Case 4:08-cv-00345-JEJ Document 1 Filed 02/25/2008 Page 1 of 30

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

INMATES OF THE NORTHUMBERLAND

:

COUNTY PRISON, through Scott

:

Collins, Roman Brady, Jeremy Elsesser :

Conrad Corely, Michael Wetzel,

:

Hasson Lindsey, Thomas Anderson,

: COMPLAINT-Class Action

Joseph Bowers, Sharon Reichner

:

Megan Holohan, Kelcie Williams and

: Civil Action No.:

Sonya Wyland,

:

Plaintiffs,

: Filed via ECF

:

v.

:

:

RALPH M. REISH, in his official capacity :

as Warden of Northumberland

:

County Prison, FRANK SAWICKI, VINNY :

CLAUSI, KURT MASSER, ANTHONY ROSINI, :

CHARLES ERDMAN, ROBERT SACAVAGE, :

CHAD REINER, in their official capacities as :

members of the Northumberland County :

County Prison Board, and

:

NORTHUMBERLAND COUNTY,

:

PENNSYLVANIA,

:

Defendants.

:

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COMPLAINT
I. Introduction
Inmates of the Northumberland County Prison bring this Section 1983 class action to challenge conditions and practices that are undermining their constitutional rights. Grounding their claims on the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, they seek declaratory and injunctive relief to remedy systemic defects in the Prison’s delivery of medical, mental health and dental care; life-threatening fire hazards in the institution’s housing units; chronic environmental problems in the living and kitchen areas; the hostile effects of profound overcrowding in the Women’s Dormitory; the use of protracted bunk-restriction as a form of discipline in the Women’s Dormitory and policies associated with that abusive practice; medieval-like conditions and practices in the Prison’s basement cells; callous practices associated with the use of four-point physical restraints; the unequal, discriminatory treatment of female prisoners in the contexts of outdoor exercise, work release, and other institutional programs; the policy-based failure to provide incoming inmates with essential clothing supplies; and the lack of a confidential area for inmate consultations with their attorneys.
II. Jurisdiction
1. The Court’s authority to hear this case is rooted in 28 U.S.C. Section 1343, statute conferring federal district court jurisdiction over lawsuits alleging abridgments of federal constitutional rights. This litigation asserts, among other claims, violations of the Due Process and Equal protection Clauses of the Fourteenth Amendment as well as abridgments of the Eighth Amendment’s prohibition against cruel and unusual punishment. As such, it falls squarely within the Court’s power to address.
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III. Parties
2. Plaintiff Scott Collins has been an NCP inmate since May of 2007. He is confined in a segregation cell in lock-up. During his incarceration, Mr. Collins has been denied treatment for his serious medical, dental, and mental health needs; subjected to the defective conditions, practices and policies catalogued in this complaint that systemically erode the delivery of medical, dental, and mental health treatment at the facility; subjected to the unreasonable physical restraint practices challenged in this lawsuit; subjected to the irrational segregation recreation protocol challenged in this litigation; subjected to the abusive conditions and practices in the Prison’s basement cells related in this pleading; housed in an environment that has serious insect infestations, poor ventilation, poor sanitation, severe fire safety hazards, and other defects; denied essential clothing when admitted to the institution; and not afforded a confidential area in which to confer with his attorneys.
3. Plaintiff Roman Brady has been an NCP inmate since February of 2007. He is housed in a Behind the Wire cell. During his incarceration, Mr. Brady has been denied access to treatment for a serious dental condition; subjected to the unreasonable segregation recreation protocol challenged in this litigation; subjected to the abusive conditions and practices in the Prison’s basement cells catalogued below; housed in an environment that has serious insect infestations, poor ventilation, poor sanitation, and severe fire safety hazards; not provided essential clothing when admitted to the institution; and not afforded a confidential area in which to confer with his attorneys.
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4. Plaintiff Jeremy Elsesser has been an NCP inmate since October of 2007. He is confined in a Behind the Wire cell. While imprisoned in the NCP, Mr. Elsesser has been subjected to the unreasonable segregation recreation protocol challenged in this case as well as the squalid environmental and dangerous fire safety conditions described below.
5. Plaintiff Conrad Corley has been an NCP inmate since April of 2007. He is housed in a Behind the Wire cell. During his confinement, Mr. Corley has been denied access to medical and mental health treatment for his serious medical and mental health needs; subjected to the defective conditions, practices and policies associated with the provision of medical and mental health care at the facility; subjected to the unreasonable segregation recreation protocol challenged in this litigation; subjected to the abusive conditions and practices in the Prison’s basement cells outlined below; housed in an environment that is riddled with serious insect infestations, poor ventilation, squalid sanitation, and severe fire safety hazards; not provided essential clothing when admitted to the institution; and not afforded a confidential area in which to confer with his attorneys.
6. Plaintiff Michael Wetzel has been an NCP inmate since November of 2007. He is housed in a general population cell block. During his confinement, Mr. Wetzel has been housed in an environment that, in addition to other substantial problems, has serious insect infestations, poor ventilation, poor sanitation and severe fire safety hazards. Like the other representative plaintiffs and the inmates he seeks to represent, he was not provided essential clothing when admitted to the institution.
7. Plaintiff Hasson Lindsey is housed in a Behind the Wire Cell. While imprisoned at NCP, Mr. Lindsey has been subjected to
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unreasonable segregation recreation protocol challenged in this litigation; housed in an environment that has serious insect infestations, poor ventilation, poor sanitation, and severe fire safety hazards; not provided essential clothing when admitted to the institution; and not afforded a confidential area in which to confer with his attorney.
8. Plaintiff Thomas Anderson has been an inmate of the Northumberland County Prison. He was confined in a segregation unit known as “Behind the Wire.” During his incarceration, Mr. Anderson had been housed in a cell block that (among other things) was poorly ventilated, unsanitary, infested with insects, and riddled with life-threatening fire hazards; denied access to treatment for his serious medical and mental health needs; housed in a facility plagued by systemic medical/mental health understaffing and an array of practices, policies and conditions that corrupt the delivery of medical and mental health treatment; subjected to the unreasonable and abusive four-point physical restraint practices challenged in this case; governed by the irrational recreation protocol (for segregated inmates) challenged in this litigation; subjected to the abusive conditions and practices in the Prison’s basement cells described in this pleading; denied (like the other inmates he seeks to represent) essential clothing when admitted to Prison; and not afforded a confidential meeting area in which to confer with his attorneys.
9. Plaintiff Joseph Bowers has been an NCP inmate since August of 2006. He is confined in a Behind the Wire Cell. During his incarceration, Mr. Bowers has been denied treatment for his serious mental health needs; has resided in an environment that is infested with insects, poorly ventilated, unsanitary, and unsafe in the event of a serious fire; has been subjected to the unreasonable recreation protocol (for segregated inmates) described in this complaint; and
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has not been afforded a private area in which to confer with his attorneys.
10. Plaintiff Sharon Reichner has been an NCP inmate since October of 2007 and was previously incarcerated in the Prison during the summer of 2007. She is housed in the Women’s Dormitory. While confined in the Prison in the summer of 2007, Ms. Reichner was denied access to necessary medical care for her serious medical needs. She now inhabits a badly overcrowded dormitory that (among other things) is unsanitary, poorly ventilated, infested with insects, and plagued by life-threatening fire hazards. She is subject to the abusive bunk-restriction practices challenged in this action; governed by policies that discriminate against female inmates; was not provided essential clothing when admitted to the institution; and is imprisoned in a facility that fails to afford prisoners a private, confidential area in which to confer with their attorneys.
11. Plaintiff Megan Holohan has been an NCP inmate since November of 2007. She is confined in the Women’s Dormitory. While incarcerated, Ms. Holohan has been subjected to the discriminatory policies, practices and conditions described in this complaint related to outdoor recreation, job opportunities, and other matters affecting the Prison’s female inmates; denied treatment for her serious mental health, medical, and dental needs; housed in a living area that poses serious risks to her safety in the event of a fire affecting the dormitory; housed in a seriously overcrowded, unsanitary, insect infested, poorly ventilated unit with inadequate toilets, sinks and showers to accommodate the number of people who are housed there; and subject to the unreasonable and abusive bunk-restriction policies and practices challenged in this action.
12. Plaintiff Kelcie Williams has been an NCP inmate since May of 2007. She is housed in the Women’s Dormitory. While incarcerated,
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Ms. Williams was (until recently) restricted to her bunk for more than six consecutive months pursuant to the bunk-restriction policies challenged in this action (causing her legs and ankles to swell and exacerbating her depression); confined in a severely overcrowded, unsanitary and poorly ventilated housing unit in which she and her fellow prisoners are exposed to life-threatening fire hazards; imprisoned in a facility that has profound, systemic deficiencies in medical and mental health staffing, facilities and practices; subjected to the policies, practices and conditions described in this pleading that discriminate against the Prison’s female prisoners; denied adequate clothing when admitted to the Prison; and not afforded a confidential area in which to meet with her attorneys.
13. Plaintiff Sonya Wyland has been an NCP inmate since the fall of 2007. She is housed in the Women’s Dormitory. During her confinement, Ms. Wyland has been incarcerated in a facility that has systemic deficiencies in the delivery of medical and mental health services; has not had her serious medical and mental health needs addressed; and is housed in a badly overcrowded unit that (among other things) is unsanitary, infested with insects, has too few toilets, sinks and showers to accommodate the number of women housed there, and poses serious fire safety risks to its occupants. She has been subjected to the discriminatory policies, practices and conditions described in this complaint; was not provided necessary underclothing when admitted to the institution; and is incarcerated in an institution that lacks a confidential interview area in which she and her fellow prisoners can confer with their attorneys.
14. Defendant Ralph M. Reish is the Warden of the Northumberland County Prison. As the on-site day-to-day, administrator of the Prison, Warden Reish has the authority as well as the obligation to propose, establish, and implement policies and practices to operate the facility in accordance with the dictates of the federal Constitution.
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However, as described below, his policies and practices systematically trample the civil rights of the men and women who are confined in the institution.
15. Frank Sawicki (County Commissioner), Kurt Masser (Commissioner), Anthony Rosini (District Attorney), Charles Erdman (Controller), Robert Sacavage (Common Pleas Judge), Chad Reiner (Sheriff), and Vinni Clausi (County Commissioner) are the members of the Northumberland County Prison Board, a body created by state law to oversee the Northumberland County Prison. As members of the Board, they are responsible for monitoring conditions and practices in the institution as well as establishing policies for its operation. As described below, these officials have been seriously derelict in their oversight and policymaking responsibilities and as a result, are helping to administer an institution whose conditions and practices repetitively violate the civil rights of the inmates who are confined there.
16. Northumberland County, Pennsylvania is a governmental entity with authority over the operations of Northumberland County Prison. The County has the authority as well as the obligation to fund the facility in a manner that protects the constitutional rights of the inmates who are confined in it and to finance whatever physical renovations, programs and activities are necessary to remedy the unconstitutional conditions and practices that now blight the institution.
17. The defendants, who are sued in their official capacities, have acted under color of state law within the meaning of Section 1983 when engaging in the acts and omissions catalogued in this complaint.
IV. Factual Allegations
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Medical
18. The Northumberland County Prison (a 130 year old jail located in Sunbury, Pennsylvania) houses approximately two hundred pretrial and sentenced inmates of both genders on any given day.
19. Although many of the men and women confined in the institution have serious medical needs, the Prison’s medical program is systemically incapable of adequately addressing those needs.
20. On information and belief, a physician under contract with Northumberland County, appears at the Prison only once every two or three weeks, a few hours on each occasion, to see inmates. The remainder of the time, there is no physician, physician’s assistant, or other licensed medical professional of equivalent status on-site to address the serious medical needs of NCP prisoners.
21. The amount of time the contract-physician spends at the Prison is grossly insufficient to address the medical needs of the inmate population.
22. The lack of adequate on-site physician coverage at NCP results in long delays before inmates who require the services of a doctor are seen and, in many instances, causes inmates not to be seen at all.
23. Other than the contract-physician (and a contract-psychiatrist who occasionally comes to the Prison) the only medically-trained person employed in the institution is a licensed practical nurse who is on-site only eight hours a day, five days a week.
24. Under this inadequate staffing pattern, there is no on-site nursing coverage at the Prison sixteen hours a day during the regular work-week and twenty-four hours a day on week-ends.
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25. The vacuum created by the absence of on-site coverage by nurses or other auxiliary medical personnel at the Prison more than seventy-percent of the time results in long delays before NCP inmates are seen by a nurse (if they are seen at all).
26. Inadequate on-site nursing coverage at the Prison has the negative effect of delegating initial triage responsibilities for inmate complaints to medically untrained and unskilled guards most of the work-day.
27. The policy decision to limit on-site nursing coverage to eight hours a day, five days a week has triggered the dangerous practice of having guards deliver prescribed medications in unsealed cups to inmates; a procedure that can and has resulted in NCP inmates mistakenly receiving the wrong medications.
28. The employment of an LPN as the sole nursing figure at the institution (as opposed to an RN or nurse practitioner) contributes to the inadequacy of on-site nursing coverage at the Prison.
29. In addition to systemic deficiencies in medical staffing, there are structural factors that erode the Prison’s capacity to address the serious medical needs of inmates: the lack of an infirmary or other medically supervised area in the prison in which to house inmates who are too ill to remain in their cells but do not require hospitalization and the absence of an isolation cell or cells in which to hold prisoners who either have or are suspected of having serious, infectious, communicable airborne diseases. This places the named plaintiffs and the inmates they propose to represent at risk of contamination.
30. On information and belief, an inmate with infectious tuberculosis was recently held in an ordinary cell in the bowels of a
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male cell block before being moved from the Prison to an outside medical facility, exposing other prisoners to the disease.
31. As a matter of routine practice, NCP inmates must submit requests for medical care in written, unsealed request slips in which they are required to describe the nature of their medical problems. This process enables guards (who deliver medical requests to the Prison nurse) to read the messages, thus eroding the ability of prisoners to communicate confidentially with medical personnel about matters that are supposed to be privileged. The lack of a confidential process for inmates to submit requests for medical care is at cross-purposes with the privacy that such communications are supposed to be afforded.
Mental Health
32. Numerous inmates confined in the Northumberland County Prison suffer from serious mental health disorders. Despite that reality, the Prison’s mental health program is systemically incapable of addressing their needs.
33. On information and belief, a psychiatrist working under a contract with the County visits the Prison only a few hours a week.
34. Due to the negligible amount of time the contract psychiatrist spends at the Prison, there are often long delays before inmates in need of psychiatric care are seen by the psychiatrist (if they are seen at all). It is common for inmates who require psychiatric care not to be seen by the psychiatrist for several weeks or longer and (in a significant number of cases) never to be seen.
35. On information and belief, there is no psychologist, psychiatric social worker, psychiatric nurse, or other mental health professional
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at the prison (with the necessary educational background, qualifications and credentials) to evaluate and treat the serious mental health needs of the inmates.
36. As a matter of routine practice, NCP inmates are required to submit unsealed request slips for mental health care and to describe in the slips why they want to be seen. This practice enables guards who deliver the requests to read them and, thus, erodes the confidentiality that such communications are supposed to be afforded.
Fire Safety
37. The great majority of the Prison’s male inmates are confined in two large cell blocks known as the Left and Right Wings. Each of these two-tiered housing units contains thirty-nine cells, most of which are occupied by two prisoners per cell. Under this configuration, there are typically eighty or more inmates in the respective housing units on any given day.
38. The cell doors in the Left and Right Wings are padlocked when inmates are confined to their quarters throughout the night and during various times of the day. Because the doors are padlocked (rather than controlled electronically or by some other mechanical means), the cells cannot be unlocked and opened as a group. Instead, each of the seventy-eight doors must be unlocked individually with a master key.
39. The need to individually unlock the cell doors is a timeconsuming process that significantly increases the possibility that inmates in the male housing units will either be injured or asphyxiated by a fire affecting those areas.
40. If there is a need to evacuate inmates housed in the Left and Right Wings to prescribed outside staging areas, the fire escape
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doors leading to those areas have to be unlocked from the outside due to the design of the doors. The head to unlock the fire escape doors from the outside is a time-consuming process that significantly increases the prospect of inmates being injured or dying as the result of a fire affecting one or both of the cellblocks.
41. Compounding the problem of exiting the male cell blocks through fire escape doors are heating pipes (approximately a foot and a half high) that must be stepped over before reaching the doors. The heating pipes are in front of a set of doors that lead to the fire escape doors. These impediments create the potential that inmates will stumble or fall while attempting to evacuate the housing units, slow the process of escaping a fire in the male housing units, and increase the likelihood of injuries or fatalities from a fire affecting the Left and Right Wings.
42. On information and belief, there are no fire sprinklers in the Left and Right Wing cell blocks. The absence of sprinklers substantially increases the possibility of a catastrophic fire.
43. On information and belief, there are no fire extinguishers in or near these housing units. The absence of fire extinguishers in or in the vicinity of the Left and Right Wing cellblocks substantially increases the possibility of a catastrophic fire.
44. Many of the bunk mattresses in the Left and Right Wings are cracked or otherwise breached. This exposes the interior ticking of the mattresses, effectively rendering them flammable. This factor heightens the risks to the cellblocks’ occupants in the event of a fire.
45. As a matter of custom, practice, or policy, fire drills for the left and right wings are not conducted at the Prison. The failure to conduct periodic drills is likely to slow the process of evacuating these units in the event of an actual fire.
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46. The Prison’s female inmates are housed in an extremely congested open-bay dormitory located in the institution’s basement.
47. Due to chronic overcrowding in the dormitory, the inmates sleep on a series of bunk beds separated from each other by no more than three feet of space.
48. On information and belief, there are no fire sprinklers in the female dormitory.
49. On information and belief, there are no fire extinguishers in or adjacent to the unit.
50. The absence of fire sprinklers and fire extinguishers in or near the Women’s Dormitory substantially increases the possibility of a catastrophic fire in that area.
51. There are two ways of evacuating the Women’s Dormitory in the event of a fire: through a door leading to a stairway to the Prison’s first floor and through a door leading to an outside recreation yard.
52. If (for reasons associated with a fire) the stairway cannot be used to evacuate inmates from the dormitory, the door to the outside yard would have to be used. As a matter of design, the door leading to the yard must be unlocked from the outside. This is a timeconsuming process that compounds the risk of a catastrophic fire in the dormitory.
53. Due to profound over-crowding in the Women’s Unit last year (a condition that has been chronic and is likely to exist or recur during the pendency of this litigation), several cot beds, at various times, have been placed in front of the yard-door to accommodate additional inmates. The presence of these beds slows the rate at
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which the dormitory can be evacuated through that exit and increases the possibility of a catastrophic fire in the dormitory. 54. Many of the mattresses in the Women’s Unit are breached, effectively rendering them flammable. 55. As a matter of custom, practice or policy, fire drills are not conducted for female prisoners, a factor that increases the likelihood of death or injuries in the event of a fire. 56. The factors catalogued above, separately as well as in combination, place women inmates incarcerated in the Northumberland County Prison at significant risk of death or injury in the event of a fire affecting their housing unit.
Environmental Conditions 57. There are serious cockroach and other insect infestations in the male and female housing units, in the Prison’s basement cells (which are used for segregation and physical restraint purposes), and in the institution’s kitchen. 58. Ventilation in the Prison’s respective housing units is poor to non-existent. The lack of adequate air-flow creates sweltering conditions in these areas during warm weather months. 59. During the winter, some areas the male cell blocks are extremely cold while others are overheated. 60. Many of the bed mattresses provided to inmates in both the male housing units are filthy and breached when distributed to them. On information and belief, mattresses are not routinely cleaned between uses.
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61. Showers in the male cellblocks often run-out of hot/warm water after the early morning hours and are typically cold for much of the day.
62. The cell-sinks in the male housing units have only cold running water. In light of the prevalence of MRSA and other serious communicable diseases in prison facilities and the need to wash hands with hot water to prevent the spread of MRSA and other such conditions, the lack of hot water in the cells places male NCP inmates at increased risk of contracting such diseases.
63. Due to dampness and other factors, mold thrives on the walls of the Women’s Dormitory.
64. As noted above, due to extreme overcrowding in the female unit, beds there are separated by only two to three feet and occupy most of what would otherwise be living space. The distances between the beds and overall lack of living space in the dormitory (where the women are confined approximately 23 hours a day) fall far below the national standards established by the American Correctional Association and the American Public Health Association for prisons.
65. The proximity of the beds to each other and the lack of a day room or an area inside the Women’s Dormitory (where inmates could go to avoid the cramped living quarters) create significant public health risks for these prisoners.
66. Housing prisoners in such a congested environment engenders enormous stress and exacerbates clinical depressions that many of the women already suffered from when admitted to the Prison.
67. There are only two toilets, two sinks, and three showers to accommodate the two to nearly three dozen inmates who are housed in the Women’s Unit on any given day. This ratio falls far
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below the American Correctional Association and American Public Health Association standards for prison facilities and is woefully insufficient to address the needs of the female prisoners confined in the Northumberland County Prison.
68. It is commonplace for showers in the Women’s Unit (after early morning) to have only cold running-water for much of the day.
69. It has been routine for many of the mattresses in the Women’s Unit to be cracked and otherwise breached. This presents not only fire-hazard concerns; it also provides places in which lice and other insects can hide and congregate.
70. A serious lice outbreak occurred in the Women’s Unit during the winter of 2007, affecting numerous prisoners.
The Basement Cell Conditions and Practices
71. There are two segregation cells located in the Prison’s basement which are utilized (for periods ranging from a day to several consecutive days) to administratively separate inmates who have allegedly acted-out from the main inmate population.
72. One of the basement cells, (the “Dry Cell”) has no toilet or sink, and only a single metal bed frame (without a mattress) for sleeping purposes.
73. The other cell, (the “Wet Cell”) is equipped with a toilet, a sink and a concrete slab (without a mattress) for sleeping purposes.
74. The number of inmates confined in the respective basement cells at any one time ranges from one to several per cell.
75. It is typical for inmates to be shackled with leg irons and/or handcuffs when locked inside the basement cells. This is a cruel,
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punitive practice that bears no reasonable relationship to institutional security or to any other legitimate institutional objective.
76. Inmates are stripped to their underpants when housed in the basement cells. This degrading practice bears no reasonable relationship to institutional security or any other legitimate institutional objective.
77. Although inmates confined in the basement cells are occasionally given a mattress, it is commonplace for prison personnel not to furnish mattresses to them. As a result, inmates are often forced to sleep on the hard, unpadded metal bed frame, a concrete slab, or directly on the cement floor. This practice is gratuitously abusive and bears no reasonable relationship to security or any other legitimate institutional objective.
78. Lights in the Wet Cell are kept on the entire time an inmate is confined in the cell, making it difficult if not impossible for them to sleep.
79. The basement cells are chronically filthy, infested with vermin, poorly ventilated, unprotected by fire sprinklers and extinguishers, and pose heightened risks (in the event of a fire affecting the basement) to the inmates locked in these cells.
80. Inmates are often placed in the basement cells for reasons that bear no reasonable relationship to institutional security or any other legitimate institutional objective.
81. Even in instances when inmates are initially placed in the basement cells for a legitimate reason, it is a common practice for Prison officials to prolong the confinement well after justification for the placement has passed.
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Four-point Restraint Practices
82. The basement’s Dry Cell serves as a physical restraint room for inmates who are purportedly out of control (due to mental health or other factors) or who are perceived to be suicidal.
83. Within the framework of the Prison’s physical restraint protocol, inmates are taken to the basement, placed on their backs by guards directly against the Dry Cell’s metal bed frame; shackled by their wrists and ankles (with unpadded metal cuffs) to each of the bed frame’s four corners, and remain immobilized in that condition until the Warden or the Warden’s designee decrees that the inmate may be let out of the restraints.
84. On information and belief, inmates routinely remain in fourpoint restraints for a day or longer, sometimes for several consecutive days without respite (other than for toilet breaks) before being released.
85. On information and belief, inmates in four-point restraints are not permitted to wash or shower and are not given a change of clothing.
86. Being shackled in this manner for protracted periods of time is both physically and emotionally painful for the prisoners.
87. On information and belief, inmates who are confined in fourpoint restraints are not visited, monitored or evaluated by a mental health professional.
88. On information and belief, the length of time any particular inmate remains in four-point restraints is arbitrarily determined by the Warden or the Warden’s designee and is usually prescribed for a fixed period of time unrelated to the inmate’s behavior while in
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restraints ( i.e., whether the inmate has become sufficiently under self-control to allow the shackles to be removed).
89. On information and belief, placements of NCP inmates in fourpoint restraints are often ordered for punitive rather than for legitimate control or suicide prevention reasons and are often perpetuated for the same reasons.
90. In practice as well as policy, the Prison’s physical restraint regime bears no reasonable relationship to any legitimate institutional objective.
Bunk-Restriction Practices
91. As a matter of custom, practice, or policy, female inmates who have allegedly violated institutional rules are confined for disciplinary reasons to their beds 22 hours a day for periods spanning several weeks to many months. Until recently, bunk-restriction persisted for 23 hours a day. The time away from the beds was extended by an hour after plaintiffs’ counsel complained about the practice. Even a two hour respite is grossly insufficient in the context of long-term confinements to beds.
92. There are typically several women on bunk restriction at any given time.
93. Under the Prison’s bunk-restriction regimen, inmates are confined to their beds virtually all of the time except when permitted by a guard to use a toilet and for a two hour respite when they are allowed to engage in “recreation” inside the dormitory with other prisoners who are on bunk-restriction and/ or wash themselves in the dormitory’s bathroom.
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94. Under the Prison’s bunk-restriction protocol, inmates are prohibited from using the women’s outdoor recreation yard, are denied visits with family members or friends, and are barred from making telephone calls—activities that prisoners who are not on bunk-restriction are permitted to engage in.
95. Subjecting inmates to bunk-restriction for weeks and even months at a time is physically painful, emotionally stressful, and, at bottom, profoundly cruel.
96. Confining inmates (in the name of discipline) for weeks and longer to their beds; keeping them locked inside the dormitory without fresh air; and precluding them from visiting with their lovedones and speaking with them by telephone bears no reasonable relationship to any legitimate institutional objective.
The Disparate Treatment of Female Prisoners
97. As a matter of custom, practice or policy, the Prison’s male inmates are allotted two hours of daily outdoor recreation, five days a week. In contrast, female prisoners are given only an hour a day of outdoor recreation.
98. As a matter of custom, practice or policy, male inmates are given access to a relatively large outdoor yard with exercise equipment and facilities. In contrast, female prisoners are relegated to an extremely small, inadequate parcel of ground (reminiscent of a dog-run) that has no equipment or facilities in it other than a swing. Despite the fact that the men’s yard is not utilized much of the day, Prison officials deny female inmates access to it when the yard is not otherwise occupied.
99. The amount of space per inmate in the women’s outdoor recreation yard is far below the dimensions prescribed by the
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American Correctional Association and is woefully inadequate for meaningful recreation purposes.
100. As a matter of custom, practice or policy, outdoor recreation for the Prison’s female inmates is cancelled much more frequently than outdoor recreation for male prisoners. The cancellation of outdoor exercise denies NCP women any opportunity for meaningful recreational activities since (unlike the male units) the female housing unit has no day room in which at least limited forms of indoor recreation are possible.
101. As a matter of custom, practice or policy, there is a work release program for the Prison’s male inmates. In contrast, the institution does not operate a work release program to its female prisoners.
102. As a matter of custom, practice or policy, there are institutional jobs in the Prison’s kitchen and elsewhere for male NCP inmates but none of any significance for female prisoners.
103. As a matter of custom, practice or policy, the ratios of toilets, sinks and showers for the Prison’s male population is much better than the ratios for the female population.
104. The discriminatory customs, practices or policies enumerated above are unreasonable, arbitrary, and irrational--reflecting the second-class status to which the institution’s female prisoners have been systematically relegated.
Disciplinary Confinement Recreation
105. As a matter of custom, practice or policy, inmates who are housed in segregation are never taken to the men’s outdoor
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recreation yard and are never unshackled during the one hour recreation period. 106. Requiring inmates to exercise while their limbs are shackled bears no reasonable relationship to security or any other legitimate institutional objective. 107. Precluding inmates who are confined in segregation from using the housing unit’s outdoor recreation yard bears no reasonable relationship to any legitimate institutional objective. 108. As a matter of custom, practice or policy, if an inmate housed in segregation misbehaves over the course of the day, recreation for all inmates confined in that area is cancelled for that or the next day. 109. Effectively punishing all inmates for the behavior of one prisoner through the suspension of recreation for a day bears no reasonable relationship to any legitimate institutional objective.
Clothing 110. Inmates who lack the funds to purchase underclothing, have to continue to wear the same items of underwear they had when committed to the facility 111. Because the Prison’s commissary is open only one day a week, even inmates who have sufficient money to purchase underclothing at the time of their admission or later secure money to purchase these items often have to wear the underwear they were admitted in for a week or longer.
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112. The Prison’s refusal to furnish underclothing to inmates at the time of their admission has caused numerous inmates to go without a change of underclothing for weeks and even months.
113. As a matter of custom, practice or policy, the Prison furnishes only one set of shirts and trousers to inmates admitted to the institution.
114. A second set of trousers (sweat pants) can be purchased from the Prison’s commissary.
115. Inmates who lack the funds to purchase a second set of trousers must either go without trousers if they have their only pair of trousers cleaned in the institutional laundry or not have the trousers laundered.
116. The clothing practices described above bear no reasonable relationship to any legitimate institutional objective.
Attorney Visits
117. Inmates confined in the Northumberland County Prison are represented in their criminal proceedings either by public defenders or private defense counsel.
118. Inmates like the named plaintiffs in this action are represented by the Lewisburg Prison Project or consult with other civil attorneys in conjunction with civil rights and other non-criminal matters.
119. Despite the fact that meetings between Northumberland County Prison inmates and attorneys are commonplace, the Prison does not have a private meeting area for legal visits—where the confidentiality that is supposed to shroud such meetings can be guaranteed.
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120. The primary meeting venue for legal visits at the Prison is adjacent to one of the institution’s main hallways, at the vortex of another heavily traveled walkway, and next to vending machines and a room that are routinely used by guards and other members of the Prison staff.
121. The secondary meeting area—which is used when the primary venue is being used—is in a Prison library.
122. Third-parties can overhear discussions occurring in either of the existing places where legal visits occur at the Prison.
123. The absence of a private room or other confidential meeting area or areas for legal visits between NCP inmates and their attorneys erodes the privacy of such discussions and the reasonable expectation that the substance of what is said will not be overheard by third persons. At a minimum, the existing locations for legal visits have chilling effects on inmate-attorney conversations.
V. Legal Claims
124. Systemic deficiencies in medical staffing at the Northumberland County Prison, the negative consequences of chronic understaffing enumerated above, and the absence of infirmary beds and a medical isolation cell in the facility manifest deliberate indifference to the serious medical needs of inmates and violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution as well as the Eighth Amendment prohibition against the infliction of cruel and unusual punishment.
125. Systemic deficiencies in mental health staffing at the Prison and the negative consequences of chronic understaffing outlined above manifest deliberate indifference to the serious mental health needs of inmates and violate the Due Process Clause of the Fourteenth
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Amendment as well as the Eighth Amendment prohibition against cruel and unusual punishment. 126. Chronic delays in dental treatment and lack of access to such care by NCP inmates manifest deliberate indifference to the serious dental needs of the prisoners and violate the Due Process Clause of the Fourteenth Amendment as well as the Eighth Amendment prohibition against cruel and unusual punishment. 127. The Prison’s failure to protect the privacy of the inmates’ written requests for medical and mental health treatment violates the First and Fourteenth Amendments to the Constitution. 128. The serious fire risks existing at the Prison manifests deliberate indifference to the safety of the inmates and offends the strictures of the Fourteenth and Eighth Amendments. 129. The environmental problems that plague the Prison violate both the Fourteenth and Eighth Amendments. 130. The conditions, practices, customs and policies related to the Prison’s basement cells violate the Fourteenth and Eighth Amendments. 131. The manners in which Four-Point physical restraints are used at the Prison violate the Fourteenth and Eighth Amendments. 132. The Prison’s bunk confinement practices violate the First, Fourteenth and Eighth Amendments. 133. The Prison’s discriminatory, unequal treatment of female inmates in the matters described above abridges the Equal Protection Clause of the Fourteenth Amendment.
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134. The customs, practices or policies governing the exercise/recreation of segregated inmates violate the Fourteenth and Eighth Amendments. 135. The Prison’s failure to provide inmates with underclothing and a second set of outer clothing when they are admitted to the institution violates the Fourteenth as well as the Eighth Amendment to the Constitution. 136. The Prison’s failure to provide inmates with a confidential meeting area in which to consult with attorneys violates the First, Sixth, and Fourteenth Amendments to the Constitution.
VI. Equity 137. The recurring violations of plaintiffs’ constitutional rights will continue unless appropriate injunctive relief is granted. No adequate remedy at law exists to address the violations in question.
VII. Class Action Allegations 138. This lawsuit (for the following reasons) satisfies the prerequisites of Rule 23 for certification of a 23 (b)(2) class action:
a. The class is so numerous that joinder of all members is impractical. There are now approximately two hundred inmates confined in the Northumberland County Prison and hundreds more will be admitted to the institution over the course of litigation. Given the substantial size of the membership at the present time and the infusion of future inmates into the class during the pendency of this action, this provision is met.
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b. There are questions of law and fact common to the class. Among the common questions are whether the factual allegations related to the delivery of medical and mental health services at the Prison are true and, if so, whether they establish deliberate indifference within the meaning of the Eighth and Fourteenth Amendments; whether dangerous fire hazards exist in the Prison’s housing units and, if so, they reflect deliberate indifference on the part of Prison officials to the safety of NCP inmates; whether the squalid environmental conditions described in the complaint exist and, if so, whether they offend the strictures of the Eighth and Fourteenth Amendments; whether the conditions and practices alleged to exist in the basement cells are present and, if so, whether they are unconstitutional; and whether the meeting areas in which inmates confer with attorneys during legal visits protect the privacy rights of the prisoners.
c. The claims of the representative plaintiffs are typical of the claims of the class. Although a few claims asserted by the named plaintiffs are unique to gender, the great majority (medical, mental health, fire safety, environmental, legal visits, and distribution of clothing) cut across gender lines and are typical of the claims of the class as a whole. All inmates of the Prison (except for the gender-specific matters) are subject to the same customs, practices, policies and conditions that have injured or threaten to injure the class representatives and those claims are based on identical legal theories.
d. The representative plaintiffs will fairly and adequately protect the interests of the class. There are no fundamental conflicts of interest on their part. Their
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attorneys are competent and have the necessary financial resources to litigate a case of this nature. Plaintiffs’ lead counsel (Jere Krakoff) has litigated numerous Section 1983 conditions and practices cases involving prisons and jails in federal courts and has been lead or joint-counsel in numerous federal class actions in other substantive areas of the law throughout the United States. Cheryl Humes, co-counsel for the representative plaintiffs, is a staff attorney with the Lewisburg Prison Project and has a broad familiarity with the jurisprudence governing this lawsuit.
e. The defendants have acted or refused to act on grounds that are generally applicable to the class, thereby making final injunctive relief appropriate with respect to the class as a whole. The challenged customs, practices, policies and conditions (with the exception of those that are gender specific) are either affecting or have the potential to affect every member of the class.
VIII. Remedy
The plaintiffs respectfully request the following relief:
A. Certification of a Rule 23(b)(2) class consisting of all current and future inmates of the Northumberland County Prison.
B. The entry of a declaratory judgment that the customs, policies, practices and conditions encompassed by this litigation violate the constitutional rights of the class members.
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C. The issuance of a preliminary and/or permanent injunction to eliminate the unconstitutional customs, policies, practices and conditions challenged in this lawsuit.
D. An award of all reasonable costs, expenses and attorney’s fees engendered by the prosecution of this case.
E. The granting of other relief that may be appropriate and necessary under the facts of this case.
Respectfully submitted,
/s/ Cheryl Tennant Humes Cheryl Tennant Humes, Esq. PA No. 202544 LEWISBURG PRISON PROJECT P.O. Box 128 Lewisburg, PA 17837 570-523-1104 cherylhumes@dejazzd.com
/s/ Jere Krakoff PA No. 13701 Jere Krakoff, Esq. P.O. Box 111331 Pittsburgh, PA 15238 412.967.9287 krakofflaw@comcast.net
Date: February 25, 2008
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 Case 4:08-cv-00345-JEJ Document 9 Filed 03/12/2008 Page 1 of 4

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

INMATES OF THE NORTHUMBERLAND:

COUNTY PRISON, et al.,

:

:

:

Plaintiffs

:

:

v.

:

:

RALPH REISH, in his official capacity :

as Warden of Northumberland

:

County Prison, et al.,

:

:

Defendants.

:

COMPLAINT- Class Action
Civ. No.: 4:08-CV-00345 Filed via ECF (Judge Jones)

MOTION FOR CLASS CERTIFICATION

1.

Inmates of the Northumberland County Prison are seeking

through this Section 1983 putative class action to obtain declaratory and

injunctive relief from conditions and practices that are systematically

violating their constitutional rights.

2.

The underlying complaint, which is rooted in the First, Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution,

Case 4:08-cv-00345-JEJ Document 9 Filed 03/12/2008 Page 2 of 4
alleges, among other things, systemic defects in the delivery of medical, mental health and dental care to the men and women who are confined in the Prison; life-threatening fire hazards in the institution’s housing units; chronic environmental problems in the facility’s living and kitchen areas; the hostile effects of profound overcrowding in the Women’s Dormitory; the use of protracted bunk-restriction as a form of discipline in the Women’s Dormitory and policies associated with that abusive practice; medieval-like conditions and practices in the Prison’s basement cells; callous practices associated with the use of four-point physical restraints; the unequal, discriminatory treatment of female prisoners in the contexts of outdoor exercise, work release, and other institutional programs; the policy-based failure to provide incoming inmates with essential clothing supplies; and the lack of a confidential area for inmate consultations with their attorneys.
3. In order to secure class-wide relief from the alleged constitutional conditions and practices, the named plaintiffs are asking the Court to certify the lawsuit as a Rule 23(b)(2) class action on behalf of themselves and all other persons who are incarcerated in the Northumberland County Prison or who in the future will be incarcerated in the Prison.
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4. As reflected in the allegations of the complaint and the legal
principles embodied in the brief accompanying this motion, this lawsuit
satisfies the prerequisites for certification of a 23(b)(2) class action:
numerosity, commonality, typicality, adequacy of representation, and
appropriateness of final injunctive relief for the class members as a whole.
5. Wherefore, the plaintiffs respectfully request that this Court
certify a class under the provisions of Rule 23 (b) (2) of the Federal Rules
of Civil Procedure consisting of all persons who are now or who in the
future will be incarcerated in the Northumberland County Prison.
Respectfully submitted,
/s/ Cheryl Tennant Humes Cheryl Tennant Humes, Esq. PA No. 202544 LEWISBURG PRISON PROJECT P.O. Box 128 Lewisburg, PA 17837 570-523-1104 cherylhumes@dejazzd.com /s/ Jere Krakoff PA No. 13701 Jere Krakoff, Esq. P.O. Box 111331 Pittsburgh, PA 15238 412.967.9287 krakofflaw@comcast.net
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CERTIFICATE OF SERVICE I, Cheryl Tennant Humes, hereby certify that on March 12, 2008, I caused to be served a true and correct copy of the foregoing document titled Plaintiff’s Motion for Class Certification Via Electronic Filing to the following:
Frank J. Lavery, Jr., Esq. Robert G. Hanna, Jr., Esq. Devon M. Jacob, Esq. Lavery, Faherty, Young & Patterson, P.C. 225 Market St, Suite 304 Harrisburg, PA 17108-1245 717-233-6633
s/ Cheryl Tennant Humes Cheryl Tennant Humes, Esq. LEWISBURG PRISON PROJECT P.O. Box 128 Lewisburg, PA 17837 570-523-1104
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Case 4:08-cv-00345-JEJ Document 10 Filed 03/12/2008 Page 1 of 27

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

INMATES OF THE NORTHUMBERLAND:

COUNTY PRISON, et al.,

:

:

Plaintiffs

: : COMPLAINT- Class Action

:

v.

: Civ. No.: 4:08-CV-00345

: Filed via ECF

RALPH REISH, in his official capacity as Warden of Northumberland County Prison, et al.,
Defendants.

: (Judge Jones) : : : :

BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
I. Background Inmates of the Northumberland County Prison are
prosecuting this Section 1983 putative class action to challenge an array of conditions and practices at the facility that are systematically undermining their constitutional rights. Grounding their claims on the First, Sixth, Eighth, and Fourteenth

Case 4:08-cv-00345-JEJ Document 10 Filed 03/12/2008 Page 2 of 27
Amendments to the United States Constitution, their complaint alleges systemic defects in the Prison’s delivery of medical, mental health and dental care to the men and women incarcerated in the Prison; life-threatening fire hazards in the institution’s housing units; chronic environmental problems in the living and kitchen areas; the hostile effects of profound overcrowding in the Women’s Dormitory; the use of protracted bunk-restriction as a form of discipline in the Women’s Dormitory and policies associated with that abusive practice; medieval-like conditions and practices in the Prison’s basement cells; callous practices associated with the use of four-point physical restraints; the unequal, discriminatory treatment of female prisoners in the contexts of outdoor exercise, work release, and other institutional programs; the policy-based failure to provide incoming inmates with essential clothing supplies; and the lack of a confidential area for inmate consultations with their attorneys. In addition to requesting a declaratory judgment that the enumerated conditions and practices cross the constitutional line, their
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pleading requests an injunction to remedy the ongoing civil rights violations.
To enable them to pursue class-wide injunctive relief, the named plaintiffs are asking this Court to certify this case as a Rule 23(b)(2) class action on behalf of themselves and all other persons who are now or in the future will be incarcerated in the Prison. As reflected in the facts catalogued in the underlying complaint and the legal principles governing certification of 23(b)(2) class actions, this case satisfies all of the prerequisites of the Rule: numerosity, commonality, typicality, adequacy of representation, and the appropriateness of class-wide injunctive relief as a remedy.
II. Argument
Class Actions Have Been The Traditional Vehicle For Challenging Systemic Unconstitutional Conditions of Prison Confinement Over the decades, federal district courts have routinely certified 23(b)(2) class actions seeking to enjoin conditions and practices in county prisons that were said to be systematically
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violating the constitutional rights of inmates. See Jones v. Wittenberg, 330 F. Supp. 707 (N.D. Ohio 1971); Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal. 1972); Jones v. Metzger, 456 F. 2d 854 (6th Cir. 1972); Inmates of Milwaukee County Jail v. Peterson, 353 F. Supp. 1157 (E.D. Wis. 1973); Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass 1973); Rhem v. Malcom, 507 F.2d 33 (2nd Cir. 1974); Inmates of D.C. Jail v. Jackson, 416 F. Supp. 119 (D.D.C. 1976); Inmates of the Allegheny County Jail v. Peirce, 442 F. Supp. 1368, 1272 (W.D. Pa. 1978); Inmates of Lycoming County Prison v. Strode, 79 F.R.D. 228 (M.D. Pa. 1978); Mawson v. Wideman, 84 F.R.D. 116 (M.D. Pa. 1978); Campbell v. McGruder, 580 F. 2d 524 (D.C. Cir. 1978); Union County Jail Inmates v. DiBuono, 713 F. 2d 984, 986 (3rd Cir. 1983); Jackson v. Gardner, 639 F. Supp. 1005 (E.D.Tenn. 1986); Shelby County Jail Inmates v. Westlake, 798 F. 2d 1085 (7th Cir. 1986); Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F. 2d 326, 328 (3rd Cir. 1987); Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir. 1988); Albro v. Onondaga County, 681 F. Supp.
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991 (N.D.N.Y. 1988); Fambro v. Fulton County, Georgia, 713 F. Supp. 1426 (N.D. Ga. 1989); Palmigiano v. DiPrete, 737 F. Supp. 1257 (D.R.I. 1990); Women Prisoners of D.C. Dept. of Corr. v. Dist. of Columbia, 899 F. Supp. 659 (D.D.C. 1995); Benjamin v. Fraser, 161 F.Supp. 2d 151 (S.D.N.Y. 2001). The authorization of these and comparable cases to proceed as class actions is a “desirable and logical way to challenge prison conditions.” Inmates of Lycoming County Prison v. Strode, 79 F.R.D. at 231.
Rule 23(b)(2) class actions are limited to litigation “seeking primarily injunctive or corresponding declaratory relief” and “serves most frequently as the vehicle for civil rights actions and other institutional reform cases that receive class action treatment.” Barnes v. American Tobacco Co., 161 F. 3d 127, 141 (3rd Cir. 1998). “[I]t is generally recognized that civil rights actions seeking relief on behalf of classes [challenging a practice or course of conduct] normally meet the requirements of Rule 23(b) (2).” Stewart v. Abraham, 275 F. 3d 220, 228 (3rd Cir. 2001). The class action mechanism makes it possible to assert rights
5

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effectively that might otherwise go unprotected. Neely v. United States, 546 F. 2d 1059, 1071 (3rd Cir. 1976). It serves as an “effective weapon for an across-the-board attack against systematic abuse.” Jones v. Diamond, 519 F. 2d 1090, 1100 (5th Cir. 1975). It is “uniquely appropriate in civil rights litigation. “ Pearson v. Townsend, 362 F. Supp. 207, 211 (D.C. Car. 1973).
The Legal Framework And Why It Is Satisfied In This Case Rule 23(b)(2) should be read liberally in the context of civil rights litigation. See Hassine v. Jeffes, 846 F. 2d 169, 180 (3rd Cir. 1988). Moreover, when determining whether a lawsuit can appropriately be maintained as a class action, the issue is not whether the plaintiffs have alleged viable claims or will ultimately prevail on the merits but whether the requirements of Rule 23 have been met. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 (1974). Because it is unnecessary for the representative plaintiffs to establish the merits of their case at the class certification stage, “the substantive allegations of the complaint must be taken as true.” Chiang v. Veneman, 385 F. 3d 256, 262 (3rd Cir. 2004). See
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also Grant v. Sullivan, 132 F.R.D. 436, 447 (M.D. Pa. 1990). Furthermore, the interests of justice dictate that even if there is some doubt with respect to whether a class should be certified, a court should err on the side of allowing a case to proceed as a class action. See Eisenberg v. Gagnon, 766 F. 2d 770, 785 (3rd Cir. 1985); Welch v. Bd. of Directors, 146 F.R.D. 131 (W.D. Pa. 1993); In Re Lowen Group Inc. Securities Litigation, 233 F.R.D. 154, 161 (E.D. Pa. 2005).
The parties asserting the existence of a class have the burden of demonstrating that the requirements of Rule 23 have been satisfied. Horton v. Goose Creek Ind. Sch. Dist., 690 F.2d 470, 486 n.28 (5th Cir. 1982). To satisfy the burden, they must show that all of the prerequisites indentified in section (a) of the Rule and one of the prerequisites identified in section (b) are present. Wetzel v. Liberty Mutual Insurance Co., 508 F. 2d 239, 248 (3rd Cir. 1975); Johnson v. HBO Film Management, Inc., 265 F. 3d 178, 183 (3rd Cir. 2001).
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The certification requirements of Rule 23(a) embrace two central principles: the need and efficiency of adjudicating the claims asserted in the case as a class action and the assurance that the interests of absentee members will be protected. Baby Neal v. Casey, 43 F. 3d 48, 58 (3rd Cir. 1994). The subsection permits one or more members of a putative class to sue on behalf of all other members: “if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”
Rule 23(b)(2) was largely crafted to permit cases pursuing injunctive relief on behalf of a group of individuals against a general course of conduct. See Stewart v. Abraham, 275 F. 3d at 228. It authorizes a class action if the party opposing the class “has acted or refused to act on grounds that are generally applicable to the class, thereby making final injunctive relief
8

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appropriate for the class as a whole.” As demonstrated below, this element as well as the factors prescribed by subsection (a) exist in the present case.
1. Numerosity
The numerosity element of the class action calculus should be liberally construed. Jones v. Diamond, 519 F. 2d at 1100. Furthermore, because the requested relief in cases seeking injunctions against unconstitutional practices will benefit not only the representative plaintiffs but all persons subject to the challenged practices, a rigorous application of the numerosity requirement is generally unwarranted. See Weis v. York Hospital, 745 F. 2d 786, 808 (3rd Cir. 1984). In any event, although “[n]o minimum number of plaintiffs is required to maintain a suit as a class action [and] generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F. 3d at 226-27. See also Wall v. Sunoco Inc., 211 F.R.D. 272, 274 (M.D. 2002).
9

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The parties seeking class certification do not have to demonstrate that the members of a putative class is so large that joinder of all members is impossible. They merely have to show that it will be impractical to join all members. Slanina v. William Penn Parking Corp., 106 F.R.D. 419, 423 (W.D. Pa. 1984). Impracticability can be established through a showing that requiring a joinder of all members would produce a hardship or significant inconvenience. Samuel v. University of Pittsburgh, 56 F.R.D. 435, 439 (W.D. Pa. 1972).
The reality that the composition of a putative class is fluid due to the anticipated influx of new members in the future during the pendency of the litigation can render joinder impractical and, thereby, tip the scale in favor of certification. See Hendrix v. Faulkner, 525 F. Supp. 435, 443 (N.D. Ind. 1981); Inmates of Lycoming County Prison v. Strode, 79 F.R.D. at 232 (“joinder is impractical here . . . because we are concerned with future inmates”); Mawson v. Wideman, 84 F.R.D. at 118 (joinder impractical because class would include future inmates);
10

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Santiago v. City of Philadelphia, 72 F.R.D.619, 624 (E.D. Pa. 1976) (influx of new inmates emphasized as a factor in certifying a class); Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981) (the number of inmates deemed to be sufficient in light of the constantly revolving nature of the inmate population); Atkins v. Roan, 585 F. Supp. 104, 105 (W.D. Mo. 1984) (joinder impractical because class membership was fluid); Arrango v. Ward, 103 F.R.D. 638, 640 (S.D.N.Y. 1984) (transitional nature of institutional class made joinder impractical); Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y. 1985) (fact that population at a juvenile institution was revolving established sufficient numerosity to make joinder of class members impractical).
The underlying complaint alleges that there are approximately 200 inmates confined in the Northumberland County Prison on any given day and that hundreds of additional men and women are likely to be incarcerated there during the pendency of this litigation. The pleading reflects that injunctions against conditions and practices affecting NCP inmates as a
11

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whole are sought—current as well as future prisoners. These allegations, combined with the inherently fluid nature of the class membership, render joinder of all members an impractical task and readily satisfy the numerosity requirement of Rule 23.
2. Commonality
The Rule 23 requirement that there be questions of law or fact common to the class does not create a high threshold. In Re Asbestos Sch. Litigation, 789 F. 2d 996, 1010 (3rd Cir. 1986). Under this section, there is no need for all issues involved in the lawsuit to be common to each member of the class or for all of the class members to have identical claims. Hassine v. Jeffes, 846 F. 2d at 177; In Re Asbestos Sch. Litigation, 104 F.R.D. 422, 428-29 (E.D. Pa. 1984). A single common question of law or fact can satisfy the Rule. Baby Neal v. Casey, 43 F.3d 48 (3rd Cir. 1994); In Re Asbestos Sch. Litigation, 104 F.R.D. at 429.
The commonality prerequisite (like the typicality component) of Rule 23 requires “only that the complainants’ claims be common and not in conflict.” Hassine v. Jeffes, 846 F.
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2d at 177. That there may be some differences in the factual circumstances of the class members is not sufficient, in itself, to prevent maintenance of a class action since diverse issues of fact exist in most class actions. See Samuel v. University of Pittsburgh, 538 F. 2d 991, 995 (3rd Cir. 1976); Ardrev v. Federal Kemper Ins. Co., 142 F.R.D. 105, 112 (E.D. Pa. 1992). Although varying fact patterns may underlie individual claims, where it is alleged that the same unlawful conduct has been directed at the plaintiffs and those they represent, this is sufficient to meet the common question requirement of the Rule. See Like v. Carter, 448 F. 2d 798, 802 (8 Cir. 1971). Furthermore, when a question of law refers to standardized conduct by defendants toward members of the proposed class, a common nucleus of operative facts is typically presented and the commonality requirement is usually met. Patrykus v. Gomilla, 121 F.R.D. 357, 361 (N.D. Ill. 1988).
In cases alleging a “systemwide failure,“ the plaintiffs seeking class certification need not prove that each member of the class has been injured by the deficiencies underpinning the
13

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constitutional claims or injured in the same manner or to the same degree to satisfy the commonality factor. See Baby Neal v. Casey, 43 F. 3d at 60-61. “[T]he commonality standard requires only that a putative class share either the injury or the immediate threat of being subject to the injury.” Baby Neal v. Casey, 43 F. 3d at 60. Where “systemwide deficiencies either violate class members’ rights currently or subject them to the risk of such a violation,” commonality is established. Baby Neal v. Casey, 43 F. 3d at 60-61. If the complaint commencing the putative class action confirms that the putative class members share a common legal claim that a custodial defendants’ systemic deficiencies result in widespread violations of their constitutional rights, commonality exists despite varying individualized complaints. Baby Neal v. Casey, 43 F. 3d at 61-62.
In the final analysis, the representative plaintiffs need only identify “some unifying thread among the class members that warrants class treatment.” Kamean v. Local 363, 109 F.R.D. 391, 394 (S.D.N.Y. 1986). The present case has numerous common
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legal and factual threads linking the class members’ claims. Among the common questions are whether dangerous fire hazards exist in the Prison’s housing units and, if so, whether they reflect deliberate indifference on the part of Prison officials to the safety of NCP inmates within the meanings of the Eighth and Fourteenth Amendments; whether the squalid environmental conditions described in the complaint exist and, if so, whether they offend the strictures of the Eighth and Fourteenth Amendments; whether there are systemic deficiencies in the delivery of medical care to NCP inmates and, if so, whether medical services in the institution offend the strictures of those Amendments; whether the conditions and practices alleged to exist in the basement cells are present and, if so, whether they are unconstitutional; and whether the meeting areas in which inmates confer with attorneys during legal visits protect the privacy rights of the prisoners.
In light of the above, the commonality requirement of Rule 23(a) is satisfied in this lawsuit.
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3. Typicality A properly certified class requires that the claims of the class representatives be typical of the class as a whole. Johnson v. HBO Film Management, 265 F. 3d at 184. When addressing the typicality element, a federal trial court “must determine whether the named plaintiff[s]’ individual circumstances are markedly different or . . . the legal theory upon which the claims are based differs from that upon which the claims of other class members will perforce be based.” Johnson v. HBO Film Management, 265 F. 3d at 184. (citation and internal quotations omitted). “This criteria does not require that all putative class members share identical claims.” Johnson v. HBO Film Management, 265 F. 3d at 184. As long as the claims of the representative plaintiffs and putative class members “involve the same conduct by the defendants, typicality is established regardless of factual differences.” Newton v. Merril Lynch, 259 F. 3d 154, 183-84 (3rd Cir. 2001).
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The typicality commonality requirements tend to merge, both serving as “guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” General Telephone Co. v. Falcon, 457 U.S. 147, 157 n. 13 (1982). When the interests of the class representatives and the unnamed class members “coincide,” the typicality requirement is normally satisfied. Scott v. Univ. of Delaware, 601 F. 2d 76, 85 (3rd Cir. 1979). This outcome is rooted in the assumption that if the interests of the class members and the class representatives are aligned, the class representatives will work to benefit the entire class through the pursuit of their goals. See Barnes v. American Tobacco Co., 161 F. 3d at 141; Stewart v. Abraham, 275 F. 3d at 227.
In addition to not mandating that all putative class members share identical claims, case law makes it clear that,
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under Rule 23 (a), factual differences among members of a putative class does not “render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.” Barnes v. American Tobacco Co., 161 F. 3d at 141. (citation omitted); Stewart v. Abraham, 275 F. 3d at 227. “[E]ven relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories.” Baby Neal v. Casey, 43 F. 3d at 58. “[C]ases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying factual patterns underlying the individual claims.” Baby Neal v. Casey, 43 F. 3d at 58.
“Typicality exists when the legal or factual positions of the class representatives are sufficiently similar to the legal or factual positions of the other class members.” In Re Mellon Bank Shareholders Litigation, 120 F.R.D. 35, 37 (W.D. Pa. 1988). Claims
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are viewed as typical “when the essence of the allegations concerning liability, and not the particulars, suggest adequate representation of the interests of the proposed class members.” Peil v. Speiser, 97 F.R.D. 657, 659 (E.D. Pa. 1983).
Typicality principally requires the district court to focus on whether the named representatives’ claims have the same “essential characteristics” as the class at large. DeLafuente v. Stokely-Van Camp, 713 F. 2d 225, 232 (7th Cir. 1983). When determining whether the named representatives’ claims are typical, a court must inquire into whether “their individual circumstances are markedly different or [whether] the legal theory upon which the claims are based differs from that upon which the claims of other class members will perforce be based.” Eisenberg v. Gagnon, 766 F. 2d at 786; Crasty v. Amalgamated Cloth. & Textile Workers Union, 828 F. 2d 123, 130 (3rd Cir. 1987). The fact that there may be factual differences between the representative plaintiffs and certain class members is not sufficient to deny certification, unless the atypicality is clear and constitutes
19

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a sufficiently serious conflict that the interests of the class will be placed in significant jeopardy. Slev v. Jamaica Water & Utility Inc., 77 F.R.D. 391, 394-95 (E.D. Pa. 1977). See also Scott v. University of Delaware, 601 F. 2d at 85; Jane B. v. New York Dept. of Social Services, 117 F.R.D. 64, 67 (S.D.N.Y.1987). The factual and legal circumstances of the representative and class members merely have to be “similar.” Morris v. City of Pittsburgh, 82 F.R.D. at 77. See also Hummel v. Brennan, 83 F.R.D. 141, 145 (E.D.Pa. 1979); Safran v. United Steelworkers, 132 F.R.D. at 402. Rule 23 does not require that each class member be in a position identical to that of every other member or require that the representative plaintiffs have endured precisely the same injuries sustained by the class members; only that the harm complained of be common to the class and that the named plaintiffs demonstrate a personal interest or threat of injury that is real and immediate, not conjectural or hypothetical. Hassine v. Jeffes, 846 F. 2d at 177.
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Here, the claims of the representative plaintiffs are typical of the claims of the class. As described in the underlying complaint, a broad spectrum of conditions and practices inside the Northumberland County Prison are casting a broad shadow over the men and women who are confined in the 130 year old institution. Although a few of the challenged conditions and practices are unique to gender, the great majority (medical, mental health, fire safety, environmental, legal visits, distribution of clothing, etc.) cut across gender lines and are typical of the claims of the class as a whole. All inmates of the Prison (except for the gender-specific matters) are subject to the same customs, practices, policies and conditions that have injured or threaten to injure members of the class and representative plaintiffs. In addition, the claims asserted in this case are based on common legal theories. Furthermore, in light of the common threads that wind through this litigation and bind the prisoners together, the interests of the unnamed class members will be protected as well as advanced by the named representatives. Under these
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circumstances, the typicality requirement of Rule 23 is satisfied in this case.
4. Adequacy of Representation
The final requirement of Rule 23(a) is that the representative parties be able to fairly and adequately protect the interests of the class. Resolution of this issue turns on two considerations: whether the attorneys retained by the named plaintiffs are qualified, experienced and generally able to conduct the litigation and whether the named plaintiffs have interests that are antagonistic to or in conflict with those they seek to represent. Wetzel v. Liberty Mutual, 508 F. 2d at 241; Barnes v. American Tobacco Co., 161 F. 3d at 141. Conflicts of interest are rare in 23(b)(2) class actions requesting only declaratory and injunctive relief. New Directions Treatment Serv. v. City of Reading, 490 F. 3d 293, 313 (3rd Cir. 2007). As long as one of the representative plaintiffs is adequate, the adequacy of representation requirement is met. Crasty v. Amalgamated Cloth., 828 F. 2d at 128
22

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With respect to the question of competency of counsel in this case, attorney Jere Krakoff has extensive experience litigating complex civil rights cases, particularly conditions and practices lawsuits involving both local jail and state prisons, many of which were class actions. Over the course of more than three decades, he has prosecuted numerous Section 1983 class actions (and comparable class actions under other federal statutes) in Pennsylvania and other federal district courts throughout the United States as an attorney with the Lawyers Committee For Civil Rights Under The Law (in Jackson, Mississippi); staff counsel with the ACLU National Prison Project (in Washington, D.C.); staff counsel with Neighborhood Legal Services Assn. (in Pittsburgh); and, more recently, in private practice (in Pittsburgh). His presence in the case as plaintiffs’ lead counsel, coupled with the participation of Lewisburg Prison Project attorney, Cheryl Humes, will assure the “vigorous prosecution of claims,” as Rule 23 demands. See Crasty v. Amalgamated Cloth., 828 F. 2d at 129.
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The matter of antagonistic interests does not exist here and, thus, poses no barrier to certification of this case. There are no apparent conflicts of interest between the representative plaintiffs and the inmates they propose to represent. The conditions and practices challenged in this litigation threaten all class members. Therefore, eliminating them will enhance the circumstances of the respective members and inure to their benefit.
5. The Criteria of Rule 23(b)(2) As noted, a proposed class action may be maintained if, in addition to satisfying each of the requirements of Rule 23(a), the case falls under one of the subsections of 23(b). This action falls comfortably under subsection (b)(2) which authorizes a class action of the party opposing the class has acted or refused to act on grounds that are generally applicable to the class, thereby making final injunctive relief appropriate for the class as a whole.
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The underlying complaint’s allegations are predicated on a theory that the defendants have acted or refused to act on grounds that are generally applicable to the class as a whole. The conditions and practices are systemic—rooted in entrenched policies, customs, acts and omissions which have broad application to NCP inmates and which will require a series of injunctions to remedy.
III. Conclusion
For the reasons expressed above, this Court should certify a Rule 23(b) class consisting of all inmates who are now or who, in the future, will be incarcerated in the Northumberland County Prison.
Respectfully submitted,
s/ Cheryl Tennant Humes Cheryl Tennant Humes, Esq. LEWISBURG PRISON PROJECT P.O. Box 128 Lewisburg, PA 17837 570-523-1104
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CERTIFICATION PURSUANT TO LOCAL RULE 7.8(b)(2)
The undersigned hereby certifies, pursuant to Local Rule 7.8(b)(2) that the foregoing Plaintiffs’ Brief In Support of Motion For Class Certification contains four thousand two hundred ninety-nine (4299) words, based upon the word count feature of the word processing system on which it was prepared.
/s/ Cheryl T. Humes_____ Cheryl T. Humes, Esq. I.D. 202544 Lewisburg Prison Project P.O. Box 128 Lewisburg, PA 17837 570. 523. 1104 570. 523. 3394 cherylhumes@dejazzd.com
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CERTIFICATE OF SERVICE
I, Cheryl Tennant Humes, hereby certify that on March 12, 2008, I caused to be served a true and correct copy of the foregoing document titled Plaintiff’s Brief in Support Motion for Class Certification Via Electronic Filing to the following:
Frank J. Lavery, Jr., Esq. Robert G. Hanna, Jr., Esq. Devon M. Jacob, Esq. Lavery, Faherty, Young & Patterson, P.C. 225 Market St, Suite 304 Harrisburg, PA 17108-1245 717-233-6633
s/ Cheryl Tennant Humes Cheryl Tennant Humes, Esq. LEWISBURG PRISON PROJECT P.O. Box 128 Lewisburg, PA 17837 570-523-1104
27

 
 Case 4:08-cv-00345-JEJ Document 61 Filed 06/11/08 Page 1 of 11

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

INMATES OF THE NORTHUMBERLAND COUNTY PRISON, et al.,
Plaintiffs,
v.
RALPH REISH, et al.,
Defendants.

: : : : : No. 08-CV-345 : : Judge Jones : : : :

MEMORANDUM AND ORDER

June 11, 2008

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court are two (2) Motions filed by all Plaintiffs in this

action: a “Motion for Class Certification” (“Motion to Certify”) (doc. 9 at 1

(emphasis omitted)) and a “Motion Requesting an Expedited Ruling on Class

Certification” (“Motion to Expedite”) (doc. 36 at 1 (emphasis omitted)).1 For the

reasons that follow, the Motion to Certify will be denied without prejudice and the

Motion to Expedite will be granted to the extent outlined herein.

FACTUAL BACKGROUND/PROCEDURAL HISTORY:

1 In the interest of clarity, we note that also pending are two (2) Motions to Dismiss (docs. 33, 34) filed by certain Defendants. Said Motions will be disposed of by separate Memorandum and Order.
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This suit was initiated by the filing of a Complaint by twelve (12)
individuals in their capacity as inmates, or former inmates, of the Northumberland
County Prison (“NCP”). (See Rec. Doc. 1). The Complaint’s introduction
characterizes the actions as follows:
Inmates of the Northumberland County Prison bring this Section 1983 class action to challenge conditions and practices that are undermining their constitutional rights. Grounding their claims on the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, they seek declaratory and injunctive relief to remedy systemic defects in the Prison’s delivery of medical, mental health and dental care; life-threatening fire hazards in the institution’s housing units; chronic environmental problems in the living and kitchen areas; the hostile effects of profound overcrowding in the Women’s Dormitory; the use of protracted bunk-restriction as a form of discipline in the Women’s Dormitory and policies associated with that abusive practice; medieval-like conditions and practices in the Prison’s basement cells; callous practices associated with the use of four-point physical restraints; the unequal, discriminatory treatment of female prisoners in the contexts of outdoor exercise, work release, and other institutional programs; the policy-based failure to provide incoming inmates with essential clothing supplies; and the lack of a confidential area for inmate consultations with their attorneys.
Id. at 2.
On March 12, 2008, Plaintiffs filed the instant Motion to Certify. (Rec. Doc.
9). Therein, Plaintiffs describe the class for which they seek certification as
follows:
Themselves and all other persons who are incarcerated in the Northumberland County Prison or who in the future will be incarcerated in the Prison.
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Id. at ¶ 3. As the Motion to Certify has been fully briefed (see docs. 10, 29, 32), it is ripe for our disposition.
Because we had not yet issued a ruling on the Motion to Certify by the time that defense counsel began to object to certain of Plaintiffs’ discovery requests on the ground that they were overbroad due to the absence of certification, Plaintiffs filed on May 5, 2008 the instant Motion to Expedite. (Rec. Doc. 36). The Motion to Expedite has now been fully briefed (see docs. 38, 50, 55), and, thus, it is also ripe for disposition. DISCUSSION:
In the broadest of terms, a court evaluating whether or not class certification is appropriate must conduct a “rigorous analysis” in order the determine whether those individuals seeking to sue a party as representatives of a class have adhered to the mandates of Federal Rule of Civil Procedure 23. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982). Rule 23(a) sets forth four (4) specific prerequisites to a class action:
(1) the class [must be] so numerous that joinder of all members is impracticable; (2) there [must be] questions of law or fact common to the class; (3) the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class; and (4) the representative parties [must] fairly and adequately protect the interests of the class.
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Fed. R. Civ. P. 23(a). In addition to the foregoing, an action may only be
maintained as a class action if one of the three conditions cited within the sub-parts
of Rule 23(b) is applicable.2 See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.
1994) (citations omitted). “Plaintiffs bear the burden of proving all of the
requirements for certification have been met.” Holmes v. Pension Plan of
Bethlehem Steel Corp., 1999 U.S. Dist. Lexis 10467, at *8 (E.D. Pa. 1999) (citing
2 Rule 23(b) provides:
A class action may be maintained if Rule 23(a) is satisfied and if: (1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b). We note that Plaintiffs only seek certification as a Rule 23(b)(2) action. (See Rec. Doc. 9 at ¶ 3).
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Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)). Moreover, determinations as to class certification are to be made “[a]t an
early practicable time after a person sues or is sued as a class representative . . . .” Fed. R. Civ. P. 23(c)(1)(A). When reviewing a motion to certify a class action, however, and as noted above, courts must engage in “a thorough examination of the factual and legal allegations.” Newton v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001) (citing Barnes v. Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998)). In fact, when determining whether plaintiffs have met their burden of establishing each of the four (4) requisites of Rule 23(a) and at least one (1) of the three (3) subparts of Rule 23(b), see, e.g., Baby Neal, 43 F.3d at 55,“‘it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.’” Newton, 259 F.3d at 166 (citing Gen. Tel. Co. Of Southwest v. Falcon, 457 U.S. 147, 160 (1982)). Indeed, “[i]n reviewing a motion for class certification, a preliminary inquiry into the merits is sometimes necessary to determine whether the alleged claims can be properly resolved as a class action.”3 Newton, 259 F.3d at 168.
3 Plaintiffs’ reliance on Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001), to support their assertion that this Court has no valid reason to defer a decision on the class certification issue is misplaced. Simply stated, the Third Circuit’s statement that “it is generally recognized that civil rights actions seeking relief on behalf of classes like the putative class normally meet the requirements of Rule 23(b)(2),” 275 F.3d at 228, does not warrant class certification at this time because, at a minimum, whether the requirements of Rule 23(a) can be satisfied here are in
5

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In Newton, the Third Circuit offered its rationale for the view that class
certification determinations may need to be undertaken after at least some
discovery has been completed. See 259 F.3d at 167-68. The Third Circuit stated:
[s]ince Eisen was decided [cautioning that courts should not go beyond the pleadings in making class certification decisions], the nature of class actions and how they are litigated have undergone a sea changes. Irrespective of the merits, certification decisions may have a decisive effect on litigation. As mentioned, if individual claims are small, then plaintiffs may not have the incentive or resources to pursue their claims if certification is denied–sounding the ‘death knell’ to the litigation. On the other hand, granting certification may generate unwarranted pressure to settle nonmeritorious or marginal claims.
Id. Although we recognize that liability exposure plays an integral role in this
analysis and that the instant Plaintiffs are seeking a declaratory judgment and
injunctive relief, we think that the Third Circuit’s lack of criticism of a District
Court’s four (4) stays of a motion for certification in Baby Neal demonstrates that
the rationale is not solely applicable where money damages are at issue. 43 F.3d at
53, 54 (noting, respectively, that “these allegations comprise four separate claims
for declaratory and injunctive relief,” and that “it [the District Court] stayed the
class certification motion during its consideration of th[e] motion to dismiss . . .
[and] three additional times” because of “defendants’ asserted inability to complete
doubt. Indeed, Plaintiffs’ proposed class differs significantly from that in Stewart, which was made up of only those people the Philadelphia District Attorney’s Office re-arrested after criminal charges had been dismissed by a Philadelphia Municipal Court Judge.
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the discovery necessary to oppose the certification. . . .”). As demonstrated by Plaintiffs’ filings in the instant action, they vigorously
contend that despite the relative youth of this action (the Complaint was filed less than four (4) months ago), this Court can, and indeed, should grant class certification at this time. In support of this position, Plaintiffs claim that their lengthy, specific Complaint and the civil rights nature of their claims enable class certification at this early juncture. Plaintiffs also argue that the relatively short confinement of inmates at NCP renders Plaintiffs in danger of having their entire action mooted should this Court not immediately certify the action, and that this too should cause this Court to certify the class now.
In response, Defendants assert: 1) at least some Plaintiffs lack standing to obtain equitable relief; 2) Plaintiffs’ Motion to Certify should be denied because the requirements of Rule 23 have not been satisfied; and 3) in the alternative, “[t]he conclusory allegations of the Complaint and Plaintiff’s Motion for Class Certification[] do not provide an adequate basis for this Honorable Court” to determine the issue of class certification at this time. (Rec. Doc. 29 at 31). As to the last argument, Defendants contend that the Complaint’s allegations are not sufficient to satisfy any of the four (4) requirements under Rule 23(a).
Upon our review of the record in this action and the applicable legal
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principles, we conclude that a determination as to class certification at this early
time is not practicable. We so conclude because despite the numerous allegations
contained in Plaintiffs’ Complaint, “actual, not presumed, conformance with Rule
23(a) remains . . . . indispensable.” Falcon, 457 U.S. at 160. Indeed, as one of the
authorities cited by Plaintiffs demonstrates:
[p]racticality, in this context, must be judged on the basis of factors such as the detail in the pleadings, the amount of discovery pending and competed, the nature of the suit, fairness to the parties, and judicial efficiency. These considerations may dictate the necessity of a preliminary evidentiary hearing to insure that the court’s decision on class certification rests on an adequate record.
Jones v. Diamond, 519 F.2d 1090, 1098 (5th Cir. 1975).
Recognizing that we could exercise our discretion and attempt the rigorous
examination required to determine the issue of class certification at this time,4 we
think it unwise to do so at this juncture.5 Indeed, although the detailed Complaint
4 We also recognize that we are under no obligation to analyze this issue pursuant to the factor schematic set out by the Fifth Circuit. However, we find that the factors outlined appropriately take into account relevant circumstances and afford an organized manner in which to approach this issue. Accordingly, we frame our discussion based thereon.
5 As noted above, Plaintiffs’ Complaint challenges a variety of alleged conditions at NCP and raises several civil rights claims stemming therefrom. In fact, some of the claims alleged arise from conditions alleged to impact the entire prison body, while others arise from alleged disparate treatment of females and males. Thus, by way of example and without expressing any opinion on the ultimate viability of any additional Motion to Certify as may be filed pursuant hereto, at this early point in litigation and with no evidentiary record, we are concerned about the propriety of certifying a class containing members who raise, inter alia, some markedly different claims.
8

Case 4:08-cv-00345-JEJ Document 61 Filed 06/11/08 Page 9 of 11
and the civil rights nature of the claims set forth therein at first blush appear to
weigh in favor of an early disposition of the certification issue, upon a more
thorough review we conclude that other factors weigh heavily in favor of
permitting some class-based discovery prior to determining whether class
certification should be granted. To wit, none of the Plaintiffs had been deposed as
of June 4, 2006, Defendants have indicated that they intend to depose of all
inmates within thirty (30) days, and judicial economy would be better served by
making a more informed initial decision as to class certification based on the
results of class-based discovery. (See Rec. Docs. 58, 59). Fairness to the parties
also weighs in favor of delaying disposition of the Motion to Certify on the merits
because Defendants’ endeavor to timely depose Plaintiffs will enable a more
comprehensive review of the issue within a relatively short period of time, thereby
minimizing the impact of the delay on Plaintiffs.6
6 We are not unsympathetic to Plaintiffs’ concerns as to the specter of mootness and the impact that the same may have on this action. Without expressing any opinion on the ultimate resolution of that issue, we note that numerous exceptions to the doctrine of mootness exist and that we are confident Plaintiffs’ counsel will raise all that are appropriate should the issue arise. See, e.g., Bowers v. City of Philadelphia, 2006 U.S. Dist. LEXIS 71914, at *13-*23 (E.D. Pa. 2006).
Moreover, the danger of mootness does not supersede this Court’s duty to conduct the appropriate analysis of the requirements of Rule 23. Accordingly, although we are cognizant of both Defendants’ endeavor to depose Plaintiffs within thirty (30) days and the mootness issue, we will order an September 1, 2008 class certification discovery deadline. We do so based upon our consideration of not only the foregoing, but also the fact that this action currently has a February 13, 2009 general discovery deadline. Thus, we are attempting to expedite discovery as to the matters bearing on the issue of class certification without compromising the ability of
9

Case 4:08-cv-00345-JEJ Document 61 Filed 06/11/08 Page 10 of 11
In light of the fact that we have already granted (doc. 59) Defendants’ Motion for Leave to Depose Inmates Pursuant to Rule 30 of the Federal Rules of Civil Procedure (doc. 58), we do not think it untoward to set a discovery deadline with respect to the issue of class certification. Further, we find that setting a deadline regarding class-based discovery and a subsequent deadline for the submission of another Motion to Certify to be consistent with the practice of at least one (1) of our colleagues on this Court. See, e.g., Reynolds v. County of Dauphin, No. 07-CV-1688 (Vanaskie, J.); Bauer v. Bayer, No. 03-CV-1687 (Vanaskie, C.J.). We note also that in another case, we might allow the parties to their own designs to agree upon such a deadline, but given the progression of this litigation,7 it is incumbent upon us to select the deadline.
Based on the foregoing, we will deny without prejudice Plaintiffs’ Motion to Certify and grant Plaintiffs’ Motion to Expedite to the extent that we are disposing of the Motion to Certify at this time. We will also impose a deadline for discovery related to class certification and the submission of another Motion to Certify.
counsel to fully explore those areas. 7 As previously stated, we are aware that discovery disputes have already arisen in this
case as a result of the action’s putative class action status. Accordingly, and without prejudging any individual discovery requests by Plaintiffs, we note that some of the requests may presume class certification. Consistent with the relief fashioned herein, we think that the better course will be for the parties to now dedicate themselves to discovery on the issue of class certification. Any discovery presuming class certification should be held in abeyance pending any granting of a subsequent Motion to Certify.
10

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NOW, THEREFORE, IT IS ORDERED THAT: 1. Plaintiffs’ Motion to Certify (doc. 9) is DENIED without prejudice. 2. Plaintiffs’ Motion to Expedite (doc. 36) is GRANTED to the extent outlined in the above Memorandum. 3. All fact discovery as to the issue of class certification shall be commenced in time to be completed by September 1, 2008. The scope of discovery, however, is not per se limited to class certification issues. 4. Should they so elect, Plaintiffs shall move for class certification no later than September 15, 2008. s/ John E. Jones III John E. Jones III United States District Judge
11

 
 Case 4:08-cv-00345-JEJ Document 102 Filed 03/17/09 Page 1 of 73

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

INMATES OF THE NORTHUMBERLAND COUNTY PRISON, et al.,
Plaintiffs,
v.
RALPH REISH, et al.,
Defendants.

: : No. 08-cv-345 : : : : : Judge John E. Jones III : : : :

MEMORANDUM AND ORDER

March 17, 2009

Pending before the Court are three motions filed by the parties in the above

captioned case. First is a Motion to Dismiss filed by the Defendants, (Rec Doc.

33), which was amended through the filing of document 34.1 Second is Plaintiffs’

Motion to Supplement the Complaint, (Rec. Doc. 64), which was subsequently

amended through the filing of document 70.2 Third and finally is Plaintiffs’

Second Motion for Class Certification (“Motion to Certify”).3 (Rec. Doc. 68). For

1 We will refer to these documents collectively as the “Motion to Dismiss.” 2 We will refer to these documents collectively as the “Motion to Supplement.” 3 Plaintiffs’ first Motion for Class Certification was denied by Order of June 11, 2008. (Rec. Doc. 61).
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Case 4:08-cv-00345-JEJ Document 102 Filed 03/17/09 Page 2 of 73
the reasons that follow we will grant in part and deny in part the Motion to
Dismiss, grant the Motion to Supplement, and grant in part and deny in part the
Motion to Certify.
I. PROCEDURAL HISTORY:
This suit was initiated by the filing of a Complaint by 12 current or former
inmates at Northumberland County Prison (“NCP”) against the County of
Northumberland and individuals involved with the operation of the NCP.4 (See
Compl.). The Complaint’s introduction characterizes the actions as follows:
Inmates of the Northumberland County Prison bring this Section 1983 class action to challenge conditions and practices that are undermining their constitutional rights. Grounding their claims on the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, they seek declaratory and injunctive relief to remedy systemic defects in the Prison’s delivery of medical, mental health and dental care; lifethreatening fire hazards in the institution’s housing units; chronic environmental problems in the living and kitchen areas; the hostile
4 The named inmates are: Scott Collins (“Collins”); Roman Brady (“Brady”); Jeremy Elsesser (“Elsesser”), Conrad Corely (“Corely”); Michael Wetzel (“Wetzel”); Hasson Lindsey “Lindsey”); Thomas Anderson “Anderson”); Joseph Bowers (“Bowers”); Sharon Reichner (“Reichner”); Megan Holohan (“Holohan”); Kelcie Williams (“Williams”); and Sonya Wyland (“Wyland”) (collectively, “Plaintiffs”). (Rec. Doc. 1). However, it is important to note that three Plaintiffs, Corely, Anderson, and Holohan, were no longer incarcerated at NCP when the Complaint was filed.
The named Defendants are Ralph M. Reish (“Reish”), in his official capacity as Warden of NCP; Northumberland County, Pennsylvania (“Northumberland”); and the following individuals in their official capacities as members of the NCP Board (the “Board”): Frank Sawicki (“Sawicki”), Vinny Clausi (“Clausi”), Kurt Masser (“Masser”), Anthony Rosini (“Rosini”), Charles Erdman (“Erdman”), Robert Sacavage (“Sacavage”), and Chad Reiner (“Reiner”). (See id.). These entities will be collectively referred to as “Defendants.”
2

Case 4:08-cv-00345-JEJ Document 102 Filed 03/17/09 Page 3 of 73
effects of profound overcrowding in the Women’s Dormitory; the use of protracted bunk-restriction as a form of discipline in the Women’s Dormitory and policies associated with that abusive practice; medievallike conditions and practices in the Prison’s basement cells; callous practices associated with the use of four-point physical restraints; the unequal, discriminatory treatment of female prisoners in the contexts of outdoor exercise, work release, and other institutional programs; the policy-based failure to provide incoming inmates with essential clothing supplies; and the lack of a confidential area for inmate consultations with their attorneys.
Id. at 2.
On March 12, 2008, Plaintiffs filed the their first Motion to Certify. (Rec.
Doc. 9).5 On June 11, 2008, we entered an Order denying that motion without
prejudice to re-file same no later than September 15, 2008. (Rec. Doc. 61).
Through that Order, we noted that although the scope of discovery from that point
forward would not be limited to class certification issues per se, all fact discovery
as to the issue of class certification was to be concluded by September 1, 2008.
(See id.). On April 24, 2008, Defendants filed the Motion to Dismiss. (Rec. Doc.
34). On September 15, 2008, Plaintiffs filed a second Motion for Class
Certification. (Rec. Doc. 68). On September 18, 2008, Plaintiffs filed their Motion
to Supplement. (Rec. Doc. 70). Having been fully briefed, these Motions are ripe
5 Within this factual chronology, it is important to note that on March 13, 2008, Plaintiff Wyland was transferred from NCP to Snyder County Prison (“SCP”), and on April 7, 2008, Plaintiff Collins was transferred from NCP to the State Correctional Facility at Camp Hill, Pennsylvania (“SCI-Camp Hill”). (Rec. Doc. 39 p. 16).
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for disposition. We will address these motions, as well as the law and facts relevant thereto, in the below discussion. II. DISCUSSION:
A. Motion to Dismiss The Defendants seek the dismissal of Plaintiffs Corely, Anderson, and Holohan on standing grounds and of Plaintiffs Collins and Wyland on the basis of mootness. In their brief in opposition, Plaintiffs concede that Corely, Anderson, and Holohan lack the requisite standing to proceed as Plaintiffs in this case. However, Plaintiffs do contest the assertion that the claims of Collins and Wyland are mooted.6 Accordingly, we will grant the Motion to Dismiss with regard to Plaintiffs Corely, Anderson, and Holohan. We will limit the present inquiry to the mootness issue surrounding Plaintiffs Collins, Wyland, and Wetzel. At the outset, we should distinguish between the concept of “standing” and “mootness.” “[Standing] inquires whether someone is the proper party to bring a law suit at the beginning of the case. Doctrinally, to satisfy core Article III requirements, standing requires (1) that the plaintiff suffer injury in fact, (2) that the injury be fairly traceable to the challenged conduct, and (3) that a favorable
6 Additionally, although they do not assert same in their Motion to Dismiss, in their brief in opposition to the Motion to Certify, Defendants allege that the claims of Plaintiff Michael Wetzel are also mooted due to his transfer from NCP on May 13, 2008. (Rec. Doc. 92 p. 28). Therefore, we will include Wetzel in our mootness analysis.
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ruling would redress the injury.” See Lujan v. Defendants of Wildlife, 504 U.S. 555, 560-61 (1992). Mootness, on the other hand, asks whether a party who has established standing has now lost it because the facts of her case have changed over time.” Artway v. Attorney Gen. of New Jersey, 81 F.3d 1235, 1246 (3d Cir. 1996)). “An action becomes moot when ‘(1) there is no reasonable expectation that the alleged events will recur . . . and (2) interim relief or events have completely eradicated the effects of the violation.’” Id., at 1246 (internal citations omitted). Pursuant to Artway, Defendants urge that Collins’,Wyland’s, and Wetzel’s claims are moot because: (1) they are no longer inmates at NCP, having been transferred on April 7, 2008, March 13, 2008, and May 13, 2008, respectively; and (2) there is no indication that the alleged constitutional violations will ever recur, since there is no indication that those Plaintiffs will ever be retransferred to NCP.
However, the Third Circuit Court of Appeals has recognized, “A plaintiff who brings a class action presents two separate issues for judicial resolution. One is the claim on the merits; the other is the claim that he is entitled to represent a class.” Rosetti v. Shalala, 12 F.3d 1216, 1226 n.23 (3d Cir. 1993) (referring to the claim on the merits as the “substantive” or “personal” claim and to the entitlement to represent a class as the “procedural” claim). Plaintiffs note that there is an
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exception to the mootness doctrine applicable to putative class action cases involving claims that are “inherently transitory,” Rosetti, 12 F.3d at 1228 n.25, because such claims will often be mooted before a district court rules on a motion for class certification, County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991). In cases where a class representative’s claim is mooted after the filing of the class certification but before the resolution of same, the class certification “relates back” to the complaint to preserve the merits of the case for judicial resolution provided that the claims of other class members are still viable.7 See id.; see also Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (stating that “in this case the constant existence of a class of persons suffering the deprivation is certain . . . and we can safely assume that . . . [other plaintiffs have] a continuing live interest in the case). Consequently, Plaintiffs assert that the “relation back” doctrine prevents the claims of Collins, Wyland, and Wetzel from being mooted, for class representation purposes, because the class certification was filed prior to the transfers of those Plaintiffs.
Quite simply, both positions are correct. As Defendants note, the substantive claims of the Plaintiffs are mooted because they are no longer inmates
7 “By relating class certification back to the filing of a class complaint, the class representative would retain standing to litigate class certification though his individual claim is moot.” Weiss v. Regal Collections, 385 F.3d 337, 347 (3d Cir. 2004).
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at NCP and because they have not averred, in their Complaint or Opposition Brief, that they are likely to return to NCP. To the extent that Plaintiffs claim that the substantive claims of Collins, Wyland, and Wetzel qualify for the “capable of repetition, but evading review” exception to the mootness doctrine, this position is incorrect. To qualify for this exception, “two elements must be present: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Praxis Prop., Inc. v. Colonial Sav. Bank, 947 F.2d 49, 61 (3d Cir. 1991) (citing Murphy v. Hunt, 455 U.S. 478, 482, (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975))). As we have stated, Plaintiffs have not averred, nor can we infer, that there exists a reasonable expectation that Plaintiffs Collins, Wyland, and Wetzel would be forced to suffer the same alleged constitutional violations at NCP in the future.8
However, as Plaintiffs note, the loss of Collins’, Wyland’s, and Wetzel’s substantive claims does not necessarily entail a loss of their procedural claim to
8 When the issue of future repetition is insufficiently concrete, courts have refused to infer, based on speculation alone, that there is a reasonable expectation that the named plaintiffs would suffer the same harm in the future. See Zimmerman v. Schaeffer, 2008 WL 682491 *5 (M.D. Pa 2008). The issue sub judice is insufficiently concrete because there is nothing more than mere speculation regarding Plaintiffs Collins’, Wyland’s, and Wetzel’s possible future return to NCP. We therefore conclude that the claims of those individuals do not qualify for the “capable of repetition, but evading review” exception. We will grant the Motion to Dismiss to the extent it seeks dismissal of the substantive claims of Collins and Wyland.
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represent the putative class. As we have noted, in cases where a putative class representative’s claim is mooted after the filing of the class certification but before the resolution of same, the class certification “relates back” to the complaint to preserve the merits of the case for judicial resolution provided that the claims of other class members are still viable. See McLaughlin, 500 U.S. at 52; Gerstein, 420 U.S. at 111 n.11. Here, the substantive claims of Collins, Wyland, and Wetzel were mooted the day they were transferred from NCP, April 7, 2008, March 13, 2008, and May 13, 2008, respectively. The class certification was filed on March 12, 2008. Therefore, those Plaintiffs could properly utilize the relation back doctrine to preserve their procedural claims provided that members of the putative class possess viable claims. As we will discuss below, some of the named Plaintiffs are still incarcerated at NCP, meaning that their claims are facially viable.9 Accordingly, we will permit the certification to relate back to the Complaint, thereby allowing Plaintiffs Collins, Wyland, and Wetzel to remain class representatives. We will deny the Motion to Dismiss to this extent.
B. Motion to Supplement the Complaint While conducting fact discovery pertaining to class certification, Plaintiffs’
9 Indeed, Defendants Motion to Dismiss does not target all named Plaintiffs, implying that the unnamed Plaintiffs can maintain viable claims, as asserted in the Complaint. We believe this inference to be logical and can find nothing in the pleadings or the briefs to the contrary.
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counsel obtained information indicating that during the summer of 2008, it became a widespread practice at NCP to confine three inmates to a cell designed to house only two inmates, a procedure that will heretofore be referred to as “triple celling.” (Rec. Doc. 71 p. 3). Plaintiffs believe that the triple celling violated their Eighth and Fourteenth Amendment rights and seek to supplement their original complaint, pursuant to Federal Rule of Civil Procedure 15(d), to include this allegation. (Id.). Additionally, Plaintiffs seek to add as a named Plaintiff Dale Foss, a current inmate at NCP who has allegedly endured triple celling and other constitutional violations as recounted in the original Complaint. (Id. p. 7).
Defendants oppose the Motion to Supplement on two grounds. First, they argue that it fails to comply with Local Rule 15.1, which outlines the procedure for amending a pleading. See M.D. Pa. L.R. 15.1. In particular, Defendants aver that the following acts are in contravention to the local rules: (1) Plaintiffs’ failure to attach a proposed complaint as an exhibit to their motion; (2) Plaintiffs’ failure to attach a supplemental complaint that is complete in itself, without any reference to the initial Complaint; and (3) Plaintiff’s failure to attach a proposed supplemental Complaint highlighting the proposed additional averments. (Rec. Doc. 81 p. 9). Defendants assert that Plaintiffs’ failure to abide by the local rules in these regards should result in the denial of the Motion to Supplement. We do not agree.
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Local rule 15.1 is entitled “Amended Pleadings.” See M.D. Pa. L.R. 15.1. As Plaintiffs’ note, there is distinction between amending a pleading and supplementing a pleading. Amending a pleading involves entirely replacing the earlier pleading with a new pleading containing matters that occurred prior to the filing of the original pleading, while supplementing a pleading involves merely adding to the original pleading events occurring subsequent to the earlier pleading. 6A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1504 (3d ed. 2004) (emphasis added). The Local Rules provide no express mandate with respect to supplementing a pleading, giving rise to the inference that the dictates of Local Rule 15.1 apply with equal force to amended and supplemented pleadings. However, we believe that the semantics recounted above cast a sufficient cloud over the rule such that a denial of the instant motion on this ground alone would be inequitable.10
Defendants’ second argument for the denial of the Motion to Supplement is substantive in nature and focuses on the futility of the contemplated amendment.
10 This conclusion is not only driven by our determination that the local rules are somewhat unclear with respect to the procedure for supplementing a pleading, but also by our stark realization that denying the Motion to Supplement on this ground is tantamount to punishing the Plaintiffs for an arguably reasonable failure on the part of their counsel. We are not prepared to conclude that Plaintiffs’ counsel violated local rule 15.1, nor that the sanction for same, if it occurred, should ultimately be absorbed by the Plaintiffs themselves. We therefore decline to deny the Motion to Supplement on the basis that it does not comply with the local rules.
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See Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that a district court may
deny supplementation when allowing same would be futile); see also Young v.
Beard, 2008 WL 2693859 (W.D. Pa. 2008). In that regard, the standard for
supplementation under Rule 15(d) is “essentially the same” as the standard for
amending under Rule 15(a). Medeva Pharm. Ltd. V. Am. Home Prods. Corp., 201
F.R.D. 103, 104 n.3 (D. De. 2001) (citing Epstein v. Township of Whitehall, 1989
WL 1745118 *2 (E.D. Pa. 1989)). The amendment of a complaint is futile if it,
inter alia, cannot survive a motion to dismiss for failure to state a claim, Jabolinski
v. Pan Am. World airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (internal
citations omitted). Therefore, Defendants urge that the supplementation is futile
because it cannot survive a motion to dismiss. It is therefore important to take
cognizance of the standard for analyzing such a motion.11
11 In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), courts “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider “only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank of America, 361 F.3d 217, 222 (3d Cir. 2004).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, “in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
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Plaintiffs’ Motion to Supplement seeks to add to the original Complaint
Eighth and Fourteenth Amendment claims arising from the triple celling at NCP
in the summer of 2008. The Eighth Amendment claim would only be applicable
to convicted inmates who were triple celled, while the Fourteenth Amendment
only applies to pretrial detainees who were triple celled. See Hubbard v. Taylor,
399 F.3d 150, 167 n.23 (3d Cir. 2005) (there is a “distinction between pretrial
detainees’ protection from ‘punishment’ under the Fourteenth Amendment, on the
one hand, and convicted inmates’ protection from punishment that is ‘cruel and
unusual’ under the Eighth Amendment, on the other”) (referred to herein as
“Hubbard I”). The Third Circuit Court of Appeals has established that “pretrial
detainees . . . are entitled to at least as much protection as convicted prisoners, so
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 1965. A plaintiff must make “a ‘showing’ rather than a blanket assertion of an entitlement to relief”, and “without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.” Phillips, 515 F.3d at 232 (citing Twombly, 127 S. Ct. at 1965 n. 3). “[A] complaint must allege facts suggestive of [the proscribed] conduct, and the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 127 S. Ct. at 1965, 1969 n.8. Therefore, “stating a claim requires a complaint with enough factual matter (taken as true) to suggest the required element.” Phillips, 515 F.3d at 234 (quoting Twombly, 127 S. Ct. at 1965 n. 3).
On the other hand, “a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.” Id. at 231 (citing Twombly, 127 S. Ct. 1964-65, 1969 n.8). Rule 8 “does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Id. at 234.
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the protections of the Eighth Amendment would seem to establish a floor of sorts.” Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000) (quoting Kost v. Kozakiewicz, 1 F.3d 176, 188 n.10 (3d Cir. 1993)). Accordingly, we will begin our analysis with Plaintiffs’ Eighth Amendment claim.
1. Eighth Amendment Claim
The Eighth Amendment of the United States Constitution proscribes cruel and unusual punishment. See U.S. CONST. amend. VIII. To state an Eighth Amendment claim, an inmate must allege both objective and subjective components. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective component requires that an inmate allege “deprivations denying ‘the minimal civilized measure of life’s necessities’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).12 “The subjective component requires that the state actor have acted with ‘deliberate indifference.’” Id. (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). The proper analysis for deliberate indifference is whether a prison official “acted or failed to act despite his knowledge [that] a substantial risk of
12 “The Eighth Amendment does not give the court authority to impose its own ‘notions of enlightened policy.’” Tillery v. Owens, 907 F.2d 418, 426 (3d Cir. 1990) (quoting Hassine v. Jeffes, 846 F.2d 169, 175 (3d Cir. 1988)). “Thus, deficiencies and inadequacies in prison conditions do not necessarily violate the Eighth Amendment. The amendment is violated only where an inmate is deprived of ‘the minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes, 452 U.S. at 347.
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serious harm” would befall an inmate. Farmer, 511 U.S. at 841. In determining whether the conditions of an inmate’s confinement violate
the objective component of the Eighth Amendment inquiry, courts must look to the “totality of the conditions” within the prison. See Tillery, 907 F.2d at 426. In considering double or triple celling in particular, relevant considerations include: length of confinement; the amount of time prisoners must spend in their cells daily; opportunities for activities outside their cells; the repair and functioning of basic facilities like plumbing, ventilation, and showers; control of vermin; lighting; heating; noise level; bedding; safety and security; medical care; and sanitation. See id. at 426-27 (citing Union County Jail Inmates v. Di Buono, 713 F.2d 984, 1000-01(3d Cir. 1983) (discussing Eighth Amendment claims of convicted inmates)); Peterkin v. Jeffes, 855 F.2d 1021, 1025-26 (3d Cir. 1988) (internal citations omitted). Courts have found double and triple celling permissible when the general prison conditions were otherwise adequate. See id at 427-28 (noting cases standing for this proposition).
In their initial Complaint and the appendix to their Motion to Certify, the Plaintiffs have alleged that the triple celling at NCP exacerbate the following deficiencies: poor ventilation, extreme seasonal temperatures, regular vermin infestation, fire hazards, and access to physical and psychological medical care.
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See generally (Rec. Docs. 1, 73). Additionally, Plaintiffs aver that they are confined in their triple cells for 23 hours per day and insinuate that they are subjected to triple celling for a significant number of days. (See Suppl. Compl. ¶¶ 6, 8, 10). Taking these allegations in the light most favorable to Plaintiffs, as we must, we believe that a reasonable jury could conclude that the averments in the Complaint and the Supplemental Complaint rise to a constitutional violation under the “totality of the conditions test” enunciated in Tillery. This satisfies the first prong of the Eighth Amendment inquiry. We must now look to the second prong and determine whether the Eighth Amendment violations occurred as a result of prison officials’ deliberate indifference.
In their Reply Brief, Plaintiffs aver that in 2006 NCP had been cited by the Pennsylvania Department of Corrections (“DOC”) for overcrowded conditions associated with triple celling. Therefore, we believe that a reasonable jury could infer that NCP officials knew that triple celling inmates in the conditions present at NCP was problematic because it was potentially harmful to inmates.13 Since the original Complaint indicates that the majority of the originally Plaintiffs were confined at NCP since 2007, it can reasonably be inferred that the NCP’s custom
13 Indeed, Plaintiffs have alleged that the confluence of triple celling and inadequate conditions resulted in significant pain and suffering. (Suppl. Compl. ¶ 8).
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of triple celling inmates in inadequate conditions persisted in spite of DOC’s admonition. Therefore, we believe that a reasonable jury could infer that the NCP officials continued to triple cell inmates at NCP even after the officials became aware that triple celling was potentially harmful. This is the gravamen of deliberate indifference.14 Accordingly, the Plaintiff’s triple celling claim based in the Eighth Amendment can withstand a motion to dismiss and therefore is not futile. However, futility is not the only factor to be considered when entertaining a motion to supplement.
The granting of a motion to supplement a complaint is within the sound discretion of the court, and, before we can permit Plaintiffs to supplement the Complaint with their proposed Eighth Amendment claim, we must consider the following additional factors: the extent to which supplementation will provide a justiciable disposition of the case; inconvenience to the Plaintiffs in disallowing supplementation; and the extent to which supplementation will prejudice the parties. Nottingham v. Peoria, 709 F. Supp. 542, 544 (M.D. Pa. 1988) (enumerating factors to be considered when entertaining a Rule 15(d) motion).
To this end, Defendants have identified no appreciable prejudice to them
14 Again, the proper analysis for deliberate indifference is whether a prison official “acted or failed to act despite his knowledge [that] a substantial risk of serious harm” would befall an inmate. Farmer, 511 U.S. at 841.
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that would be occasioned by the granting of the Motion to Supplement, nor can we perceive any, since the supplementation involves claims directly related to previously identified issues and would not add new Defendants to the litigation. Further, permitting supplementation will increase judicial efficiency since it will allow us to consider all claims stemming from the same factual nexus in one judicial proceeding, therefore obviating the need for Plaintiffs to assert the claims sought to supplemented through the filing of a new complaint docketed under a new civil case number. In this sense, supplementation also avoids inconveniencing the Plaintiffs. Lastly we note that at the time the Motion to Supplement was filed in September of 2008, the parties had the luxury of approximately 6 months in which to conduct discovery on the potentially supplemented matters. We believe that this time frame would have been adequate to prevent any prejudice to the parties. Therefore, it is our conclusion that the Plaintiffs did not act in bad faith or with dilatory motives in filing the Motion to Supplement. Accordingly, we believe that the Rule 15(d) factors militate in favor of permitting Plaintiffs to supplement the complaint with their Eighth Amendment claim.15 We will grant the Motion to supplement to this extent. We must now
15 We do, however, note that the discovery cut-off date is rapidly approaching. In order to prevent prejudice to either party occasioned by the supplementation of the complaint and discovery engendered by it, we will schedule a conference to establish new case management dates in our accompanying order.
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consider Plaintiffs’ proposed supplementation of their proposed Fourteenth Amendment claim.
2. Fourteenth Amendment Claim Defendants interpose a futility objection the Fourteenth Amendment claim identical to that articulated above, and so we embark upon a similar methodological framework. While the inquiry into the constitutionality of pretrial confinement under the Fourteenth Amendment is similar to that of post-trial confinement of convicts under the Eighth Amendment, Silletti v. Ocean County Dept. of Corr., 2006 WL 2385124 *3 (D.N.J. 2006), the Third Circuit Court of Appeals has held that “pretrial detainees . . . are entitled to at least as much protection as convicted prisoners, so the protections of the Eighth Amendment would seem to establish a floor of sorts.” Fuentes, 206 F.3d at 344 (quoting Kost , 1 F.3d at 188 n.10); see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Since we have found that the conduct of the NCP officers violated the Eighth Amendment’s prohibition, we could safely conclude that that conduct is also violative of the Fourteenth Amendment. However, in the spirit of completeness, we will briefly address the Fourteenth Amendment standards applicable to pre-trial detainees. Pursuant to the Due Process Clause of the Fourteenth Amendment, “a pre-
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trial detainee may not be punished prior to an adjudication of guilt.” Bell v.
Wolfish, 441 U.S. 520, 535 (1979). Consequently,
[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of the detention facility officials, that determination generally will turn on ‘whether [the disability has] an alternative purpose . . . and whether it appears excessive in relation to [that] purpose.’ . . . Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ Conversely, is a restriction or condition is not reasonably related to a legitimate goal–if it is arbitrary or purposeless–a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
Id. at 538-39 (internal citations omitted). Therefore, the proper inquiries are “first,
whether any legitimate purposes are served by [the] conditions [of pre-trial
detention], and second, whether these conditions are rationally related to these
purposes.” Di Buono, 713 F.2d at 992 (discussing Fourteenth Amendment claims
fo pre-trial detainees).
We are cognizant that there exists case law for the proposition that the
legitimate governmental purpose served by triple celling pre-trial detainees is the
effective and efficient maintenance of the prison in the face of overcrowded
conditions. See id. at 993; see also Hubbard v. Taylor, 538 F.3d 229, 233 (3d Cir.
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2008) (referred to herein as “Hubbard II”). Having established this, we consider whether the conditions of pre-trial confinement are rationally related to the stated governmental interest. This analysis involves an inquiry into whether “the adverse conditions become excessive in relation to the purposes assigned to them.” Di Buono, 713 F.2d at 992 (quoting Bell, 441 U.S. at 542). “In conducting this excessiveness analysis, ‘we do not assay separately each of the institutional practices, but [instead] look to the totality of the conditions.’” Hubbard II, 538 F.3d at 233 (quoting Hubbard I, 399 F.3d at 160 (quoting Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir. 1981))). The conditions relevant to the Fourteenth Amendment claims of pre-trial detainees are similar to those pertinent to the Eighth Amendment claims of convicted inmates. Compare Tillery, 907 F.2d at 426-27, with Hubbard II, 538 F.3d at 233 (citations omitted) .
In this vein, we again note that the Plaintiffs have alleged that the triple celling at NCP exacerbated the following deficiencies: poor ventilation, extreme seasonal temperatures, regular insect infestation, fire hazards, access to physical and psychological medical care. See generally (Rec. Docs. 1, 73). Since the officials at NCP were made aware of the pitfalls associated with triple celling in 2006 and continued to engage in that practice without remedying other conditions in the prison, we believe that a reasonable jury could infer that the triple celling, in
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combination with the aforementioned conditions, was meant to punish the pre-trial detainees in as much as it was excessive in relation to the asserted governmental purpose of efficiently managing the prison.16
Accordingly, Plaintiffs’ proposed triple celling claim grounded in the Fourteenth Amendment is not futile because it can survive a motion to dismiss. Further, for the reasons stated in our discussion of Plaintiffs’ Eighth Amendment claim, we do not believe that their Fourteenth Amendment claim was brought in bad faith or with a dilatory motive, nor do we believe that supplementation of same will cause prejudice or undue delay. Therefore, we will grant the Motion to Supplement insofar is it seeks to add the aforementioned Fourteenth Amendment triple celling claim to the original Complaint.
3. Addition of Dale Foss as a Plaintiff
Finally, we must address the issue of adding Dale Foss as a Plaintiff in this action. We do not believe that permitting supplementation of the complaint in this
16 We note that considerations such as triple celling “are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment.” Bell, 441 U.S. at 540 n. 23. However, such deference is to be afforded after a record on the issue has been developed. Since such a record is not in place, and since we believe that the Plaintiffs have satisfied their pleading burden, it is our opinion that Plaintiffs should be afforded an opportunity to develop a record on the issue of triple celling. This determination does no violence to the deference mentioned in Bell.
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regard will prejudice the parties or delay the proceedings for the aforestated reasons. Indeed, Defendants themselves have not suggested differently. We will therefore grant the Motion to Supplement to this extent as well. This determination results in the Motion to Supplement being granted in its entirety.
C. Motion to Certify Class 1. Factual Background
Plaintiffs’ Motion to Certify seeks the certification of three discrete classes of NCP inmates. The “global class” consists of all current and future inmates of the NCP and “seeks to pursue claims associated with the provision of medical, dental and mental health care; environmental conditions in the housing units; fire hazards in the living areas; confinement in the Prison’s basement; the use of fourpoint restraints; the distribution of essential clothing to inmates and the venue in which prisoners meet with their attorneys.” (Br. Supp. p. 64 n. 15) (members of this class will be referred to as “global inmates” or “global plaintiffs”). One proposed sub-class (the “male sub-class”) consists of all current and future male inmates of the NCP and seeks to challenge “a policy that denies segregated [male] prisoners outdoor recreation and requires them to be handcuffed and shackled when engaging in recreation.” (Id. p. 64 n. 16) (members of this class will be referred to as “male inmates” or “male plaintiffs”). The other proposed sub-class
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(the “female sub-class”) consists of all current and future female inmates of NCP and challenges “the bunk-restriction policy that operates in the women’s dormitory and alleged discrimination in the context of the institution’s work release and recreation program.” (Id.) (members of this class will be referred to as “female inmates” or “female plaintiffs”).
At this juncture, it is important to note that the composition of each of the three proposed classes has changed since the inception of this litigation. The global and male classes have lost Plaintiffs Corely, Anderson, and Holohan, who have been dismissed for lack of standing. The global and female classes have lost Plaintiff Reichner, who has withdrawn from the litigation. Additionally, the substantive claims of Plaintiffs Collins, Wyland, and Wetzel have been mooted since they are no longer inmates at NCP,17 Therefore, we must determine whether there remain class representatives from each proposed class with viable substantive claims. In that vein, it appears that Plaintiffs Brady, Elsesser, Lindsay, Bowers, and Williams have standing to pursue substantive claims against the Defendants. Therefore, Plaintiffs Brady, Elsesser, Lindsay, and Bower may properly represent the male sub-class, Plaintiff Williams may properly represent
17 As we have noted, these plaintiffs may serve as class representatives provided that at least one member of the proposed classes has viable substantive claims.
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the female sub-class, and all five of those Plaintiffs may represent the global class.18 We will address the specific allegations of each proposed class seriatim.19
The global inmates begin by alleging systemic deficiencies in medical care at NCP. Plaintiffs note that there are typically 160-180 men and 20-30 women confined in the NCP on a monthly basis. (Br. Supp. Ex. T). At the time, the medical staff at NCP consisted of a single licensed practical nurse (“LPN”) and a part-time physician.20 (Id. Ex. MM). Nursing was available 8 hours a day on weekdays but was not available on weekends. (Id. Ex. V, p. 8). During the hours when a nurse was not present, guards were tasked with the duty of distributing prescribed medication to inmates. (Id. Ex. A, 26-27; B, p. 87-88; C, p. 72-73; S, p.4; G, p. 100-01; Q, p. 3; CC, p. 22-23). Further, while Doctor Robert Hynick (“Hynick”) is under contract with Northumberland County, requiring him to make weekly visits to NCP for the purpose of treating inmates, said contract does not specify the number of hours he is to spend at the facility. (Id. Ex. HH, p. 2). Log
18 Since there exist class members who possess viable substantive claims, Plaintiffs Collins and Wetzel may also serve as class representatives for the male sub-class, Plaintiff Wyland may serve as a representative for the female sub-class, and all three of these Plaintiffs may serve as representatives for the global class.
19 All of the facts recited herein reflect conditions present at NCP at the time the Motion to Certify was briefed.
20 Although the job description of the LPN indicates that she is to be supervised, Plaintiffs aver that there is no evidence that such supervision actually occurred.
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books prepared by NCP’s Shift Commander indicate that between January 1, 2006 and August 9, 2008, Hynick rarely visited the prison more than once a week and that his visitations often did not exceed an hour. (Id. Ex. S, pp. 10, 40-49).
In addition to the alleged dearth of medical attention at NCP, the global inmates assert that NCP does not maintain an infirmary or isolation cells for inmates with infectious diseases, even though it has been cited by the DOC for same. (See id. Ex. AA, 21-24). While NCP does contain rooms where infirm inmates are quarantined, global inmates allege that these cells are not modified for that purpose and are unfit for same. Global inmates conclude that these conditions deprive them of their constitutional rights.
The global inmates also take umbrage with the alleged deficiencies in mental health care at NCP. Despite the increase in the number of mentally ill inmates institutionalized at NCP, the global inmates assert that the mental health staff consisted of a part-time counselor and Dr. Frederick Maue, who retired in or around May 2008 and had not been replaced as of late September 2008. (Id. Ex. S, p. 12; T, p. 198). Plaintiffs aver that NCP does not have a psychiatric nurse or social worker on its staff. (See id. Ex. V, p.8; MM, p. 1). Further, Plaintiffs contend that NCP does not have a written policy concerning the provision of mental health care to inmates. (Id. Ex. Z, pp. 2, 4). Additionally, the counselor
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was “to perform mental health evaluations of inmates who potentially need psychiatric evaluation” prior to these inmates being afforded access to Dr. Maue, the latter of which was extremely difficult to obtain. (Id. Ex. KK, p.1). Indeed, the supervisor logs indicate that Dr. Maue’s appearances at NCP were sporadic and often very short in duration.21 (See id. Ex. S, p. 11). The global inmates assert that counselor usually visited NCP three weekdays per week and was not available on weekends. (Id. Ex. H, p. 91-92). Finally, the global inmates assert that the NCP staff often refused to administer mental health medications to inmates, even when prescriptions were in place at the time of institutionalization. (See e.g., id. Ex. A (Plaintiff Williams); G (Plaintiff Elsessner)).
The global inmates also claim that there is a systematically inadequate access to dental care at NCP. They note that there appears to be no written policies, statements, rules, or regulations related specifically to the dental care of NCP prisoners. (Id. Ex. X, p, 11; Y, 3). Global inmates aver that during the two and half years encompassed by their review, NCP’s contract dentist, Dr. Fricken, made only 40 documented trips, which amounts to an average of slightly more than one trip per month. (See id. Ex. S, p. 12-13, 57-59). At a 2007 Board
21 Dr. Maue’s contract merely required him to evaluate inmates “as soon as [his] schedule permits.” (Id. Ex. JJ, p. 2).
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meeting, Warden Reish allegedly stated that dental treatment was limited to “dental emergencies.” (Id. Ex. T, p. 123).
The global inmates next claim that NCP’s use of two basement segregation cells is unconstitutional. One cell (the “Dry Cell”) allegedly has no toilet or sink and only a single, metal, mattress-less bed frame for sleeping purposes. (Id. Ex. H, p. 126-27; U, p17; V, p. 17). The other cell (the “Wet Cell”) is equipped with a toilet, sink, and concrete slab, which functions as a bed. (Id. Ex. U, p. 17; V, p. 17). The wet cell also contains a window, which cannot be opened and lighting that always remains activated. (See id. Ex. B, p. 101; H, p. 133; V, p. 18). When confined in either cell, it is not atypical for inmates to be shackled with leg irons and/or handcuffs. (Id. Ex. U, p. 17-18; V, p. 18). When confined in the basement cells, male inmates are often stripped of their underclothes and female inmates are often stripped down to their underclothes. (See id. Ex. H, p. 130; U, p.17-18; V, p. 18). Temperatures in these cells reflect seasonal extremes, (id. Ex. H, p. 126-27; L, p.4-5; M, p. 4), and are exacerbated by the lack of ventilation in the summer and the lack of clothing or blankets in the winter, (id. Ex. L, p. 4-5). During their period of confinement, inmates are often prohibited from showering. (Id. Ex. L, p.4-5; M, p.4). Global inmates were confined in these conditions for multiple days, often approaching a week. (Id. Ex. C, p. 43-47). Global inmates have
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adduced evidence that between January 2006 and August 2008 there were at least 202 commitments to the basement cells involving male and female prisoners. (Id. Ex. S, p. 6). Additionally, global inmates have produced evidence that it was not uncommon for multiple inmates to be confined to these cells simultaneously, the largest number of simultaneous commitments being 13. (Id. Ex. S, pp. 7-8).
The next condition attacked by the global inmates is the NCP’s use of “four-point restraints.”22 Supervisor logs reveal at least 21 instances of fourpointing between January 2006 and August 2008 involving 18 different inmates of both genders. The logs also indicate that episodes of four-pointing sometimes spanned multiple days. (Id. Ex S, p. 9). The incidents of four-pointing often occurred in the NCP’s basement cells under the conditions present therein, as recounted above. (Id.). The log books do not consistently indicate the reasons why each inmate was four-pointed, (id.), and therefore the global inmates argue that the legitimacy of imposing four-point restraints cannot be determined without a more intensive fact discovery.
Global inmates also complain about general environmental conditions at
22 By all accounts, being placed in four-points restraints involves positioning the inmate on his or her back against a metal bed frame and shackling each of his or her limbs thereto. (Id. Ex. C, p.61, 63; N, p. 2). The inmate remains bound to the bed frame except when eating or relieving themselves. (Id. Ex. C, p. 58, 64; N, p. 2).
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NCP. The first of these involves extreme seasonal temperatures. Global inmates of the male gender assert that their cells are intensely hot in the summer months and that this heat is exacerbated by the poor ventilation, the only modicum of which is provided by a small window in each cell that only opens a few inches. (Id. Ex. E, p. 63-65; F, p. 39, 51, 64). Global inmates of the female gender receive the benefit of box fans to circulate air throughout the female dormitory; however, residents thereof state that this is ineffective in combating the extreme heat, as it only serves to circulate hot air around the dormitory. (Id. Ex. H, p. 141-43; G, p. 38-39; O, p. 5). Inmates of both genders attest to the frigid conditions inside NCP during the winter months, which is exacerbated by cracks around the windows and Warden Reish’s apparent refusal to adjust the heat. (Id. Ex. F, p. 63).23
The second environmental complaint involves vermin infestation. Global inmates aver that thriving populations of cockroaches, water bugs, centipedes, silverfish, spiders, flies, and ants are not uncommon at NCP. (Id. Ex. B, p. 47-49; C, p. 25-26, 50; E, p. 19-20; F, p. 19; G, p. 6; H, 58, 65-66; L, p.3; R, p. 4). Although NCP has a contract with the J.C. Ehrlich Company to exterminate the prison, the supervisor logs indicate that Ehrlich personnel have only entered NCP
23 Inmate Wetzel indicates that inmates are provided with one wool blanket but that this cannot effectively combat the cold temperatures during the winter season. (See id. Ex. F, p. 52).
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one time since January 2006, that being in February 2008, the month that the instant litigation commenced. (Id., Ex. S, p. 13).
The third environmental condition complained of is overcrowding. Global inmates of the male gender assert that they are being triple celled in cells that cannot reasonable accommodate three inmates. When three inmates are confined in a cell designed for two inmates, each of the three inmates is left with 20 square feet of unencumbered floor space. (Id. Ex. AA, p. 7). Hence, there is only enough space for one inmate to walk around at a time. (Id. Ex. L, p. 2). This type of confinement acutely affects inmates who are locked in their cells 23 hours per day. The female dormitory is similarly overcrowded, cramming upwards of 35 female inmates in space designed to house 28 female inmates. (Id. Ex. U, p. 16; V, p. 16).24 Plaintiff Williams has testified that the beds are so close that “you go to bend over and you’re sticking your butt in somebody’s face.” (Id. Ex. G, p. 52).25
24 It appears as though the female dormitory consists of a large room in which 28 beds are placed. (See id. Ex. AA).
25 Perhaps as an outgrowth of the overcrowding claim, global inmates contend that there is insufficient space in which to conduct confidential legal visits. (Id. Ex. E, p. 40). While some of these visits occur in the law library, they are often conducted in an unenclosed cubicle that is proximate to a well-traveled hallway, the Deputy Warden’s office, and the staff kitchen. (Id. Ex. C, p. 10-13; G, p. 62-64, 77-79). The cubicle has partial walls and no door. (Id. Ex C, p. 10-13; G, p. 77-79). It is alleged that conversations between inmate and counsel can be readily overheard by passersby. (Id. Ex. C, p. 14-15, 81; G, p. 77-79). This allegedly hampers effective communication between client and counsel. (Id. Ex. C, P. 14-15).
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Additionally, global inmates assert that NCP has systematically failed to repair various items in the prison, including a roof in the female dormitory, an approximately 20 square foot area of mold covering a wall in the female dormitory, recurring shortages of hot water lasting months at a time,26 and the issuance of soiled and/or breached mattresses to incoming inmates. (Id. Ex. E, p. 25-32; G, p. 40-46, 105-06; H, pp. 60, 61, 85-86, 143; O, p. 6; Q, p. 4; R, p. 4).27
Finally, the global inmates complain about fire hazards at the NCP. They aver that the cell doors are padlocked, not controlled electronically, which necessitates the individual unlocking of each door manually. (See id. A, p. 75-76; C, p. 21; D, p. 50; U, p.12; V, p. 11). The global inmates further contend that once unlocked, many of the doors are difficult to open because they are poorly aligned with the cell gate and consequently stick thereto. (Id. Ex. F, p. 56-57). Global inmates assert that these conditions create a hazard in the event of a prison fire that necessitates a hasty exodus from the cells. They also aver that the fire
26 Global inmates aver that NCP has been cited by the DOC for failing to provide sufficient shower facilities for its male inmates. (Id. Ex. AA, 7).
27 Global inmates additionally contend that they were neither given nor offered underclothes when admitted to NCP and, therefore, were forced to wear the clothes they were admitted in for weeks. (Id. Ex. A, p. 9-11; B, p. 57-58; C, p. 82; D, p. 36; G, p. 58-60; H, p. 7-9). Further, global inmates aver that the Inmate Handbook does not contain a provision for issuance of underclothing, nor does NCP’s Admissions Policy refer to same. (See generally id. Ex. EE, FF, GG).
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hazard is compounded by the overcrowded conditions in the prison and by the fact that inmates must step over a hot water pipe (standing a foot and a half off the floor) in order to reach the fire exit, which can only be unlocked from the outside. (Id. Ex. B, p. 116-17; F, p. 34-38; U, p. 12-13; V, p. 12). Global inmates also allege that there are no fire sprinklers in the left or right wings, in the basement cells, or in the women’s dormitory. (Id. Ex G, p. 101-02; H, p. 29; U, p. 13-14; V, p. 12). Further, they aver that inmates of both genders have ample access to flammable materials within the prison. (See e.g., id. Ex.C, 18-20; F, p. 37-38, 52; G, p 103).
In addition to these claims lodged by the global inmates, the sub-class of male inmates lodge complaints about the conditions of their segregation. While segregated, male inmates are allegedly shackled by their legs and handcuffed during their one hour of indoor recreation per week day. They contend that this prevents meaningful exercise, as it only permits them to walk slowly, in short steps, around the main floor of the cell block. (Id. Ex B, p. 103; C, p. 7-8; D, p. 57-58). Male inmates have adduced evidence that during segregation, which often lasts for months at a time, the inmates are not allowed outside to exercise. (Id. Ex. J, p. 2; P, p. 3). Protracted segregation allegedly has contributed to the weakening of muscles. (Id. Ex. J, p. 2). In 2008, the DOC found that NCP’s denial of outdoor
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recreation to segregated male inmates rendered it noncompliant with state law. (Id. Ex. AA, p. 26).
The female inmates also lodge complaints that are particular to their subclass. First, they complain of the use of “bunk restriction,” a practice under which female inmates are required to remain in their beds virtually all day, save a few hours for recreation. (Id. Ex. H, 148; R, 43). Female inmates have allegedly spent several months on bed restriction, which has led to physical pain and psychological suffering. (Id. Ex. G, p. 83; Q, p. 4; R, p. 4).28 Second, female inmates are allegedly treated unequally with regard to the work release and recreation programs. While NCP maintains separate living quarters for male prisoners authorized to participate in work release, no such accommodations are maintained for similarly situated female inmates. (Id. Ex. W, p. 15; V, p. 22; AA, p. 23). Female inmates aver that this effectively prevents them from participating in work release programs, which has negative economic consequences for them, including, but not limited to, rendering them unable to pay probation costs. (Id. Ex. T, p. 71). With regard to recreation, the female inmates aver that the male
28 When females are on bunk restriction they allegedly only receive an hour of recreation, which is generally limited to indoors. (Id. Ex. H, p. 69-70; U, p. 20; V, p.91). Evidence indicates that, in general, 2 or 3 women are on bunk restriction status each day, with 5 or 6 women being the largest number simultaneously so confined. (Id. Ex. H, 147-48).
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inmates are entitled to use a large outdoor recreation yard that contains basketball and volleyball courts, as well as other facilities, whereas the female inmates are relegated to an extremely small yard with a swing and barely enough space to walk. (Id. Ex. G, p. 89-90; H, p. 95). Except in rare instances, female inmates are not permitted to use the large recreation yard. (Id. Ex. H, p. 95; O, p. 6; R, p. 3). Further, female inmates contend that general population male inmates are entitled to 2 hours of outdoor recreation, whereas general population female inmates are only afforded one hour of outdoor recreation per day. (Id. Ex. H, p. 72). Female inmates allege that they are often denied outdoor recreation time because NCP allegedly lacks adequate staff. (Id. Ex. H, p. 72; O, p. 6).
2. Standard of Review When reviewing a motion to certify a class action, courts must engage in “a thorough examination of the factual and legal allegations.” Newton v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001) (citing Barnes v. Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998)). Indeed, “‘it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.’” Newton, 259 F.3d at 166 (citing Gen. Tel. Co. Of Southwest v. Falcon, 457 U.S. 147, 160 (1982)). In evaluating and resolving class certification issues such as those before us, courts must conduct a “rigorous
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analysis” in order to determine whether those individuals seeking to sue a party as representatives of a class have adhered to the mandates of Federal Rule of Civil Procedure 23 (“Rule 23”). Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982).
Rule 23 sets forth four specific prerequisites to a class action:
(1) the class [must be] so numerous that joinder of all members is impracticable; (2) there [must be] questions of law or fact common to the class; (3) the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class; and (4) the representative parties [must] fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). In addition to the foregoing, an action may only be maintained as a class action if one of the three conditions cited within the subparts of Rule 23(b) is applicable.29 See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994) (citations omitted). “Plaintiffs bear the burden of proving all of the requirements for certification.” Holmes v. Pension Plan of Bethlehem Steel Corp., 1999 U.S. Dist. Lexis 10467, at *8 (citing Eisen v. Carlisle & Jacquelin, 417 U.S.
29 All three classes of Plaintiffs seek certification solely pursuant to Rule 23(b)(2). (See Rec. Doc. 9 ¶ 3). This provision permits certification if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
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156, 178 (1974)). 3. Threshold Matters
Defendants assert that some of the claims for which Plaintiffs seek certification have been mooted by changes within the prison implemented subsequent to the filing of the initial Complaint. More specifically, Defendants assert that Plaintiffs’ challenge to the adequacy of the nursing staff at NCP is moot because the prison has hired a second LPN to work from 2:00 p.m. until 11:00 p.m. on weekdays. Defendants assert that the nurses and Dr. Hynick are also available telephonically on weekdays from 11:00 p.m. until 7:00 a.m. Further, Defendants assert that the male inmates’ challenge to recreational opportunities when segregated is now moot because the prison has erected a fence in the male recreational area, thereby creating two separate recreational facilities, one for segregated male inmates and the other for general population male inmates.
Quite simply, Defendants’ contentions are specious. It is well established that an exception to the mootness doctrine exists when a defendant voluntarily ceases to engaged in a previously challenged practice. Friends of the Earth v. Laidlaw Environ. Servs., 528 U.S. 167, 189 (2000) (stating that if such an exception did not exist, a defendant could use the mootness doctrine to evade judicial intervention and then resume the challenged conduct after the claim
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against him had been legally mooted). Certainly, that rationale applies in the instant case. If Plaintiffs’ nursing claim was in fact mooted, subsequent to this mooting Defendants would be free to scale back the nursing coverage at NCP to pre-mooting levels. If after this scaling-back occurred, the inmates sought to lodge the nursing claim again, Defendants could simply avoid judicial intervention by again increasing the nursing coverage at NCP. We believe that this is a classic instance where the voluntary cessation exception to the mootness doctrine has been employed, and so we will do so.
The same is true for Plaintiffs’ recreational claims, since the remedy at issue involves using a fence to bifurcate the male recreational area into an area for segregated males and an area for general population males. If the voluntary cessation exception did not apply, after the mooting of this claim Defendants would be free to remove the fence, with little effort or expense, and revert to its pre-mooting policies regarding recreation for segregated male inmates. If after the reversion to the old policy Plaintiffs sought to reinstate their recreational claim, the Defendants could evade judicial intervention by once again voluntarily ceasing the challenged activity. Like the nursing claims, we believe that this is a quintessential instance where a court should employ the voluntary cessation exception. Accordingly, we will do so.
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We now proceed to an analysis of the merits of each class’ Motion to Certify.
4. Global Class Certification As afore-referenced, the dictates of Rule 23(a) require that plaintiffs seeking class certification satisfy four requirements: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). We will address these requirements seriatim.
a. Numerosity With regard to numerosity, Rule 23(a)(1) mandates that the proposed class be “so numerous that joinder of all class members is impracticable.” Fed. R. Civ. P. 23(a)(1). Defendants assert that Plaintiffs fail to delineate the composition of the proposed class because there are no specific averments as to the number of inmates who were subjected to each allegedly violative prison condition. For example, Defendants claim that Plaintiffs failure to identify the number of inmates placed in four point restrains is fatal to their attempt to certify their class with respect to that claim. In support of this proposition, Defendants cite Hancock v. Thalacker, 933 F. Supp. 1449 (N.D. Iowa 1996), which held, Plaintiffs failed to identify even the approximate size of the class of persons actually subjected to the assertedly unconstitutional conduct in
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question . . . or to demonstrate the impracticability of joinder when so few people have actually been identified has having comparable claims. Instead, Plaintiffs rely on conclusory statements that anyone who has ever been or ever will be an inmate at [the prison] is a class member. The Court reiterates that such conclusory statements will not do. At minimum, the Court concludes that Plaintiff should have produced some reliable estimate of the number of inmates who have been disciplined . . . .
Hancock, 933 F.Supp. at 1467 (emphasis added).
As Hancock notes, Plaintiff need only provide an estimate of the number of inmates subjected to particular conduct. It has been held that “in securities actions, federal courts are quite willing to accept common sense assumptions to support a finding of numerosity.” Peil v. Speiser, 97 F.R.D. 657, 659 (E.D. Pa. 1983) (internal citations and quotations omitted). The numerosity requirement has been relaxed in cases such as that at bar, where injunctive and declaratory relief is sought. See Jackson v. Danberg, 240 F.R.D. 145, 147 (D. Del. 2007) (citing Grant v. Sullivan, 131 F.R.D. 436, 446 (E.D. Pa. 1990) (citing Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir. 1984))). Since courts are willing to accept common sense assumptions as to numerosity in securities cases, where monetary damages are often at issue, we believe that the relaxed numerosity standard in cases seeking injunctive and declaratory relief would permit us to employ the
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same common sense assumption in the case at bar.30
In terms of numerosity, global inmates have alleged the following. With respect to the systematic deficiencies in medical and psychological care, Plaintiffs have not alleged specific numbers but have adduced evidence that indicates there has been a proliferation of serious medical and psychiatric problems experiences by inmates at NCP, (See generally Br. Supp. Ex. T). Indeed Plaintiffs have adduced evidence that Warden Reish stated at a Board meeting in November 2006, “during the last month we have received numerous inmates that have grave medical problems . . . .” (Id. Ex. T, p. 57). Reish further stated at a Board meeting in April 2008, “We continue to receive an unusually large number of medical . . . inmates in our institution.” (Id. Ex. T, p. 169). Prison records indicate that, on average, anywhere between 180 and 210 inmates of both genders are confined at NCP monthly. (See id. generally). In 2007, 1500 inmates of both genders passed through NCP. (Id. Ex. T, p. 155). Therefore, based on Reish’s comment regarding
30 As Plaintiffs note, “[T]he issue [of numerosity] is merely whether the representative plaintiff[s] ha[ve] demonstrated the probability of the existence of a sufficient number of persons similarly inclined and similarly situated to render the class action device the appropriate mechanism for obtaining judicial determination of the rights alleged.” Stewart v. Assocs. Consumer Discount Co., 183 F.R.D. 189, 195 (E.D. Pa. 1998) (citing Dawes v. Philadelphia Gas Comm’n, 421 F. Supp. 806 813 (E.D. Pa. 1976)). “[W]here the numerosity question is a close one, the trial court should find that numerosity exists, since the court has the option to decertify the class later pursuant to Rule 23(c)(1). Id. (citing Rogers v. Elec. Data Systems Corp., 160 F.R.D. 532, 537 (E.D.N.C. 1995)).
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the inmates with medical needs and on the prison’s population, we feel that it is logical to assume that the number of plaintiffs affected by the allegedly systematic deficiencies in medical care surpasses the threshold at which joinder is no longer practicable. Therefore, we find that the global inmates have satisfied the numerosity requirement as to the alleged medical deficiencies.
With regard to the putative deficiencies in psychiatric care, Plaintiffs have adduced evidence that as of July 2006, Reish believed that 25% of the inmate population received psychotropic medication. We believe it only logical that this figure also accurately represents that number of inmates who would be affected by deficiencies in mental health care. This would mean that, on a monthly basis, approximately 45-53 inmates could require mental health care. This number certainly exceeds the threshold for joinder. Therefore, we believe that the global inmates have satisfied the numerosity requirement as to their mental health care claims.
As to the alleged deficiencies in dental care, Plaintiffs again fail to provide a numerical estimate of the number of inmates affected thereby. However, Plaintiffs have adduced testimony from Dr. Hynick that “[d]ental problems are a common medical condition at any Prison.” (Id. Ex. MM, p. 1). Even f this problem plagued only 10% of the prison population, 18-21 inmates would be
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affected, a number which surpasses the threshold for joinder.31 Since Dr. Hynick has asserted that dental problems are common in prison populations, we believe that it is reasonable to assume that more than 10% of the population was adversely affected by the alleged deficiencies in dental care. Accordingly, we conclude that the global plaintiffs have satisfied the numerosity requirement as to this claim.
With regard to confinement in basement cells, Plaintiffs have adduced evidence that 202 inmates of both genders were confined in the basement cells during the two and a half years encompassed by discovery. (Id. Ex. S, p. 6, 1731). Further, at least 21 incidents of subjecting global plaintiffs to four point restrains were documented. We believe that these numbers are sufficient in satisfying the numerosity requirement. As for the alleged safety hazards and environmental deficiencies (i.e. vermin infestation, extreme temperatures, poor ventilation, fire hazards, etc.), these conditions are ubiquitous throughout the prison, as is evident from the fact that they are common complaints of both male and female prisoners. Therefore it can reasonably be inferred that they affect most, if not all, of the inmates at NCP. Consequently, we believe that inmates have satisfied the numerosity requirement as to these claims.
31 This court has recognized that it “may certify a class even if it is composed of as few as 14 members.” Grant v. Sullivan, 131 F.R.D. 436, 446 (M.D. Pa. 1990).
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Although the overcrowding claim is global in nature, it produces different consequences within NCP based upon gender. The males assert that overcrowding manifests itself through the triple celling of inmates, particularly in the segregated units of the male housing unit. The females contend that overcrowding has resulted in up to 35 females being housed in an area that was designed to hold no more than 28 inmates. While there is no precise account of either the quantity of males subjected to triple celling or the number of females affected by overcrowding in the female dormitory, there is evidence from which the existence of overcrowding can be inferred.
In July 2006, Warden Reish reported that the prison population was at a “manageable level of 193.” (Id. Ex. T, p. 37-38). However, during the summer of 2008, when the overcrowding problem allegedly reached a crescendo, Warden Reish reported an influx of inmates. In June 2008, he stated that there was a “record total” of 239 inmates, and from July 2008 until September 2008 he noted that the population was consistently over 200 inmates. (Id. Ex T, p. 188, 194, 205, 211). Not coincidentally, from July 2008 through September 2008, NCP experienced an increased number of psychological problems. (Id. Ex. T, p. 194, 205, 211). Courts in other circuits have recognized that prison overcrowding increases the likelihood of psychological injury to inmates. Williams v. Griffin,
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952 F.2d 820, 826 (4th Cir. 1991) (citing Johnson v. Levine, 588 F.2d 1378, 1380
(4th Cir. 1978)); see also Lareau v. Manson, 506 F. Supp. 1177, 1186 (D. Conn.
1980). While we recognize that the increased level of psychological problems at
NCP during summer 2008 does not necessarily indicate that the prison was
overcrowded during that time frame, for the purposes of class certification all
Plaintiffs need do is produce evidence that demonstrates the probability that a
sufficient number of inmates experienced overcrowding. We think it reasonable
that the simultaneous occurrence of an increased inmate population and
heightened number of psychological problems satisfies this requirement.32
The global inmates’ failure to repair claims involve Plaintiff Wyland’s
averment about a leaky roof, Plaintiff Williams’ complaint about the proliferation
of mold on a wall in the women’s dormitory, the failure to remedy intermittent
32 To expound upon this conclusion, given the correlation between an overcrowded prison population and the heightened number of psychological problems, we believe that the coincidence of an increase prison population and an increase in psychological problems at NCP is sufficient in establishing an overcrowding problem at that facility. While this does not establish the exact number of inmates affected by overcrowding, we believe that overcrowded conditions potentially impact the entire prison population in that any male inmate could be subjected to triple celling, any female inmate could be subjected to confinement in a cramped dormitory, and all inmates are potentially plagued by the residual effects of overcrowding, i.e. the exacerbation of previously existing oppressive conditions. Therefore, we conclude that the global inmates have established sufficient numerosity in regards to their overcrowding claims. While this conclusion may be strained, we note that when, as here, the numerosity question is a close one, courts should find that numerosity exists, since the class can be decertified pursuant to Rule 23(c)(1) if it is later determined that joinder is not impracticable. See Stewart, 183 F.R.D. at 195 (citing Rogers, 160 F.R.D. at 537).
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shortages of hot water, and failure to clean or replace damaged mattresses. With
regard to Wyland’s claim, the leaky roof would seem to exclusively affect those
who slept proximate to it. Therefore, we do not believe that numerosity has been
satisfied as to that claim. With regard to Williams’ claim that the mold adversely
affected her breathing, it would appear that such claims could only be asserted by
those inmates in close proximity to the mold, meaning that numerosity has not
been satisfied there either. As for the allegedly breached mattresses, the only
inmates affected were those who received the compromised mattresses. There is
no evidence that this number is so large that joinder is impracticable and therefore, numerosity has not been satisfied on that point.33 However, with regard to the
lack of hot water, this appears to be a condition that could conceivably affect a
large segment of the inmate population since water is a communal resource.
Therefore, we conclude that the global inmates have satisfied numerosity in this regard.34
33 For the same reason, we also believe that the contention involving the failure to distribute underclothing upon commitment to NCP does not satisfy numerosity. The only inmates affected by this would be those who were not issued underclothes. There is no indication, nor is there any reliable estimate, as to the number of inmates so affected.
34 We believe that this is an appropriate point to articulate a distinction we have drawn in passing judgment on the numerosity issue. Conditions that affect the prison population on a large scale (i.e. temperature, lack of access to medical professionals, etc.) easily satisfy the numerosity requirement because, since they are ubiquitous in nature, they “demonstrate the probability of the existence of a sufficient number of persons similarly inclined and similarly situated.” See Stewart,183 F.R.D. at 189. Since this inference can be drawn readily, Plaintiffs
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The final claim of the global inmates involves the lack of a confidential area
for legal visits. Plaintiffs’ brief in support alleges that “some legal visits take
place in the . . . law library. However, these visits often occur in a cubicle” that is
unenclosed and proximate to many well traveled areas of the prison. Br. Supp. P.
61. Plaintiffs then include the testimony of two inmates to support the contention
that the confidentiality issue is pervasive. We find it unavailing. While the area
that Plaintiffs’ describe could reasonably raise a question as to confidentiality,
they do not quantify the number of inmates that are affected by this condition.
Further, there is no reliable estimate as to the number of inmates so affected
because Plainitffs’ themselves admit that only some of the visits occur in the
library and, of those visits, only some take place in the described cubicle.
Plaintiffs do not describe the conditions under which the other visits are
need not provide more precise numerical evidence in support of these claims. On the other hand, Plaintiffs bear a heavier burden when more localized or personal claims (i.e. a leaky roof, moldy wall, etc.) are involved. Further, we believe that there is a distinction to be made between conditions/policies that automatically tend to affect large segments of the population merely by becoming extant, and conditions/policies that do not necessarily affect a large segment of the population merely by becoming extant, although such a large-scale affect is possible. An example of the former is the lack of hot water in the prison; if there is no hot water when one inmate showers, there is a high probability that there will not be hot water when a large number of other inmates shower. Numerosity can be readily inferred in such instances without much empirical evidence. Examples of the latter are the breached mattresses and the failure to issue undergarments to inmates upon institutionalization. While NCP may have a policy of failing to properly inspect mattresses or failing to issue undergarments upon institutionalization, the mere fact that a few inmates received breached mattresses or did not receive undergarments does not necessarily mean that a large number of inmates also suffered similarly. Thus, in such situations, numerosity is not so readily inferred in the absence of reliable empirical data.
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conducted. Therefore, we cannot reasonably conclude that the number of inmates adversely affected by the alleged lack of confidentiality is so numerous that joinder is impracticable. Accordingly, we deny certification on this issue.
Since the strictures of Rule 23(a) are conjunctive, the aforementioned claims that have not satisfied the numerosity requirement do not qualify for class certification. Accordingly, we will deny certification of these claims. As for those claims satisfying numerosity, we proceed to analyze them under the additional Rule 23(a) requirements.
b. Commonality To satisfy the commonality requirement, the global inmates must demonstrate the existence of at least one question of law or fact common to the class. See Johnston v. HBO Film Mgmt., 265 F.3d 178, 184 (3d Cir. 2001). While some differences in the factual circumstances are not sufficient, in and of themselves, to destroy commonality, Samuel v. University of Pittsburgh, 538 F.2d 991, 995 (3d Cir. 1976), the putative class must allege that the defendant(s) harmed them in the same general fashion. Kane v. United Indep. Union Welfare Fund, 1998 WL 78985 *4 (E.D. Pa. 1998) (citing Open House Cnt. Inc. v. Samson Mgmt. Corp., 152 F.R.D. 472, 476 (S.D.N.Y. 1993)).
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Commonality is satisfied when the claims involve some common questions and when plaintiffs allege harm under the same legal theory. In re Loewen Group Inc. Securities Litigation, 233 F.R.D. 154, 162 (E.D. Pa. 2005). Here, since similarly situated global inmates are subjected to the same policies, procedures, and customs the factual circumstances underlying their claims are necessarily similar. Moreover, the claims of all similarly situated global inmates share a common question of law, specifically, whether they were deprived of their rights pursuant to the constitutional provision under which they seek redress. Finally, all similarly situated global inmates posit the same constitutional argument to similar conditions, i.e. all convicted inmates lodge Eighth Amendment claims challenging their conditions of confinement, whereas all pretrial detainees lodge Fourteenth Amendment claims challenging the conditions of their confinement. Therefore, it appears, at first glance, that all of Plaintiffs’ claims may satisfy the commonality requirement.
However, Defendants assert that, in spite of all the common undertones recounted above, courts have consistently denied class certification of claims involving the imposition of allegedly unconstitutional conditions upon putative class members, rather than the class in general, when the validity of the claims necessitates an individual fact-specific analysis. See Kirkman v. North Carolina
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R.R. Co., 220 F.R.D. 49, 52-53 (M.D.N.C. 2004); Garris v. Gianetti, 160 F.R.D. 61, 65 (E.D. Pa. 1994); Ray v. Rockefeller, 352 F. Supp. 750, 757 (N.D.N.Y. 1973). The Defendants contend that the instant action requires such an inquiry and argues against certification based thereon.
In particular, Defendants note that this action is one that sounds in 42 U.S.C. § 1983. Both specific individuals and the County of Northumberland are being sued. In order to establish municipal liability under § 1983, a plaintiff must show that the municipality’s policy, custom, or practice was the moving force behind the alleged constitutional violation. Monell v. Dept. of Soc. Servs., 426 U.S. 658, 691 (1978); Simmons v. City of Philadelphia, 947 F.2d 1042, 1062 (3d Cir. 1991). Accordingly, before a municipality can be found liable under Monell, a plaintiff must first demonstrate that a constitutional violation has occurred. Woloszyn v. County of Lawrence, 396 F.3d 314 (3d Cir. 2005).
The case sub judice contains a plethora of claims sounding in different constitutional provisions; however, Defendants only challenge the commonality of claims sounding in the Eighth Amendment, which, as we noted above, is applicable to convicted inmates’ claims involving conditions of confinement.35
35 The Defendants do not appear to challenge claims based on other constitutional grounds and thus, we assume they do not oppose certification of these claims on commonality grounds.
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These claims involve substandard medical care claim36 and the use of excessive
force.37
While Defendants’ arguments are appealing at first blush, a closer
examination of the relevant case law persuades us that their positions are
untenable under the instant circumstances. Contrary to Defendants’
characterizations, Plaintiffs do not challenge individual instances of
unconstitutional conduct; rather, they challenge the general policies, customs, and
practices employed by NCP that are allegedly violative of the Constitution. See
generally (Rec. Doc. 1); (Rec. Doc. 94, p. 20). With regard to Plaintiffs’ medical
claims, Plaintiffs note that proving knowledge and disregard of an excessive risk
is not the only means of proving deliberate indifference. Additionally, deliberate
36 To cast an Eighth Amendment claim in the context of medical care, the relevant inquiry, as Defendants aptly note, is whether prison officials were deliberately indifferent to an inmate’s serious medical needs. Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Thus, a prison official is liable if he or she “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Consequently, Defendants assert that since liability is based upon a fact intensive inquiry, i.e. whether the Defendant knew and disregarded an excessive risk, the issues cannot be considered “common” and therefore are not suitable for class certification.
37 The excessive force claim is presumably grounded in the application of four point restraints and could possibly extend to the shackling of segregated inmates during recreation. “In an excessive force claim, the central question is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Although not explicitly articulated, we can assume that Defendants’ position is that the goodfaith inquiry is a fact-based one and therefore disqualifies the excessive force claim from certification, as it renders those claims “uncommon.”
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indifference can be demonstrated by showing systematic deficiencies in staffing, facilities, equipment or procedures such that the inmate population is effectively denied access to adequate medical care. Inmates of Allegheny County Jail v. Pierce, 487 F. Supp 638, 643 (W.D. Pa. 1980); see also, Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983). Consequently, an individualized inquiry into the mental state of the perpetrator in each of Plaintiffs’ claims is unnecessary, therefore rendering Defendants’ argument unavailing in the medical care context.
With regard to the excessive force claim, Plaintiffs insinuate that individual facts will not affect the outcome of the true legal issue, which is the constitutionality of the policies and standard protocols used by NCP in employing four point restraints. See Baby Neal, 43 F.3d at 57 (stating that where, as here, the plaintiffs seek declaratory and injunctive relief against defendants who allegedly engaged in a systematic course of conduct that deprived plaintiffs of their rights, individualized determinations of liability often will not be necessary because any differences in the factual background of each plaintiff’s claim will not affect the outcome of the legal issue). We agree. Plaintiffs are not suing the individual prison employees who physically carried out NCP policies that are allegedly violative of the Constitution; rather, they sue individuals who enact those policies, the warden and various board members. (See generally Compl.). Therefore,
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whether a particular occurrence of four point restraint was occasioned by a malicious or sadistic prison official has no bearing on whether the policies or protocols governing the implementation of those procedures are themselves constitutional. Accordingly, we find Defendants’ argument unpersuasive in relation to the four point restraint claim.
In light of all of this, we conclude that the global inmates have satisfied the commonality requirement with regard to the claims that have progressed through the Rule 23(a) analysis.
c. Typicality “The requirement that the class representatives’ claims be typical of the claims or defenses of the class is intended to ‘ensure that the class representatives’ pursuit of their own goals will work to benefit the entire class.’” Mardocki v. Old Republic Nat’l Title Ins. Co., 254 F.R.D. 242, 249 (E.D. Pa. 2008) (quoting Barnes v. Am. Tobacco Co., 161 F.3d 127, 141 (3d Cir. 1998)). “If the claims of the named plaintiffs and class members involve the same conduct by the defendant, typicality is established.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183-84 (3d Cir. 2001). “Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is
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based on the same legal theory.” Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 923 (3d Cir. 1992). “Where an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice.” Mardocki, 254 F.3d at 249 (quoting General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982); see also Beck v. Maximus, Inc., 457 F.3d 291, 95-96. (3d Cir. 2006). The class representatives must only prove that there is a pervasive violation has produced the various injuries. Falcon, 457 U.S. at 157.38
In the case sub judice, the putative class representatives of the global inmates allege that they have been deprived of various constitutional rights as a result of systemic deficiencies in numerous NCP policies and practices. These policies and practices are equally applicable to the entire inmate population. Therefore, if the polices and practices are ultimately determined to be unconstitutional, the violations engendered by them would be pervasive in nature. Moreover, if these policies and practices are unconstitutional, all global inmates,
38 The requirements of commonality and typicality are often merged because they focus on similar aspects of the alleged claims. However, they are separate and distinct requirements. The Third Circuit has articulated distinction between these requirements as follows: “[C]ommonality, like ‘numerosity’ evaluates the sufficiency of the class itself, and ‘typicality’ like ‘adequacy of representation’ evaluates the sufficiency of the named plaintiff . . . .” Hassine v. Jeffes, 846 F.2d at 176 n.4 (3d Cir 1988).
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regardless of the precise factual underpinnings of their claims, would have causes of action similar to those proffered by their putative class representatives. Consequently, it appears that the global inmates have established typicality.
However, before conclusively reaching this determination, we must address Defendants’ argument on this issue. With regard to the typicality of global inmates’ claims, the Defendants assert that three of the originally named Plaintiffs have no standing to assert their claims, which logically precludes their claims from being “typical.” We can only assume that Defendants refer to inmates Corely, Anderson, and Holohan. However, we have already dismissed these Plaintiffs from the instant action because they lacked standing. Accordingly, we have not considered any evidence relative to these inmates in reaching any of our class certification determinations. Further, absent these individuals, the global inmates still have at least five viable representatives who, as a result of their confinement in NCP and their subjection to the policies and customs employed therein, have claims that are typical of all the claims proffered by the remaining NCP inmates. Therefore, we find Defendants’ argument unavailing and conclude that the global inmates have satisfied the typicality requirement.
d. Adequacy of Representation The adequacy requirement entails two inquiries: (1) whether the attorneys
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retained by the named Plaintiffs are qualified, experienced, and generally able to conduct the litigation; and (2) whether the named Plaintiffs themselves have interests that are antagonistic to or in conflict with those they seek to represent. Barnes v. Am. Tobacco Co., 161 F.3d at 141 (3d Cir 1998).
Plaintiffs’ counsel has litigated numerous § 1983 actions in federal court. In light of that, we believe that Plaintiffs’ counsel certainly satisfies the first prong of the adequacy inquiry. However, Defendants assert that the Plaintiffs do not satisfy the second prong of that inquiry because a number of the original named Plaintiffs have either been dismissed from the action or have voluntarily withdrawn. As we have stated, such a consideration is of no moment because there still remain class representatives whose interests are not in conflict with the inmates they seek to represent. In fact, the interests of the remaining putative representatives are perfectly aligned with those of the putative class; namely, they wish to rectify the conditions at NCP so that current and future inmates are not subjected to deprivations of their constitutional rights while institutionalized at NCP. We therefore conclude that the adequacy prong has been met. We now proceed to a consideration of Rule 23(b).
e. Rule 23(b) To recapitulate, Rule 23(b) is applicable when “the party opposing the class
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has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole.” Fed. R. Civ. P. 23(b). Where, as here, injunctive and declaratory relief are sought, the dictates of Rule 23(b) are “almost automatically satisfied . . . . What is important is that the relief sought by the named plaintiffs should benefit the entire class.” Baby Neal, 43 F.3d at 58-59. “However, courts in the Third Circuit have consistently held that Rule 23(b) class claims must be ‘cohesive.’” Agostino v. Quest Diagnostics, Inc., 2009 WL 348898 *6 (D.N.J. 2009) (citing Barnes v. Am. Tobacco, 161 F.3d at 143; Wetzel v. Liberty Mut. Ins. So., 508 F.2d 239, 248 (3d Cir. 1975); In re Unisys Corp. Retiree Medical Benefits Litig., 2003 WL 252106 *3 (E.D. Pa. 2003). Accordingly, the Third Circuit has “committed to the district court the discretion to deny certification in Rule 23(b)(2) cases in the presence of ‘disparate factual circumstances.’” Geraghty v. United States Parole Comm’n, 719 F.2d 1199, 120506 (3d Cir. 1983) (quoting Carter v. Butz, 479 F.2d 1084, 1089 (3d Cir. 1973)). Accordingly, Rule 23(b) “may not be invoked in a case requiring ‘significant individual liability or defense issues which would require separate hearings for each class member in order to establish defendants’ liability.’” Agostino, 2009 WL 348898 *6 (quoting Arch v. Am. Tobacco Co., Inc., 175 F.R.D. 469, 482
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(E.D. Pa. 1997)). Here, the injunctive and declaratory relief sought by Plaintiffs will benefit
the entire class, as it would serve to remedy the allegedly unconstitutional conditions experienced by all global inmates at NCP. Further, as we have stated in our “commonality” discussion, we do not believe that determinations regarding individual liability issues are required in order to determine the constitutionality of the challenged prison policies or conditions. Therefore, it is our belief that individual liability issues will not affect the cohesiveness of the putative class. Consequently, we conclude that the global inmates have satisfied the dictates of Rule 23(b).
f. Conclusion As a result of the foregoing discussion, we believe that the global inmates have satisfied the class certification requirements with regard to all of their claims save those involving the failures to repair the leaky roof in the women’s dormitory, to remove mold from the wall in the women’s dormitory, to repair breached mattresses, to issue undergarments upon institutionalization, and to provide a confidential space in which to conduct legal discussion with counsel. We shall not certify these claims because Plaintiffs have failed to establish the requisite numerosity described in Rule 23(a).
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2. Male Class Certification The male inmates seek certification as a sub-class of the global inmates on the claim that male inmates in the segregation unit have been shackled during recreation, thereby denying them meaningful exercise, and have been deprived of outdoor recreation, both in violation of their constitutional rights.
a. Numerosity The shackling of segregated male inmates during recreation and the denial of outside recreation to segregated male inmates is ubiquitous throughout that subclass of inmates. We are not aware of the number of inmates that the male segregated unit was designed to accommodate, but we do know, by virtue of the numerous accounts of triple celling in the segregated unit, that the number of male inmates actually housed in the segregated unit exceeds the number it was designed to accommodate. Additionally, Plaintiffs have adduced evidence from six male inmates attesting to these conditions in the segregated male unit during the approximately two and a half year discovery period. Further, all male members of the prison are subject to being confined in the male segregated housing unit, meaning that all males may be confined under the allegedly unconstitutional conditions. In light of this, we believe that the male inmates have satisfied the numerosity requirement, as they have “demonstrated the probability of the
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existence of a sufficient number of persons similarly inclined and similarly situated to render the class action device the appropriate mechanism for obtaining judicial determination of the rights alleged.” Stewart v. Assocs. Consumer Discount Co., 183 F.R.D. at 195 (citing Dawes v. Philadelphia Gas Comm’n, 421 F. Supp. at 813). Accordingly, we will proceed with the Rule 23(a) analysis.
b. Commonality To reiterate, commonality is satisfied when the claims involve some common questions and when plaintiffs allege harm under the same legal theory. In re Loewen Group Inc. Securities Litigation, 233 F.R.D. 154, 162 (E.D. Pa. 2005). Since the shackling and recreation policies are applicable to all male inmates, the factual circumstances underlying the male inmates’ claims are necessarily similar to a certain degree. Moreover, the claims of all male inmates share a common question of law, specifically, whether the male inmates were deprived of their rights pursuant to the constitutional provision under which they seek redress. Finally, all of the male inmates posit the same constitutional argument to similar conditions, i.e. all convicted male inmates lodge Eighth Amendment claims challenging the shackling and recreation policies, whereas all pretrial detainees lodge Fourteenth Amendment claims challenging same. Therefore, it appears that all of the male inmates’ claims satisfy the commonality requirement.
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However, Defendants postulate that liability on these claims will require extensive individualized inquiries, which would destroy commonality. Plaintiffs claim that individual facts will not affect the outcome of the true legal issue, which is the constitutionality of the policies and standard protocols used by NCP in shackling and denying outside recreation to the male inmates. See Baby Neal, 43 F.3d at 57. We agree. Plaintiffs are not suing the individual prison employees who physically carried out NCP policies that are allegedly violative of the Constitution; rather, they sue the policy makers themselves. (See generally Compl.). Therefore, whether a particular occurrence of shackling or denial of outside recreation was unconstitutional has no bearing on whether the policies or protocols governing the same are themselves constitutional. Accordingly, we find Defendants’ argument unpersuasive in relation to the shackling and recreation claims of the male inmates. Consequently, we conclude that the male inmates have satisfied the commonality requirement.
c. Typicality To reiterate, “Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.” Hoxworth, 980 F.2d at 923. “Where an action challenges a policy or practice, the
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named plaintiffs suffering one specific injury from the practice can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice.” Mardocki, 254 F.3d at 249 (quoting Falcon, 457 U.S. at 157); see also Beck, 457 F.3d at 295-96. The class representatives must only prove that there is a pervasive violation has produced the various injuries. Falcon, 457 U.S. at 157.
In the case sub judice, all of the male inmates are subjected to the same practices and policies regarding shackling and recreation. The putative class representatives of the male inmates allege that they have been deprived of various constitutional rights as a result of the shackling and recreation policies and practices employed by NCP. These policies and practices are equally applicable to the entire male inmate population. Therefore, if these policies and practices are ultimately determined to be unconstitutional, the violations engendered by them would be pervasive in nature. Moreover, if these policies and practices are unconstitutional, all male inmates, regardless fo the precise factual underpinning of their claims, would have causes of action similar to those proffered by the putative male class representatives. Consequently, it appears that the putative male class representatives have satisfied the typicality requirement.
Before conclusively reaching this determination, we must address
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Defendants’ argument on this issue. With regard to the typicality of the male inmates’ claims, the Defendants interpose a standing argument identical to that posited in opposition to the certification of the global inmates. We reject it for the reasons afore-stated, and consequently conclude that the global inmates have satisfied the typicality requirement.
d. Adequacy of Representation The Defendants challenge the adequacy of the male inmates’ representation on grounds identical to those posited against the global inmates. We reject this contention for the reasons stated above and note that the interests of the putative representatives are perfectly aligned with those of the putative male class because their objectives are identical; namely, they wish to rectify the conditions at NCP so that they and future male inmates are not subjected to deprivations of their constitutional rights while institutionalized at NCP. We therefore conclude that the male inmates have satisfied the adequacy requirement.
e. Rule 23(b) Again, Rule 23(b) is applicable when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to
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the class as a whole.” Fed. R. Civ. P. 23(b). Rule 23(b) “may not be invoked in a case requiring ‘significant individual liability or defense issues which would require separate hearings for each class member in order to establish defendants’ liability.’” Agostino, 2009 WL 348898 *6 (quoting Arch v. Am. Tobacco Co., Inc., 175 F.R.D. 469, 482 (E.D. Pa. 1997)).
Here, the injunctive and declaratory relief sought by the putative class representative will benefit the entire class, as it would serve to remedy the allegedly unconstitutional conditions experienced by the male inmates at NCP. Further, as we have stated in our “commonality” discussion, we do not believe that determinations regarding individual liability issues are required in order to determine the constitutionality of the challenged prison policies or conditions. Therefore, it is our belief that individual liability issues will not affect the cohesiveness of the putative class of male inmates. Consequently, we conclude that the male inmates have satisfied the dictates of Rule 23(b).
f. Conclusion As a result of the foregoing discussion, we believe that the male inmates have satisfied the class certification requirements with regard to all of their claims. We shall therefore grant the Motion to Certify in its entirety insofar as it relates to the putative class of male inmates.
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3. Female Class Certification The female inmates seek certification as a sub-class of the global inmates on the claims that female inmates are subjected to unconstitutional bunk restrictions and unconstitutional discrimination with regard to work release programs and recreational opportunities.
a. Numerosity While the female inmates have not adduced evidence as to the specific number of female inmates subjected to bed restriction, they have produced evidence that on any given day 2 or 3 women could be on bunk restriction. Evidence also indicates that 13 female inmates were confined in such a manner in the summer of 2008. (Rec. Doc. 73 Ex. Q, p. 4; R, p. 3). We further have before us evidence that in 2007, inmate Williams accrued a year of consecutive bunk restriction. (Id. Ex. G, p. 122). Given that the practice of bunk restriction spans numerous years and that multiple inmates are so confined on any given day, we believe that the evidence raises an inference that the practice of bunk restriction was common in the female dormitory to such an extent that joinder of all female inmates so affected would be impracticable. We believe that the female inmates have therefore satisfied the numerosity requirement with respect to this claim.
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With regard to their work release claim, the contention is that the prison prevents female inmates from participating in such a program because it denies qualifying female inmates separate housing, which it provides to qualifying male inmates. However, there is no evidence indicating the number of qualifying female inmates, nor is there any evidence pointing to the number of female inmates that have been denied participation in this program as a result of the aforementioned housing situation. While NCP houses an average of 25-35 female inmates per month, some of these individuals are pretrial detainees, meaning that they have not been adjudicated guilty of any crime and therefore are not eligible for work release. Further, it is reasonable to assume that all of the convicted female inmates do not qualify for work release. Therefore, we have no sound basis on which to infer the number of qualifying female inmates that have been denied work release as a result of the housing situation at NCP. Accordingly, we have no reliable way to determine whether the number of female inmates so affected exceeds the threshold past which joinder would be impracticable, and we will not engage in rank speculation in an attempt to do so. Therefore, we conclude that the female inmates have not satisfied the numerosity requirement as to their work release claims. Consequently, we will deny certification on this claim.
With regard to the allegedly discriminatory recreational practices employed
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at NCP, the female inmates have adduced evidence that these policies are applicable to all female inmates. Since 25-35 female inmates are confined at NCP per month, we believe that the female inmates have adduced evidence from which we can infer that the number of inmates affected by the allegedly discriminatory recreation policy exceeds the number beyond which joinder is impracticable. Therefore, we conclude that the female inmates have satisfied the numerosity inquiry with respect to their recreation claims.
b. Commonality Again, commonality is satisfied when the claims involve some common questions and when plaintiffs allege harm under the same legal theory. In re Loewen Group Inc. Securities Litigation, 233 F.R.D. 154, 162 (E.D. Pa. 2005). The factual circumstances underlying the female inmates’ bunk restriction and recreation claims are necessarily similar to a certain degree because they arise out of policies that are applicable to the female inmate population as a whole. Moreover, the claims of all female inmates share a common question of law, specifically, whether they were deprived of their rights pursuant to the constitutional provision under which they seek redress. Finally, all of the female inmates posit the same constitutional argument to similar conditions, i.e. they challenge the bunk restriction policy on First, Eighth, and Fourteenth Amendment
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grounds and the recreation claim on Fourteenth Amendment grounds. Therefore, it appears that all of the female inmates’ claims satisfy the commonality requirement.
However, Defendants once again argue that liability on these claims will require extensive individualized inquiries, which would destroy commonality. Plaintiffs claim that individual facts will not affect the outcome of the true legal issue, which is the constitutionality of the policies governing the bunk restriction and recreational opportunities of female inmates. See Baby Neal, 43 F.3d at 57. We agree. Plaintiffs are not suing the individual prison employees who physically carried out NCP policies that are allegedly violative of the Constitution; rather, they sue the policy makers. (See generally Compl.). Therefore, individual determinations of constitutionality have no bearing on whether the policies or protocols governing the implementation of those procedures are themselves constitutional. Accordingly, we find Defendants’ argument unpersuasive in relation to the policies governing bunk restriction and recreational opportunities of female inmates. Consequently, we conclude that the female inmates have satisfied the commonality requirement in these regards.
c. Typicality With regard to the claims of the female inmates, Defendants argue that
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inmate Williams, as the lone remaining female class representative, has not established that her claims are typical of the putative female class. We remind Defendants that “[w]here an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice.” Mardocki, 254 F.3d at 249 (quoting Falcon, 457 U.S. at 157); see also Beck, 457 F.3d at 295-96. The class representatives must only prove that there is a pervasive violation has produced the various injuries. Falcon, 457 U.S. at 157.
In the case at bar, inmate Williams, as the putative class representative of the female inmates, alleges that she has been deprived of various constitutional rights as a result of the policies and practices governing bunk restriction and recreation in the female dormitory. These policies and practices are equally applicable to the entire female inmate population. Therefore, if these policies are ultimately determined to be unconstitutional, the violations engendered by them would be pervasive in nature. Moreover, if these policies are unconstitutional, all female inmates, regardless of the precise factual situation of each inmates, would have claims similar to those proffered by inmate Williams. Consequently, we believe that the putative class representative has satisfied the typicality requirement.
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d. Adequacy of Representation The Defendants argue that the male inmates cannot adequately represent the claims of the female inmates. While this is an astute observation, it is inapposite to the instant determination. The salient point is that inmate Williams does not have interests that are antagonistic to the putative female class. In fact, her interests are perfectly aligned with those of the putative female class; namely, she wishes to rectify the conditions at NCP so that current and future female inmates are not subjected to same allegedly unconstitutional deprivations of their rights while institutionalized at NCP. We therefore conclude that adequacy prong has been met.
e. Rule 23(b) As aforementioned, Rule 23(b) is applicable when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole.” Fed. R. Civ. P. 23(b). Rule 23(b) “may not be invoked in a case requiring ‘significant individual liability or defense issues which would require separate hearings for each class member in order to establish defendants’ liability.’” Agostino, 2009 WL 348898 *6 (quoting Arch v. Am. Tobacco Co., Inc., 175 F.R.D. 469, 482 (E.D. Pa. 1997)).
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Here, the injunctive and declaratory relief sought by the putative class representative will benefit the entire class, as it would serve to remedy the allegedly unconstitutional conditions experienced by the female inmates at NCP. Further, as we have stated in our “commonality” discussion, we do not believe that determinations regarding individual liability issues are required in order to determine the constitutionality of the challenged prison policies or conditions. Therefore, it is our belief that individual liability issues will not affect the cohesiveness of the putative class of male inmates. Consequently, we conclude that the male inmates have satisfied the dictates of Rule 23(b).
f. Conclusion In light of the foregoing, we will grant the Motion to Certify insofar as it relates to the putative female class and its bunk restriction and recreation claims. We will deny the Motion to Certify insofar as it relates to the female inmates’ not work release claim because numerosity requirement has not been satisfied with regard to it. III. CONCLUSION For the afore-referenced reasons, we will grant in part and deny in part the Defendants’ Motion to Dismiss as recounted above. (Rec. Docs. 33, 34). We will
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grant the Plaintiffs’ Motion to Supplement the Complaint (Rec. Docs. 64, 70). Consequently, we will vacate all previously established case management dates and reopen discovery if necessary on the newly added triple celling claim. Additionally, as detailed above and in the order that follows, we will grant in part and deny in part the Plaintiffs’ Motion to Certify. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Defendants’ Motion to Dismiss (Rec. Doc. 33, as amended by Rec. Doc. 34) is GRANTED IN PART and DENIED IN PART to the following extent: a. The Motion is DENIED insofar is it relates to the mootness of the procedural claims of inmates Wyland, Collins, and Wetzel. b. The Motion is GRANTED insofar is it relates to the mootness of the substantive claims of inmates Wyland, Collins, and Wetzel. c. The Motion is GRANTED insofar as it relates to the claims of inmates Corely, Anderson, and Holohan.
2. The Plaintiffs’ Motion to Supplement (Rec. Doc. 64 as amended by Rec, Doc. 70) is GRANTED in its entirety.
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3. The Plaintiffs’ Motion to Certify (Rec. Doc. 68) is GRANTED IN PART and DENIED IN PART to the following extent: a. The Motion is DENIED insofar as it seeks certification of the following claims of the global inmates: I. the failure to repair a leaky roof in the female dormitory, the failure to remove mold from the wall in the female dormitory, the failure to repair breached mattresses, the failure to distribute undergarments to inmates upon institutionalization, and the failure to provide inmates with a confidential area in which to conduct legal visits. b. The Motion is GRANTED with regard to all other claims of the global class. c. The Motion is GRANTED with regard to all claims of the male subclass. d. The Motion is DENIED with regard to the female subclass insofar is that class seeks certification on its work release claim.
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e. The Motion is GRANTED with regard to all other claims of the female subclass.
4. All previously established case management dates are VACATED. 5. A telephonic conference call shall be held on March 24, 2009 at
10:00 a.m. Counsel for all parties shall be present and shall be prepared to discuss case management issues, including the need for additional discovery. Counsel for the Plaintiffs shall initiate the call. The Court’s phone number is 717-221-3986.
s/ John E. Jones III John E. Jones III United States District Judge
73

 
 Case 4:08-cv-00345-JEJ Document 158 Filed 02/18/11 Page 1 of 4

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

Inmates of the Northumberland

:

County Prison, through Scott Collins, :

et al.,

:

Plaintiffs

:

:

:

v.

:

:

Ralph M. Reish, in his official

:

capacity as Warden of

:

Northumberland County Prison, et :

al.,

:

Defendants

:

CIVIL NO. 4:08-CV-00345 JUDGE JOHN E. JONES, III
COMPLAINT FILED: 2/25/08

CORRECTED JOINT MOTION SEEKING APPROVAL OF A CLASS ACTION SETTLEMENT

This Section 1983 class action was brought on behalf of Northumberland County Prison Inmates to enjoin an array of conditions and practices which were allegedly violating the inmates’ constitutional rights. The Defendants throughout the litigation have denied the allegations. Following certification of a Rule 23 (b)(2) global and (b)(2) subclasses and the filing and briefing of Defendants’ Motion for Summary Judgment, the parties entered into adversarial settlement negotiations within the framework of the Middle District’s Mediation Program

Case 4:08-cv-00345-JEJ Document 158 Filed 02/18/11 Page 2 of 4
under the immediate supervision of Attorney Joseph Barrett, the Program’s Director. Those efforts have resulted in the execution of a comprehensive settlement agreement between the parties whose terms the parties believe are fair, reasonable, and adequate within the meaning of Rule 23 and, thereby, warrant Court approval.
In conjunction with this Motion, the proposed settlement agreement is attached hereto as Exhibit “1”. A notice to the Class of the proposed settlement (informing them of their right to submit objections to the settlement; the procedure for doing so; and the availability of copies of the agreement in each of the Prison’s housing units) is attached as Exhibit “B” to the Settlement Agreement (Exhibit “1”).
The sole purpose of filing the Corrected Joint Motion Seeking Approval of a Class Action Settlement is to attach the within revised settlement agreement (Exhibit “1”), which has been approved by all counsel.
WHEREFORE, the parties respectfully request that the proposed settlement agreement be approved by the Court, after it considers the terms of the agreement and any objections interposed to the agreement and conducts whatever proceedings the Court feels are necessary,
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Case 4:08-cv-00345-JEJ Document 158 Filed 02/18/11 Page 3 of 4

Date: February 18, 2011 Date: February 18, 2011

Respectfully submitted,
Pennsylvania Institution Law Project
By: /s/ Jennifer Tobin Jennifer Tobin, Esquire Attorney I.D. 202047 718 Arch Street, Suite 304 South Philadelphia, PA 19106 (215) 925-2966 (telephone) jtobin@pailp.org Attorneys for Plaintiffs
By: /s/ Jere Krakoff Jere Krakoff, Esquire Attorney I.D. 13701 P.O. Box 111331 Pittsburgh, PA 15238 (412) 967-9287 (telephone) krakofflaw@comcast.net Attorneys for Plaintiffs

Date: February 18, 2011

Lavery, Faherty, Young & Patterson, P.C.
By: /s/ Robert G. Hanna, Jr. Robert G. Hanna, Jr., Esquire Attorney I.D. 17890 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) rhanna@laverylaw.com Attorneys for Defendants

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Case 4:08-cv-00345-JEJ Document 158 Filed 02/18/11 Page 4 of 4
CERTIFICATE OF SERVICE I, Cathleen A. Kohr do hereby certify that on this 18th day of February, 2011, I served a true and correct copy of the foregoing Corrected Joint Motion Seeking Approval of a Class Action Settlement, via U.S. Middle District Court’s Electronic Case Filing System, addressed as follows:
Jere Krakoff, Esquire krakofflaw@comcast.net Attorneys for Plaintiffs Jennifer Tobin, Esquire jtobin@pailp.org Attorneys for Plaintiffs
/s/Cathleen A. Kohr____________ Cathleen A. Kohr, Senior Paralegal This document has also been electronically filed and is available for viewing and downloading from the ECF system.
4

 
 Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 1 of 48
E X H I BIT JJ1"

=====~_._-------_C.a_-s-e_. 4-:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 2 of 48

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

Inmates ofthe Northumberland County Prison, through Scott Collins, et al.
Plaintijft
v.

CIVIL NO. 4:08-CV-00345 JUDGE JOHN E. JONES, III

Ralph M. Reish, in his official capacity as Warden of the Northumberland County Prison, et al.
Defendants

COMPLAINT FILED: 2/25/08

SETTLEMENT AGREEMENT
I. Background
This Section 1983 class action was brought .on behalf of Northumberland County Prison inmates to enjoin an array of alleged systemic conditions and practices that were alleged to violate the constitutional rights of the inmates. Grounded on the Eighth and Fourteenth . Amendments to the United States Constitution, the pleadings complained of deficiencies in the provision of medical, dental and mental health; inadequate heating, poor ventilation, significant insect infestations, and serious fire hazards in the housing units; oppressive conditions and practices in the institution's wet and dry basement cells; overcrowding in the male segregation unit and in the women's dormitory; the denial of outdoor recreation for segregated male inmates; the shackling of segregated male prisoners during recreation; unduly harsh disciplinary bunkrestriction practices in the women's dormitory; the allocation of less outdoor recreation time for general population female inmates than that afforded to general population male prisoners; discriminatory disparities between the male and female outdoor recreation yards; and practices/ procedures associated with the use of four-point restraints and the institution's restraint chair. In
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conjunction with these allegations, the plaintiffs sued Northumberland County; Northumberland County Prison Board members (Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, and Chad Reiner) in their official capacities; and the Warden of the Prison (Ralph Reish) his official capacity, requesting declaratory and injunctive relief to remedy the asserted systemic violations. No claims for monetary damages were pursued against any of the defendants. Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Court certified a global class consisting of all current and future inmates of the Prison as well as two sub-classes: one consisting of all current and future male inmates to challenge a policy that denied segregated male inmates outdoor recreation and required them to be handcuffed when engaging'in recreation; the other, encompassing all current and future female inmates challenging the bunk restriction policy operating in the women's dormitory.
Since the inception of this litigation, the defendants have disputed plaintiffs' allegations, denied any wrongdoing or liability of any kind to the named plaintiffs or class members, and were prepared to contest the various claims on the merits. However, after they and the plaintiffs engaged in extensive discovery, argued a series of contentious motions, and otherwise proceeded along an adversarial course toward trial, the parties jointly concluded in the spring of 2010 that achieving a fair and reasonable settlement would be in their best interest by avoiding the time, expense, and inherent uncertainties of further protracted litigation and resolving finally and completely all pending and potential claims for declaratory or injunctive relief related to this controversy. Over the ensuing months, substantial adversarial settlement negotiations within the framework of the Middle District's mediation program were 'conducted, under the immediate supervision of attorney Joseph Barrett, the program's director. These efforts have resulted in an agreement which the parties believe offers substantial benefits to class members; is fair,
2

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reasonable, and adequate within the meaning of Rule 23 of the Federal Rules of civil Procedure; and warrants Court approval.
Because the parties have concluded that a settlement is desirable in order to avoid the time, expense, and inherent uncertainties ofprotracted litigation and that it is in their respective interests to resolve finally and completely all pending and potential claims for declaratory and injunctive relief by the named plaintiffs, the class representatives and all class members related to the matters involved in this litigation, the defendants and the plaintiffs (individually and on behalf of all class members) agree to the following tenus embodied in Sections II through XI of this settlement document.
This Settlement Agreement is made and entered into by and among the County defendants and plaintiffs, individually, and on behalf of a class of similarly situated persons.
ll. Claims-Related Settlement Terms 1
Medical 1. There shall be six (6) hours per week of on-site physician, physician assistant, or
certified nurse practitioner coverage at the Prison at the current average daily population level of 200 or fewer inmates. 2. If, in the future, the average daily inmate population at the facility increases to 201 or more inmates for six (6) consecutive months, on-site physician/physician assistant/nurse practitioner coverage shall be increased to seven (7) hours per week.
1 A list of definitions related to these and the other terms of this agreement is attached to and incorporated as Exhibit "A".
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3. On-site physician/physician assistant/certified nurse practitioner coverage shall remain seven (7) hours per week (following an upward adjustment) unless the average daily population falls below 201 inmates for three (3) consecutive months, at which point onsite coverage shall revert to six (6) hours per week and continue at that level unless and until the ADP increases to 201 or more for six consecutive months, at which point on-site coverage shall, again, increase to seven (7) hours per week.
4. The adjustments prescribed in paragraph Nos. 2 and 3 shall be repeated if the average daily population either rises above or falls below the established thresholds in the future, for the prescribed number of consecutive months.
5. The physician/physician assistant/certified nurse practitioner shall remain on-site beyond the prescribed hours until all inmates scheduled to be seen/evaluated by physician/physician assistant/certified nurse practitioner on a given day have been seen/evaluated.
6. Physician/physician assistant/certified nurse practitioner may leave early on a given day, provided that all scheduled inmates have been seen and no other medical services by the physician/physician assistant/certified nurse practitioner are needed. However, they shall remain on-call and be available to return to the Prison should the need arise.
7. In addition to on-site coverage, the Prison's physician/physician assistant/certified nurse practitioner shall be on-call seven (7) days a week, 24 hours a day for emergency situations.
8. Physician/physician assistant/certified nurse practitioner sick call for all inmates, shall occur in the Prison's medical office.
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9. There shall be a full-time registered nurse on-site at the Prison 40 hours per week, taking into account normal vacation days, sick days and holidays.
10. The RN shall be on-site Monday through Friday, taldng into account normal vacation days, sick days and holidays.
11. A physician shall be the Prison's medical director. 12. A registered nurse shall be the Prison's contract administrator and, in that capacity,
responsible for administering the institution's medical department, supervising the Prison's licensed practical nurses, and overseeing the maintenance of inmate medical records. 13. There shall be a minimum of one (1) Licensed Practical Nurse on-site seven (7) days per week during each of the first two work shifts. 14. An intalce medical screening of newly admitted inmates shall be conducted within four (4) hours of an inmate's admission to the Prison by corrections officers who have been trained to conduct such screenings. 15. An intalce medical screening of newly admitted inmates shall be conducted within 24 hours of an admission by an LPN or other qualified medical personnel. 16. A registered nurse or an on-site physician/physician assistant/certified nurse practitioner shall conduct a comprehensive health assessment (physical examination) of each inmate within fourteen (14) days of the inmate's arrival. The assessment shall include a medical history/physical as well as a mental health component. In the event this evaluation
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identifies a medical or mental health condition that requires treatment, an appropriate therapy regimen shall be initiated in accordance with accepted protocols. 17. Nurse's sick call for general population inmates shall be conducted a minimum of three (3) days a week. 18. Nurse's sick call for disciplinary and administrative custody inmates shall be conducted a minimum ofone (1) day a week. 19. If a disciplinary or administrative custody inmate submits a sick call request at a time when nurse's sick call is not scheduled for segregated prisoners and the request concerns a condition that, in the medical department's clinical judgment, should be seen prior to the next scheduled sick call, the inmate shall be seen by medical personnel within a reasonable time after submission ofthe request. 20. Nurse's sick call for general population inmates shall occur in the Prison's medical office. 21. Nurse's sicle call for disciplinary and administrative custody inmates shall occur in a confidential setting. 22. Corrections officers (including supervisory-level officers) may not malce entries ill inmate medical charts. 23. Corrections officers (including supervisory-level officers) may not distribute prescription medications to inmates except in an emergency situation when a nurse is not available or is not on-site. Only medical personnel may distribute prescription medications in the
absence of such an emergency. In aD. emergency situation, only a supervisory-level
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officer may distribute prescription medications and, then, only be pursuant to a prescription ordered by a physician, physician's assistant, or nurse practitioner.
24. Newly admitted inmates shall be evaluated by medical staff with respect to their prescription needs and prescription medications. Prescription medications which are determined to be medically reasonable and necessary shall be provided within a reasonable time after an inmate's admission to the Prison. Only the Prison's physician, physician assistant, or certified nurse practitioner may determine, through the exercise of medical judgment, whether prescription medication is medically reasonable and necessary. A nurse (or any non-medical staff member) may not make the determination.
25. The fact that an inmate was non-compliant with prescribed medication prior to admission to the Prison shall not, necessarily (in and of itself), be a reason for not providing the same or other medicine to the inmate. In these circumstances, if the medication at issue is psychotropic, the Prison psychiatrist shall determine, through the exercise of medical judgment, whether or not to prescribe the same or substitute medication to the inmate. If the medication is non-psychotropic, a physician, physician assistant, or certified nurse practitioner shall determine, through the exercise of medical judgment, whether or not to prescribe the same or substitute medication to the inmate. Neither a nurse nor any nonmedical staffmember may malce this determination.
26. The fact that an inmate has deceptively not taken prescription medication at the Prison (by hiding the medicine in his tongue, cheek, hand, or elsewhere) shall not, necessarily (in and of itself), be the reason for not providing the same or other medicine to the inmate. In this circumstance, if the medication at issue is psychotropic, the Prison
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psychiatrist shall determine, through the exercise of medical judgment, whether or not to prescribe the same or substitute medication to the inmate. If the medication is nonpsychotropic, a physician, physician assistant, or certified nurse practitioner shall determine, through the exercise of medical judgment, whether or not to prescribe the same or substitute medication to the inmate. Neither a nurse nor any non-medical staff member may make the determination whether medication under these circumstances should be discontinued. 27. The Prison's medical department shall maintain written policies and protocols related to the provision of medical care at the Prison. Such policies and protocols shall encompass admission evaluations; the timely provision of prescription medications to newly admitted inmates; nursing functions and responsibilities; the conduct of nurse's and physician/physician assistant sick call; emergency care; admissions to outside hospitals; the monitoring and treatment of chronic/acute medical conditions and other matters. 28. Locked medical request slip boxes shall be maintained in the respective housing units for the submission of inmate medical/dental/mental health related requests. The boxes shall be accessible only to members of the medical department to ensure the confidentiality ofthe content of such requests.
29. Inmate medical records shall be filed and organized by categories of documents in accordance with a medical department protocol utilizing a standardized format.
30. Correction officers and other non-medical personnel ordinarily may not have access to inmate medical records. However, in the event of a medical emergency, the Warden and/or his designee(s), not below the level of the warden's administrative staff, and the
8

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shift commander may have access to medical records when needed to address/respond to the emergency, complaint, or administrative grievance. In an event of a grievance and/or complaint, the Warden and/or his designee, not below the level of the warden's administrative staff, and shift commander may have access to medical records when needed in order respond to the inmate's complaint or administrative grievance. 31. The institution shall maintain a sanitary, well-lighted examination room for use by the Prison's physician/physician assistant/certified nurse practitioner and nurses, and the room shall be equipped with an examination table. 32. In the event an inmate's medical condition requires placement in an infirmary settfug, the inmate shall be transferred to an appropriate medical facility or to another corrections facility that has an infirmary. 33. Sufficient up-to-date (non-expired) medications for use in medical emergencies shall be stored in the Prison in a sanitary, well-lighted setting. 34. Inmates with active tuberculosis or other serious airborne communicable diseases shall promptly be transferred to an appropriate medical facility and or to another correctional facility which has a suitable means ofisolating such prisoners. 35. The inmate handbook shall describe the medical services available to prisoners and how inmates can access the services. It shall be distributed to inmates at the time of their admission.
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36. An in-house quality review process for the provision of medical care at the Prison shall be maintained in accordance with the provisions in the contract between Northumberland County and the Prison's medical provider.
Mental Health 37. There shall be four (4) hours per week of psychiatrist coverage at the Prison at the
current average daily population level of 200 or fewer inmates. The Prison may satisfy this requirement through a telemedicine hook-up between the psychiatrist and the institution. 38. If, in the future, the average daily inmate population at the facility increases to 201 or more inmates for six (6) consecutive months, psychiatrist coverage shall be increased to five (5) hours per week. 39. Psychiatrist coverage shall remain five (5) hours per week (following an upward adjustment) unless the average daily population falls below 201 inmates for three (3) consecutive months, at which point the coverage shall revert to four (4) hours per week and continue at that level unless and until the ADP increases to 201 or more for six consecutive months, at which point on-site coverage shall, again, increase to five (5) hours per week. . 40. The adjustments prescribed in paragraph Nos. 38 and 39 shall be repeated if the average daily population either rises above or falls below the established thresholds in the future, for the prescribed number of consecutive months.
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41. In addition to the above, a psychiatrist shall be available to consult with the Prison's medical staff or the Prison's licensed mental health professional in the event a mental health emergency occurs when a telemedicine session is not talting place.
42. A full-time licensed mental health professional shall be employed, 40 hours per week, Monday through Friday. This position shall require no less than a Bachelor's degree.
43. A mental health screening and suicide risk assessment shall be conducted at the time of the receiving medical screening by a qualified corrections officer.
44. Written policies and protocols related to the provision of mental health care at the prison shall be maintained. The policies and protocols shall encompass mental health screenings for newly admitted inmates; assessments by the licensed mental health professional; delineation of the psychiatrist's and licensed mental health professional's responsibilities; procedures to assure the timely provision ofpsychotropic medications to newly committed inmates; the conduct of nurse's sick calls; emergency mental health care; 302-304 commitments to outside psychiatric facilities; the monitoring and treatment of psychiatric conditions; and other matters related to the provision of mental health care to inmates.
45. The inmate handbook shall describe the mental health services available to prisoners and how inmates can access the services. It shall be distributed to inmates at the time of their admission.
46. An in-house quality review process for the provision of mental health care at the Prison shall be maintained in accordance with the provisions in the contract between Northumberland County and the Prison's medical provider.
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Dental 47. The intake medical screening as well as the 14-day physical examination specified
above shall include a dental component. 48. Ifan inmate seen by an LPN at sick call for an asserted dental problem disagrees with the
nurse's assessment/determination regarding the asserted problem, th~ inmate may submit a sick call request to be re-evaluated by a registered nurse and shall be seen by an RN within a reasonable amount oftime. 49. When clinically indicated, an inmate with serious dental problems shall be referred by Prison medical personnel to a dentist within a reasonable period oftime. 50. The Prison shall not have an "extraction only" policy/practice with respect to the treatment of inmates with dental problems. 51. There shall not be a policy/practice of a non-dental professional routinely prescribing multiple cycles of antibiotics and/or pain medication for dental abscesses and other dental problems associated with infections or pain. 52. The Prison may, at its discretion, maintain a dental office on-site for treatment of inmate dental problems. 53. If the Prison maintains an on-site dental office for the treatment of inmates, the office shall be adequately lighted, sanitary, and equipped in a manner that complies with all relevant health and safety codes for dental offices.
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54. The inmate handbook shall describe the dental services available to prisoners and how inmates can access the services. It shall be distributed to inmates at the time of their admission. Basement Cells
55. An inmate may not be mechanically restrained in a basement cell for purposes of punishment. An inmate may only be mechanically restrained in a basement cell for reasons of safety when the inmate is either a danger to himsel:f/herself or poses a danger to others if not so restrained. The specific, fact-based, reason(s) for the application of restraints to an inmate in a basement cell to be documented.
56. A standard Prison blanket shall be provided to all inmates confined in the basement cells within a reasonable amount of time after being placed in the cell unless an inmate is deemed to be suicidaL A suicide prevention blanket shall be provided to inmates who are deemed to be suicidaL
57. A mattress shall be provided to all inmates confined in the basement cells within a reasonable amount of time after being placed in the cell--with the exception of inmates who would be at risk of suicide if given a mattress. If suicidal, an inmate shall be provided with two (2) security blankets, one ofwhich to be used in lieu of a mattress.
58. As a matter ofpolicy and practice, inmates may be dressed in a smock at the inception of their confinement in the basement cells. Approximately four (4) hours after being placed in the cell, an inmate shall be given regular institutional clothing unless the shift commander determines that the inmate would pose a threat to himsel:f/herself should full-
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clothing be provided. That and any subsequent determinations that an inmate would pose a threat to himself/herself should full-clothing be provided shall be documented in writing. In the event a shift commander initially determines that a danger of self-harm exists from clothing, a shift commander shall re-assess the matter every four (4) hours and shall order the provision of regular institutional clothing when it is determined that the danger of self-harm no longer exists. The date and time an inmate has been provided regular institutional clothing (whether approximately four hours after the initial placement or at a later time) shall be documented. 59. No more than two (2) inmates may be housed together in each of the basement cells except in emergency situations requiring the temporary placement of additional inmates in the cells until arrangements can be made to house the additional inmate(s) either elsewhere in the Prison or in another institution. The existence of an "emergency situation" shall be documented and supported with fact-based reason(s). 60. Each of the basement cells shall be equipped with a bed that complies with the specifications of Title 37, Section 95.229 of the Pennsylvania Code. If more than one inmate is confined in a basement cell, an appropriate elevated sleeping surface (such as a cot) shall promptly be provided to each additional inmate after the additional inmate or inmates (in the event of an emergency) have been confined in the cell for four (4) hours. 61. Inmates confined in the basement cells shall be given an opportunity to maintain personal hygiene by having access to a shower facility three (3) times per week.
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62. Water to the sink and toilet of the Wet Cell may be controlled by officers from outside the cell. However, water shall be turned on by an officer within a reasonable amount of time after an inmate who needs to use the sink or toilet has requested that it be turned on.
63. Inmates confined in the Dry Cell who need to use a toilet or a sink shall be taken to a toilet/sink within a reasonable amount oftime after requesting access to them.
64. The Prison shall maintain a written policy stating the criteria for admission to, discharge from, and practices associated with utilization/operation of the basement cells.
65. The incident/behavior leading to an inmate's placement in a basement cell shall be described in detail in a written report.
66. The behavior of inmates who are confined in the basement cells shall be factually described by monitoring officers at a minimum of 30 minute intervals.
67. Inmates with psychiatric problems who are placed in a basement cell shall be seen and evaluated by the Prison's licensed mental health professional within a reasonable amount time after the placement when the licensed mental health professional is on duty. If the placement occurs when the licensed mental health professional is not on duty, such inmates shall be seen and evaluated within a reasonable amount of time after the licensed mental health professional comes on duty. In addition, the licensed mental health professional shall see/evaluate inmates confined in a basement cell when there is a clinical need to do so. Evaluations encompassed by this paragraph shall be documented.
68. All inmates who are confined in the basement cells are to be seen/evaluated by a nurse within two (2) hours after being confined in the cell, when a nurse is on duty, and such
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evaluations are to be documented. When a nurse is not on duty at the time of placement, an inmate shall be seen/evaluated within one (1) hour after nurse comes on duty.
69. All planned cell extractions ofinmates from the Prison's housing units, transportations of inmates associated with such extractions, placements in the basement cells, and releases from the basement cells shall be video recorded and the recordings shall be preserved for a minimum oftwo (2) years after the placement.
Cell 3 70. An inmate may not be mechanically restrained in Cell 3 for purposes of punishment. An
inmate may only be mechanically restrained in Cell 3 for reasons of safety when the inmate is either a danger to himsel:f/herself or poses a danger to others if not so restrained. The specific, fact-based, reason(s) for the application of restraints to an inmate in Cell 3 to be documented. 71. A standard Prison blan1cet shall be provided to all inmates confined in Cell 3 within a reasonable amount of time after being placed in the cell unless an inmate is deemed to be suicidal. A suicide prevention blan1cet shall be provided to inmates who are deemed to be suicidal.
72. A mattress to be provided to all inmates confined in Cell 3 within a reasonable amount of time after being placed in the cell--with the exception of inmates who would be at risk of suicide if given a mattress. If suicidal, an inmate shall be provided with two (2) security blankets, one ofwbich to be used in lieu of a mattress.
73. As a matter ofpolicy and practice, inmates may be dressed in a smock at the inception of their confinement in Cell 3. Approximately four (4) hours after being placed in the cell,
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an inmate shall be given regular institutional clothing unless the shift commander determines that the inmate would pose a threat to himself/herself should full-clothing be provided. That and any subsequent determinations that an inmate would pose a threat to himself/herself should full-clothing be provided shall be documented in writing. In the event a shift commander initially determines that a danger of self-harm exists from clothing, a shift commander shall re-assess the matter every four (4) hours and shall order the provision of regular institutional clothing when it is determined that the danger of self-harm no longer exists. The date and time an ~ate has been provided regular institutional clothing (whether approximately four hours after the initial placement or at a later time) shall be documented.
74. No more than two (2) inmates may be housed together in Cell 3 except in emergency situations requiring the temporary placement of addition~l inmates in the cell until arrangements can be made to house the additional inmate(s) either elsewhere in the Prison or in another institution. The existence of an "emergency situation" shall be documented and supported with fact-based reason(s).
75. Cell 3 shall be equipped with a bed that complies with the specifications of Title 37, Section 95.229 of the Pennsylvania Code. If more than one inmate is confined in Cell 3, an appropriate elevated sleeping surface (such as a cot) shall promptly be provided to each additional inmate after the additional inmate or inmates (in the event of an emergency) have been confined.in the cell for four (4) hours.
76. Inmates confined in Cell 3 shall be given an opportunity to maintain personal hygiene by having access to a shower facility three (3) times per week.
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77. Water to the sink and toilet of Cell 3 may be controlled by officers from outside the cell. However, water shall be turned on by an officer within a reasonable amount of time after an inmate who needs to use the sink or toilet has requested that it be turned on.
78. The Prison shall maintain a written policy stating the criteria for admission to, discharge from, and practices associated with utilization/operation of Cell 3.
79. The incidentlbehavior/reason leading to an inmate's placement in Cell 3 shall be described in detail in a written report.
80. The behavior of inmates who are confined in Cell 3 shall be factually described by a monitoring officer at a minimum of 30-minute intervals.
81. Inmates with psychiatric problems who are placed in Cell 3 shall be seen and evaluated by the Prison's licensed mental health professional within a reasonable amount time after the placement when the licensed mental health professional is on duty. If the placement occurs when the licensed mental health professional is not on duty, such inmates shall be seen and evaluated within a reasonable amount of time after the licensed mental health professional comes on duty. In addition, the licensed mental health professional shall see/evaluate inmates confined in Cell 3 when there is a clinical need to do so. Evaluations encompassed by this paragraph shall be documented.
82. All inmates who are confined in Cell 3 are to be seen/evaluated by a nurse within two (2) hours after being confined in the cell, when a nurse is on duty, and such evaluations are to be documented. When a nurse is not on duty at the time of placement, an inmate shall be seen/evaluated within one (1) hour after nurse comes on duty.
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83. All planned cell extractions ofinmates from the Prison's housing units, transportations of inmates associated with such extractions, placements in Cell 3, and releases from Cell 3 shall be video recorded and the recordings shall be preserved for a minimum of two (2) years after the placement.
84. There shall be an eye-level clear window in Cell 3 door to enable inmates confined in the cell to see out of it and officers to see into it.
85. There shall be an audio device in Cell 3 to enable inmates confined in the cell to initiate contact with and communicate with corrections officers outside the cell.
86. Cell 3 shall be equipped with a camera to enable the Prison's control officer to visually monitor inmates who are confined in the cell.
Four-Point Restraints/Restraint Chair 87. The use of four-point restraints/a restraint chair may only be used as authorized by the
Warden or his designee (a shift commander or other supervisor level member of the Prison staff) to provide safe containment of an inmate exhibiting uncontrollable behavior, exhibiting violent propensities, or exhibiting uncooperative behavior that threatens the security/good order or operations of the institution. Such restraints may only be used when other control techniques such as officer presence, verbal commands, and soft hand have not been effective. 88. An inmate may not be placed directly on a bed frame when confined in four-point restraints. There must be a mattress between the inmate and the frame.
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89. The incidentlbehavior leading to an inmate being four-pointed/placed in restraint chair shall be described in a narrative report.
90. A blanket shall be offered within reasonable amount of time to all inmates confined in four-point restraints/restraint chair during cold weather months and, if the offer is accepted, provided at that point.
91. hunates confined in four-point restraints/restraint chair shall be seen/evaluated by a nurse within four (4) hours after being placed in restraints (when a nurse is on duty) and such evaluations shall be documented in the inmate's medical records and a restraint log sheet (describing inmate's behavior while in restraints). If a nurse is not on duty when an inmate is placed in restraints, a nurse shall see/evaluate restrained inmate within one (1) hour after coming on duty.
92. hunates confined in four-point restraints/restraint chair shall be seen/evaluated daily by the licensed mental health professional during the regular work week, taking into account normal vacation days, sick days and holidays.
93. A shift commander or supervisor level designee shall evaluate an inmate in fourpoints/restraint chair at least once every two (2) hours in order to determine whether the inmate can be released from the four-points/ restraint chair.
94. All planned cell extractions of inmates from the Prison's housing units, movement of inmates associated with such extractions, placements in four-points/restraint chair, and releases from restraints shall be video recorded and the recordings shall be preserved for a minimum oftwo (2) years after the placement.
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95. An inmate may not be placed III four-point restraints/restraint chair if medically contraindicated.
96. Four-point restraints may only be utilized when the Prison's restraint chair or chairs are already occupied. Environmental Conditions in Housing Units
97. Air tempering units shall be installed and maintained in the Prison's housing units to reduce the heat and humidity in the units during the warm weather months and to increase air flow circulation in the housing areas.
98. An adequate heating system shall be operated and maintained in the Prison to enable all housing units and areas thereof to be sufficiently heated during the cold weather months.
99. An outside exterminator shall inspect and treat the Prison's facilities (including the interiors of the respective housing units) for insects and other vermin on at least a monthly basis.
100. A description of the exterminator's services shall be documented in the outside exterminator's monthly invoices. Fire Safety
101. Standpipes shall be installed to service each of the Prison's housing units. 102. The tripping hazard created by elevated pipes near the Right Wing cell block shall
be eliminated.
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Segregated Male Inmates 103. Male inmates segregated for disciplinary or administrative purposes may not be
triple-celled in the facility's standard-size cells. A maximum of two (2) inmates may be housed in such cells. 104. When cells larger than the facility's standard size cells are used to segregate inmates for disciplinary or administrative purposes, the maximum number of inmates housed in such cells shall be based on an allotment of a minimum of 35 square feet of unencumbered floor space per inmate. 105. hnnates segregated for disciplinary or administrative pmposes shall be provided one (1) hour of out-of-cell recreation five (5) days a week. The recreation shall be outdoors (weather permitting) or indoors (during inclement weather). 106. Time allotted to segregated inmates for showers (3 times a week) and for telephone calls (when phone calls for an inmate have been permitted C?r approved) may not be deducted from the prescribed one hour of recreation. 107. Segregated inmates who refuse/decline to participate in recreation on any given day may not be denied showers or phone calls (if a shower/phone call was otherwise approved) for doing so. 108. Segregated inmates, at the time of placement in segregation and throughout their segregation, shall be classified by the Prison administration as either "non-violent" or "violent" for out-of-cell recreation purposes.
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109. The classification of "non-violent" or "violent" shall be based upon written criteria established by the Prison administration to identify inmates with violent propensities.
110. Segregated inmates classified as "non-violent" may not be handcuffed, waist chained, boxed, or leg-shac1ded during out-of-cell recreation.
111. Segregated inmates classified as "violent" may be handcuffed, waist chained, boxed and leg-shackled during out-of-cell recreation with the exception of the periodic days ofunencumbered recreation specified in paragraph 113.
112. Segregated inmates who are classified as "violent" shall have outdoor and indoor recreation separate from non-violent segregated prisoners and general population inmates.
113. Segregated inmates classified as "violent" shall be reviewed by the warden every 30 days to determine ifthat classification shall continue. lfthe "violent" classification is continued, the warden shall .record in writing the reasons for continuing that classification. In the event an inmate is classified for 90 consecutive days as "violent", he shall be permitted to have one (1) hour of recreation every other week without restraints unless the inmate has either threatened or exhibited violent behavior during the preceding/intervening thirty (30) days.
114. The Prison's administrative good time credit program as a means of reducing the disciplinary time served by inmates who are well-behaved while in segregation shall continue.
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115. The Prison's licensed mental health professional shall evaluate all inmates confined In segregation four (4) months or longer. The initial assessment shall occur approximately 120 days after an inmate's placement in segregation and at 60 day intervals thereafter until the inmate's release from segregation. Claims Specific to Female Inmates
116. A maximum of 28 inmates may be housed in the female donnitory. 117. A small day room shall be established in the fonner Trustee Quarters. Upon
completion of this and other renovations, a maximum of 12 inmates may be confined in the Trustee Quarters. 118. High security inmates may not be housed in the female dormitory or in the fonner Trustee Quarters. 119. The Prison's administrative good time credit program as a means of reducing the disciplinary time served by inmates who are well-behaved while on bunk restriction shall continue. 120. Inmates on disciplinarybunlc restriction status shall have one (1) hour of recreation, five (5) days a week. Recreation shall be outdoors (weather permitting) or indoors (during inclement weather). 121. The time allotted to disciplinary bunk restriction inmates for showers three (3) times a week and for approved telephone calls may not to be deducted from the prescribed one (1) hour ofrecreation.
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122. General population female inmates shall have two (2) hours of recreation per day, seven (7) days a week. Recreation shall be outdoors (weather permitting) and indoors (during inclement weather).
123. The outdoor recreation yard utilized for female inmates shall continue to have a basketball hoop and volleyball net to enable inmates to engage in those activities during outdoor recreation.
124. Disciplinary inmates who refuse/decline to participate in recreation on any given day may not be denied showers or phone calls (if a shower/phone call was otherwise approved) for doing so.
125. Inmates serving disciplinary time on bunk restriction may not be handcuffed or shac1ded while engaging in recreation.
126. Inmates on bunk restriction shall routinely be permitted to leave their bunks during the course ofthe day to stand or walk within a six (6) foot perimeter from their bun1cs or, at their option, to sit on chairs next to their bun1cs.
127. Inmates on bunk restriction shall be permitted, at their option, to eat meals while sitting in chairs rather than on their bun1cs.
128. The Prison's licensed mental health professional shall evaluate all inmates confined on bunk restriction for 120 days or longer. The initial assessment shall occur approximately 120 days after placement on bun1c restriction and at 60 day intervals thereafter lmtil the inmate's release from that status.
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ill. Implementation Schedule
129. The provisions embodied in paragraphs 1 through 128 shall be implemented within ninety (90) days after the Court approves the settlement agreement, with the exception that the standpipes described in paragraph 101 above shall be installed within ninety (90) days ofthe appropriate water servic,e being installed by the municipal authorities to allow for same.
IV. Post-Settlement Monitoring.
130. There shall be a fifteen (15) month monitoring period. 131. Approximately six (6) months after the court approves the settlement, after
reasonable written advance notice is provided to defendants, class counsel and their paralegal shall be permitted to tour all housing areas of the Prisqn (Right and Left Wings, female dormitory, former Trustee Quarters, Work Release quarters, basement cells); the female recreation yard; and the medical and dental offices to confirm that settlement provisions related to these facilities have been implemented/complied with.
132. During the tour, class counsel and their paralegal shall be permitted to take photographs of facilities and to elicit information from the Warden, shift commanders, lower level officers, and medical/mental health personnel related to implementation of settlement agreement items. All questions shall be in presence of defense counselor their designated representatives. No answers to questions may be used by plaintiffs in the framework of any settlement agreement enforcement proceedings, should any such proceedings occur. During the tour, class counsel shall inform the Warden or the
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Warden's representative pnor to taking a given photograph what they intend to photograph and a photograph may not be taken if doing so would jeopardize the safety/security of the institution. 133. ill conjunction with the tour, class counsel and their paralegal shall be permitted to review documents to confIrm whether provisions of agreement have been implemented/complied with. The document review shall be subject to the same court approved confIdentiaIlty agreement that was in effect during the discovery phase of this case. 134. The document review shall encompass the following materials:
• All policies in effect at the Prison related to settlement agreement provisions (issued by Prison administration, the County, PrimeCare, or other persons/entities)
" Supervisor Logbooks spanning the six month period I!I Incident Report volumes spanning the six month period Ii Misconduct Report volumes spanning the six month period I!I Documents related to all basement cell confInements during the six month
period (incident reports, misconduct reports, monitoring check sheets, medical records when relevant, licensed mental health professional evaluations when relevant, etc.) • Documents related to all Cell 3 confInements during the six month period (incident reports, misconduct reports, monitoring check sheets, medical records when relevant, licensed mental health professional evaluations when relevant, etc.) .. A maximum of 100 randomly selected inmate medical·records (for inmates confIned in the Prison during the six month period) e A maximum of 25 randomly selected inmate mental health evaluations prepared by the Prison's licensed mental health professional during the six month period
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• Reports and other documents associated with the in-house medical quality reviews conducted at the Prison during the six month period
It The institutional, medical and mental health records of all inmates placed in four-point restraints or the restraint chair during the six month period
• The institutional records (including misconduct and incident reports) of all segregated inmates classified as "violent" for purposes of recreation during the six month period
• All Visitor Registers or other documents reflecting the appearances at the Prison physician/physician assistant/certified nurse practitioner during the six month period
o All daily inmate cell assignment/occupancy lists for the six month period
e All documents related to the installation of air tempering units and other improvements in reducing heat and humidity and improving air circulation in the housing areas during the warm weather months
til All documents related to improvements in the distribution of heat in the housing areas during the cold weather months
III All invoices submitted by the Prison's dentist related to treatment services at the institution for the six month period
til All invoices and other documents submitted by Prison's pest exterminator related to treatment services at the institution for the six month period
It All reports and other documents related to the conduct of fire drills at the Prison during the six month period
• All inmate grievances/grievance decisions related to the settlement items for the six month period
II All inspection certification documents for the six month period for fire extinguishers located in the Prison
135. Approximately twelve (12) months after the court approves the settlement, a tour
comparable to the tour described in paragraphs 131 and 132 shall be repeated.
136. In conjunction with this second tour, a document review comparable to the
document review described in paragraphs 133 and 134 shall be repeated.
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137. There shall be no further tours/reviews except for good cause shown and with approval of the Court.
138. Defendants shall not be required to pay fees/costs/expenses for any of the postsettlement monitoring .activities described above. Class counsel, however, reserve the right to petition the Court for fees/costs/expenses associated with post-settlement enforcement activities in the event settlement enforcement activities are undertaken.
v. Attorney's Fees, Costs, and Expenses
139. Within sixty (60) days of the Court's approval of this agreement, Northumberland County shall pay the Pennsylvania Institutional Law Project a total of $300,000 to cover all of the organization's (and class counsel's) attorney's fees, costs, and expenses associated with this litigation up to and including approval of the settlement agreement. This amount (which is substantially less than half of the fees, costs, and expenses incurred by the Law Project and class counsel up to this point) shall fully satisfy all cla.i:r:D.s for attorney's fees, costs, and expenses that might otherwise have been submitted by the Law Project/class counsel pursuant to 42 U.S.C. Section 1988, for this time period in the litigation.
VI. Notice to the Class
140. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, members of the Prison
staff shall conspicuously post a notice to class members of this proposed settlement in each of the housing units (i.e. the Prison's Right and Left Wings, the Work Release quarters, the female dormitory, and the former Trustee Quarters) as well as in the
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Prison's law library. The notice, attached to this agreement as Exhibit "B", shall also be personally provided to all inmates confined in segregation during the time period prescribed by the Court for the submission of objections to the proposed settlement.
141. Class counsel shall mail or otherwise deliver a copy of the notice to each class representative.
VII. Release, Dismissal of Action, and Jurisdiction of the Court
. 142. The district court, through Judge John E. Jones, III, shall retain jurisdiction over this case until the post-monitoring settlement period has expired, at which time an order shall be entered dismissing this action with prejudice unless the plaintiff object to dismissal and satify the Court, by a preponderance of the evidence, that defendants have failed to fully implement or have otherwise not complied with the terms of the settlement. In the event an objection to dismissal is interposed, the defendants shall be afforded an opportunity to present arguments/evidence in opposition to the objection and in favor of dismissal.
143(a).For and in consideration of items agreed to and/or to be provided in paragraphs 1138 above by or on behalf of defendant Northumberland County; defendant Ralph Reish (Warden of the Northumberland County Prison when this lawsuit originated); and defendants Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, and Chad Reiner, (members of the Northumberland County Prison Board when this lawsuit originated), each of the named defendants and their affiliates, predecessors, successors and assigns, officers, agents, representatives, insurers and employees (the "Released PersonslEntities") are hereby fully and completely released from any and all claims or causes of action for injunctive or declaratory relief that were, could have been, or should have been asserted by the named
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plaintiffs, the class representatives, or any member of the class against them, connected with, arising from, based upon or related to the matters, issues, items, actions, and/or conditions of confinement that are the subject ofthe complaint and any amended complaint filed in this matter.
143(b). This settlement agreement and release ofthe Released PersonslEntities includes not only the non-monetary matters described in paragraph 143(a) above, but also any and all claims for attorney's fees, and costs and expenses that have been brought or could be brought pursuant to 42 U.s.C. §1988 up to and including court approval of the settlement and for all work related to post-approval monitoring ofthe settlement. These claims have been resolved and fully settled and compromised in exchange for the negotiated sum of $300,000.00 as described under the section entitled "Attorney's Fees, Costs, and Expenses" above. Accordingly, in consideration of the agreement embodied in paragraph 139, the plaintiffs also release the Release PersonslEntities as well as their affiliates, predecessors, successors, assigns, officers, agents, representatives, and employees from any and all claims for attorney's fees, costs and expenses incurred in this action up to and including Court approval of the settlement and for all work related to post-approval monitoring of the settlement.
144. The respective parties do not intend that an alleged violation of this agreement may serve as independent grounds for an individual action by a class member for declaratory, injunctive, or monetary relief. Instead, it is the intention of both parties that any lawsuit filed by a past, current, or future NCP inmate related to the conditions and/or practices encompassed by this agreement must be based on a constitutional or other substantive source of law and that this agreement may not be used in such proceedings for the purposes of establishing liability.
145. The administration and consummation of the settlement as embodied in this Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction
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to protect, preserve, and implement the settlement agreement, including, but not limited to, the above described Release. The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and provisions ofthe settlement agreement, including, but not limited to, an order enjoining settlement class members from prosecuting the claims for declaratory and injunctive relief that are release pursuant to the Settlement Agreement.
146. Upon the effective date ofthe Settlement Agreement (i.e. the court's approval of the agreement), an enforcement proceeding shall be the exclusive remedy for any and all alleged violations ofthe agreement.
Vlll. Representations, Warranties, and Covenants
147. Class counsel, who are signatories hereof, represent and warrant that they have the authority, on behalf of the plaintiffs, to execute, deliver, and perform this settlement agreement and to consummate all of the transactions contemplated hereby. This settlement agreement has been duly and validly executed and delivered by class counsel and plaintiffs and constitutes their legal valid and binding obligation.
148. Defendants, through their undersigned attorneys, represent and warrant that they have the authority to execute, deliver, and perform this settlement agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by defendants of this agreement and the consummation by them of the actions contemplated hereby have been duly authorized by all necessary corporate action on the part of Northumberland County. This settlement agreement has been duly and validly executed and delivered by defendants and constitutes their legal, valid and binding obligation.
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IX. Miscellaneous Provisions
149. This settlement agreement is not, and shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by defendants with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not the agreement is ultimately approved by the Court. Any payment of moneys on behalf of the defendants, or any other action taken, by the defendants pursuant to any provision of this settlement agreement, shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by defendants with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not the agreement is ultimately approved by the Court. Defendants specifically deny any claimed liability, wrongdoing, fault or omission of any kind or type. Defendants also contend that many ofthe agreed upon terms ofthis settlement were put into effect and carried out prior to the mediation and execution of this agreement. This provision shall survive the expiration or voiding ofthe settlement agreement.
150. This agreement is entered into only for purposes of settlement. In the event the Court does not approve it, the agreement shall immediately be canceled and null and void. In that event, no term or condition of the agreement, or any draft thereof, or discussions, negotiations, documentation or other part or aspect of the settlement process shall have any effect, nor shall any such matter be admissible in evidence for any purpose, or used for any purposes whatsoever in this or in any other litigation, and all parties shall be restored to their prior positions as if the mediation had never occurred and the settlement agreement had not been entered into.
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151. The headings of the sections and paragraphs of this agreement are included for convenience only and shall not be deemed to constitute part of this agreement or to affect its construction.
152. This agreement may not be modified or amended except in writing signed by all of the parties or their counsel.
153. This construction of this agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania governing contracts, without giving effect to any choice or conflict of law provision or rule that would otherwise cause the application of the laws of any other jurisdiction.
154. Except as otherwise provided in this settlement agreement, each party to the agreement shall bear his or its own costs of the litigation.
155. If any clause, provision or paragraph of this settlement agreement shall for any reason be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision or paragraph of the agreement, and this agreement shall be construed and enforced as if such illegal, invalid or unenforceable clause, paragraph, or other provisions had not been contained herein.
156. The Parties to this settlement agreement reserve the right, by agreement and subject to the Court's approval, to grant any reasonable extensions of time that might be necessary to carry out any ofthe provisions.
157. All applications for Court approval or Court orders required under this settlement agreement shall be made on reasonable notice to plaintiffs and defendants.
158. The determination of the terms of, and the drafting of, this settlement agreement have been by mutual agreement after negotiation, with consideration by and participation of all
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parties. For that reason, the presumption that ambiguities shall be construed against the drafter does not apply. Each of the parties was represented by competent and effective counsel throughout the course of settlement negotiations and in the drafting and execution of the agreement, and there was no disparity in bargaining power among the parties. fu entering into this agreement, none of the parties relied on advice received from any other party or any other party's counsel.
159. This settlement Agreement and the attached notice to the class constitute the entire, fully integrated agreement among the parties and cancel and supersede all prior written and unwritten agreements and understandings pertaining to the settlement of the litigation.
160. Any assertion by class counsel that a provision of the approved settlement has not been timely implemented, has been violated, or has not complied with shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid to defense counsel: Frank J. Lavery, Jr., Esquire and Robert G. Hanna, Jr., Esquire of Lavery, Faherty, Young &. Patterson, P.C.
161. All written communications from defendants related to the court-approved settlement agreement shall be addressed to class counsel: Jennifer Tobin, Esquire and Jere Krakoff, Esquire at the Pennsylvania Institutional Law Project's office in Philadelphia and may be sent by ordinary mail or by email.
162. Any disputes regarding the terms, conditions, rights, obligations, and/or compliance with of the court-approved settlement agreement shall first be submitted to mediation within the framework of the Court's mediation program. Only if mediation fails, may the court be asked to resolve any remaining issues or disputes.
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X. Required Events
163. Promptly after execution of this settlement agreement: (a) Class Counsel and defendants' counsel shall use their best efforts to obtain Court approval of the settlement. Toward that end, the parties shall jointly move for entry of an order approving the settlement and will use their best efforts, consistent with the terms of this agreement, to promptly obtain a final settlement. (b) In the event that the Court declines to approve the settlement, class counsel and defendants' counsel shall use their best efforts, consistent with this agreement, to cure any defects identified by the Court. However, in no event shall defendants be required to agree to any such cure that would increase the cost or burden on them. (c) The parties acknowledge that prompt approval, consummation, and implementation of the settlement set forth in this agreement are essential. As such, they shall cooperate with.each other in good faith to carry out the purposes of and effectuate the agreement, shall promptly perform their respective obligations hereunder, and shall promptly take any and all actions and execute and deliver any and all additional documents and all other materials and/or information reasonably necessary or appropriate to carry out the terms of the agreement and the transactions contemplated hereby. Any disputes regarding the parties' obligations under this paragraph shall first be submitted to Mediator Joseph Barrett or his successor (within the framework of the district court's mediation program) for a decision, and, only if necessary, may be submitted to the Court for its decision related to the dispute.
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XI. Objections By Settlement Class Members
164. As described in the proposed Notice to the Class (Exhibit "B"), any class member confined in the Prison shall have a right (if he or she chooses) to submit written objections to the proposed settlement within the time fraine established by the Court stating why he/she believes the settlement is not fair, reasonable, and adequate.
165. All written objections to the pending settlement agreement must be mailed by an objecting class member to class counsel Jennifer Tobin in care of the Pennsylvania Institutional Law Project, 718 Arch Street, Suite 304 South, Philadelphia, PA 19106.
166. Class counsel shall, in turn, forward the originals of all objections to the Court and copies of all objections to the attorneys representingthe defendants.
167. Five (5) copies of proposed settlement agreement shall be available in each of the Prison's Housing Units as well as in the Prison Law Library to review, upon request.
IN WITNESS WHEREOF, plaintiffs and defendants through their respective counsel have executed this settlement agreement on the date(s) indicated on the lines below.

~-,j
Jennifer J. Tobin, Esquire Jere Kralcoff, Esquire Pennsylvania Institutional Law Project 718 Arch Street, Suite 304 South Philadelphia, PA 19106 (215) 925-2966 - telephone jtobin@pailp.org Counsel for and on behalfofplaintiffs

Date: ~ %"/ ito II

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Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 39 of 48

~~.~~. Robert G. Hanna, Jr., Esquire Frank J. Lavery, Jr., Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 POBox 1245 Harrisburg, PA 17108-1245 (717) 233-6633 - telephone flavery@laverylaw.com rhanna@laverylaw.com Counselfor and on behalfofdefendants

Date: <. .. /c.i .... JI

38

,. ....

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 40 of 48

- . .' . _... _. . .... . . -. -"

. , _.-

. _. . "--'. -- ... -., - . - _.. . _. . .

_. _ ...

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.

. _. ..,

EXHIBIT "A"

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 41 of 48
",
EXHIBIT "A" - DEFINITIONS
As used in this Settlement Agreement, the following terms shall have the meaning set forth below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice versa.
A. Class Counsel. A Class Counsel shall mean: Jere Kralcoff, Esquire 'and Jennifer Tobin, Esquire of the Pennsylvania Institution Law Project.
B. Class Notice. Class Notice shall mean the Court-approved form of notice in substantially the same form as Exhibit B.
C. Class Representatives: Class Representatives shall mean the following present or former Inmates of the Northumberland CountY Prison: Scott Collins, Roman Brady, Jeremy Elsesser, Michael Wetzel, Hasson Lindsey, Joseph Bowers, Kelcie Williams and Sonya Wyland.
D. Class Settlement. Class Settlement shall mean the terms provided in this Settlement Agreement.
E. Court. Court shall mean the U;nited States District Court for the Middle District of Pennsylvania, the Honorable John E. Jones, ill presiding, or his duly appointed or designated successor.
F. Defendants. Defendants shall mean Northumberland County, Pennsylvania, Warden Ralph Reish, in his official capacity as Warden of the Northumberland County Prison, County Commissioners Frank Sawicki, Vinny Clausi and Kurt Masser; District Attorney, Anthony Rosini; Controller, Charles Erdman; President Judge Robert Sacavage; and Sheriff Chad Reiner, in their official capacities as members ofthe Northumberland County Prison Board and elected officials of Northmnberland County, Pennsylvania including all employees of the

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 42 of 48
County of Northumberland who may have devised, promulgated or enforced the policies or participated in the condp.ct that is the subject ofthis Settlement Agreement.
G. Defendants' Counsel. Defendants' Counsel shall mean Frank J. Lavery, Jr., Esquire and Robert G. Hanna, Jr., Esquire of Lavery, Faherty, Young & Patterson, P.C.
H. Effective Date. Effective date shall mean the date on which the settlement has been finally approved by the Court.
I. Final Approval Hearing. Final Approval Hearing shall mean the hearing at which the Court will consider and finally decide whether to approve the Settlement Agreement.
J. Final Settlement. Final settlement shall mean that the Court approves this Settlement Agreement, approves payment of attorneys' fees and expenses, and makes such other final rulings as are contemplated by this Settlement Agreement.
K. Litigation. Litigation shall mean the above-captioned lawsuit pending in the United States District Court for the Middle District of Pennsylvania as No. 4:08-CV-00345.
L. Mediation. Mediation shall mean the Middle" District of Pennsylvania's mediation program.
M. Notice Program. Notice Program shall mean the program for disseminating the Class Notice to Settlement Class Members, including public dissemination of the Summary Notice, in accordance with the terms herein.
N. Notice Date. Notice Date shall mean the date upon which Class Notice is mailed to lmown Class Members in accordance with the terms herein.
O. Objection Date. Objection Date shall mean the date agreed upon by the Parties or otherwise ordered by the Court by which Settlement Class Members must submit any objection

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 43 of 48
,.
to the Settlement Agreement's tenns or provisions and submit any required statements, proof, or other materials and/or argument.
P. Parties. Parties shall mean the Plaintiffs and Defendants. Q. Plaintiffs. Plaintiffs shall mean hunates of the Northumberland County Prison, through Scott Collins, Roman Brady, Jeremy Elsesser, Michael Wetzel, Hasson Lindsey, Joseph Bowers, Kelcie Williams and Sonya Wyland. R. Preliminary Approval Order. Preliminary Approval Order shall mean the order of the Court preliminarily approving this Settlement Agreement. S. Release. Release shall mean the release described in Section VII herein. T. Released Claims. Released Claims shall mean and include any and all claims or causes of action by or on behalf of any and all Settlement Class Members (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assigns) that are released in Section VII herein. U. Released Parties. Released 'parties shall mean all persons or entities against whom Released Claims will be released pursuant to the Release described in Section VII herein. V. Settlement. Settlement shall mean the agreement by the Plaintiffs and Defendants to resolve this litigation.

, '. • , 1-'

"

•

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 44 of 48

EXHIB'IT "B"

" ." .. '

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 45 of 48

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

INMATES OF THE NORTHUMBERLAND COUNTY PRISON,

Plaintiffs

c.A.

RALPH REISH, in his official capacity as Warden of Northumberland County Prison, et al. ,

Defendants. NOTICE TO THE CLASS

This class action lawsuit, brought on behalf of all current and future inmates of the Northumberland County. Prison, challenges the constitutionality of an array of conditions and practices in the facility. It requests declaratory and injunctive relief to remedy the alleged constitutional violations. Money damages have not been sought.
Among the challenged conditions and practices are alleged (1)
deficiencies in the delivery of medical, dental and mental health care; (2) fire hazards in the institution's housing units; (3) inadequate heating in the Prison's

• . •; .'. f •

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 46 of 48

housing units (during the winter months) and ventilation (during the summer months); (4) insect infestations in the Prison's housing units; (5) environmental conditions and practices in the Prison's Wet and Dry basement cells; (6) the tripleceiling of segregated inmates in standard-size cells on the tier of the Prison's Right Wing and certain forms of multi-ceiling in the larger segregation cells on the tier; (7) overcrowding in the Women's Dormitory and in the former Trustee Quarters (an area now used to house female prisoners); (8) bunk-restriction practices in the Women's Dormitory (9) practices associated with the. Prison's use of fourpoint restraints and the institution's restraint chair; (9) practices associated with the provision of recreation for segregated male inmates; (10) practices associated with the provision of recreation for female inmates on bunk restriction; and (11) practices associated with the provision of recreation for general population female prisoners.
The parties in this lawsuit have recently entered into a settlement agreement to remedy the alleged constitutional violations. Because this case has been certified as a class action, Rule 23(e) of the Federal Rules of Federal Procedure requires that the Court approve the proposed settlement. In that regard, the Court must determine, after a hearing, whether the proposed

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 47 of 48
settlement is "fair, reasonable, and adequate" and permit any class member who wishes to object to the proposed settlement, an opportunity to do so.
The purposes of this notice (which is to be conspicuously posted in each of the general population housing units and personally delivered to each inmate housed in segregation) are to inform all class members who are confined in the Prison over the next 30 days that (1) the above-referenced settlement agreement has been submitted to the Court for its approval; (2) the Court will review the components of the proposed settlement to determine whether the agreement is fair, reasonable, and adequate; (3) any class member confined in the facility may (if he or she chooses) submit written objections to the proposed settlement identifying the reason(s) he/she believes the settlement is not fair, reasonable, and adequate; (4) written objections must be submitted through the attorneys who are representing the class; (5) class counsel will, in turn, forward the originals of all objections to the Court and copies of all objections to the attorneys who are representing the defendants; and (5) copies of the settlement agreement will be available in each of the Prison's housing units and the Prison law library to review, upon request.

Case 4:08-cv-00345-JEJ Document 158-2 Filed 02/18/11 Page 48 of 48
All written objections to the pending settlement agreement must be mailed by --------- and addressed to: Attorney Jennifer Tobin, Pennsylvania Institutional Law Project, 718 Arch Street, Suite 304 South, Philadelphia, PA 19106.

Dated: -------------

United States District Court

 
 Case 4:08-cv-00345-JEJ Document 134 Filed 04/30/10 Page 1 of 21

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

Inmates of the Northumberland

:

County Prison, through Scott Collins, :

et al.,

:

Plaintiffs

:

:

:

v.

:

:

Ralph M. Reish, in his official

:

capacity as Warden of

:

Northumberland County Prison, et :

al.,

:

Defendants

:

CIVIL NO. 4:08-CV-00345 JUDGE JOHN E. JONES, III
COMPLAINT FILED: 2/25/08

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

AND NOW, come Defendants, Ralph M. Reish, Frank Sawicki, Vinny

Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, and Chad

Reiner (hereinafter “Moving Defendants”), hereby file this Motion for Summary

Judgment, and in support thereof aver as follows:

1. On February 25, 2008, twelve (12) Plaintiffs filed a Complaint (Doc. 1)

seeking declaratory and injunctive relief; certification of a Rule 23(b)(2) Class; an

award of reasonable costs, expenses and attorneys’ fees incurred in the prosecution

of this litigation; and other relief that may be appropriate and necessary under the

facts of the case.

Case 4:08-cv-00345-JEJ Document 134 Filed 04/30/10 Page 2 of 21
2. The Complaint named Warden Reish and the members of the Northumberland County Prison Board in their official capacities as Defendants. Northumberland County, Pennsylvania was also named as a Defendant.
3. In their Complaint, Plaintiffs challenge the constitutionality of various conditions of confinement at the Northumberland County Prison (“NCP”), including access to medical care (Complaint, ¶¶ 18-31); access to mental health treatment (Id. at ¶¶ 32-36); fire safety (Id. at ¶¶ 37-56); environmental conditions (Id. at ¶¶ 57-70); basement cell conditions and practices (Id. at ¶¶ 71-81); four-point restraint practices (Id. at ¶¶82-90); bunk restriction practices (Id. at ¶¶91-96); disparate treatment of female prisoners (Id. at ¶¶97-104); disciplinary confinement recreation (Id. at ¶¶105-109); clothing (Id. at ¶¶110-116); and attorney visits (Id. at ¶¶117123).
4. The Complaint also asserts the following legal claims: a. Eighth and Fourteenth Amendment claims for alleged deficiencies in medical staffing, mental health staffing, dental treatment, fire risks, environmental problems, the use of the basement cells, the use of four-point restraints, the bunk confinement policy, the policy governing the exercise/recreation of segregated inmates and failure to provide underclothing. b. First and Fourteenth Amendment claims for alleged failure to protect the privacy of written requests for medical and mental health treatment.
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c. A Fourteenth Amendment/equal protection clause claim for the alleged unequal treatment of female inmates.
d. A First Amendment claim regarding the bunk confinement practice.
e. First, Sixth and Fourteenth Amendment claims for alleged failure to provide a confidential meeting room for meetings between the inmates and their counsel.
5. On March 12, 2008, Plaintiffs filed their First Motion to Certify. (Doc. 9)
6. Defendants filed a Motion to Dismiss the Complaint and Motion to Amend/Correct as to Plaintiffs Corely, Anderson, Holohan, and Wyland based upon various grounds including that these named Plaintiffs did not have standing to pursue claims on behalf of other inmates. (Docs. 33, 34)
7. On April 24, 2008, Defendants filed an Answer to the Complaint. (Doc. 35)
8. By Order dated June 11, 2008, the Court denied Plaintiffs’ First Motion to Certify without prejudice. (Doc. 61)
9. Plaintiff Reichner has withdrawn from this litigation. (Doc. 63) 10. Plaintiffs filed a Second Motion to Certify Class which sought the certification of three discrete classes of NCP inmates. (Doc. 69)
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11. Plaintiffs filed a Motion to Supplement and Amended Motion to Supplement which sought to supplement their Complaint with a claim that triplecelling at the Prison violated their constitutional rights. They also sought to add inmate Dale Foss as a Plaintiff. (Docs. 64, 70)
12. The proposed “global class” consisted of all current and future inmates of NCP and sought to pursue claims associated with the provision of medical, dental and mental health care; environmental conditions in the housing units; fire hazards in the living areas; confinement in the Prison’s basement; the use of four-point restraints; the distribution of essential clothing to inmates and the venue in the which prisoners meet with their attorneys.
13. One proposed sub-class (the “male sub-class”) consisted of all current and future male inmates of NCP and sought to challenge a policy that denies segregated (male) prisoners outdoor recreation and requires them to be handcuffed and shackled when engaging in recreation.
14. The other proposed sub-class (the “female sub-class”) consisted of all current and future female inmates at NCP and challenged “the bunk-restriction policy that operates in the women’s dormitory and allege discrimination in the context of the institution’s work release and recreation program.”
15. By Order dated March 17, 2009, the Court granted in part Plaintiffs’ Motion for Class Certification, granted in part Defendants’ Motion to Dismiss, and
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granted Plaintiffs’ Motion to Supplement and Amended Motion to Supplement in its entirety. (Doc. 102).
16. The Court dismissed Plaintiffs Corely, Anderson, and Holohan from the global and male’s classes for lack of standing.
17. The substantive claims of Plaintiffs Collins, Wyland and Wetzel were deemed moot as they were no longer inmates at NCP.
18. The Court found that Plaintiffs Brady, Elsesser, Lindsay, and Bower may properly represent the male sub-class, Plaintiff Williams may properly represent the female sub-class, and all five of those Plaintiffs may represent the global class.
19. The Court concluded that the global inmates satisfied the class certification requirements with regard to all of their claims except for those involving the failures to repair the leaky roof in the women’s dormitory, to remove mold from the wall in the women’s dormitory, to repair breached mattresses, to issue undergarments upon institutionalization, and to provide a confidential space in which to conduct legal discussion with counsel.
20. The Court also concluded that the male inmates satisfied the class certification requirements as to all of their claims.
21. The Court granted the Plaintiffs’ Motion to Certify with regard to the female sub-class and its bunk restriction and recreation claims only.
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22. On March 30, 2009, Defendants filed their Amended Answer to the Complaint. (Doc. 106)
23. Defendants also filed their Answer to the Supplemental Complaint on March 30, 2009. (Doc. 107)
24. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
25. To establish an Eighth Amendment violation for conditions of confinement, "an inmate must allege both an objective element--that the deprivation was sufficient serious--and a subjective element--that a prison official acted with a sufficiently culpable state of mind, i.e. deliberate indifference." Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) see also Young v. Quinlan, 960 F.2d 351, 360-61 (3d Cir. 1992) (describing deliberate indifference as occurring when an official knows or should have known of a sufficiently serious danger to an inmate).
26. In making this evaluation, the court should consider the totality of the institution's conditions. See Nami, 82 F.3d at 67.
27. Combinations have a constitutional effect "only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise--for example, a low cell temperature
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at night combined with a failure to issue blankets." Wilson v. Seiter, 501 U.S. 294, 304 (1991).
28. While the inquiry into the constitutionality of pre-trial confinement under the Fourteenth Amendment is similar to that of post-trial confinement of convicts under the Eighth Amendment, Silletti v. Ocean County Dept. of Corr., 2006 WL 2385124 *3 (D.N.J. 2006), the Third Circuit Court of Appeals has held that “pretrial detainees…are entitled to at least as much protection as convicted prisoners, so the protections of the Eighth Amendment would seem to establish a floor of sorts.” Fuentes v. Wagner, 206 F.3d 335, 344 (3d. Cir. 2000) (internal quotation omitted).
29. The proper inquiry regarding a Fourteenth Amendment claim is whether any legitimate purposes are served by the conditions and whether the conditions are rationally related to those purposes. Union County Jail Inmates v. Di Buono, 713 F.2d 984, 992 (3d. Cir. 1983).
30. The Third Circuit Court of Appeals, in Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001), stated "[i]n sum, to make out a claim of deliberate indifference based on direct liability . . ., the plaintiffs must meet the test from Farmer v. Brennan: They must show that the defendants knew or were aware of and disregarded an excessive risk to the plaintiff's health or safety, and they can show this by establishing that the risk was obvious." Beers-Capitol, 256 F.3d at 135.
7

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31. Therefore, "to survive summary judgment, [the plaintiff] must come forward with evidence from which it can be inferred that the defendant-officials were at the time suit was filed, and are at the time of summary judgment, knowingly and unreasonably disregarding an objectively intolerable risk of harm." Id. at 132; Farmer, 511 U.S. 825, 846 (1994).
32. To establish eligibility for an injunction, the inmate must demonstrate the continuance of the disregard during the remainder of the litigation and into the future. Farmer, 511 U.S. at 846.
33. The inmate may rely, in the district court’s discretion, on developments that postdate the pleadings and pretrial motions, as the defendants may rely on such developments to establish that the inmate is not entitled to an injunction. Id.
34. A district court should approach the issuance of injunctive orders with the usual caution and may exercise its discretion if appropriate by giving prison officials time to rectify the situation before issuing an injunction. Id. at 847.
35. Eye irritation and dehydration are the kind of "routine discomforts" that the Supreme Court has held are "part of the penalty" of a prison sentence. Hudson v. McMillan, 503 U.S. 1, 8-9 (1992).
36. Allegations of heat exhaustion and "breathing problems" from "inadequate ventilation or defective air ventilation" have likewise been found to fail the first prong of the Eighth Amendment "conditions of confinement" test. Rivers v.
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Horn, 2001 U.S. Dist. LEXIS 3613, 2001 WL 312236, at *3 (E.D. Pa. Mar. 29, 2001) (summary judgment granted to defendant prison officials because sneezing, coughing, choking, heat exhaustion, extreme headaches, and loss of consciousness allegedly suffered in poorly-ventilated prison housing unit were not "extreme deprivations denying the minimal civilized measures of life's necessities").
37. It is not a per se violation of the Eighth Amendment to punish infractions of prison regulations. See, e.g., Young, 960 F.2d at 364 (noting that prison officials may punish so long as they do not harm the health of prisoners).
38. So long as the punitive actions are reasonably related to a legitimate penal objective, there is no violation of the Eighth Amendment. See, e.g., Bell v. Wolfish, 441 U.S. 520, 546 (1979) (noting that "preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of . . . convicted prisoners").
39. Only if the plaintiff demonstrates that the prison officials have exaggerated their response to security issues or they have acted unreasonably, may the court intervene. See, e.g., Loe v. Wilkinson, 604 F. Supp. 130, 134 (M.D. Pa. 1984).
40. Confinement in isolation cells is "not per se violative of the Eighth Amendment." Imprisoned Citizens Union v. Shapp, 451 F. Supp. 893, 897 (E.D.
9

Case 4:08-cv-00345-JEJ Document 134 Filed 04/30/10 Page 10 of 21
Pa. June 7, 1978) (citing United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1202 (3d Cir. 1973)).
41. "Failure to provide medical care to a person in custody can rise to the level of a constitutional violation under § 1983 only if that failure rises to the level of deliberate indifference to that person's serious medical needs." Groman v. Township of Manalapan, 47 F.3d 628, 636-37 (3d Cir. 1995).
42. A medical need is serious "if it is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention;" "if unnecessary and wanton infliction of pain . . . results as a consequence of denial or delay in the provision of adequate medical care;" or "where denial or delay causes an inmate to suffer a lifelong handicap or permanent loss." Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)
43. The Third Circuit has held that fire safety conditions in prisons fell below constitutional requirements where “there is no equipment for detecting or fighting major fires, there is a high concentration of combustible materials in storage areas near the housing units, and there are no smoke exhaust fans.” Tillery v. Owens, 907 F.2d 418, 424 (3d Cir. 1990).
10

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44. A legitimate governmental purpose served by triple celling pre-trial detainees is the effective maintenance of the prison in the face of overcrowded conditions. Di Buono, 713 F.2d at 993.
45. Moving Defendants are entitled to summary judgment as to Plaintiffs’ Eighth and Fourteenth Amendment claims for alleged deficiencies in medical staffing, mental health staffing, dental treatment, fire risks, environmental problems, the use of the basement cells, the use of four-point restraints, the bunk confinement policy, the policy governing the exercise/recreation of segregated inmates and triple celling.
46. There is no evidence of record that Moving Defendants were deliberately indifferent to a serious medical need of any Plaintiff as not a single inmate has obtained post-confinement treatment/examination medical care as a result of his/her confinement at the Prison.
47. The undisputed facts of record also show that there are legitimate purposes severed by the pre-trial conditions of confinement and those conditions are rationally related to the purposes.
48. PrimeCare Medical has contracted to provide mental health, medical and related health care services to the inmate population at the Prison in accordance with its February 18, 2010 Proposal (hereinafter “Medical Proposal”).
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Case 4:08-cv-00345-JEJ Document 134 Filed 04/30/10 Page 12 of 21
49. PrimeCare Medical currently manages thirty-one (31) correctional facilities in twenty-six (26) of the sixty-seven (67) Pennsylvania Counties.
50. Mental health services are provided by PrimeCare Medical mental health professionals, psychologists, and psychiatrists, and may include telemedicine psychiatric services if medically necessary.
51. Part of the initial medical assessment includes a dental screening and the contracted dentist will be available on-call twenty-four (24) hours per day, seven (7) days per week for emergency situations.
52. During the summer months, the Prison uses fans, provides water to the inmates, provides ice to the inmates, and permits extra showers to the inmates to help them keep cool.
53. There are large fans that circulate air in the housing units in the Prison. 54. There is an inlet fan and outlet fan for each wing of the Prison, and all four fans are operational. 55. A new boiler was bought for the Prison in 2008. 56. The boiler heats the radiators and the water in the Prison and is serviced once every year at a minimum. 57. During Warden Reish’s administration, inmates would be handcuffed in the maximum security cells only if they were a danger to themselves, other inmates, or the staff.
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58. During Warden Reish’s administration, inmates housed in the maximum security cells would be provided blankets and mattresses unless they had been destroying the same.
59. During Warden Reish’s administration, inmates confined in disciplinary segregation would spend at least 1 hour out of their cells, 5 days a week for recreation, showers, telephone privileges, going to school and receiving visits.
60. Warden Reish voluntarily retired as Warden and the position was filled by Warden Roy Johnson.
61. Warden Johnson started his employment at the Prison in the beginning of August 2009.
62. Warden Johnson was not aware of the specifics of the claims challenged by the Plaintiffs in the Complaint prior to December 1, 2009.
63. There has only been one individual who has been placed in four-point restraints during the Johnson administration.
64. The Prison is currently using the restraint chair in lieu of the four-point restraint.
65. Inmates placed in the restraint chair are only in there for a limited period of time to achieve control and safety and there is no evidence to the contrary.
66. Warden Johnson changed the practice of recreation for inmates placed in disciplinary segregation by classifying those inmates into two groups, violent and
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non-violent inmates, and the non-violent inmates are not handcuffed or shackled during their recreation time.
67. Warden Johnson has instituted a good-time practice with regard to inmates who have received disciplinary sentences whereby those sentences can be reduced if the inmate exhibits compliance with the rules and regulations of the Prison.
68. The only time that inmates in the maximum security cells are handcuffed and/or shackled under Warden Johnson’s tenure is when they are a threat to themselves or others.
69. There have not been any inmates housed in the maximum security cells since Warden Johnson began his employment who did not have a blanket.
70. There have been only forty-four (44) individuals that have been placed in a maximum security cell from September 1, 2009, until April 5, 2010, a period of approximately seven (7) months.
71. Since the PrimeCare contract took affect April 1, 2010, PrimeCare staff sees each individual newly committed to a maximum security cell on first and second shift ASAP which usually means within 30 minutes.
72. A female inmate placed on bunk restriction is eligible to have her sentence reduced pursuant to Warden Johnson’s good-time policy, which is equally available to male inmates placed in disciplinary segregation.
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73. Since Warden Johnson started, male inmates placed in disciplinary segregation and female inmates sentenced to bunk restriction receive one hour of recreation a day for five days a week. Those inmates also receive 3 showers per week.
74. Female inmates on bunk restriction are not handcuffed and shackled during their recreation time.
75. Ehrlich, an insect control company, comes into the Prison once a month and sprays chemicals to kill any insects.
76. At the time of the 2010 DOC inspection, the in-house population at the Prison was 214, which is 32 less than the approved bed capacity.
77. The Prison’s fire extinguishers are inspected on a daily basis. 78. The Prison’s fire exits are inspected on a daily basis. 79. The Prison has conducted at least three (3) fire drills per years beginning in 2008. 80. An outside professional fire protection company, Cintas Fire Protection, conducts and has conducted yearly inspections of the Prison’s fire extinguishers and yearly checks of the Ansul system used in the kitchen as documented and confirmed on Cintas Fire Protection invoices. 81. Beginning December, 2009, all shifts participate in fire evacuation movement drills three times per month basis.
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82. All of the Prison’s mattresses are made from fire retardant material including the ticking (fire retardant).
83. Emergency lighting is checked monthly by Prison supervisors. 84. According to the 2010 DOC report, the Prison has an approved bed capacity of 246 with an additional 16 emergency beds. The definition of approved bed capacity is “sleeping surface and mattress that allows the inmate to be at least 12 inches off the floor plus be located in areas approved for residence occupancy by PA L & I and/or local codes authority.” 85. There has been no triple celling for any amount of time in a cell behind the wire (disciplinary segregation) since approximately February, 2010 and the Prison has not used any cots in any cell since that time. 86. When government laws or policies have been challenged, the United States Supreme Court has held almost uniformly that cessation of the challenged behavior moots the suit. Lewis v. Cont’l Bank Corp, 494 U.S. 472, 474 (1990); Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (per curiam); Kremens v. Cent. Baptist Church, Inc., 404 U.S. 412 (1972). 87. Jurisdiction may abate if the case becomes moot because: (1) it can be said with assurance that there is no reasonable expectation…” that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably
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eradicated the effects of the alleged violation. DeJohn v. Temple Univ., 537 F.3d 301, 309 (3d Cir. 2008) (internal citations omitted)
88. A plaintiff’s claim for injunctive and declaratory relief challenging a policy that has been superseded and replaced renders such a claim moot. Marcavage v. West Chester Univ., 2007 U.S. Dist. LEXIS 18162 (E.D.Pa. March 15, 2007)
89. An assertion of mootness will be rejected “only when there is a substantial likelihood that the offending policy will be reinstated if the suit is terminated.” City of Mesquite v. Alladin’s Castle, 455 U.S. 283, 289 (1982)
90. Plaintiffs’ claims challenging practices and polices at the Prison have been rendered moot because Warden Johnson, the chief policymaker for the Prison, has replaced Warden Reish and there is no likelihood that Warden Reish will return. Warden Johnson’s policies and practices do not violate the constitutional rights of Plaintiffs as alleged.
91. Warden Johnson has implemented and/or modified policies including the maximum security cells, good-time for inmates placed in disciplinary segregation, the restraint chair, female bunk restriction and recreation time for inmates placed in segregation; none of these policies, either alone or in combination, violate Plaintiffs’ Eighth and/or Fourteenth Amendment rights.
92. Plaintiffs’ claims challenging the medical treatment at the Prison have been rendered moot because Defendants have entered into a five (5) year contract
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Case 4:08-cv-00345-JEJ Document 134 Filed 04/30/10 Page 18 of 21
with PrimeCare Medical for it to be the sole provider of medical services at the Prison.
93. Plaintiffs’ First and Fourteenth Amendment claim for alleged failure to protect the privacy of written requests for medical and mental health treatment is rendered moot as there are medical request boxes in each housing unit to which PrimeCare employees only have access.
94. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1.
95. In order to establish an equal protection claim, plaintiff must show that: (1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. See Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995).
96. Essentially, to demonstrate an equal protection violation, an inmate has the burden of proving under the second prong the existence of purposeful discrimination. Hernandez v. New York, 500 U.S. 352 (1991); McCleskey v. Kemp, 481 U.S. 279 (1987).
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97. Official action does not violate the Equal Protection Clause solely because it results in a disproportionate impact; proof of discriminatory intent or purpose is required to show a violation. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, 239 (1977); Stehney v. Perry, 101 F.3d 925, 938 (3d Cir. 1996).
98. Moving Defendants are entitled to summary judgment as to Plaintiffs’ Fourteenth Amendment Equal Protection Clause claim for the alleged unequal treatment of female inmates because females are not selectively treated and there is no tangible evidence that any Defendant acted with discriminatory intent or purpose.
99. Female inmates placed on bunk restriction are treated the same as male inmates placed in disciplinary segregation.
100. Male and female inmates receive the same amount of recreation time. 101. Female inmates placed on bunk restriction and male inmates placed in disciplinary segregation are treated the same way during their recreation time. 102. Female inmates do not have First Amendment rights which are violated when they are placed on bunk restriction. 103. Moving Defendant Reish is entitled to summary judgment because any claims asserted against him are moot as he is no longer Warden of the Prison.
19

Case 4:08-cv-00345-JEJ Document 134 Filed 04/30/10 Page 20 of 21

WHEREFORE, Defendants, respectfully request that this Honorable Court grant their Motion for Summary Judgment and enter the Order attached hereto.
Respectfully submitted, Lavery, Faherty, Young & Patterson, P.C.

DATE: April 30, 2010

By: s/ Robert G. Hanna, Jr. James D. Young, Esquire Frank J. Lavery, Jr., Esquire Robert G. Hanna, Jr., Esquire 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA53904 Atty No. PA42370 Atty No. PA17890 jyoung@laverylaw.com flavery@laverylaw.com rhanna@laverylaw.com Attys for Defendants

20

Case 4:08-cv-00345-JEJ Document 134 Filed 04/30/10 Page 21 of 21
CERTIFICATE OF SERVICE I, Cathleen A. Kohr, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this 30th day of April, 2010, I served a true and correct copy of the foregoing Defendants’ Motion for Summary Judgment, via U.S. Middle District Court’s Electronic Case Filing System, addressed as follows:
Jennifer J. Tobin, Esquire jtobin@pailp.org Attorney for Plaintiffs Jere Krakoff, Esquire krakofflaw@comcast.net Attorney for Plaintiffs
s/ Cathleen A. Kohr Cathleen A. Kohr, Senior Paralegal
This document has also been electronically filed and is available for viewing and downloading from the ECF system.
21

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

INMATES OF THE

:

NORTHUMBERLAND COUNTY :

PRISON, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

RALPH REISH, et al.,

:

:

Defendants.

:

08-cv-345 Hon. John E. Jones III

MEMORANDUM

April 29, 2011

I. INTRODUCTION

Before the Court in this class-action litigation is the parties Joint Motion

Seeking Approval of a Class Action Settlement. (Doc. 158.) For the reasons

articulated in this Memorandum, the Court shall approve the Class Action

Settlement, and an appropriate Order shall enter.

II. BACKGROUND

Procedural History

Plaintiffs, a class of Northumberland County Prison inmates, initiated this

action on February 25, 2008. (Doc. 1.) Plaintiffs asserted claims under § 1983,

alleging a litany of violations of the Plaintiffs’ constitutional rights under the
1

Eighth and Fourteenth Amendments to the United States Constitution related to the conditions at the Northumberland County Prison. Plaintiffs alleged deficiencies in the provision of medical, dental, and mental health care; inadequate heating, poor ventilation, significant insect infestations, and fire hazards in the housing units; oppressive conditions with respect to the prison’s wet and dry basement cells; overcrowding; denial of outdoor recreation for segregated inmates – including shackling during recreation; unduly harsh disciplinary bunk restrictions in the women’s dormitory; less outdoor recreation time for females; and oppressive practices and procedures associated with the use of four-point restraints.
With respect to these allegations, Plaintiffs sued Northumberland County; Northumberland County Prison Board Members Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Scavage, and Chad Reiner; and the Warden of the Northumberland County Prison, Ralph Reish. Plaintiffs sought declaratory and injunctive relief to remedy the violations, and did not pursue any claims for money damages.
On March 17, 2009, the Court granted Plaintiffs’ Motion to Certify, and certified a Rule 23(b)(2) global class of all current and future inmates of the Northumberland County Prison, and two Rule 23(b)(2) subclasses (one consisting of all current and future male inmates to challenge the policy that denied
2

segregated males outdoor recreation and required them to be shackled when engaging in recreation, and another consisting of all current and future female inmates to challenge the bunk restrictions used as discipline in the women’s dormitory). (Doc. 102.) The Court likewise granted in part and denied in part a motion to dismiss and several motions to amend.
Though throughout the litigation Defendants have denied Plaintiffs’ allegations and their liability, the parties entered into adversarial settlement negotiations. On June 16, 2010, Court referred the action to the Middle District’s Mediation Program under the supervision of mediator Joseph Barrett, the Program’s Director. (See Doc. 150.) The parties eventually reached agreed to a comprehensive Proposed Settlement, and filed a Joint (Corrected) Motion Seeking Approval of the Class Action Settlement on February 18, 2011.1 (Doc. 158.)
On February 22, 2011, the Court scheduled a fairness hearing to evaluate the Proposed Settlement and any objections. (Doc. 159.) The Order further directed the parties to post a notice of the Proposed Settlement and provide the opportunity for class members to file objections to it by April 1, 2011. (Doc. 159; see also
1We would be remiss if we did not express our appreciation for Mr. Barrett’s exhaustive and stellar work as the mediator in this case. Mr. Barrett not only coordinates this Court’s mediation program, but also participates as a mediator. We owe him a debt of gratitude.
3

Doc. 158-2 for notice form.)2 The Proposed Settlement We will not attempt to paraphrase the terms of the 37-page Proposed
Settlement; rather, we attach the terms of the Proposed Settlement as Exhibit A to this Memorandum and note that it sets numerous standards with respect to the complained-of conditions at the Prison in exchange for a release of liability. The Proposed Settlement also provides that the release is in exchange for not only the non-monetary requirements but also for the sum of $300,000 for attorneys’ fees costs, and expenses. The Proposed Settlement also includes provision regarding inspections of the premises and relevant documentation upon implementation.
The Objections Counsel forwarded to the Court the objections lodged by four inmates at Northumberland County Prison. The Court made the letters from Jermaine Frederick, Nicholas Rivera, Jarad Zarkowski, Joseph McGinley, Jr. a part of the record. (Doc. 163.) As we noted in today’s hearing, each letter articulates personal grievances regarding the conditions at the Prison and some demonstrate that the inmate is operating under the misguided assumption that the Proposed Settlement
2The Court also adopted the corresponding Report and Recommendation from Magistrate Judge Smyser (Doc. 160) and withdrew Defendants’ Motion for Summary Judgment (Doc. 134) in light of the settlement. (Doc. 161.)
4

has already been implemented.
III. DISCUSSION3
Rule 23(e) provides, in pertinent part:
The claims, issues, or defenses of a certified class m ay be settled . . . only with the court’s approval. The following procedures apply to a proposed settlement. . . (1) The court must direct notice in a reasonable manner to all class
members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve
it only after a hearing and on findingthat it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifyingany agreement made in connection with the proposal. ... (5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection m ay be withdrawn only with the court’s approval.
F.R.C.P. 23(e). As noted above, the class was properly certified in March of 2009,
so the Court need not make a certification determination as it would with a
settlement class. Because the Court directed reasonable notice and allowed for
objections, the only requisite step remaining is a determination that the proposal is
fair, reasonable, and adequate.
In Girsh v. Jepson, the Third Circuit articulated nine factors to consider
3At the outset of our analysis and as stated by us at the fairness hearing, we commend counsel for the comprehensive settlement reached. This was a most difficult case, and we appreciate the parties' spirit of compromise and dedication to achieving the best possible result.
5

when determining the fairness of a proposed settlement:
(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settleme nt; (3) the stage of the proceedings and the amount of discovery com pleted; (4) the risks of establishing liability; (5) the risks of establishing dam ages; (6) the risks of maintaining the class through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
521 F.2d 153, 157 (3d Cir. 1975); see also In re Pet Food Prods. Liab. Litig., 629
F.3d 333, 350 (3d Cir. 2010). The Third Circuit later identified other factors that
are useful to consider, including whether any provisions for attorneys’ fees are
reasonable. A court must make findings as to each of the nine Girsh factors before
approving a settlement under Rule 23(e). See Pet Foods, 629 F.3d at 351. Though
several factors are somewhat irrelevant in the context of the case at bar, each must
be addressed. We will endeavor to do so via the following analysis.
The first factor weighs slightly in favor of the Proposed Settlement. Though
the action has progressed well past the discovery stage thus further litigation would
not be exceedingly long in duration, the flexible nature of the class of Plaintiffs and
the extent of the injunctive relief requested renders the action more complex than
the average civil-rights litigation. The second factor, the reaction of the class,
likewise weighs in favor of the Proposed Settlement. As noted in the record, the
6

Northumberland County Prison houses, on average, approximately two-hundred inmates. The Court received objections from only four members of the class, and none of those objections actually took issue with the terms of the Proposed Settlement.4 Thus, we find that the reaction of the class members is, overall, favorable and this factor weighs heavily in favor of approving the settlement. The third factor, regarding the stage of the proceedings, favors settlement because the parties are fully aware of all relevant facts and thus can fully appreciate the merits and risks of each respective position. The fourth factor appears to neither weigh in favor of or against settlement. With respect to the fifth factor, the risks of establishing damages, we note that the parties do not seek damages but rather seek declaratory and injunctive relief. The risks of demonstrating the propriety of an injunction – especially an injunction of such a grand scale as would be necessary here (and is reflected in the Proposed Settlement) – are great. Thus, the fifth factor weighs in favor of approving the Proposed Settlement. Regarding the sixth factor and considering the fluidity of the global class of inmates and the subclasses of male or female inmates, the risks of maintaining the class through trial could weigh in favor of settlement. The seventh, eighth, and ninth factors, as articulated in Girsh, deal with monetary judgments and settlement funds, and thus are
4Indeed, the number of objections, whether well-founded or not, is remarkably low. 7

inappropriately evaluated here. Even so, applying the underlying principles of those factors to the instant remedy pursued in the Proposed Settlement, those factors likewise weigh in favor of settlement. Though Defendants could potentially be subject to more stringent or intensive requirements by a Court Order rather than the Proposed Settlement, the Proposed Settlement is remarkably comprehensive and thorough, addressing all concerns raised by the allegations in the Complaint. In fact, we have rarely had the occasion to review such an exhaustive settlement agreement and reiterate our gratitude to counsel for their fruitful labors. Further, the award of attorneys’ fees and costs in the amount of $300,000 is entirely reasonable, especially when considering that it represents a fraction of the fees and costs already incurred in the litigation. IV. CONCLUSION
For the reasons articulated above, we find that the Proposed Settlement is a fair, adequate, and reasonable exchange for Plaintiffs’ release of their claims. Manifestly, and despite the lack of admission on Defendants’ part, this settlement will chart a course that resolves myriad substantial problems that have existed for far too long within the Northumberland County Prison. Therefore, we shall grant the parties’ Joint Motion Seeking Approval of a Class Action Settlement (Doc. 158), adopt the Proposed Settlement, and dismiss the action. We shall, however,
8

retain jurisdiction over the administration of the settlement agreement, to protect and preserve the agreement. An appropriate Order follows.
9

 
 Case 4:08-cv-00345-JEJ Document 161 Filed 02/28/11 Page 1 of 2

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

INMATES OF THE

:

NORTHUMBERLAND COUNTY

:

PRISON, through SCOTT COLLINS,

:

et al.,

:

Plaintiffs,

:

:

v.

:

:

RALPH M. REISH, in his official capacity :

as Warden of Northumberland County :

Prison, et al.,

:

Defendants.

:

4:08-cv-345 Hon. John E. Jones III

ORDER February 28, 2011 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS On February 25, 2011, Magistrate Judge J. Andrew Smyser issued a Report and Recommendation (“R&R”) recommending that the pending Motion for Summary Judgment (Doc. 134) be deemed withdrawn since the parties have entered into a proposed settlement agreement.1 We agree with the Magistrate Judge that the pending Motion for Summary Judgment should be deemed withdrawn, and that this withdrawal is without prejudice to the Motion being

1 A fairness hearing to address any objections to the settlement agreement has been scheduled for April 28, 2011.

Case 4:08-cv-00345-JEJ Document 161 Filed 02/28/11 Page 2 of 2
reinstated if the settlement is not approved by the Court.2 NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Report and Recommendation (Doc. 160) of Magistrate Judge Smyser is ADOPTED in its entirety.
2. The Motion for Summary Judgment (Doc. 134) is DEEMED WITHDRAWN, without prejudice to the Motion being re-filed in the event the parties’ proposed settlement agreement is not approved by the Court.
s/ John E. Jones III John E. Jones III United States District Judge
2 We recognize that the objection period to the R&R has not expired, however we can divine no circumstance under which the parties would object to the recommendation of the Magistrate Judge in view of the posture of the case.
2

 
 Case 4:08-cv-00345-JEJ Document 165 Filed 04/29/11 Page 1 of 2

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

INMATES OF THE

:

NORTHUMBERLAND COUNTY :

PRISON, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

RALPH REISH, et al.,

:

:

08-cv-345 Hon. John E. Jones III

Defendants.

:

ORDER

April 29, 2011

In accordance with the Memorandum entered on this date, it is hereby ORDERED as follows:

1. The Court FINDS that the Settlement Agreement is fair, reasonable, and adequate;

2. The Parties’ Joint Motion to Approve the Settlement Agreement (Doc. 158) is GRANTED;

3. The Settlement Agreement is APPROVED;

4. This action is hereby DISMISSED and the Clerk is directed to CLOSE this case; and

5. The Court expressly retains jurisdiction for a period of fifteen (15) months, as set forth in the Settlement Agreement, in order to enter any further orders that may be necessary or appropriate in administering or implementing the terms and provisions of the settlement agreement.

1

Case 4:08-cv-00345-JEJ Document 165 Filed 04/29/11 Page 2 of 2
/s/ John E. Jones III John E. Jones III United States District Judge
2

 
 Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 1 of 22
CLOSED,MEDIATION,MEDSR,PRISNR,STANDARD
United States District Court Middle District of Pennsylvania (Williamsport) CIVIL DOCKET FOR CASE #: 4:08−cv−00345−JEJ

Collins et al v. Reish et al Assigned to: Honorable John E. Jones, III Cause: 42:1983 Prisoner Civil Rights Plaintiff Scott Collins
Plaintiff Roman Brady
Plaintiff Jeremy Elsesser

Date Filed: 02/25/2008 Date Terminated: 04/29/2011 Jury Demand: Defendant Nature of Suit: 555 Prisoner Civil Rights (Prison Conditions) Jurisdiction: Federal Question
represented by Cheryl T. Humes P.O. Box 581 Lewisburg, PA 17837 570−778−5817 Email: cheryl11860@gmail.com TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Tobin Pennsylvania Instutional Law Project 718 Arch Street Suite 304 South Philadelphia, PA 19106 215.925.2966 Email: jtobin@pailp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jere Krakoff PO Box 111331 Pittsburgh, PA 15238 412−613−4393 Email: krakofflaw@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 2 of 22

ATTORNEY TO BE NOTICED

Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Conrad Corely

represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Wetzel

represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Hasson Lindsey

represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 3 of 22

Plaintiff Thomas Anderson
Plaintiff Joseph Bowers
Plaintiff Sharon Reichner TERMINATED: 07/10/2008
Plaintiff Megan Holohan

represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 4 of 22

Plaintiff Kelcie Williams
Plaintiff Sonya Wyland

Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cheryl T. Humes (See above for address) TERMINATED: 05/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jere Krakoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Ralph M. Reish in his official capacity as Warden of Northumberland County Prison

represented by Devon M. Jacob Boyle Litigation 4660 Trindle Road Suite 200 Camp Hill, PA 17011 (717) 737−2430 Fax: (717) 737−2452 Email: dmjacob@boylelitigation.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
E. Ralph Godfrey Cipriani &Werner, P.C. 1011 Mumma Road Suite 201 Lemoyne, PA 17043 717−975−9600 Fax: 717−975−3846 Email: rgodfrey@c−wlaw.com

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 5 of 22

TERMINATED: 01/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Lavery , Jr. Lavery, Faherty, Young &Patterson, P.C. P.O. Box 1245 225 Market Street Suite 304 Harrisburg, PA 17108−1245 717−233−6633 Fax: 17172337003 Email: flavery@laverylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary H. Dadamo Lavery Faherty Patterson 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, PA 17108 717−233−6633 Fax: 233−7003 Email: gdadamo@laverylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Young James, Smith, Dietterick &Connelly, LLP P.O. Box 650 Hershey, PA 17033 717−533−3280 Email: jdy@jsdc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Hanna , Jr. Lavery Faherty Patterson 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, PA 17108−1245 717−233−6633 Fax: 717−233−7003 Email: rhanna@laverylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Frank Sawicki in official capacity as member of the Northumberland County Prison Board

represented by Devon M. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

E. Ralph Godfrey (See above for address) TERMINATED: 01/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Lavery , Jr. (See above for address) LEAD ATTORNEY

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 6 of 22

ATTORNEY TO BE NOTICED

Gary H. Dadamo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Hanna , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Vinny Clausi in official capacity as member of the Northumberland County Prison Board

represented by Devon M. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

E. Ralph Godfrey (See above for address) TERMINATED: 01/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Lavery , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary H. Dadamo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Hanna , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kurt Masser in official capacity as member of the Northumberland County Prison Board

represented by Devon M. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

E. Ralph Godfrey (See above for address) TERMINATED: 01/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Lavery , Jr. (See above for address) LEAD ATTORNEY

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 7 of 22

ATTORNEY TO BE NOTICED

Gary H. Dadamo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Hanna , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Anthony Rosini in official capacity as member of the Northumberland County Prison Board

represented by Devon M. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

E. Ralph Godfrey (See above for address) TERMINATED: 01/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Lavery , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary H. Dadamo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Hanna , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Charles Erdman in official capacity as member of the Northumberland County Prison Board

represented by Devon M. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

E. Ralph Godfrey (See above for address) TERMINATED: 01/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Lavery , Jr. (See above for address) LEAD ATTORNEY

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 8 of 22

ATTORNEY TO BE NOTICED

Gary H. Dadamo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Hanna , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Robert Sacavage in official capacity as member of the Northumberland County Prison Board

represented by Devon M. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

E. Ralph Godfrey (See above for address) TERMINATED: 01/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Lavery , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary H. Dadamo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Hanna , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Chad Reiner in official capacity as member of the Northumberland County Prison Board

represented by Devon M. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

E. Ralph Godfrey (See above for address) TERMINATED: 01/09/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Lavery , Jr. (See above for address) LEAD ATTORNEY

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 9 of 22

ATTORNEY TO BE NOTICED

Gary H. Dadamo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James D. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Hanna , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mediator Mediator

represented by Joseph Anthony Barrett Office of Clerk of Court 235 N. Washington Ave. William J. Nealon Federal Building Scranton, PA 18501 570−207−5662 Email: joe_barrett@pamd.uscourts.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/25/2008
02/26/2008 03/03/2008 03/07/2008
03/07/2008
03/07/2008
03/07/2008

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $350, Receipt Number 1222038), filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Attachments: # 1 Civil Cover Sheet)(lg, ) (Entered: 02/26/2008)
Summons Issued as to Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner and mailed to Attorney Humes for service on Defendant(s). (lg, ) (Entered: 02/26/2008)
2 SCHEDULING ORDER: Case Management Conference set for 5/30/2008. (eo, ) (Entered: 03/03/2008)
3 AFFIDAVIT of Service for Summons and Complaint served on Ralph Reish on March 5, 2008, filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Humes, Cheryl) (Entered: 03/07/2008)
4 AFFIDAVIT of Service for Summons and Complaint served on Frank Sawicki as Chairman of County Commissioners on March 5, 2008, filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Humes, Cheryl) (Entered: 03/07/2008)
5 AFFIDAVIT of Service for Summons and Complaint served on Frank Sawicki as Chairman of the Northumberland County Prison Board on March 5, 2008, filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Humes, Cheryl) (Entered: 03/07/2008)
6 NOTICE of Appearance by Frank J. Lavery, Jr on behalf of Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner (Lavery, Frank) (Entered: 03/07/2008)

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 10 of 22

03/07/2008 03/07/2008 03/12/2008
03/12/2008 03/12/2008
03/13/2008 03/14/2008
03/17/2008 03/18/2008 03/18/2008 03/18/2008 03/18/2008
03/20/2008
03/24/2008

7 NOTICE of Appearance by Robert G. Hanna, Jr on behalf of Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner (Hanna, Robert) (Entered: 03/07/2008)
8 NOTICE of Appearance by Devon M. Jacob on behalf of Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner (Jacob, Devon) (Entered: 03/07/2008)
9 MOTION to Certify Class by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Attachments: # 1 Certificate of Non−Concurrence, # 2 Proposed Order)(Humes, Cheryl) (Entered: 03/12/2008)
10 BRIEF IN SUPPORT re 9 MOTION to Certify Class filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner.(Humes, Cheryl) (Entered: 03/12/2008)
11 MOTION for Discovery to be Expedited and Permission to Exceed the Twenty−Five Interrogatory Limitation by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Attachments: # 1 Certificate of Non−Concurrence, # 2 Proposed Order)(Humes, Cheryl) (Entered: 03/12/2008)
12 ORDER expediting briefing schedule. (eo, ) (Entered: 03/13/2008)
13 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Jere Krakoff on behalf of Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers and Sharon Reichner. Attorney Jere Krakoff is seeking special admission. Filing Fee: 25.00 Receipt Number: 111003162 (Attachments: # 1 Receipt) (jc) (Entered: 03/17/2008)
14 NOTICE of Appearance by Jennifer J. Tobin on behalf of Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner (Tobin, Jennifer) (Entered: 03/17/2008)
SPECIAL ADMISSION FORM SENT to Jennifer J. Tobin. (jc) (Entered: 03/18/2008)
15 SPECIAL ADMISSIONS FORM APPROVED as to Jere Krakoff (eo, ) (Entered: 03/18/2008)
16 MOTION for Extension of Time to File Answer re 1 Complaint, (Concurred−In) by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Hanna, Robert) (Entered: 03/18/2008)
17 ORDER granting 16 Motion for Extension of Time to Answer Ralph M. Reish answer due 4/24/2008; Frank Sawicki answer due 4/24/2008; Vinny Clausi answer due 4/24/2008; Anthony Rosini answer due 4/24/2008; Charles Erdman answer due 4/24/2008; Robert Sacavage answer due 4/24/2008; Chad Reiner answer due 4/24/2008. (eo, ) (Entered: 03/18/2008)
18 BRIEF IN SUPPORT re 11 MOTION for Discovery to be Expedited and Permission to Exceed the Twenty−Five Interrogatory Limitation filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B)(Tobin, Jennifer) (Entered: 03/20/2008)
19 SPECIAL ADMISSIONS FORM APPROVED as to Jere Krakoff (eo, ) (Entered: 03/24/2008)

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 11 of 22

03/24/2008 03/24/2008 03/25/2008 04/01/2008 04/01/2008 04/02/2008 04/02/2008 04/02/2008 04/03/2008 04/03/2008 04/15/2008
04/16/2008 04/16/2008
04/24/2008
04/24/2008 04/24/2008

20 NOTICE of Appearance by James D. Young on behalf of Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner (Young, James) (Entered: 03/24/2008)
21 MOTION for Extension of Time to File Brief in Opposition to Plaintiffs' Motion for Class Certification (Concurred−In) filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 03/24/2008)
22 ORDER granting 21 Defendant's Motion for Extension of Time to File Brief in Opposition to Plaintiff's Motion for class Certification on or before April 3, 2008.Signed by Honorable John E. Jones, III on 3/25/08 (bw, ) (Entered: 03/25/2008)
23 Letter from Robert G. Hanna, Jr., Esquire to The Honorable John E. Jones, III (Re: Motion for Expedited Discovery). (Hanna, Robert) (Entered: 04/01/2008)
24 MOTION to Exceed Page Limitation of Local Rule 7.8 (Concurred−In) by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 04/01/2008)
25 ORDER granting 24 Motion for Leave to File Excess Pages. (eo, ) (Entered: 04/02/2008)
26 Letter from Plaintiffs' Counsel Re: Motion for Expedited Discovery. (Humes, Cheryl) (Entered: 04/02/2008)
27 ORDER withdrawing 11 Motion for Discovery. See Order for details. (eo, ) (Entered: 04/02/2008)
28 May 2008 ORDER: Case Management Conference set for 5/30/2008 10:00 AM before Honorable John E. Jones III. (eo, ) (Entered: 04/03/2008)
29 BRIEF IN OPPOSITION re 9 MOTION to Certify Class filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Young, James) (Entered: 04/03/2008)
30 MOTION for Leave to File Reply Brief in Excess of Limitations of Local Rule 7.8 with Certificate of Service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Attachments: # 1 Proposed Order Proposed Order)(Tobin, Jennifer) (Entered: 04/15/2008)
31 ORDER granting 30 Motion for Leave to File Excess pages. (eo, ) (Entered: 04/16/2008)
32 REPLY BRIEF re 9 MOTION to Certify Class with Certification of Counsel and Certificate of Service filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner.(Tobin, Jennifer) (Entered: 04/16/2008)
33 MOTION to Dismiss the Complaint as to Plaintiffs Conrad Corely, Thomas Anderson, Megan Holohan and Sonya Wyland, Pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 04/24/2008)
34 MOTION to Amend/Correct, MOTION to Dismiss by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 04/24/2008)
35 ANSWER to 1 Complaint, with Jury Demand Together with Affirmative Defenses by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Hanna, Robert) (Entered: 04/24/2008)

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 12 of 22

04/30/2008 05/05/2008
05/05/2008 05/07/2008 05/08/2008 05/12/2008
05/20/2008 05/20/2008 05/21/2008 05/27/2008 05/27/2008 05/28/2008 05/29/2008
05/29/2008

Docket Annotation: ECF registration form e−mailed to Attorney Krakoff. (lg, ) (Entered: 04/30/2008)
36 MOTION to Expedite Ruling by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Attachments: # 1 Exhibit(s) Plaintiffs' Req for Production, # 2 Exhibit(s) Defs' Response to Req for Production, # 3 Certificate of Non−Concurrence, # 4 Proposed Order)(Humes, Cheryl) (Entered: 05/05/2008)
37 AMENDED DOCUMENT by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. Amended Certificate of Concurrence/Non−Concurrence. (Young, James) (Entered: 05/05/2008)
38 BRIEF IN SUPPORT re 36 MOTION to Expedite Ruling filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner.(Humes, Cheryl) (Entered: 05/07/2008)
39 BRIEF IN SUPPORT of Defendants Amended Motion to Dismiss re 34 MOTION to Amend/Correct MOTION to Dismiss filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Appendix, # 2 Exhibit(s))(Young, James) (Entered: 05/08/2008)
40 BRIEF IN OPPOSITION re 33 MOTION to Dismiss the Complaint as to Plaintiffs Conrad Corely, Thomas Anderson, Megan Holohan and Sonya Wyland, Pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure MOTION to Dismiss the Complaint as to Plaintiffs Conrad Corely, Thomas Anderson, Megan Holohan and Sonya Wyland, Pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, 34 MOTION to Amend/Correct MOTION to Dismiss filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner.(Humes, Cheryl) (Entered: 05/12/2008)
41 MOTION to Withdraw as Attorney by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner.(Humes, Cheryl) (Entered: 05/20/2008)
42 ORDER granting 41 Motion to Withdraw as Attorney. (eo, ) (Entered: 05/20/2008)
43 CASE MANAGEMENT PLAN Joint by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Hanna, Robert) (Entered: 05/21/2008)
44 ORDER − Within 5 days counsel shall file stipulation or non concurred motion. See Order for details. (eo, ) (Entered: 05/27/2008)
45 MOTION for Extension of Time to File Brief in Opposition to Plaintiffs' Motion for an Expedited Ruling on Class Certification (Concurred−In) filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 05/27/2008)
46 ORDER granting 45 Motion for Extension of Time to File Brief in Opposition by 5/29/08 (eo, ) (Entered: 05/28/2008)
47 STIPULATION re 40 Brief in Opposition,, by Megan Holohan, Kelcie Williams, Sonya Wyland, Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Scott Collins, Chad Reiner, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Tobin, Jennifer) (Entered: 05/29/2008)
48 STIPULATION re 40 Brief in Opposition,, by Megan Holohan, Kelcie Williams, Sonya Wyland, Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser,

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 13 of 22

05/29/2008 05/29/2008 05/30/2008 05/30/2008 06/02/2008 06/02/2008 06/02/2008
06/03/2008
06/03/2008 06/04/2008
06/05/2008 06/11/2008 06/11/2008
07/09/2008

Anthony Rosini, Charles Erdman, Robert Sacavage, Scott Collins, Chad Reiner, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Attachments: # 1 Proposed Stipulated Order Proposed Order)(Tobin, Jennifer) (Entered: 05/29/2008)
49 ORDER approving stipulation. Reply Brief due by 6/2/08. (eo, ) (Entered: 05/29/2008)
50 BRIEF IN OPPOSITION re 36 MOTION to Expedite Ruling filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Young, James) (Entered: 05/29/2008)
52 ORDER #1− STANDARD CASE MANAGEMENT TRACK Discovery due by 3/13/2009. Jury Selection set for 6/3/2009 09:30AM before Honorable John E. Jones III. Motions due by 3/2/2009. Pretrial Conference set for 5/1/2009. Settlement Conference set for 3/30/2009. (eo, ) (Entered: 05/30/2008)
53 ORDER #2− Practice order. (eo, ) (Entered: 05/30/2008)
SPECIAL ADMISSION FORM and ECF registration form SENT to Jere Krakoff. (lg, ) (Entered: 06/02/2008)
54 REPLY BRIEF re 34 MOTION to Amend/Correct MOTION to Dismiss In Support filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Young, James) (Entered: 06/02/2008)
55 REPLY BRIEF re 36 MOTION to Expedite Ruling with Certificate of Service filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner.(Tobin, Jennifer) (Entered: 06/02/2008)
56 STIPULATION Proposed Stipulated Protective Order by Megan Holohan, Kelcie Williams, Sonya Wyland, Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Scott Collins, Chad Reiner, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers, Sharon Reichner. (Tobin, Jennifer) (Entered: 06/03/2008)
57 (Approved) STIPULATED PROTECTIVE ORDER(lg, ) (Entered: 06/04/2008)
58 MOTION Defendants' Concurred−In Motion for Leave to Depose Prisoners Pursuant to Rule 30(a), Federal Rules of Civil Procedure by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order (Wyland), # 2 Proposed Order (Inmates), # 3 Proposed Order (Collins))(Young, James) (Entered: 06/04/2008)
59 ORDER granting 58 Motion to Depose Inmates. See Orders for details. (eo, ) (Entered: 06/05/2008)
60 NOTICE of Appearance by E. Ralph Godfrey on behalf of Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner (Godfrey, E.) (Entered: 06/11/2008)
61 MEMORANDUM AND ORDER : Plaintiffs' Motion to Certify (doc. 9) is denied without prejudice. Plaintiffs' Motion to Expedite (doc. 36) is granted to the extent outlined in the above Memorandum. All fact discovery as to the issue of class certification shall be commenced in time to be completed by September 1, 2008. The scope of discovery, however, is not per se limited to class certification issues. Should they so elect, Plaintiffs shall move for class certification no later than September 15, 2008.Signed by Honorable John E. Jones, III on 6/11/08 (bw, ) (Entered: 06/11/2008)
62 Joint MOTION to Dismiss and Stipulation of Dismissal by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James)

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 14 of 22

07/10/2008 09/02/2008 09/08/2008 09/10/2008
09/11/2008 09/15/2008 09/16/2008 09/18/2008
09/18/2008
09/19/2008 09/26/2008 09/26/2008

(Entered: 07/09/2008)
63 ORDER granting 62 Concurred Motion to Dismiss Plaintiff Sharon Reichner only (eo, ) (Entered: 07/10/2008)
64 MOTION to Supplement the Complaint with Certificate of Service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Exhibit(s) A, # 2 Certificate of Non−Concurrence, # 3 Proposed Order)(Tobin, Jennifer) (Entered: 09/02/2008)
65 Letter from Plaintiffs' and Defendants' counsel. (Tobin, Jennifer) (Entered: 09/08/2008)
66 STIPULATION by Megan Holohan, Kelcie Williams, Sonya Wyland, Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Scott Collins, Chad Reiner, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Proposed Stipulated Order)(Tobin, Jennifer) (Entered: 09/10/2008)
67 ORDER approving 66 Stipulation, filed by Kurt Masser, Ralph M. Reish, Conrad Corely, Anthony Rosini, Michael Wetzel, Megan Holohan, Hasson Lindsey, Scott Collins, Robert Sacavage, Frank Sawicki, Roman Brady, Thomas Anderson, Kelcie Williams, Sonya Wyland, Jeremy Elsesser, Charles Erdman, Vinny Clausi, Joseph Bowers, Chad Reiner (eo, ) (Entered: 09/11/2008)
68 Second MOTION to Certify Class with Certificate of Service by Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Michael Wetzel, Hasson Lindsey, Joseph Bowers. (Attachments: # 1 Certificate of Non−Concurrence, # 2 Proposed Order)(Tobin, Jennifer) (Entered: 09/15/2008)
69 BRIEF IN SUPPORT re 64 MOTION to Supplement the Complaint with Certificate of Service filed by Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Michael Wetzel, Hasson Lindsey, Joseph Bowers. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s))(Tobin, Jennifer) (Entered: 09/16/2008)
70 MOTION to Amend/Correct 64 MOTION to Supplement the Complaint with Certificate of Service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Certificate of Non−Concurrence, # 3 Proposed Order)(Tobin, Jennifer) (Entered: 09/18/2008)
71 BRIEF IN SUPPORT of Plaintiffs' Amended Motion to Supplement the Complaint re 70 MOTION to Amend/Correct 64 MOTION to Supplement the Complaint with Certificate of Service MOTION to Amend/Correct 64 MOTION to Supplement the Complaint with Certificate of Service filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers.(Tobin, Jennifer) (Entered: 09/18/2008)
72 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 71 Brief in Support, with Certificate of Service. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s))(Tobin, Jennifer) (Entered: 09/19/2008)
73 BRIEF IN SUPPORT of Plaintiffs' Motion for Class Certification with Certificate of Service re 68 Second MOTION to Certify Class with Certificate of Service filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers.(Tobin, Jennifer) (Entered: 09/26/2008)
74 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 73 Brief in Support, Table of Contents of

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 15 of 22

09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008
10/06/2008 10/23/2008 10/23/2008

Appendix. (Tobin, Jennifer) (Entered: 09/26/2008)
75 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 74 Appendix, 73 Brief in Support, with certificate of service. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C)(Tobin, Jennifer) (Entered: 09/26/2008)
76 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 74 Appendix, 73 Brief in Support, with certificate of service. (Attachments: # 1 Exhibit(s) D, # 2 Exhibit(s) E, # 3 Exhibit(s) F, # 4 Exhibit(s) G)(Tobin, Jennifer) (Entered: 09/26/2008)
77 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 74 Appendix, 73 Brief in Support, with Certificate of service. (Attachments: # 1 Exhibit(s) H, # 2 Exhibit(s) I, # 3 Exhibit(s) J, # 4 Exhibit(s) K, # 5 Exhibit(s) L, # 6 Exhibit(s) M, # 7 Exhibit(s) N, # 8 Exhibit(s) O, # 9 Exhibit(s) P, # 10 Exhibit(s) Q, # 11 Exhibit(s) R)(Tobin, Jennifer) (Entered: 09/26/2008)
78 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 74 Appendix, 73 Brief in Support, with Certificate of Service. (Attachments: # 1 Exhibit(s) S, # 2 Exhibit(s) T)(Tobin, Jennifer) (Entered: 09/26/2008)
79 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 74 Appendix, 73 Brief in Support, with certificate of service. (Attachments: # 1 Exhibit(s) U, # 2 Exhibit(s) V, # 3 Exhibit(s) W, # 4 Exhibit(s) X, # 5 Exhibit(s) Y, # 6 Exhibit(s) Z)(Tobin, Jennifer) (Entered: 09/26/2008)
80 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 74 Appendix, 73 Brief in Support, with Certificate of service. (Attachments: # 1 Exhibit(s) AA, # 2 Exhibit(s) BB, # 3 Exhibit(s) CC, # 4 Exhibit(s) DD, # 5 Exhibit(s) EE, # 6 Exhibit(s) FF, # 7 Exhibit(s) GG, # 8 Exhibit(s) HH, # 9 Exhibit(s) II, # 10 Exhibit(s) JJ, # 11 Exhibit(s) KK, # 12 Exhibit(s) LL, # 13 Exhibit(s) MM, # 14 Exhibit(s) NN, # 15 Exhibit(s) OO, # 16 Exhibit(s) PP, # 17 Exhibit(s) QQ)(Tobin, Jennifer) (Entered: 09/26/2008)
81 BRIEF IN OPPOSITION re 70 MOTION to Amend/Correct 64 MOTION to Supplement the Complaint with Certificate of Service MOTION to Amend/Correct 64 MOTION to Supplement the Complaint with Certificate of Service filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Young, James) (Entered: 10/06/2008)
82 REPLY BRIEF re 64 MOTION to Supplement the Complaint with Certificate of Service, 70 MOTION to Amend/Correct 64 MOTION to Supplement the Complaint with Certificate of Service MOTION to Amend/Correct 64 MOTION to Supplement the Complaint with Certificate of Service with Certificate of Service filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers.(Tobin, Jennifer) (Entered: 10/23/2008)
83 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 82 Reply Brief,, with Certificate of Service. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3)(Tobin, Jennifer) (Entered: 10/23/2008)

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 16 of 22

10/28/2008
10/28/2008 11/04/2008
11/04/2008 11/07/2008 11/07/2008 11/12/2008 11/12/2008 11/17/2008 11/21/2008
12/04/2008
12/26/2008
12/29/2008 12/29/2008

84 MOTION for Extension of Time to File Brief in Opposition to Plaintiffs' Renewed Motion for Class Certification (Concurred−In) filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 10/28/2008)
85 ORDER granting 84 Motion for Extension of Time to File Brief in Opposition due by 11/5/2008 (eo, ) (Entered: 10/28/2008)
86 MOTION for Extension of Time to File Brief in Opposition to Plaintiffs' Renewed Motion for Class Certification (Concurred−In) filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 11/04/2008)
87 ORDER granting 86 Motion for Extension of Time to File Brief in Opposition due by 11/7/2008 (eo, ) (Entered: 11/04/2008)
88 MOTION for Extension of Time to File Brief filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 11/07/2008)
89 ORDER granting 88 Motion for Extension of Time (eo, ) (Entered: 11/07/2008)
90 MOTION for Extension of Time to File Brief in Opposition to Plaintiffs' Renewed Motion for Class Certification filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 11/12/2008)
91 ORDER granting 90 Motion for Extension of Time (eo, ) (Entered: 11/12/2008)
92 BRIEF IN OPPOSITION re 68 Second MOTION to Certify Class with Certificate of Service filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Young, James) (Entered: 11/17/2008)
93 APPENDIX by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. to 92 Brief in Opposition In Support. (Attachments: # 1 Exhibit(s) A − Sworn Declaration of Warden Ralph M. Reish, # 2 Exhibit(s) B − Deposition transcript excerpts of Plaintiff Roman Brady, # 3 Exhibit(s) C − Deposition transcript excerpt of Plaintiff Scott Collins, # 4 Exhibit(s) D − Deposition transcript excerpt of Plaintiff Michael Wetzel, # 5 Exhibit(s) E − Deposition transcript excerpt of Plaintiff Jeremy Elsesser, # 6 Exhibit(s) F − Deposition transcript excerpt of Plaintiff Kelcie Williams, # 7 Exhibit(s) G − Deposition transcript excerpt of Plaintiff Hasson Lindsey, # 8 Appendix)(Young, James) (Entered: 11/21/2008)
94 REPLY BRIEF re 68 Second MOTION to Certify Class with Certificate of Service with Certificate of Service filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers.(Tobin, Jennifer) (Entered: 12/04/2008)
95 MOTION for Leave to File a Sur Reply Brief in Opposition to Plaintiffs' Renewed Motion for Class Certification by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) (A) Defendants' Sur Reply Brief in Opposition to Plaintiffs' Renewed Motion for Class Certification)(Young, James) (Entered: 12/26/2008)
96 ORDER granting 95 Motion for Leave to File Sur Reply Brief. (eo, ) (Entered: 12/29/2008)
97 Defendants' SUR REPLY to REPLY to Response to Motion re 68 Second MOTION to Certify Class (eo, ) (Entered: 12/29/2008)

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12/29/2008
01/09/2009
01/09/2009
01/09/2009 03/17/2009
03/26/2009 03/30/2009 03/30/2009
03/30/2009 04/24/2009 04/27/2009 06/02/2009 06/03/2009 06/07/2009 06/08/2009 06/09/2009 06/30/2009

98 BRIEF IN OPPOSITION re 95 MOTION for Leave to File a Sur Reply Brief in Opposition to Plaintiffs' Renewed Motion for Class Certification with certificate of service filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers.(Tobin, Jennifer) (Entered: 12/29/2008)
99 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney E. Ralph Godfrey terminated on behalf of Ralph M. Reish, Frank Sawick, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Godfrey, E.) (Entered: 01/09/2009)
100 Unopposed MOTION for Extension of Time to of all deadlines in case management order (concurred−in) by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Proposed Order)(Tobin, Jennifer) (Entered: 01/09/2009)
101 ORDER granting 100 Motion to Cancel Deadlines until ruling on Class Certification issue. (eo, ) (Entered: 01/09/2009)
102 ORDER granting in part and denying in part 33 Motion to Dismissand 34 Motion to Amend/Correct. Granting in part and denying in part 34 Motion to Dismiss. Granting 64 Motion to Supplement. Granting 68 Motion to Certify Class. Granting 70 Motion to Amend/Correct. See order for details. (eo, ) (Entered: 03/17/2009)
104 STIPULATION Of Counsel by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order)(Young, James) (Entered: 03/26/2009)
105 ORDER approving 104 Stipulation as to deadlines. (eo, ) (Entered: 03/30/2009)
106 AMENDED ANSWER to 1 Complaint, TOGETHER WITH AFFIRMATIVE DEFENSES by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Hanna, Robert) (Entered: 03/30/2009)
107 ANSWER to Complaint (SUPPLEMENTAL COMPLAINT) by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Hanna, Robert) (Entered: 03/30/2009)
108 STIPULATION FOR PROTECTIVE ORDER (Plaintiffs and Defendants) by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Hanna, Robert) (Entered: 04/24/2009)
109 ORDER approving 108 Stipulation filed by Kurt Masser, Ralph M. Reish, Anthony Rosini, Charles Erdman, Vinny Clausi, Robert Sacavage, Frank Sawicki, Chad Reiner (eo, ) (Entered: 04/27/2009)
110 Letter from Plaintiffs' counsel requesting discovery conference. (Tobin, Jennifer) (Entered: 06/02/2009)
111 SCHEDULING ORDER: Telephone Discovery Conference set for 6/5/2009 08:30 AM before Honorable John E. Jones III. Plaintiffs counsel shall initiate call to chambers. See order for details. (eo, ) (Entered: 06/03/2009)
113 Letter from Plaintiffs' counsel requesting a discovery conference via telephone. (Tobin, Jennifer) (Entered: 06/07/2009)
114 SCHEDULING ORDER: Telephone Discovery Conference set for 6/15/2009 11:00 AM before Honorable John E. Jones III. (eo, ) (Entered: 06/08/2009)
115 NOTICE of Appearance by Gary H. Dadamo on behalf of all defendants (Dadamo, Gary) (Entered: 06/09/2009)
117 First MOTION requesting an Order directing Defendant to post a notice to the class regarding class certification with certificate of service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order, # 3

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 18 of 22

07/07/2009
07/08/2009 07/15/2009
07/20/2009 07/20/2009
07/20/2009 10/29/2009
10/29/2009 10/30/2009 01/12/2010
01/13/2010 02/03/2010
02/03/2010 03/24/2010

Exhibit(s))(Tobin, Jennifer) (Entered: 06/30/2009)
118 STIPULATION re 117 First MOTION requesting an Order directing Defendant to post a notice to the class regarding class certification with certificate of service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Proposed Stipulated Order)(Tobin, Jennifer) (Entered: 07/07/2009)
119 ORDER approving stipulation (eo, ) (Entered: 07/08/2009)
120 MOTION for Extension of Time to Complete Discovery with Certificate of service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Proposed Order)(Tobin, Jennifer) (Entered: 07/15/2009)
121 ORDER granting 120 Motion for Extension of Time to Complete Discovery. Discovery due by 12/31/2009. See order for additional dealines. (eo, ) (Entered: 07/20/2009)
122 STIPULATION to post Notice to Class Members by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Exhibit(s), # 2 Proposed Order)(Tobin, Jennifer) (Entered: 07/20/2009)
123 ORDER approving 122 Stipulation, filed by Roman Brady, Conrad Corely, Michael Wetzel, Thomas Anderson, Sonya Wyland, Kelcie Williams, Megan Holohan, Jeremy Elsesser, Scott Collins, Hasson Lindsey, Joseph Bowers (eo, ) (Entered: 07/20/2009)
124 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Jere Krakoff on behalf of Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson and Joseph Bowers. Attorney Jere Krakoff is seeking special admission. Filing Fee: 25.00 Receipt Number: 111006733. (jc) (Entered: 10/29/2009)
DOCKET ANNOTATION: PA State Bar Record verified for Jere Krakoff and Jennifer Tobin. (jc) (Entered: 10/29/2009)
125 SPECIAL ADMISSIONS FORM APPROVED as to Jere Krakoff (eo, ) (Entered: 10/30/2009)
126 Joint MOTION for Extension of Time to Joint Motion to Extend Deadlines for Expert reports and dispositive motions with certificate of service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Proposed Order proposed order)(Tobin, Jennifer) (Entered: 01/12/2010)
127 ORDER granting 126 Motion to Extend Time. Dispositive Motions due by 4/5/2010. See order for additional deadlines. (eo, ) (Entered: 01/13/2010)
128 Joint MOTION for Extension of Time to Expert report deadlines with certificate of service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Proposed Order)(Tobin, Jennifer) (Entered: 02/03/2010)
129 ORDER granting 128 Motion to Extend Time for Expert report deadlines. See order for details. (eo, ) (Entered: 02/03/2010)
130 MOTION for Extension of Time to Enlargement of Dispositive Motions and Defendants' Expert Report Deadlines (Concurred−In) by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Hanna, Robert) (Entered: 03/24/2010)

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 19 of 22

03/24/2010 04/27/2010 04/27/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010
05/03/2010 05/10/2010
05/11/2010
06/02/2010 06/02/2010 06/02/2010

131 ORDER granting 130 Motion to Extend Time. Motions due by 5/1/2010. Expert report deadline 5/1/10. (eo, ) (Entered: 03/24/2010)
132 MOTION to Exceed Page Limitation (CONCURRED−IN) by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Hanna, Robert) (Entered: 04/27/2010)
133 ORDER granting 132 Motion for Leave to File Excess Pages (eo, ) (Entered: 04/27/2010)
134 MOTION for Summary Judgment by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Hanna, Robert) (Entered: 04/30/2010)
135 BRIEF IN SUPPORT re 134 MOTION for Summary Judgment filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Hanna, Robert) (Entered: 04/30/2010)
136 STATEMENT OF FACTS re 134 MOTION for Summary Judgment filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Hanna, Robert) (Entered: 04/30/2010)
137 APPENDIX by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. to 134 MOTION for Summary Judgment. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s), # 14 Exhibit(s), # 15 Exhibit(s), # 16 Exhibit(s), # 17 Exhibit(s), # 18 Exhibit(s), # 19 Exhibit(s), # 20 Exhibit(s), # 21 Exhibit(s), # 22 Exhibit(s), # 23 Exhibit(s), # 24 Exhibit(s))(Hanna, Robert) (Entered: 04/30/2010)
138 ORDER REFERRING MOTION: 134 MOTION for Summary Judgment filed by Kurt Masser, Ralph M. Reish, Anthony Rosini, Charles Erdman, Vinny Clausi, Robert Sacavage, Frank Sawicki, Chad Reiner to Magistrate Judge Smyser (cc: Dolinish and Wentovich) (eo, ) (Entered: 05/03/2010)
139 Unopposed MOTION for Extension of Time to to file response brief to summary judgment motion and to exceed page limitations by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Tobin, Jennifer) (Entered: 05/10/2010)
140 ORDER − upon consideration of Plaintiffs Concurred−In Motion Seeking Additional Time to File Response to Defendants Summary Judgment Brief and Permission to Exceed the Limitations of Local Rule 7.8 (contents and length of pre−trial briefs), IT IS ORDERED,that said Motion is GRANTED. Plaintiffs brief in response to Defendants motion for summary judgment shall be filed on or before June 1st, 2010 and shall not exceed ninety (90) pages. Signed by Magistrate Judge J. Andrew Smyser on 5/11/10 (rc) (Entered: 05/11/2010)
142 ANSWER TO STATEMENT OF FACTS re 136 Statement of Facts filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers.(Tobin, Jennifer) (Entered: 06/02/2010)
143 BRIEF IN OPPOSITION re 134 MOTION for Summary Judgment Praecipe to file corrected brief in opposition to summary judgment motion filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers.(Tobin, Jennifer) (Entered: 06/02/2010)
144 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 142 Answer to Statement of Facts, appendix

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 20 of 22

06/02/2010
06/02/2010 06/02/2010 06/03/2010
06/03/2010 06/03/2010 06/15/2010 06/16/2010 06/30/2010 07/02/2010 07/06/2010 07/09/2010

part 1 of 2. (Attachments: # 1 Exhibit 1, # 2 Ex. 2, # 3 Ex. 3, # 4 Ex. 4, # 5 Ex. 5, # 6 Ex. 6, # 7 Ex. 7, # 8 Ex. 8, # 9 Ex. 9, # 10 Ex. 10, # 11 Ex. 11, # 12 Ex. 12, # 13 Ex. 13, # 14 Ex. 14, # 15 Ex. 15, # 16 Ex. 16, # 17 Ex. 17, # 18 Ex. 18, # 19 Ex. 20, # 20 Ex. 21, # 21 Ex. 22, # 22 Ex. 23, # 23 Ex. 24, # 24 Ex. 25, # 25 Ex. 26, # 26 Ex. 27, # 27 Ex. 28, # 28 Ex. 29, # 29 Ex. 30, # 30 Ex. 31, # 31 Ex. 32, # 32 Ex. 33, # 33 Ex. 34)(Tobin, Jennifer) (Entered: 06/02/2010)
145 APPENDIX by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. to 143 Brief in Opposition, 142 Answer to Statement of Facts, Appendix part 2. (Attachments: # 1 Ex. 35, # 2 Ex. 36, # 3 Ex. 37, # 4 Ex. 38, # 5 Ex. 40, # 6 Ex. 41, # 7 Ex. 42, # 8 Ex. 43, # 9 Ex. 44, # 10 Ex. 45, # 11 Ex. 46, # 12 Ex. 47, # 13 Ex. 48, # 14 Ex. 49, # 15 Ex. 50, # 16 Ex. 51, # 17 Ex. 51 cont'd, # 18 Ex. 52, # 19 Ex. 53, # 20 Ex. 53 cont'd, # 21 Ex. 54, # 22 Ex. 56, # 23 Ex. 57, # 24 Ex. 58, # 25 Ex. 59, # 26 Ex. 60, # 27 Ex. 61, # 28 Ex. 62, # 29 Ex. 63, # 30 Ex. 64, # 31 Ex. 65, # 32 Ex. 66, # 33 Ex. 67, # 34 Ex. 68, # 35 Ex. 68 part 2, # 36 Ex. 68 part 3, # 37 Ex. 69, # 38 Ex. 70 part 1, # 39 Ex. 70 part 2, # 40 Ex. 70 part 3, # 41 Ex. 70 part 4, # 42 Ex. 71, # 43 Ex. 72, # 44 Ex. 73, # 45 Ex. 74, # 46 Ex. 75, # 47 Ex. 76, # 48 Ex. 77, # 49 Ex. 78)(Tobin, Jennifer) (Entered: 06/02/2010)
DOCKET ANNOTATION: Attorney Tobin contacted to refile doc 141 (to include a caption/title/etc); thereafter, doc 141 will be deleted. (lg, ) (Entered: 06/02/2010)
146 BRIEF IN OPPOSITION re 134 MOTION for Summary Judgment filed by Scott Collins.(Tobin, Jennifer) (Entered: 06/02/2010)
147 Praecipe to attach exhibits and file amended pages of brief with certificate of service. (Attachments: # 1 Exhibit(s) 19−1, # 2 Exhibit(s) 19−2, # 3 Exhibit(s) 19−3, # 4 Exhibit(s) 19−4, # 5 Exhibit(s) 19−5, # 6 Exhibit(s) 19−6, # 7 Exhibit(s) 55−1, # 8 Exhibit(s) 55−2, # 9 Exhibit(s) 55−3, # 10 Exhibit(s) 55−4, # 11 Exhibit(s) 55−5, # 12 Exhibit(s) 55−6, # 13 Exhibit(s) 55−7, # 14 Exhibit(s) 55−8, # 15 Exhibit(s) 55−9, # 16 Exhibit(s) 55−10, # 17 Exhibit(s) 55−11, # 18 Exhibit(s) 55−12, # 19 Exhibit(s) 55−13, # 20 Exhibit(s) 55−14, # 21 Exhibit(s) 55−15, # 22 Exhibit(s) 55−16, # 23 Exhibit(s) 55−17, # 24 Exhibit(s) 55−18, # 25 Exhibit(s) 74− Amended, # 26 amended pages of brief w/ corrected citations to record)(Tobin, Jennifer) (Entered: 06/03/2010)
148 Praecipe to attach list of photographs to an exhibit with certificate of service. (Attachments: # 1 list of photographs in Exhibit 55)(Tobin, Jennifer) (Entered: 06/03/2010)
DOCKET ANNOTATION: document 141 deleted. (lg, ) (Entered: 06/03/2010)
149 Letter from Defendants requesting appointment of mediator. (Lavery, Frank) (Entered: 06/15/2010)
150 ORDER REFERRING CASE to Mediation. MediatorJoseph Anthony Barrett added. (eo, ) (Entered: 06/16/2010)
151 MOTION to Exceed Page Limitation and Word Limitation by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Hanna, Robert) (Entered: 06/30/2010)
152 REPLY BRIEF re 134 MOTION for Summary Judgment filed by Ralph M. Reish, Frank Sawicki, Vinny Clausi, Kurt Masser, Anthony Rosini, Charles Erdman, Robert Sacavage, Chad Reiner.(Hanna, Robert) (Entered: 07/02/2010)
153 ORDER − Upon consideration of Defendants Motion 151 for Leave to Exceed Page and Word Limitations, and Plaintiffs concurrence thereto, said Motion is GRANTED and Defendants shall file a Reply Brief in Support of their Motion for Summary Judgment which contains no more than 20,000 words. Signed by Magistrate Judge J. Andrew Smyser on 7/6/10. (rc) (Entered: 07/06/2010)
154 MOTION authorization to submit sworn affidavits or declarations of experts re 144 Appendix,,, 145 Appendix,,,, 143 Brief in Opposition, with certificate of service by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady,

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 21 of 22

07/16/2010
09/01/2010
02/17/2011 02/18/2011 02/22/2011 02/22/2011 02/25/2011
02/28/2011 04/28/2011 04/29/2011 04/29/2011
05/23/2011

Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Tobin, Jennifer) (Entered: 07/09/2010)
155 BRIEF IN SUPPORT with certificate of service re 154 MOTION authorization to submit sworn affidavits or declarations of experts re 144 Appendix,,, 145 Appendix,,,, 143 Brief in Opposition, with certificate of service MOTION authorization to submit sworn affidavits or declarations of experts re 144 Appendix,,, 145 Appendix,,,, 143 Brief in Opposition, with certificate of service, 134 MOTION for Summary Judgment filed by Megan Holohan, Kelcie Williams, Sonya Wyland, Scott Collins, Roman Brady, Jeremy Elsesser, Conrad Corely, Michael Wetzel, Hasson Lindsey, Thomas Anderson, Joseph Bowers. (Attachments: # 1 Exhibit(s) A)(Tobin, Jennifer) (Entered: 07/16/2010)
156 ORDER −IT IS ORDERED that the plaintiffs motion 154 for leave to correct a procedural error is GRANTED. The plaintiffs are authorized to file sworn affidavits or declarations from their experts to correct the procedural errorand, thereby, conform to the requirements of Rule 56 of the Federal Rules of Civil Procedure. Signed by Magistrate Judge J. Andrew Smyser on 9/1/10 (rc) (Entered: 09/01/2010)
157 Joint MOTION for Settlement (JOINT MOTION SEEKING APPROVAL OF A CLASS ACTION SETTLEMENT) by Vinny Clausi, Charles Erdman, Kurt Masser, Chad Reiner, Ralph M. Reish, Anthony Rosini, Robert Sacavage, Frank Sawicki. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) (1) Settlement Agreement)(Hanna, Robert) (Entered: 02/17/2011)
158 Joint MOTION for Settlement (CORRECTED JOINT MOTION SEEKING APPROVAL OF A CLASS ACTION SETTLEMENT) by Vinny Clausi, Charles Erdman, Kurt Masser, Chad Reiner, Ralph M. Reish, Anthony Rosini, Robert Sacavage, Frank Sawicki. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) (1) Settlement Agreement)(Hanna, Robert) (Entered: 02/18/2011)
159 SCHEDULING ORDER: Motion Hearing set for 4/28/2011 11:00 AM in Harrisburg − Courtroom 3 before Honorable John E. Jones III. See order for all requirements re: Notice of Class. (eo, ) (Entered: 02/22/2011)
DOCKET ANNOTATION: 160 deleted filed in wrong case (eo, ) (Entered: 02/22/2011)
160 REPORT AND RECOMMENDATIONS − Given that the parties have entered into a proposed settlement agreement and that a hearing to address any objections to the settlement has been scheduled for 4/28/11, it is recommended that the pending motion (doc. 134) for summary judgment be deemed withdrawn without prejudice to the motion being reinstated if the settlement is not approved. Objections to RRdue by 3/14/2011.Signed by Magistrate Judge J. Andrew Smyser on 02/25/11. (Attachments: # 1 Notice)(pjr) (Entered: 02/25/2011)
161 ORDER withdrawing 134 Motion for Summary Judgment. Adopting 160 Report and Recommendations. (eo, ) (Entered: 02/28/2011)
163 Court EXHIBIT #1(eo, ) (Entered: 04/28/2011)
164 MEMORANDUM (eo, ) (Entered: 04/29/2011)
165 ORDER −1. The Court FINDS that the Settlement Agreement is fair, reasonable,and adequate;2. The Parties Joint Motion to Approve the Settlement Agreement (Doc.158) is GRANTED;3. The Settlement Agreement is APPROVED;4. This action is hereby DISMISSED and the Clerk is directed toCLOSE this case; and5. The Court expressly retains jurisdiction for a period of fifteen (15)months, as set forth in the Settlement Agreement, in order to enter anyfurther orders that may be necessary or appropriate in administering orimplementing the terms and provisions of the settlement agreement. (eo, ) (Entered: 04/29/2011)
166 COURT REPORTER NOTES OF PROCEEDINGS filed by L. Shuey of motion hearing before Judge Jones on 4/28/11. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of

Case: 4:08-cv-345 As of: 05/08/2013 06:40 PM EDT 22 of 22
proceedings in the United States District Court for the Middle District of PA before Judge Jones on 4/28/11. By s/ L. Shuey. (Court Reporter Notes are viewable by court staff only). (ctrep1, ) (Entered: 05/23/2011)