition.

4. Successful completion of this

completion program in

of the ASAT program general population for

in the RMU shall be equivalent to purposes of Merit Time, Earned Eligibility,

Presumptive Release, satisfying an inmate-class member's program plan and for any other

purpose served by completing ASAT. complete the ASAT program are also

Inmate-class entitled to the

members in the same ceJiificate

RMU who successfully of completion that prisoners

housed in the general population receive upon successful completion of ASAT.

3

5.

The Aggression Replacement Treatment program (ART) will be available on site in the

RMU provided there are inmate-class members in the Fishkill RMU who meet the eligibility

requirements of that program and those inmate-class members have been or are expected to be

housed in the Fishkill RMU for 90 days or longer. The ART program in the Fishkill RMU will

meet on days and for time periods generally comparable to the days and times the ART program

meets at Fishkill for general population inmates, provided however that DOCS may alter the

days and times an individual inmate-class member attends ART to account for the inmate-class

member's needs, abilities and medical condition.

6.

Successful completion of the ART program in the RMU shall be equivalei;lt to

completion ofthis program in general population for all purposes. Inmate-class members in the

RMU who successfully complete the ART program are also entitled to the same certificate of

completion that prisoners housed in the general population receive upon successful completion

of ART.

7. Two vocational programs known as "General Business" and "Computer Operator" will be available on site in the RMU provided there are inmate-class members in the Fishkill RMU who meet the eligibility requirements of either of these programs and those inmate-class members have been or are expected to be housed in the Fishkill RMU for 90 days or longer. Vocational programs in the Fishkill RMU will meet on days and for time periods generally . comparable to the days and times these programs meet at Fishkill for general population inmates, provided however that DOCS may alter the days and times an individual inmate-class member attends one of these vocational programs to account for the inmate-class member's needs, abilities and medical condition. A vocational instructor who meets DOCS' qualification standards will teach these programs.

8. Successful completion of an on-site vocational program in the RMU shall be equivalent to completion of the equivalent program in general population for purposes of Merit Time, Earned Eligibility, Presumptive Release, satisfYing an inmate-class member's program plan and for any other purpose served by completing the particular vocational program. Inmate-class members in the RMU who successfully complete a vocational program are also entitled to the same certificate of completion that prisoners housed in the general population receive upon successful completion of that program.

9. Adult Basic Education and preparation for the General Equivalency Diploma ("GED") test will continue to be available on site in the Fishkill RMU provided there are inmate-class members in the Fishkill RMU who meet the eligibility requirements of either of these programs and those inmate-class members have been or are expected to be housed in the RMU for 90 days or longer. These academic programs in the Fishkill RMU will be available to inmate-class members for time periods generally comparable to the time periods these programs are available to general population inmates, provided however that DOCS may alter the days and times to account for an inmate-class member's needs, abilities and medical condition. A certified educator who meets DOCS' qualification standards will be available to inmate-class members on
4

a basis generally comparable to a certified educator's availability to general population inmates enrolled in similar academic programs.

10. DO,CS will provide qualified inmates with disabilities housed reasonable accommodations within the meaning of the ADA that are

in the Fishkill RMU with necessary to enable those

inmate-class members to participate in the programs offered in the Fishkill RMU.

11. With respect to the be required to provide any

programs referenced in Paragraphs one of these programs in the RMU

three through nine, DOCS will not during any time period when there

is no inmate-class member who has met the eligibility requirements of the program and who

wishes to participate in the program.

ntp1ho2oe.tpgbueelanrteiWeorqaniultihaprteorFdepisutspolhaekptciitwolltnvoCiaAdot erSFrAetihscThetisk,oeiAnllpa,RrlDoTFgOaracaCnimdlSisttywhi.enilIlathfcneDaodtROebMmCeSiUrceepqilfriumoiitrgiecrndaeamattesosespslaertloaol dvvpiiondrcogeavvttioiodocetnhaatethlioeGpmnrEaoDlgtopr,artDmohgeOmrgCaiemnSngsewrfioainllrl theRMU.

Fll1eo3ivcs.eahltkeaidlnlIdi'nsnmpgtrheaoentgeegr-raceamlnlaepsrnsoaeplmeupdelosam.ptiuboAlenarntsaioirinnenmatwshaeticleolR-ncbMsleaissUdtseemnmtetarewmymiibtbnheeerdteh'slbeigeiyrilbitdghlieiesbatiCoblioitplymiatyrtmot,icimptitapeeraedttiiecccoiaipnlnascptieosrnotiendgnirpttairwmoonisgt,hrlsoaetcmhca~eutlepidtoyliincy referenced in Paragraph one above.

wbacio1nslor4ia.totmtshhhkseeasdmt,RacitaiehIeMlnfmeymdscUbaslwweecayarcaisrarlete,elrseddwbsnr.eobchtOotooyaninltnlwahscoceiepiwsolhtRlineenybsdMnsiettishiUctnwpeeieanitoyrthnthmuaewrttwoiddRti,otthdMehoiaodnrttUmhstygooeaeay,rbnthadeierren.-diracmna.llgltaDahDspttreosooOi-nmpcftCkhulteahieSlnmsaeosgtwbiRuomweitMlndrleasomtiUpenowrbrmroiiewlnvRalrmistiMbdellaieesnUtbecpsetsaoehy.nmmreamrFbeaRdiordtrMiirteenteceegUdarmxvettaowaasomittilsillhapoeulbelnacbelvahye,eleanatperotsodhrqogi,eucnvasiiymgpimodaamaeerlrotdedseen,tn-ttgotes

use the restroom and then to return to the yard provided the yard Imnate-class members will be provided with an accessible toilet

is still stall in

open at that accordance

time. with the

ADA Accessibility Guidelines for warmer months, DOCS will make

buildings and facilities an effort to hold RMU

(ADAAG) if outdoor yard

necessary. time when

During the the building

provides natural shade.

15. Plaintiffs' counsel will be provided with all grievances and requests for accommodation

filed by imnate-class members housed in the RMU that program or use of the outdoor yard. Plaintiffs' counsel

concern will also

an be

inmate-class member's provided with all responses

to these grievances and requests for accommodation.

5

.

16. Plaintiffs' counsel will be provided with a Committee with respect to inmate-class members.

copy of all final determinations made by the This includes all initial determinations and

subsequent determinations.

pwDmFi1iPcptOtdbmdPcanmoro7oielioigueeultosnaes.luraepmenrtrhtdlciemdhnireiuomtnckuntuvnceheesiaiseitistscoeangsemeetiellristfmellllmgftndaeiaAfs,tsyefnsRwhigsdspaesnmanbl.a'ghiar'mdplMintsgnteygctaercoTdtddheaecoolsnrhtoUtonlmhhoeahiupcesutduncdbeeenmheeurnepnapui/taiefecnsmpyeoisraoeooimbmehoetrdta(rpFpnn.lpelvtlsgreeerptihoel)Dtihmsonrnitamelirerttnhhaetteedtahtoemewahiemsakmstulefeatyraieyetheicrtedloahael,ta(nh,niaelpagnD3nnaessaaatdradotnrSy)tattentteOopoaeardtutayyDotnrtaeDitiwftCshpiionenhrptnaoOtttiOtoesamnShoiarhsnignsa'rrieenCuaCyiwvaoVscsrpdnVqrottSiFteSofeseetluoaaafioiqie'euuets'-rtasnlnfhpgnlcisukonubhofrduoycerledistpsnskapoaodnoredeeeitpsstisetuagr,tninJal,nqhisarlmo,dtIDordPrfytouasdranymvoDnuCyhellgoeOom,blaar,cnaneSOrroomSaibnbCtbaltstmnrtersalscetCemieraStidliapeyebnpiisDtpSa,snptfsuiaceouduicwuofdferPrltgrbtclsecoraeibdnp(arlaos'oeeobsrtss.jiaututitnedmeciueme)iiioatEntoacornonaineynossvganpptnaluntntscriditacSeteanoFafocuooomnnharlptfusfneafs,oifsroniDepfpcadsoiste'aDetlysforieentdiidnfocsrlohpcsusdryoiieoidorpmiihsaetobrbrdnsytuomtrraayhflswititit.inlenanmtosueeaitnlioD,icshgssyrntcDJmabeDeeiasrraIhdiepinleepe.a1unnanlefetayeeluiorsatmdempfnmtPmeihirktreen(tentsh-pealsoaa3enidreacgfhiqettoltus)mdnnoeaillaeprauisranaya-rnttgbllieiDa(.isctnalnatertnotesisntlsecyahnoftnO)eean'yssfemrgetdddossdsss'hcCisD,at',uapeuvocbaeaSntabccmmwuoreetrunydthiosenfurndatsnhebueptsuhnnstatuhgmiteincronaoaeJshcxyeserhIdfesnsluabheess,femea(lpnrsetdt,6oatul(Doniruayroisems)tinnpbtsrwmcoc)OesfttedpmhD,yetoiptieiteCteoiluuoooOotlnsrrphSrrnu.ngtn(CtesausrhstourtshnS)iittah.iohsi,snbtaedytell

Dcs1bcApopsawtPieo8oueagrfgilniro.msuabsrrPtnmymettghinseylpneeresassditltamqfeosuihiiomfnfasulbcreFeofafnteyhnsscrioaeltcnf'tt,ohttrrxasfe.thceuiPsnea,astloeq"n'rPdolimpactuVuwslpaiieiessanegsusaonreclrissaeitrltnirhdttuefttuiovttiooieeflmaenidoeif'drffJfncstssnifaulaepoen,'sydrlrsbiire'fcieenyteoaefdhotcqffhgaloSoPtbueueihinrrryruntenlseeeiidansfisssppeePinPietstanauaoohmllea(frbttlan3ralrottiamlaieyfaa)treatnwftngilanytestdoadthyrijiy-'eiunlafuecmmlacfsrprrdolstroiureeaeehhsgnt'equcsheagmiqca2sfhnutestronui1sertemonmiaduehe,ssnmlgsnltoeawfetpmtasmaswbperltieaieateeouhtlmsblihuclgrrmemnuiessereeaegitrhetueethervsi(tsaedeamtoesoeoulittani)lsrninibntendtnnewgbstfgditttggrhotsehohimaw(scaratreisnmhuettsisam)phttpipstinahnVahoipsaoaasdyreuflrroytcatettthPirpoalnDihcbsuiaoniunudruunieerngdftrnslaayfpatawDuseganVrptoers(entrrtreesl3eeoyaqiidfrtetmn0dfploeuviaSou)mnhoninapbrtntrg.dtdshtitayeths.pDiaaiattmvesuetoTnyraehNer(ylertsPhfarsesetneoteea)thSohnttio-tsnraostofaphcdaopionnnlDapipgalpcatnvruurniooosaetigmaelrtisnmfsfapsesdeistpmtDus"hnhipnaailssaogelneiwideaouydsnnmdamgndpbmitnlbwroliaseDlbtesyitytornfisspueaeOttst'uyeunhsmrtiahCr'peinttsliteteeiiognhhSatsc(i(nhnselessetae)r'in.)ipryt ability to program.

6

19. If, afte' r thirty (30) days following any meeting held pursuant to Paragraph 18 above, Plaintiffs' counsel believes that Defendants are not in "substantial compliance" as defined in Paragrapp. 21 with the terms of this Voluntary Stipulation, Plaintiffs' counsel may request a meeting with all parties before the Honorable Charles L. Brieant, United States District Court for the Southern District of New, York, or another Judge of said Court if Judge Brieant is unavailable, to discuss the possible filing of a motion to reinstate this lawsuit, as provided in Paragraph 21 below. Plaintiffs' counsel may request such a meeting with the Court no earlier than three (3) months from the date this Voluntary Stipulation of Dismissal is signed by the parties.
20. Upon the signing of this Voluntary Stipulation of Dismissal, the parties will jointly move the Court for entry of an Order dismissing this action pursuant to Fed. R. Civ. P. 23(e) and 41 (a)(2) and will attach a copy of this Voluntary Stipulation of Dismissal to such motion. This dismissal shall be without prejudice to Plaintiffs' right to move to reinstate the action pursuant to Paragraph 21 below within three (3) years from the date this Voluntary Stipulation of Dismissal is signed by the parties. Should the Court deny the parties' motion for dismissal as provided herein, this Voluntary Stipulation of Dismissal shall become null and void.
21. Following any meeting with the Court as set forth in Paragraph 19 above, Plaintiffs' counsel may file a motion with the Court for an Order reinstating this lawsuit. Plaintiffs. may not file such a motion without first requesting a pre-motion meeting with the Defendants and the Court as provided in Paragraph 19 above and, if granted by the Court, participating in such meeting. The lawsuit shall not be reinstated unless the Court finds by a preponderance of the evidence that Defendants are not in 'substantial compliance' with the terms of this Voluntary Stipulation of Dismissal, meaning Defendants' failures or omissions to meet the terms of this Stipulation were not minimal or isolated but were substantially and sufficiently frequent and widespread so as to be systemic. Upon reinstatement, the Court may take such action as the record, the Jaw, and this Voluntary Stipulation warrant.
22. The terms of this Voluntary Stipulation of Dismissal shall remain in effect for a period of three (3) years from the date this Voluntary Stipulation of Dismissal is signed by the parties and shall be binding on the parties, their successors, agents, employees and all persons acting in concert with them. After the three (3) year term, the terms and conditions of this Voluntary Stipulation of 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 plaintiffs are discontinued and dismissed with prejudice; and the jurisdiction of the Court over the issues in this action shall automatically end.
23. This Voluntary Stipulation of Dismissal is a "private settlement agreement" as that term is used in the Prison Litigation Reform Act (PLRA), 18 USCA 3626(c) and, as such, is a contract which shall be enforceable in any State court of competent jurisdiction. If any provision of this Voluntary Stipulation of Dismissal is declared invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect, unaffected and unimpaired.
7

'

24. This Voluntary Stipulation of Dismissal shall resolve all claims or potential claims for

injunctive relief identified in the Complaint_and that could arise from the allegations contained in

the Complaint. This Voluntary Stipulation is not intended to restrict any defenses available to Defendants to any future claims, or the legal requirements, procedures,

that may be or standards

to be employed in determining any such future claims.

2aHn5ud.nd0r0e1dD10eT0fwenDednoatlynlatNsrsian(ge$r1eae3n5dt,o0700r1e0i1.m0000b)uDrinsoellaaPtrtlsoar(inn$et4iy,f3f'ss2'9f.ec7eo0su)naisnnedl dttihhsebeusarusmmeomuoenfnttOsonffeoFrHoauurngdr']arJnelddoutTsoahtanilrdtoyTfFhOirvneeee HbPDSnastCchecoeiaeuoincicuyscsnu:peomntmrdtiarsVtyo1iryd,eesen9oaanls(id6bnln9taou11ltcl0Toeen,f7e)rshft,teoahbhidtwsrruasheeatytultgiiyylstsbfioshhunSNbdafalntaeimililtvtifycnplhhntiooeueeseageumrilcToxanfpcoteuthnethrirnncrouoeineud3snevuett(rihseleaoeslHoudes)cnib.tfoeaua"jtonninbDSehpSnsddclehtioeirtssovfebomhtouOodhyouerliiutdrddsTtsDdnshi.twnepdaaseeIrldruunefn,eeaeercdnddspnmhfitt"uunhypdnatlgeraaVwlNnioypnfpetoveiiptrnvcsalntreiuoae'elnotxyntncvcoieaS-ttoioancaffpenlupiudrcaaryntalsltbe7luiystedboS0enmanadl/tdp1dilaeaeppfa10ennyrrurn7n0odtolcimNaapoeDoe"tfrdfefitoSiaoP,eawtlttohnrtlhlteaatehehsiroOYsiNnseaNsefrtoie(idYdrDr$VfsawekfuS1tisroresm3ee'YlmPP9udcsscuoue,en"io3sbritbitupsk2salalfaint9irosccSnlys.rbo7etteaOahyOlt0Snnt)fetdtofmifieDfnwpfiioraccceeu2ahfdoeefdfl8ierernaicc'csnttshUobwiiidoanpyLLs.i.alnuSyhtsaanhti.awwhnCtooiilsnnegl.,ff.' uDmtclfciShnarnootoiwoecisstspmiutttmsllissuraou,,rilprwnieaseatoasdtsncirytaauooodlsmiidnvnttidi,peehssoirnraebrsiofisetbnunvlCDugriwaisserotdieeasifsueomlmeftmlrdetnmtoaecia,dsrinetstn.ncseontaofse.toPlsnyItPrinahs'sndsrliehacaastiatfhruitgtesenelerorleucntrariscettebnfp,lcdfvyewehseceysdoacin2a'stnouus1htfgdnrrurftitsaelheanrtnceebaegrposdtuoa,rtstesvoPohtscodesusleon,,awebtuaicotPojnarhbeurltitrlcaetviydeciftiieoefniottisshnstonab'i(etcnf3surocafu,)yrsolpfrsla'uryrernteaonciemhdgdpovsaeheepurididntllnnlsipietasscssewrbeouafreluibcroislnorcaluricsesdetiteliothsao.lnmsterainhofmwepuietNtsnr,slvopletoeVyfscrtottnoelhhodrmtuceililadnuraaiouetrengtvtdsctomtetoetPaairlsrdnryonltnyaetteefoiiatyroncyShno'ontr'isdtmisseiufptiffrrfoneVsuetems'eealarotasssaecac,lt,oikotutineoinciucnosnnoaontttngbahuausorltieriryaesystftl brought to enforce a term or condition ofthis Voluntary Stipulation of Dismissal.

tb2caTh6odyha.mmitasipnasalynsygiyTorDwenhseeiittfmsabhenyneVdendioaatatrlnhnduayet,nnrdtoDpathforeieyltafsienclSnayyttend,irpvgampuinuorlstaaalgacttsheitthoiiaocaontenlrl,oittohhfsoaferDvpliipaeonswrsmtoneitocnioiseotrspdnoawrulferircneaodlnnuoatyhgsediisdadvsoprenieploniselttgisficegf;caedaobctn(litibeson)tenilxttaauhcwwntieesa,pasrt(dauamcnb)lteoeiiaotstonwsnrsieoaurvednbeinmgosbtultaiayhslntaseeattiidionaponylanolry;orDtifjefoeualsfrisiealt(tneibocfddi)ilaetiahtndtonyet. agreement.

8

27. This Voluntary Stipulation of 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.
28. Th'is Voluntary Stipulation of Dismissal contains the entire agreement of the parties in this matter and no oral agreement entered into at any time, nor any written agreement entered into prior to the execution of this Voluntary Stipulation of Dismissal regarding the subject matter of the instant proceedings, shall be deemed to exist or to bind the parties hereto or to vary the terms and conditions contained herein.

Dated: New York, New York
Ju \~ d-.\ , 2oo6
Dated: New York, New York
"S;;/ v ~ I ,2oo6

BETSY GINSBERG (BG 9890) JOHN BOSTON STEVEN BANKS Prisoners' Rights Project Legal Aid Society 199 Water Street New York, New York 100038
(212) 577-3530

OHN M. SCBWARTZ (JS 920 BRIAN SCHMIDT Assistant Attorney General 120 Broadway New York, New York 10271
5o B.Kput~o : !<l£f"~ 2-"f,1~?91c2.) 416-8559
u. S.).r:

 
 SDNY CM/ECF Version 3.0L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?585670252109304-L_3...

CLOSED
U.S. District Court United States District Court for the Southern District of New York (White Plains)
CIVIL DOCKET FOR CASE #: 7:03-cv-00859-CLB

Rosario, et al v. Goord, et al Assigned to: Judge Charles L. Brieant Demand: $0 Cause: 42:12112 Americans with Disabilities Act of 1990

Date Filed: 02/06/2003 Date Terminated: 09/29/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Carlos Rosario

represented by Betsy R. Ginsberg Legal Aid Society Prisoners' Rights Projects 199 Water Street 6th Floor New York, NY 10038 (212) 577-3530 LEAD ATTORNEY

Plaintiff Worley Hall

represented by Betsy R. Ginsberg (See above for address) LEAD ATTORNEY

Plaintiff Roger Zydor

represented by Betsy R. Ginsberg (See above for address) LEAD ATTORNEY

Plaintiff Marshall Rosado

represented by Betsy R. Ginsberg (See above for address) LEAD ATTORNEY

Plaintiff Donald Smith

represented by Betsy R. Ginsberg (See above for address) LEAD ATTORNEY

Plaintiff Vincent Rios

represented by Betsy R. Ginsberg (See above for address) LEAD ATTORNEY

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Plaintiff Vincent Kimbro TERMINATED: 04/22/2003
Plaintiff Gilbert Santiago
Plaintiff Roderick Reyes
Plaintiff Christopher Aldrich
V. Defendant Commissioner NYDOCS Glenn S. Goord
Defendant Frank Headly DOCS Deputy Commissioner for Programs Defendant Deputy Commissioner Stephen Bernardi of Policy and Compliance Review
Defendant Donna Masterson DOCS Americans with Disabilities Aact Coordinator Defendant

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represented by Betsy R. Ginsberg (See above for address) LEAD ATTORNEY
represented by Betsy R. Ginsberg (See above for address) LEAD ATTORNEY
represented by Betsy R. Ginsberg (See above for address) LEAD ATTORNEY
represented by Betsy Ginsberg LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce A. Brown Attorney General of the State of New York 120 Broadway New York, NY 10271 (212) 416-8513 LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY

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Lester Wright DOCS Deputy Commissioner and Chief Medical Officer
Defendant William Massuca Superintendent, Fishkill Correctional Facility ("CF")
Defendant Superintendent Kenneth S. Perlman Mohawk CF
Defendant Edward Donnelly Superintendent
Defendant Jimmy Harris Deputy Superintendent for Programs
Defendant Jim Mance Deputy Superintendent For Prgorams, Mohawk CF
Defendant Helen Dean Superintendent fro Programs, Wende CF
Defendant Anne Cole Deputy Superintendent for the Correctional Health Care Facility, Fishkill CF
Defendant Joan Rosado Deputy Superintendent for the Correctional Health Care Facility, Walsh Rmu.
Defendant

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represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY
represented by Bruce A. Brown (See above for address) LEAD ATTORNEY

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Susan Post Deputy Suprintendent for the Correctional Health Care Facility, Wende Cf.

represented by Bruce A. Brown (See above for address) LEAD ATTORNEY

Date Filed 02/06/2003 02/06/2003 03/05/2003
03/05/2003
03/11/2003 04/22/2003
04/25/2003
04/25/2003 04/25/2003 04/25/2003 04/25/2003

#

Docket Text

1 COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). FILING FEE $ 150.00 RECEIPT # 464338. (sv) (Entered: 02/10/2003)
Magistrate Judge Lisa M. Smith is so designated. (sv) (Entered: 02/10/2003)
2 NOTICE OF MOTION by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Vincent Kimbro, Gilbert Santiago, Roderick Reyes for Betsy R. Ginsberg to appear pro hac vice . Return Date March 28, 2003. (dcr) (Entered: 03/11/2003)
3 AFFIDAVIT of Betsy R. Ginsberg by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Vincent Kimbro, Gilbert Santiago, Roderick Reyes in support of [2-1] motion for Betsy R. Ginsberg to appear pro hac vice. (dcr) (Entered: 03/11/2003)
4 ORDER granting [2-1] motion for Betsy R. Ginsberg to appear pro hac vice . ( signed by Judge Charles L. Brieant ); Copies mailed by Clerk's Office (pf) (Entered: 03/12/2003)
5 AMENDED COMPLAINT by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes (Answer due ) amending [1-1] complaint against Christopher Aldrich; Summons issued. (jma) (Entered: 04/24/2003)
6 Memorandum to Docket Clerk: 4/25/03. Court Reporter: C. Arends-Dieck. Pre-trial Conference held & Concluded. All parties paresent. Civil Case Management Plan and Scheduling Order filed. Trial ready date set for Jan ,2 2004. Next Pre-trial conference is set for June 27th, 2003 @ 9:00am. See transcript. So Ordered. Charles L. Brieant. clkm/cpys.. (sv) (Entered: 04/28/2003)
PRETRIAL CONFERENCE held before Judge Charles L. Brieant . (sv) (Entered: 04/28/2003)
PRETRIAL CONFERENCE concluded before Judge Charles L. Brieant . (sv) (Entered: 04/28/2003)
PRETRIAL CONFERENCE set at 9:00 6/27/03 before Judge Charles L. Brieant . (sv) (Entered: 04/28/2003)
7 CIVIL CASE DISCOVERY PLAN & SCHEDULING ORDER: This Court requires that this case shall be ready for trial on or after 1/2/04; The case is not to be tried to a jury; Joinder of additional parties and Amended Pleadings by 6/15/03; Interrogs by 9/15/03; Depositions to be completed by 11/1/03; Any further interrogs, including expert by 10/15/03; Requests to admit by 10/15/03; All discovery to be complete by 12/1/03; Next Case Mgmnt Conference 6/27/03 at 9:00 a.m.; So Ordered: ( signed by Judge Charles L. Brieant ); Copies mailed

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06/03/2003 06/09/2003 06/10/2003 06/10/2003 06/11/2003

by Clerk's Office (pf) (Entered: 04/28/2003)
Case Management Conference set at 9:00 6/27/03 (pf) (Entered: 04/28/2003)
8 NOTICE OF MOTION by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, Christopher Aldrich, Christopher Aldrich to certify class action . No Return Date 9:00. (pf) (Entered: 05/23/2003)
9 MEMORANDUM OF LAW by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, Christopher Aldrich, Christopher Aldrich in support of [8-1] motion to certify class action . (pf) (Entered: 05/23/2003)
10 DECLARATION of Betsy Ginsberg by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, Christopher Aldrich, Christopher Aldrich in support Re: [8-1] motion to certify class action . (pf) (Entered: 05/23/2003)
11 Letter filed by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes addressed to Judge Brieant from Betsy Ginsbert, dated 05/29/03, re: Failure of the deft's to adhere to deadlines for filing their answer and discovery responses and to seek the Court's assistance with this matter, so that the case can proceed according to the Case Management Plan. (dcr) (Entered: 06/02/2003)
12 Letter filed by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Vincent Kimbro, Gilbert Santiago, Roderick Reyes addressed to Judge Brieant from Betsy Ginsberg, dated 5/29/03, re: failure of defendants deadline. (bls) (Entered: 06/04/2003)
16 ANSWER to Complaint by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post (Attorney Bruce A. Brown from the Firm: Eliot Spitzer, Attorney General) . (jma) Modified on 2/21/2006 (mde, ). (Entered: 06/12/2003)
13 Letter filed by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes addressed to Judge Brieant from Betsy Ginsberg, dated June 5, 2003, re: request for an extension to serve their opposition to Plaintiffs' Motion for Class Certification. (sv) (Entered: 06/10/2003)
14 Letter filed addressed to Judge Brieant from Bruce A. Brown, dated 06/05/03, re: Request that the briefing schedule be adjusted so that deft's opposition be due June 12th and plaintiffs' reply will be due June 23, 2003. (dcr) (Entered: 06/11/2003)
15 Letter filed by Carlos Rosario addressed to Dear Ms. Brown from Betsy Ginsberg, dated 06/05/03, re: I write to inform you that the Court has scheduled a discovery conference for Friday, June 13, 2003 at 9:30..... (jma) (Entered: 06/11/2003)

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17 Letter filed by Carlos Rosario addressed to Dear Judge Brieant from Betsy Ginsberg, dated 06/10/03, re: to inform the Court that the parties in the case have agreed that there is now no need for a discovery conference to resolve the issues that I raised in my May 29, 2003 letter to the Court...... (jma) (Entered: 06/12/2003)
19 NOTICE OF MOTION by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post to dismiss for failure to exhaust administrative remedies . Return Date 6/27/03 at 9:00. (dcr) (Entered: 06/17/2003)
20 MEMORANDUM OF LAW by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post in support of [19-1] motion to dismiss for failure to exhaust administrative remedies. (dcr) (Entered: 06/17/2003)
18 Letter filed addressed to USDJ Brieant from Betsy Ginsberg, dated 6/10/03, re: to inform the Court that the parties in the case have agreed that there is now no need for a discovery conference to resolve the issues that I raised in my May 29, 2003 letter to the COurt.... (pf) Modified on 06/16/2003 (Entered: 06/16/2003)
21 REPLY MEMORANDUM by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, Christopher Aldrich, Christopher Aldrich in support re: [8-1] motion to certify class action . (pf) (Entered: 06/24/2003)
22 DECLARATION of Betsy Ginsberg by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, Christopher Aldrich, Christopher Aldrich in support Re: [21-1] reply memorandum . (pf) (Entered: 06/24/2003)
23 MEMORANDUM OF LAW by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post in opposition to [8-1] motion to certify class action. (dcr) (Entered: 06/26/2003)
24 MEMORANDUM OF LAW by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, Christopher Aldrich, Christopher Aldrich in opposition to [19-1] motion to dismiss for failure to exhaust administrative remedies . (pf) (Entered: 06/27/2003)
25 DECLARATION of Betsy Ginsberg by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, Christopher Aldrich, Christopher Aldrich in opposition Re: [19-1] motion to dismiss for failure to exhaust administrative remedies . (pf) (Entered: 06/27/2003)
26 Memorandum to Docket Clerk: 6/27/03-Court Reporter: Mary Staten. Conference held and concluded. Oral argument heard on (Doc #19) Motion to Dismiss and (Doc #8) for Class Certification. Motions are fully submitted,

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09/25/2003 10/22/2003
10/24/2003 04/06/2004
07/22/2004

decision reserved. See transcript. ...submitted by Alice Cama (pf) (Entered: 06/30/2003)
PRETRIAL CONFERENCE held before Judge Charles L. Brieant . (pf) (Entered: 06/30/2003)
27 Transcript of record of proceedings before Judge Charles L. Brieant for the date(s) of 06/27/03. (jma) (Entered: 07/30/2003)
28 STIPULATION and PROTECTIVE ORDER: ... (see document for details)...No paper shall be filed under seal without the prior consultation with the Court...So Ordered: ( signed by Judge Charles L. Brieant ) COpies sent by Clerk's Office (pf) (Entered: 09/02/2003)
29 ORDER granting [19-1] motion to dismiss for failure to exhaust administrative remedies, denying [8-1] motion to certify class action .Copies mailed by the clerk's office. The action is dismissed w/o prejudice and w/o costs for failure of exhaustion. No purpose will be served by deciding Plaintiff's motion for class certification at this time. The clerk shall file a final judgment. So Ordered: ( signed by Judge Charles L. Brieant ); (ll) (Entered: 09/25/2003)
30 JUDGMENT ...ORDERED, ADJUDGED AND DECREED: That the complaint be and it is hereby dismissed without prejudice and without costs for failure of exhaustion. No purpose will be served by deciding Plaintiff's motion for class certification at the time. (signed by J.Michael McMahon); Mailed copies and notice of right to appeal. Entered On Docket: 09/26/03. (mov) (Entered: 09/26/2003)
Case closed. (mov) (Entered: 09/26/2003)
31 NOTICE OF APPEAL by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, Christopher Aldrich, Christopher Aldrich from [30-1] judgment order . Copies of notice of appeal mailed to Attorney(s) of Record: Betsy R. Ginsberg, Bruce A. Brown, John A. Beck . Appeal record due on 11/21/03 *$105.00 fee paid, receipt #489430*. (pf) (Entered: 10/24/2003)
Notice of appeal and certified copy of docket to USCA: [31-1] appeal by Christopher Aldrich, Christopher Aldrich, Roderick Reyes, Gilbert Santiago, Vincent Rios, Donald Smith, Marshall Rosado, Roger Zydor, Worley Hall, Carlos Rosario ; Copy of notice of appeal sent to District Judge. (pf) (Entered: 10/24/2003)
32 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for [31] Notice of Appeal, filed by Carlos Rosario, Donald Smith, Gilbert Santiago, Roderick Reyes, Worley Hall, Roger Zydor, Marshall Rosado, Vincent Rios, Christopher Aldrich USCA Case Number 03-289, 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (cg, ) (Entered: 04/13/2004)
Appeal Record Sent to USCA (File). Indexed record on Appeal Files for [31] Notice of Appeal, filed by Carlos Rosario, Donald Smith, Gilbert Santiago, Roderick Reyes, Worley Hall, Roger Zydor, Marshall Rosado, Vincent Rios, Christopher Aldrich USCA Case Number 03-289, were transmitted to the U.S.

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05/06/2005 05/06/2005 05/20/2005 06/07/2005 06/13/2005
06/13/2005 06/22/2005 06/22/2005

Court of Appeals. (mde, ) (Entered: 07/22/2004)
33 LETTER addressed to Judge Brieant from Kimberly Ann Dasse dated 01/15/05 re: Request that the Court vacate its previous dismissal of the captioned case and restore the case to the Court's calendar upon the anticipated remand by the Second Circuit.... (dcr, ) (Entered: 01/26/2005)
34 MANDATE of USCA (Certified Copy) as to [31] Notice of Appeal, filed by Carlos Rosario,, Donald Smith,, Gilbert Santiago,, Roderick Reyes,, Worley Hall,, Roger Zydor,, Marshall Rosado,, Vincent Rios,, Christopher Aldrich, USCA Case Number 03-0289. Ordered, Adjudged and Decreed that the judgment of the District Court is Vacated and Remanded for further proceedings. Tracy W. Young, Clerk USCA. Issued As Mandate: 04/26/05. (dcr, ) (Entered: 05/04/2005)
35 LETTER addressed to Ms. Cama from Betsy Ginsberg dated 5/5/05 re: I write to confirm that a status conference in this action has been scheduled for 5/20/05 at 9:00 a.m. (ae, ) (Entered: 05/09/2005)
Set Deadlines/Hearings: Status Conference set for 5/20/2005 09:00 AM before Judge Charles L. Brieant. (ae, ) (Entered: 05/09/2005)
Minute Entry for proceedings held before Judge Charles L. Brieant : Status Conference held on 5/20/2005. The parties are to provide a Status Report due by 6/6/2005. (Court Reporter Christina) (ae, ) (Entered: 05/25/2005)
38 LETTER addressed to Dear Judge Brieant from Betsy Ginsberg dated 6/7/2005 re: Deft's. in the their 6/7/2005 letter, persist in their efforts to delay these proceedings by trying to make the issue of class certification....... Document filed by Worley Hall.(jma, ) (Entered: 06/13/2005)
36 LETTER addressed to Dear Ms. Ginsberg from John M. Schwartz dated 6/8/2005 re: Judge Brieant's chambers has granted deft's. request that they be permitted to file additional material on the class........ Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(jma, ) (Entered: 06/13/2005)
37 LETTER addressed to Dear Judge Brieant from Betsy Ginsberg dated 6/8/2005 re: request that the Court's permission to respond to respond to deft's. papers on or before 7/6/2005....... Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes.(jma, ) (Entered: 06/13/2005)
39 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition to Class Certification. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Helen Dean, Anne Cole, Joan Rosado, Susan Post. (pl, ) (Entered: 06/24/2005)
40 DECLARATION of Lester N. Wright, M.D. in Opposition re: [8] Motion to Certify Class. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post. (ae, ) (Entered: 06/27/2005)

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41 DECLARATION of Theresa Knapp-David in Opposition re: [8] Motion to Certify Class. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post. (ae, ) (Entered: 06/27/2005)
42 DECLARATION of James Granger in Opposition re: [8] Motion to Certify Class. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post. (ae, ) (Entered: 06/27/2005)
43 (CORRECTED) DECLARATION of James Granger in Opposition re: [8] Motion to Certify Class. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post. (mde, ) (Entered: 06/27/2005)
44 SUPPLEMENTAL REPLY MEMORANDUM OF LAW in Support re: [8] Motion to Certify Class. Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes. (ae, ) (Entered: 07/11/2005)
45 DECLARATION of Betsy Ginsberg in Support re: [8] Motion to Certify Class. Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes. (ae, ) (Entered: 07/11/2005)
46 AFFIDAVIT of Vincent Rios in Support re: [8] Motion to Certify Class. Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes. (ae, ) (Entered: 07/11/2005)
48 LETTER addressed to Judge Charles L. Brieant from John M. Schwartz dated 7/15/05 re: Defendants respond to Plaintiffs' Supplemental Reply Memorandum of Law in Support of Motion for Class Certification, together w/ its supporting declarations. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(ae, ) (Entered: 07/20/2005)
47 LETTER addressed to Judge Charles L. Brieant from John M. Schwartz dated 6/21/05 re:....we request that we will be able to submit additional material in opposition to plntffs' motion for class certification on 6/22/05...... Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(pf, ) (Entered: 07/19/2005)
49 LETTER addressed to Dear Judge Brieant from John Boston/Betsy Ginsberg dated 7/20/2005 re: Defense counsel's letter of July 15, 2005, recounting their pro forma assertions concerning exhaustion of the prison grievance system in this case........ Document filed by Carlos Rosario, Christopher Aldrich, Christopher

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09/16/2005

Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes.(jma, ) (Entered: 07/22/2005)
Appeal Record Returned. Indexed record on Appeal Files for [31] Notice of Appeal, filed by Carlos Rosario,, Donald Smith,, Gilbert Santiago,, Roderick Reyes,, Worley Hall,, Roger Zydor,, Marshall Rosado,, Vincent Rios,, Christopher Aldrich, USCA Case Number 03-0289pr, returned from the U.S. Court of Appeals. (cg, ) (Entered: 08/22/2005)
50 LETTER addressed to Betsy Ginsberg from John Schwartz dated 8/17/05 re: In response to your letter of 8/15/05.... (pf, ) (Entered: 08/30/2005)
51 LETTER addressed to Judge Charles L. Brieant from Betsy Ginsberg dated 8/25/05 re:.... request a pre-motion conference with the Court regarding discovery dispute that has arisen between the parties.... Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes.(pf, ) (Entered: 08/30/2005)
52 LETTER addressed to Judge Brieant from John M. Schwartz dated 09/08/05 re: Discovery Dispute. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(dcr, ) (Entered: 09/12/2005)
Minute Entry for proceedings held before Judge Charles L. Brieant : Discovery Hearing held on 9/12/2005. Judge's Decision: Discovery issues are resolved by the Court. Remark: Plaintiff to fax a proposed class, and proposed Notice to the Court on 9/13/05. See Transcript. (Court Reporter Sue Ghorayeb) (ae, ) (Entered: 09/13/2005)
53 LETTER addressed to Judge Brieant from John M. Schwartz dated 09/14/05 re: Counter-Order and Notice to the Class. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(dcr, ) (Entered: 09/20/2005)
55 MEMORANDUM AND ORDER; Plaintiffs' motion to declare a class action under Rule 23(b)(1) and (2) FRCP (Document 8) is granted. (Signed by Judge Charles L. Brieant on 9/15/05) "Copies Mailed By Chambers".(ae, ) (Entered: 09/20/2005)
56 COUNTER-ORDER FOR CLASS CERTIFICATION AND NOTICE TO THE COURT; Upon consideration of Plaintiffs' Motion for Class Certification and Notice to the Class and all responsive papers. This action is certified as a class action for the plaintiff class purs. to Rule 23(a), 23(b)(1)(A) and 23(b)(2), FRCP; Plaintiffs' Motion for Class Certification is denied in all respects. (Signed by Judge Charles L. Brieant on 9/15/05) (ae, ) (Entered: 09/20/2005)
57 LETTER addressed to Judge Brieant from Betsy Ginsberg dated 09/15/05 re: Response to defendants' September 14, 2005 submission to the Court concerning classification.. (dcr, ) (Entered: 09/21/2005)

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54 LETTER addressed to Dear Judge Brieant from Betsy Ginsberg dated 9/13/2005 Document filed by Carlos Rosario....see document for more details......(jma, ) (Entered: 09/20/2005)
58 ENDORSED LETTER addressed to Judge Charles L. Brieant from Betsy Ginsberg dated 9/26/05 re:....seeking permission to correct what we believe was an aversight by the COurt in the Notice to the class ordered by the Court on 9/15/05.....ENDORSEMENT: Application Granted. So Ordered:. (Signed by Judge Charles L. Brieant on 9/27/05) Copies sent by Chambers.(pf, ) (Entered: 09/28/2005)
59 LETTER addressed to Judge Charles L. Brieant from John M. Schwartz dated 9/27/2005 re:..I enclose another copy of the proposed Notice with both paragraphs corrected... Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(mde, ) (Entered: 09/28/2005)
60 LETTER addressed to Dear Mr. Schwartz from Betsy Ginsberg dated 12/27/2005 re: I write to inform you that Judge Brieant has scheduled a conference with the parties in the........lawsuit to take place on January 3, 2006 at 9:30am......... Document filed by Carlos Rosario.(jma, ) (Entered: 12/27/2005)
NOTICE OF CHANGE OF ADDRESS by Betsy R. Ginsberg on behalf of Carlos Rosario, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes. New Address: Legal Aid Project, 199 Water Street, 6th Floor, New York, New York, 10038. (mde, ) (Entered: 01/03/2006)
Minute Entry for proceedings held before Judge Charles L. Brieant : Discovery Hearing held on 1/3/2006. Discovery Conference held and concluded. Court resolves all outstanding discovery issues. Case to be ready for trial on 6/15/06. Civil Case Discovery Plan signed and adopted by the Court. Next pretrial conference set for 2/24/06 at 10:00 a.m.. See transcript. (pf, ) (Entered: 01/03/2006)
61 LETTER addressed to Judge Charles L. Brieant from Betsy Ginsberg and John Boston dated 12/23/06 re:... to request the Court's assistance with document discovery.... Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes.(pf, ) (Entered: 01/03/2006)
62 LETTER addressed to Judge Charles L. Brieant from John Schwartz dated 12/29/05 re:....to request a very brief adjournment of the 1/3/06 conference, and to advise the Court that Plntff's assetions are incorrect in view of the very close attention dfts are giving to discovery and to the case.... Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(pf, ) (Entered: 01/03/2006)
63 CIVIL CASE DISCOVERY PLAN AND SCHEDULING ORDER: case shall be ready for trial by June 15, 2006; the case is not to be tried to a jury; joinder of

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additional parties must be accomplished by 02/15/06; amended pleadings may be filed until 02/15/2006; interrogatories are to be served no later than 01/15/2006; depositions to be completed by 05/01/2006; any further interrogatories to be served no later than 05/01/2006; requests to admit no later than 05/01/2006; all discovery is to be completed by 06/15/2006; next case management conference 02/24/2006 at 10:00am...... (Signed by Judge Charles L. Brieant on 01/03/2006) "The Clerk's Office Has Mailed Copies".(jma, ) (Entered: 01/03/2006)
Received returned mail re: [63] Scheduling Order,,. Mail was addressed to John A. Beck of The Legal Aid Society, Prisoners' Rights Project at 1 Battery Park Plaza, New York, NY, 10004 and was returned for the following reason(s): Attempted Not Known. (gco, ) (Entered: 01/09/2006)
64 CASE MANAGEMENT PLAN: Amended Pleadings due by 2/15/2006. Joinder of Parties due by 2/15/2006. All Discovery due by 6/15/2006. Ready for Trial by 6/15/2006. (Signed by Judge Charles L. Brieant on 1/11/06) "The Clerk's Office Has Mailed Copies".(ae, ) (Entered: 01/18/2006)
65 NOTICE OF MOTION for Joinder, joining Edward Nesmith and Dennis McGlotten as plaintiffs in this action and permitting plaintiffs to file a Second Amended Complaint to include their claims... Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Vincent Kimbro, Gilbert Santiago, Roderick Reyes. Return Date set for 3/24/2006 10:00 AM. (mde, ) (Entered: 02/21/2006)
66 MEMORANDUM OF LAW in Support re: [65] MOTION for Joinder.. Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Vincent Kimbro, Gilbert Santiago, Roderick Reyes. (mde, ) (Entered: 02/21/2006)
67 DECLARATION of Betsy Ginsberg in Support re: [65] MOTION for Joinder.. Document filed by Carlos Rosario, Christopher Aldrich, Christopher Aldrich, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Vincent Kimbro, Gilbert Santiago, Roderick Reyes. (mde, ) (Entered: 02/21/2006)
68 MOTION to Amend/Correct [16] Answer to Complaint,. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post. (mde, ) (Entered: 02/21/2006)
Minute Entry for proceedings held before Judge Charles L. Brieant : Show Cause Hearing began & completed on 2/24/2006. Judge's Decision: Oral Argument heard on motion Dkt #65 is granted on consent. Motion dkt #68 is withdrawn. The Court grants leave to file an amended complaint & answer in accordance with Federal Rules. Remark: Term motions Dkt. #65 and #68. A conference is scheduled for 4/7/2006 at 9:00 a.m. (Submitted by Alice Cama). (Court Reporter Mary Staten) (mde, ) (Entered: 02/27/2006)

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69 SECOND AMENDED COMPLAINT amending [5] Amended Complaint against Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.Document filed by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Christopher Aldrich, Vincent Rios, Gilbert Santiago, Roderick Reyes. Related document: [5] Amended Complaint filed by Carlos Rosario,, Donald Smith,, Gilbert Santiago,, Roderick Reyes,, Worley Hall,, Roger Zydor,, Marshall Rosado,, Vincent Rios,.(jma, ) (Entered: 03/07/2006)
70 LETTER addressed to Judge Brieant from John M. Schwartz dated 03/22/06 re: Request that the Court grant defendants' permission to serve and file its answer to the Second Amended Complaint on or before March 24, 2006.. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(dcr, ) (Entered: 03/24/2006)
71 ANSWER to Second Amended Complaint. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post. Related document: [69] Amended Complaint,, filed by Carlos Rosario,, Donald Smith,, Gilbert Santiago,, Roderick Reyes,, Worley Hall,, Roger Zydor,, Marshall Rosado,, Vincent Rios,, Christopher Aldrich,.(jma, ) (Entered: 03/24/2006)
72 TRANSCRIPT of proceedings held on 02/24/2006 before Judge Charles L. Brieant. Court Reporter: Mary M. Staten. (jma, ) (Entered: 03/28/2006)
Minute Entry for proceedings held before Judge Charles L. Brieant : Status Conference held on 4/7/2006. Judge's Decision: Deposition & Discovery dates are so ordered by the Court - A Status Conference is scheduled for 07//21/06 at 11:00 am. Submitted By: Alice Cama, Deputy Court Clerk. (Court Reporter Albi Gorn) (dcr, ) (Entered: 04/10/2006)
73 LETTER addressed to Dear Betsy from John M. Schwartz dated 05/09/2006 re: Confirming my telephone call a few minutes ago, Judge Brieant's chambers has requested that counsel appear foa a conference with him this Friday, May 12, 2006 at 11am....... Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(jma, ) (Entered: 05/16/2006)
74 LETTER addressed to Judge Charles L. Brieant from John M. Schwartz dated 5/26/2006 re: request that discovery deadlines be suspended temporarily... Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(mde, ) (Entered: 06/06/2006)
75 LETTER addressed to Betsy Ginsberg from John Schwartz dated 6/5/06 re: Notification of temporary suspension of the discovery deadlines.. (fk, ) (Entered: 06/07/2006)

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76 LETTER addressed to Dear Judge Brieant from John M. Schwartz dated 06/06/2006 re: report on the status of settlement negotiations...... Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(jma, ) (Entered: 06/08/2006)
77 LETTER addressed to Dear Judge Brieant from John M. Schwartz dated 06/21/2006 re: We hope to achieve a final agreement by June 30, 2006 2006 and by July 12 to submit to the Court for approval a proposed........... Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post.(jma, ) (Entered: 06/23/2006)
Minute Entry for proceedings held before Judge Charles L. Brieant : Status Conference held on 7/21/2006. Consent Order for Notice to the Plaintiff Class submitted to the Court. Conference is scheduled for 09/29/2006 at 11:00. (Court Reporter Sue Ghorayeb) (jma, ) (Entered: 07/24/2006)
78 CONSENT ORDER FOR NOTICE TO THE PLAINTIFF CLASS: WHEREAS, on July 21, 2006 the parties to the above - entitled action entered into a Voluntary Stipulation of Dismissal Subject to Conditions (the Agreement), which sets forth the terms and conditions for the proposed settlement of all claims and provides for the dismissal of the action on the merits with prejudice upon the terms and conditions set forth in the Agreement...see order for more details... (SO ORDERED and signed by Judge Charles L. Brieant on 07/21/2006) The Clerk's Office Has Mailed Copies.(jma, ) (Entered: 07/24/2006)
Received returned mail Mail was addressed to John A. Beck of The Legal Aid Society, Prisoners' Rights Project at 1 Battery Park Plaza, NY NY 10004 and was returned for the following reason(s): Attempted - Not known unable to forward. Copy of docket #78 (ll, ) (Entered: 08/04/2006)
79 DECLARATION of Betsy Ginsberg in Support re: [78] Consent Order,,. Document filed by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Christopher Aldrich, Vincent Rios, Gilbert Santiago, Roderick Reyes. (jma, ) (Entered: 09/25/2006)
80 MEMORANDUM OF LAW in Support re: [78] Consent Order,,. Document filed by Carlos Rosario, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Christopher Aldrich, Vincent Rios, Gilbert Santiago, Roderick Reyes. (jma, ) (Entered: 09/25/2006)
81 MEMORANDUM OF LAW in Support re: [83] Approval of Settlment,,. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post. (jma, ) Modified on 9/25/2006 (jma, ). (Entered: 09/25/2006)
82 DECLARATION of Angela T. Maume, R.N. re: [78] Consent Order,,. (jma, ) (Entered: 09/25/2006)

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83 MOTION to Approve Settlement. Document filed by Glenn S. Goord, Frank Headly, Stephen Bernardi, Donna Masterson, Lester Wright, William Massuca, Kenneth S. Perlman, Edward Donnelly, Jimmy Harris, Jim Mance, Helen Dean, Anne Cole, Joan Rosado, Susan Post. (jma, ) (Entered: 09/25/2006)
84 NOTICE of Voluntary Dismissal pursuant to Rule 41(a)(1) of the F.R.C.P.....This Voluntary Stipulation of Dismissal contains the entire agreement of the parties in this matter and no oral agreement entered into at any time, nor any written agreement entered into prior to the proceedings, shall be deemed to exist or to bind the parties hereto or to vary the terms and cond's. contained herein.......SO ORDERED. COPIES SENT BY CLERKS OFFICE. (Signed by Judge Charles L. Brieant on 09/26/2006) The Clerk's Office Has Mailed Copies.(jma, ) (Entered: 10/02/2006)
Minute Entry for proceedings held before Judge Charles L. Brieant : Oral Argument held on 9/29/2006 re: [83] MOTION to Approve Settlement. MOTION for Settlement. MOTION to Approve Settlement. MOTION for Settlement. filed by Edward Donnelly,, Frank Headly,, Anne Cole,, Susan Post,, Joan Rosado,, Helen Dean,, Lester Wright,, Stephen Bernardi,, Glenn S. Goord,, Donna Masterson,, Kenneth S. Perlman,, William Massuca,, Jimmy Harris,, Jim Mance,...Oral findings of fact and conclusions of law are placed on the record. See transcript. (Court Reporter Angela O' Donnell) (jma, ) (Entered: 10/02/2006)
85 TRANSCRIPT of proceedings held on 9/29/2006 before Judge Charles L. Brieant. Court Reporter: Angela O'Donnell. (cg, ) (Entered: 10/16/2006)

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 400 F.3d 108 (2005)
Carlos ROSARIO, Worley Hall, Roger Zydor, Marshall Rosado, Donald Smith, Vincent Rios, Gilbert Santiago, Roderick Reyes, and Christopher
Aldrich, Plaintiffs-Appellants, v.
Glenn S. GOORD, Commissioner NYDOCS, Frank R. Headly, DOCS Deputy Commissioner for Programs, Stephen Bernardi, Deputy
Commissioner of Policy and Compliance Review, Donna Masterson, DOCS Americans with Disabilities Act Coordinator, Lester Wright, DOCS
Deputy Commissioner and Chief Medical Officer, William Massuca, Superintendent Fishkill Correctional Facility ("CF"), Kenneth S. Perlman, Superintendent Mohawk CF; Edward Donnelly, Superintendent, Jimmy
Harris, Deputy Superintendent for Programs, Jim Nance, Deputy Superintendent for Programs Mohawk CF, Helen Dean, Superintendent
for Programs, Wende CF, Anne Cole, Deputy Superintendent for the Correctional Health Care Facility, Fishkill CF, Joan Rosado, Deputy Superintendent for the Correctional Health Care Facility, Walsh Rmu., Susan Post, Deputy Superintendent for the Correctional Health Care
Facility, Wende Cf., Defendants-Appellees.
Docket No. 03-0289.
United States Court of Appeals, Second Circuit.
Argued: February 24, 2005. Decided: March 2, 2005.
Betsy Ginsberg (John Boston, of counsel), The Legal Aid Society, New York, NY.
Martin A. Hotvet, Assistant Solicitor General (Daniel Smirlock, Assistant Attorney General, of counsel, Eliot Spitzer, Attorney General, on the brief), Office of the Attorney General of the State of Albany, New York, NY.
Before: LEVAL, CABRANES and KATZMANN, Circuit Judges.
PER CURIAM.
Plaintiffs, inmates of the New York State Department of Correctional Services ("DOCS"), brought this action against defendants alleging violations of Title II of the Americans With

Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The District Court for the Southern District of New York (Charles L. Brieant, Judge), in a Memorandum and Order dated September 24, 2003, dismissed the action based on its finding that plaintiffs had failed to exhaust their administrative remedies prior to filing suit as required by 42 U.S.C. § 1997e(a), because, though they had arguably exhausted internal prison grievance procedures, they had not lodged a complaint with the Department of Justice ("DOJ"). See 42 U.S.C. § 12134(a); 28 C.F.R. 35.170-178 (providing a complaint procedure for persons who believe they have been subjected to discrimination on the basis of disability by a public entity).
109*109 Plaintiffs appealed. After briefing was completed, defendants moved this Court to vacate the District Court's order and remand the cause to the District Court for further proceedings. In their motion, defendants stated that they wished to withdraw the DOJ exhaustion defense in this action. They further represented that the defense will be withdrawn in any pending litigation in which liability against DOCS and its agents is asserted under the ADA and that DOCS does not now intend to assert the defense in any such future litigation. Plaintiffs consented to defendants' motion, and, at oral argument on February 24, 2005, the parties agreed that this Court should grant defendants' motion and vacate the District Court's order. We find this disposition appropriate.
CONCLUSION
Accordingly, we VACATE the judgment of the District Court and REMAND the cause for further proceedings consistent with this order.