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Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 1 of 37

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UNlTbD STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Le~oy Peaple.>

11 e1V.2694

(In the space above enter the full name(s) ofthe plaintif!(s).)
-against-
B~;d" F;sc1e.c. e-f ;;1. i ..1. ... -1-he-ir .J'...J,,,,dlA;>-(
~4 0,(:,.£;",:.( Ie, fil';';.t'feS.

COMPLAINT
under the Civil Rights Act, 42 U.S.C. § 1983j § 198;
(Prisoner Complaint)
Jury Trial: MYes 0 No
(check one)

(In the space above enter the full name(s) of the defendant(s). lfyou cannot fit the names of all of the defendants in the space provided. please write "see attached" in the space above and attach an additional sheet ofpaper with thefulllist ofnames. The names listed in the above caption must be identical to those contained in Part I. Addresses should not be included here.)

I.

Parties in this complaint:

A.

List your name, identification number, and the name and address of your curr~e"nj t p,lac'.e',")' of

confinement. Do the same for any additional plaintiffs named. Attach additional shee~f ~per as

necessary.

n
C..') ~..,

Plaintiff Name Le,r201 PeDfles

10# O'ii-A-2(O,2.0
i!-t Current Institution Lll"~hh Gr-rregk"nl fad
Address p.o. f?>O)( 2 col I 309 B~ ....e. f·/-;'tI ~Ckl
Ma-lclI€: I /'Jew 't"rk 12qS~

B. List all defendants' names, positions, places of employment, and the address where each defendant may be served. Make sure that the defendant(s) listed below are identical to those contained in the above caption. Attach additional sheets of paper as necessary.

Rev. 0512010

3

· ,

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 2 of 37

Defendant No.1 Defendant No.2 Defendant No. 3 Defendant No.4 Defendant No.5

Name B~;"Vl !="rschev (boes COM""iSSiON\H~.)

Shield #_ _ __

Where Currently Employed .......!.N....:...:.!~c:.;.S::..:.......:b::....:.::.oc.:..c~5.:..:._ _ _ _ _ _ _ __

Address 11.1-- 0 wa5h:"'jl-o"l AveI'Me
Alb """\7 ,. N ew '/.,,- k I Z. Z. 2.,(0

Name Lv.c ie.1'\ J. Le.d ..ire J~.: (!)er' Docs COMfvtJShield #_ _ __

Where Currently Employed

N .'/. S. t>. O. G. 50 •

Address 11.2..0 W"3Shi"'J~ul'\ AVeKl"'-.e

AlbCl"1 I New York 12..2>2(0

Name Of.f?,(..< ot Co"W\seJ (Docs ~5"eJ ')

Where Currently Employed

N .'t. S. 1:>.c.c .s .

Address /2. 2,0 hl.uk1'diD" Al/eKllAe AII,,;:!-I'\'1 I New 'turf:.. l2..2.2G:.

Shield #_ _ __

Name W;\lidlM Lee. (S"et. of Q.(e~..,JI-;weo\ r.E) Shield #_ __

Where Currently Employed Gree" ~:weo\ Coueoh",>1 FUAli+r
Address p.o. So)( 'iOOD

S+o ..Mv;Ue.• N·'"(. r2.532-

reb- Name

A. CflASc;o ( t t e.c.

A. /). A .'')

Shield #_ __

Cn..Jy Where Currently Employed 1> i st"(Td At-h,a.e.r OO'U Q ~s

Address 12S - 0\ Q \Ae!?1'\ S e,\"d·

kewGudMS f ,J.y. 1!t·PS

II. Statement of Claim:

State as briefly as possible the facts of your case. Describe how each of the defendants named in the caption of this complaint is involved in this action, along with the dates and locations of all relevant events. You may wish to include further details such as the names of other persons involved in the events giving rise to your
claims. Do not cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary.

A.

e In what institution did the events giving rise to your claim(s) occur? r~ I-\-;VVeM.

Co('(. Fu. p.O. f':,oJ(~ ljcoo l SbrMviHe /V.y. L2.'582.

M'f B. Where in the institution did the events giving rise to your claim(s) occur?

Cell- blocI:::

(F-~\oc-~ Iso-Ce..lI). I w.s +ite'l +(u.>r..../eJ -6 Sf~c;;2( ~f'''3

C. What date and approximate time did the events giving rise to your claim(s) occur? _ _ _ __
o d-obe.-, S +>.. I 2009, '2-rY'I"<)),,,,,,,..W1 be+we..e.V\. II; 30 /1'2. fM

Rev. .0512010

4

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 3 of 37
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Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 4 of 37
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__________________._____________ A\b~ IE>' - 122.~ <.:. ______.__________._____.____

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 5 of 37
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D.
What happened to you?
I I Wwhhaot?md

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f",rs'1"W\!- +0 42. U·S·C. g§ Iqg~, 1'l8S, based. 01'1 f u :&Ucrwi":r
CalAse 0 f Ac+r""l.

Was anyone else Involved?

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Who else saw what happened?

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m. Injuries:

If you sustained injuries related to the events alleged above, describe them and state what medical treatment, ifany, you required and received. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

p",blfC i cl.(;({",zI5 M.7 le,jal WOY'k w3> 0>Mc.~.\-e.J ~ :r... W25 u",I,...,,-f2.v.lty

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IV. Exhaustiou of Administrative Remedies:
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Administrative remedies are also Irnown as grievance procedures.

Rev. 0512010

5

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 6 of 37

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Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 17 of 37

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Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 24 of 37

_1.e.~S1~tJ"JT~~_'fl...f:.,L;:'J",kul:be(,~s_C"_i.j...~_.l 0'Y:e.-<ol-±j,.nd:~ .... --_ ..

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t -(j!-J"". . .' ( ._____ .. [~IA!ce,<t __~ ':;1'\$""e...( pt~,.~-b-~ . c.o.n±.l!da~ ...11'\_

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Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 25 of 37

;- Co",+il1M&-\-i",,,, of! r~e

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__ H.

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 26 of 37

A. Did your claim(s) arise while you were confmed in a jail, prison, or other correctional facility? Yes / No

If YES, name the jail, prison, or other correctional facility where you were confined at the time of the events

giving rise to your claim(s). . b{ee.".~<l1/12A

Cavv'e-ck<M~1

f~")l;±j, p.o.

Bop(

~6c)O

,

B. Does the jail, prison or other correctional facility where your cJaim(s) arose have a grievance procedure?

Yes - / No

Do Not Know

C. Does the grievance procedure at the jail, prison or other correctional facility where your cJaim(s) arose cover some or all of your cJaim(s)?

Yes

No ../ Do Not Know

If YES, which cJaim(.s)? _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

D. Did you file a grievance in the jail, prison, or other correctional facility where yourdaim(s) arose?

Yes

No - /

If NO, did you file a grievance about the events described in this complaint at any other jail, prison, or other correctional facility?
Yes i f No

E. If you did file a grievance, about the events described in this complaint, where did you file the

Ur.>t.,+e grievance?

Fac. Corr.

f,(L~br '2-<>01, 30,! S.ue.I{;f1 (2)'1 (v'lz,IOl[<1. N¥·i:29Ss

1. Which cJaim(s) in this complaint did you grieve? J1 ...t r "des '# 101-,2.1 a-cl #

\\,,30 ;}Yeo Ull\CO"5~

\
~ c\K.d ro~& 111. s~c e-

2. What was the result, if any? _--=--=--=----".=-....:=-_I'l.:...()_+__d _V"<--'e::;s::;o=-I:.."'.:.+.-'-._..-..I.-i---ttl+=-r'-iW=",dVl=ce.."",
W.3S Je"jl!.J UVl2"'iMov.~ ''1'
3. What steps, if any, did you take to appeal that decision? Describe all efforts to appeal to the highest level of the grievance process. <OrilW~"'ce. was de.<ie& \'1 r.e,./2, C' I by
A'- +hf. S,-,["?-,i"te1"ld.e,,,i- 1 w\1.o •..,.fho+",1 :,pve C·O,j:!.cJs ,z.e"'<>j of AI"''I ';Vit-"""'ce
.fh.31- C,[;,i.M$ -K..~+ n,,\e.s #' lOr. '2..l d....4 #i\'F~D :In v.1'"\C.OI'l~.~f.,.",,,,;(.
-H..0"'J'" :r"rzc~ S ....f'<2. ...,,,t~""'+ g"Jve c.o_(l.c..'~ 6ri",;""" :r shU <'r'f",,,teci
--h:> C.O./Lc. f." +kIf (rM~O>\a(1 c ,,,,0>\ ,1'0 (dir~\t \ eet e;Y" ;",,001\ -p,.
I'<\.{ G.(i"'V~,,"ce ile-, (SU -e'llkiloit 'A )
F. If you did not file a grievance:

1. If there are any reasons why you did not file a grievance, state them here:

Rev. 0512010

6

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 27 of 37

2. If you did not file a grievance but informed any officials of your claim, state who you informed, when and how, and their response, if any:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

G.

c:.. Please set forth any additional information that is relevant to the exhaustion of our administrative

remedies.

o. R·C. nevu (Q.& 0"

+t. I'1A

(ie~ '*l

e~1

wt ~'"

::c +00"," ~+ +0 MR..""I +ke.;y 0Pi"'0>1 c.f. ""7 Jre;v",",q., <-VaS c~ ... s;.s:.I-~-..+

Note: You may attach as exhibits to this complaint any documents related to the exhaustion of your administrative remedies.
v. Relief:
State what you want the Court to do for you (including the amount of monetary compensation, if any, that you
r are seeking and the basis for such amount). (s(!€. POI(dj(OP]".II 11- 0 ~ cf\~
f'1eS of' f<>Je S·)

Rev. 0512010

7

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 28 of 37

VI.

~these claims

A.

B.

Previous lawsuits:

Have you filed other lawsuits in state or federal court dealing with the same facts involved in this action?

Yes

No ../

If your answer to A is YES, describe each lawsuit by answering questions 1 through 7 below. (If there is more than one lawsuit, describe the additional lawsuits on another sheet of paper, using the same fortnat.)

1. Parties to the previous lawsuit: Plaintiff _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Defendants _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Court (if federal court, name the district; if state court, name the county) _ _ _ _ _ __

3. Docket or Index number _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
4. Name of Judge assigned to your case _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 5. Approximate date of filing lawsuit _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
6. Is the case still pending? Yes __ No __ If NO, give the approximate date of disposition _ _ _ _ _ _ _ _ _ _ _ _ _ __
7. What was the result of the case? (For example: Was the case dismissed? Was there judgment in your favor? Was the case appealed?)

~n other cJaims

C.

Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?
Yes v No

D. If your answer to C is YES, describe each lawsuit by answering questions 1 through 7 below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using the same fortnat.)
1. Parties to the previous lawsuit:
re- Plaintiff Le.t2oy of'l",j
Defundants _ _ _F_~_~_~~I_:r.~o~~=e_~~,_A~I\_~~h ____________________

2. Court (if federal court, name the district; if state court, name the county)
.s." ''''''''..~... 1:>1s+,.,.v\- c<>~r+ ".p /'J<2£.> Yo ("
3. Docket or Index number _----'O~4-'-C::.V'----O:::..::b:..:D:..3:::g><-_:_-------------
4. Name of Judge assigned to your case _-='-':.."'=.J.=1.::<.-=&c--.._e.:..(:--_ _ _ _ _ _ _ _ __
5. Approximate date of filing lawsuit _--'J..t...::.:"':-""'e::......;:2-=--o_o__Y __________
6. Is the case stilI pending? Yes __ No ../
If NO, give the approximate date of disposition __......:.N_I__A ________

Rev. 05120/0

8

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 29 of 37 7. What was the result of the case? (For example: Was the case dismissed? Was there judgment
in your favor? Was the case appealed?) ::r"''''il"""""J i A C'7 ..(1,.-110 r.

I declare under penalty of perjury that the foregoing is true and correct.

April , -th
Signed this .l.S.. day of

20~.

Signature of Plaintiff Iumate Number Institution Address

PA).(30ii- Zoo I

Note: All plaintiffs named in the caption of the complaint must date and sign the complaint and provide their inmate numbers and addresses.

I declare under p~~~. ofperjury that on this ~fl.I day of

I frpr I

,20J..!, I am delivering this

complaint to poiSBII Rlitb'irities to be mailed to the Pro Se Office of the United States District Court for the

Southern District of New York.

Signature of Plaintiff:

~ fJ..~

Rev. 0512010

9

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 30 of 37

EX_H:_~_~6 -i- _=t_~_7!s --~-------~===__ .~-- ----.--~------ ~---

----'".~ -----~'"-

---- ~ -

----.--~---------.-.---.-----

-----------~--

- - -.-.----------.-------~---------~-

• FORM 2171A 14/011

fl / Case 1:11S-TcAvT-E0O2F6N9E4W-SYOARSK· DDEPoAcRuTMmEeNTntOF2CORFRiEleCTdIO0N4AL/1S8ER/1VI1CESPage 31 of 37 d.i;:.~:_·'.:..'.t.r-->::i~-,~<::",-</."":6ea..~V6C"",,JL_ _ _ _ _"":"'_ _ _ _ Correctional Facility'

INMATE MISBEHAVIOR REPORT. INFORME DE MAL GOMPORTAMIENTO DEL RECLUSO

• •

~

>

• •

.'

•

NO." NUt;'1.

HOUSING LOCATION" CELDA

OS"A.::?C;(O
INCIDENT DATE .. FECHA
/0"<;-/0

/fo

INC'lDENT'ilME +HORA

..i!.9

.

//-.., ~ V""-

~)
..
. ,

REPORTED aY .. NOMSRE DE LA PERSONA QUE HAGE EL INFORME

/ ?~ -O~r .~....wr

•

5. ENDORSEMENTS OF OTHER EMPLOYEE WITNESSES (if any)

SIGNATURES:

ENGOSOS DE DTROS EMPlEADOS TESTIGOS (sthay)

FIRMAS

2

3.

NOTE: Fold back Page 2 on dotted linEl before completing below .

•

6. WERE OTHER INMATES INVOLVED?

. YEsD

NO.f!J-- IF YES~GIVE NAME & II

•

7. AT THE TIME OF THIS INCIDENT, WAS INMATE UNDER PRIOR CONFINEMENT/RESTRICTION?

YESO NO~

OR

AS A RESULT OF THIS INCIDENT, WAS INMATE CONFINED/RESTRICTED?

B. WAS INMATE MOVED TO ANOTHER HOUSING UNIT?
d j / u IF YES, (a) CURRENT HOUSING UNIT

YES;tv NoD
I'd--

YE~ NO 0
(b) AUTHORIZED BY

,
~//Uffr£

0 9. WAS PHYSICAL FORCE USED? YES

NOrj/- (IF YES, FILE FORM 2104)

ENDDRSEMENT7~. AREA SUPERVISOR

-/1/- '09~- ~ ---"''_-

. L \ t / \ . I ...... i\~1

Case 1:1S1U-cPvE-R02H6H9E4N-SDAESNT-DoHcEuAmReInNtG2 DFISilPeOdS0I4T/J1O8I/'1l 1REPNaDgEeR3E2D of.37
. ' GHN HiWN GEl\! .

. )Ii'I" 05(~2620 , "

Ni-\HE,' PEOPLES,' L" EFUJY,,

, "

, "

[NCIDENT DATE &-TIME,

10/0'0/09 11,30' :0,11

TIER 3

,E'VIEI;J DATE,

10/05/09

BY, IT S. HANN

lELI'V,ERY DI-\TE & TII"1E,

10/01.>09

1-°".95.' Il.M BY, CO I' HI-\BIDEAU

IJ,-'L !-.!;J-p78"~ ;c- [0, -IEAHING START DATE 'HME.

/J2./ L =::> .------.. ?'-I~, ~ 'IEARING END DATE 8.
·11l,S THERE NEED FOR

TII'lE, A FO RMAl

81 L
t'IEN Tiel HE("lTHII NTI!t::i::ECTUAl '::C:.:!Art.;P~A~C?:I;::T~Y~A:-::S;:'S;;:E':::S;::S;::i'i:::E::-N:::T:-'::?--:-:Y:-~-

:H(..\'pr.;r~
JUI'-: <

DESCRIPTION OF CHARGES

. REPOHTED BY

DISPOSITION

.13.30 POSSESS UNAUTH UCC I"IAT ..

07.21 UNAUTHORIZED lIEN

, ,

SGT K. O'CONNOR

C?J-
'cq:

80.11

FP,y ILITY .cORRESPONDENCE VIOL
__ ._M_.__ .~M..!. ___·___ "':_'_M___________ _
, '
. ,

y
4!OU~NAJ,; .~~! ;OOMPU:rEL, "
@, '/0/,10", .
,l\"'.-~C.bMPtirEt

eN GUILTY DISPOSITIO~I WILL HESU\... T IN A IvIAND?-\TORY DISCIPUl\lAfW SURCHARGE IN THE "IOUNT OF FII)E ($5 .. 00) DOLLARS BEING ASSESSED A'.JTot1,",TICALL Y f~GAINST THE INI"IATE"
DEFERRED RE:3TITUTION

---- ----- ------- ---

GRN ..... ',.o! ,H.(.4, V, IW, ,t._.G~. EN·.·. . ' . ·... ·....;, .... u_\.. I .!.'...Ii'Wlt.,

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 33 of 37

, '.

SUPEHINTEND":_:.I",-r' q,-",[_=14"I.",'I1"'..!..-:1 ,D. ISPfJC..:"-I'T"~'ON l'lENDI=:m,I)

.'

~. ~ rNSTffi~T-O" ~ ~ ~ r: c'p<= -r '

.,'

. ________._________:. . . ~~---~--.~~-c:~=-:~:: O__,".!_~___C,_w,rL_~cA_r\L__<I_A_l-_

__
E

__ .__
VENT

-J.-LJ-IO.--S-0S-1'-,'1--t-J--I-SI..-T-_?__\_.'._.._T.___U"_N____u__q'_.__

.(~._O. _I:.,.F'_'."'.'_"'_--_.S__'_P__O__J_'l:p_:o::::'_::-\.,O"":;:-,

.

'

R"t-::.STRICTI(l)NS

I=lEC'-RR'

. ''~~11~

.RE'r/:":"="7I/\-!''-~.f)' Llr2"A'-@i~f'-rjJ...-,'"-"'7. ' '-.,. . -~ :;: HAilE

__ , ,.c-/

A cnpy

nr
'_r

_
r.HI:3

HEARII\I,'--, ,'

-

_.

V" .... IN

DA. TED~

........

~ _____ .'v tU';'---;;

----

-.-----'.

~J#t {ifr~ I HEAHINI.';!5;:'FI-CEM" SIGNATUHE ----I
'~L_ YOU'RE h, .1"IElit:;BY NOTIFlc_,"D'

INMIHF -

A

•

S1-.("-'p·IH-'

'
·JRE

/..'? la
I D,' TE7d T1"';;"I-_-'---

OF

THE

,"OL.L.CMIr-IG

('''',''EAL

'"J I~'

.

r0 Hu- CCr-".'u" U HES ~

RECEIVED'

V ,--," ,,_ _ F'{~JR ',-,-..r!r=;. T~~T HI::~!-:") F~ I NGS'--A P n,_ .1--_.:..0.1_ TO _S.\'_J'.P_I.:-_..-.R_,'_[_N_T_E_N_D._E,_I"~_T_ ''NI THIN 72 HOURS .

!i\~'l'" .__,_ It.. r,
!

TD c_f_}r_'!!_·1_l_C_..".._',"c_J·T,._(I.._u...,·_'I.rr_.-:I:_~n) l~JITHI!\i 30 DAYS a

n.-' ...·'. '-r'

.-.L."." ,__ ~._
-

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 34 of 37

~_..___br:(<o.~a.n,t:_.l~~~tP~~G~pl~_._\)L,,~N 9.: 05:Po -1 ~.z.o . . . . . . . . . .
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Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 35 of 37
FORM 21.11 E (REVERSE) (REV. 6/06)
CST-45499-11
Response of IGRC:
Per prior CORe: response ofSI'T-47402-09 which states in part: The Commissioner has thc authority pursuant to C(lD"eetional Law Sections 112 and 138 to promulgatc rules that are necessary for the safe, secure, and ordcrly opcration of all eon'cetional facilities. As such. the Commissioner delegated the primary responsibility for processing the cnactment of these regulations to thc Department's Omce of Counsel. CORC also notes that these regulations were enacted after due consideration of serious security and operational concerns, and arc not unconstitutional, nor arc they retaliatory or vindictive in nature.
Grievant has not presented sufficicnt evidence to indicate a change in the Standards of' Inmatc Behavior handbook. The [(;RC recommends no changes be made, at this time, to the Standards of Inmate Behavior rules 107.21 and/or 1J3.30.
~r----"'f--'LL-- IGRC Memhers: 11.__~;2:~!f2~'f::'~~~___~
C h a i r p e ..son_"'--E-_-,;<'-_.....:;,~

Return \,ithin 7 calendar days and checl.. appropriate ho\(·s.*

~disagrce 0 with IORC response and wish to

I have reviewed deadlocked responses.

appeal to the Superintendent.

Pass-Thrll to Superintendent.

o ~ I agree with the IORC response and wish to

apply to the [GP Supervisor for

appeal to the Superintendent.

review ofdislllissal.

oMg Signed

~

Grievant

"3 ) 1/11
Datc

----_.----==:G,"j('vancc Clerk's Ren'ipl

Date

To be completed by Grievance Clerk:

Crievance Appeakd to the Superintendent.
Date
Grievance forwarded to Superintendent for al'tion __ _
Date

" An exception to the time limit may he requested under Dirccti \"0 i14040. scetion 70 I.. 6( g)

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 36 of 37

*Fof21'33 IREV. 6/06) '''~,,~w,o~

. ".

DEPARTMENT OF

i CORRECTIONAL SERVICES

GRIEVANCE NO.
UST-45499-11
FACILITY
Upstate Correctional Facility

INMATE GRIEVANCE PROGRAM SUPERINTENDENT

TITLE OF GAIEVANCE
rules 107.21 + 113.30 unconstitutio
SUPERINTENDEs;?~~~

GRIEVANT

PEOPLES

L

[J5iN # 05A2620

DATE RLED

3/9/11

No

POLlCY DESIGNATION
I

CLASS CODe
31

DATE
3);S-};;
HOUSING UNIT
10-8-7

Per prior CORC response of SPT-47402c09 which states in part; The Commissioner has the authority pursuant to Correctional Law Sections 112 and 138 to promulgate rules that are necessary for the safe, secure, and orderly operation of all correctional. facilities. As such, the Commissioner delegated the primary responsibility for processing the enactment of these regulations to the Department's Office of CounseL
CORC also notes that these regulations were enacted after due consideration of serious security and operational concerns, and are not unconstitutional, nor are they retaliatory or vindictive in nature. The grievant has not provided any evidence to warrant any changes in rules 107.21 or 113.30. Grievance is denied.

APPEAL STATEMENT

If you wish to refer the above decision of the Superintendent please sign below and return this copy to your Inmate Grievance

Clerk. You have seven (7) calendar days from receipt of this notice to file your appeal. * Please state why you are appealing

this decision to C.O.R-.-C-..:S~"'=Jr!.!I..t~..,e,D,L:.,....:~~(,~~9,~C,.,:·~O.:.::(.2~.(.~.--!::::w~-e..~),,~l/.::!...r":.:":.:.,(....:~:.:;I,~ln.o.~fL....:.r~""J.!L~Ji~ol::.;=l:...-'2.::.I~&._----:-

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til<. vIDl.A-r.11 ot ~

US. Cu"lsL

r (!

~ G~S SIGNATURE

3/1'f-!1/
DATE

GRIEVANCE CLERK'S SIGNATURE

DATE

"An exception to the time limit may be requested under Directive #4040, section 701.619).

Case 1:11-cv-02694-SAS Document 2 Filed 04/18/11 Page 37 of 37 !11~"'.uH'.....O~"VI:!ll" ",;a.o,"V,".'. 'U"'I~II

,"'.- U"i""='""~'_;...=. .'"

TO; FROM; OATE: RE:

All Suparinlundanls Lucien J. \.eclalre. Jr.. DeputvCOmmlss!oner July 24, 2009 INMATE RULE SOOK ADDITIONS.

This memOl"andum Is 10 ad~1sa you of the ed.tlition 01 rules #107.2.1 and ~113.30 10 Iha Standards of tnmBle ~oh8yj9r.

New rule 111107.2.1, 'U1l8utllorized Llel"l: wJlI sublect an Inmate "to dlsclpUnalY ac1l1ln for
;!1I:tlvlllea relaled 10 filing or recordlog any document Which claims to Cl'ea!e a lien or .oculi!y Intarnt against B,ny employa-e of lhe Departmerlt, the Stall!. or the Unlled
Siaies abSlHlt prior willie!) 8uthl)f]zelion.

New rule #113:30. 'Possesslon orUnall\hQfl~ed uce Male/iar (Poss. Unaulh. Uee . Mat), will subjecl an Il\fT1ate 10 clladpllnaiy a~lIon for possEission of any vee FiI1llnclng Statemenl or.other UCC Ar1lcie 9 101m. any do,.ument concernlng.lhe "redempil~e
pro.cas,;;" scheme, or alty d~mant Indlcaling e copyright of Iha inmate's name absent priO/' wrlU~ri authorization.

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
._-------------------------------------------------- )(
LEROY PEOPLES, 

Plaintiff,
- against­
BRIAN FISCHER, LUCIEN LECLAIRE, JR., DOCS OFFICE OF COUNSEL, WILLIAM LEE, PETER A. CRUSCO, ERIC C. ROSENBAUM, RICHARD A. BROWN, LT. L. WARD, SGT., O'CONNOR, C.O. MALARE, C.O. DROWN, NORMAN BEZIO, D. ROCK, LT. WARD, and KAREN BELLAMY,

OPINION AND ORDER 11 Civ. 2694 (SAS)

Defendants .
._-------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION
Leroy Peoples, proceeding pro se, brings this action against, inter alia: Brian Fischer, Commissioner of the New York State Department of Correctional Services ("DOCS"); Lucien J. Leclaire Jr., Deputy Commissioner of DOCS; Office of Counsel for DOCS; William Lee, Superintendent of the Green Haven Correctional Facility ("Green Haven"); Richard Ward, a Green Haven Lieutenant; Sergeant K. O'Connor; Green Haven Correction Officers ("C.O.s")

1

Curtis Drown and Malare, Norman Bezio, Director of the Special Housing Unit
(“SHU”); David Rock, Superintendent of the Upstate Correctional Facility
(“Upstate”); and Karen Bellamy, Director of the Inmate Grievance Program
(“IGP”), Central Office Review Committee (“CORC”) (collectively, the “defendants”).1
Peoples seeks compensatory and punitive damages and injunctive
relief pursuant to section 1983 of Title 42 of the United States Code (“section
1983”). Peoples alleges that defendants deprived him of rights and privileges
secured by the First, Fourth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution. Specifically, plaintiff brings the following claims: a
Fourth Amendment claim resulting from a pat frisk and subsequent search of his
prison cell; an Eighth Amendment cruel and unusual punishment claim resulting
from his three-year sentence to SHU confinement; an Eighth Amendment claim
regarding his altercation with a fellow inmate; a Fourteenth Amendment due
process claim arising in connection with his disciplinary hearing; and a right of
1 Former defendants Peter A. Crusco, Eric C. Rosenbanm and Richard A. Brown were previously dismissed in this Court’s December 1, 2011 Opinion and Order. Additionally, a review of the docket sheet indicates that the Complaint (“Compl.” or “Complaint”) was filed on April 18, 2011. Rule 4(m) of the Federal Rules of Civil Procedure provides that if a defendant is not served within 120 days after a complaint is filed, the claims may be dismissed without prejudice. Because Malare has not been served to date, the claims against him are dismissed without prejudice pursuant to Rule 4(m).
2

access to the courts claim under the First and Sixth Amendments.
Defendants now move to dismiss Peoples’ remaining claims pursuant
to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) on the following grounds:
(1) failure to state a claim; (2) failure to exhaust administrative remedies; (3) lack
of personal involvement; (4) Eleventh Amendment immunity; and (5) qualified
immunity. For the reasons discussed herein, defendants’ motion is granted in part
and denied in part. II. BACKGROUND2
Peoples is currently an inmate at Upstate and was previously an inmate at Green Haven.3 On October 5, 2009, while Peoples was at Green
Haven, Sergeant O’Connor and C.O. Malare approached him while he was at his industry work program and performed a pat and frisk search.4 Peoples was then
2 These facts are drawn from Peoples’ Complaint and the exhibits annexed thereto. In addition, because Peoples is proceeding pro se, the factual allegations made in his Opposition to Motion to Dismiss dated January 5, 2012 (“Pl. Opp.”), together with the exhibits annexed thereto, will be treated as part of the Complaint to the extent they are consistent with the Complaint. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff’s affidavit in opposition to defendant’s motion to dismiss in reviewing district court’s dismissal of claim).
3 See Compl., I(A) and II(A). 4 See id. III(D) ¶ 2.
3

escorted to his cell, F-Block 150, where O’Connor and Malare searched his cell.5
Peoples alleges that certain papers were seized and that his personal mail, legal
mail, family photos, clothing and other miscellaneous property was scattered all
over his cell.6
Peoples was immediately taken to the SHU.7 The next day, October 6,
2009, Peoples was served with the Inmate Misbehavior Report (the “Report”),
which alleged that he violated rules 107.218 and 113.309 of the Standards of Inmate
Behavior rule book.10 The Report further states that on October 5, 2009, prior to
the search, C.O. O’Connor was given a packet of papers sent from the Queens
5 See id. 6 See id. ¶¶ 1, 11. 7 See id. ¶ 2. 8 See id. Rule 107.21 states that “[a]n inmate shall not file or record any document or instrument of any description which purports to create a lien or record a security interest of any kind against the person or property of any officer or employee of the Department, the State of New York, or the United States, absent prior written authorization from the superintendent or a court order authorizing such filing.” 7/24/09 Inmate Rule Book Additions, Ex. A to Compl., at 6. 9 Rule 113.30 provides that “[a]n inmate shall not possess any Uniform Commercial Code (UCC) Article 9 Form, including but not limited to any financing statement, . . . correction statement. . . , or information request . . ., whether printed, copied, typed or hand written, or any document concerning a scheme involving an inmate’s ‘strawman.’” Id. 10 See Report, Ex. A to Compl., at 1.
4

County District Attorneys Office.11 The cover letter with the materials identified the papers as “U.C.C. [and] other financial claims that are bogus [and] without legal basis.”12 The Report states that the subsequent search of Peoples’ cell “produced approx[imately] 148 documents which all also appear to violate the above referenced charges.”13
On October 13, 2009, a misbehavior report hearing was conducted.14 Peoples alleges that he was walked through the “normal formalities of a hearing.”15 At the end of the hearing, Peoples was sentenced to three years confinement in the SHU, a three-year loss of phone, package and commissary privileges, and seventytwo months recommended loss of good time credit.16
Peoples appealed the hearing disposition to SHU Director Bezio who denied his appeal.17 In November of 2009, while still confined in the SHU and
11 See id. 12 Id. 13 Id. 14 See Compl., III(D) ¶ 3. 15 Id. 16 See id. See also Superintendent Hearing Disposition Report, Ex. A to Compl., at 2. At the time of the hearing, Peoples had not yet accrued seventy-two months of good time credit. See Compl., III(D) ¶ 3. 17 See id. ¶ 4.
5

under Superintendent Rock’s watch, Peoples was involved in a fist fight with fellow inmate Larry Allen and lost a tooth.18 In April 2010, Peoples drafted an Article 78 motion addressing some of the issues raised in the instant Complaint. Upon his return from Court, however, the Article 78 motion was confiscated by corrections officers acting under Rock’s orders.19
On March 7, 2011, Peoples filed a grievance in connection with alleged violations of his constitutional rights.20 The grievance referenced violations of various Constitutional amendments including the First, Sixth, and Fourteenth Amendments.21 Peoples complained about the addition of rules 107.21 and 113.30 of the Standards of Inmate Behavior rule book and complained that he was affected by these rules by being placed in the SHU for three years along with three years of lost phone, package and commissary privileges.22
On March 9, 2011, Peoples received a response from the Inmate Grievance Review Committee (“IGRC”) and simultaneously appealed to the
18 Id. ¶¶ 8, 9. 19 See id. ¶ 17(g). 20 See 3/7/11 Inmate Grievance, Ex. A to Compl., at 4. 21 See id. 22 See id.
6

Superintendent of DOCS.23 On March 15, 2011, Superintendent Rock responded to Peoples’ appeal.24 Two days later, on March 17, 2011, Peoples appealed to the CORC.25 On April 18, 2011, Peoples commenced the instant action. On June 8, 2011, he received a response from the CORC.26
Peoples generally suffers from “stress, fear . . . depression and other psychological impacts” which are side effects from his confinement in the SHU, which he has described as “psychological torture.”27 Peoples alleges that Superintendent Rock was personally involved by continuously and unlawfully confining Peoples in the SHU, upholding the CORC’s determination of Peoples’ appeal, and being in a supervisory role at the time Peoples was involved in a fist fight with Allen.28 Similarly, Peoples alleges that Bellamy, the Director of the CORC, was personally involved by virtue of upholding the rules that Peoples challenged, suppressing Peoples’ “communication, forbidding access to the court
23 See Compl., III(D) ¶ 8. See also 3/9/11 IGRC Response, Ex. A to Compl., at 5.
24 See 3/15/11 Response from Inmate Grievance Program Superintendent, Ex. A to Compl., at 6.
25 See id. 26 See CORC’s 6/8/11 CORC Response, Ex. B to Pl. Opp., at 1. 27 Compl., III(D) ¶¶ 7, 9. 28 See id. ¶¶ 1, 8.
7

and law books, [and] authorizing the seizure” of Peoples and his papers.29 SHU Director Bezio was alleged to be personally involved when he “affirmed and confirmed the disposition of unlawful confinement and revoked privileges” in violation of the aforementioned constitutional amendments.30
Peoples alleges that Lieutenant Ward was personally involved because he authorized the seizure of Peoples and his papers as well as his unlawful confinement in the SHU.31 C.O. Drown’s alleged personal involvement arises from sentencing Peoples to three years in the SHU with loss of privileges and loss of good time credit.32
Peoples alleges that Fischer was personally involved because he facilitated the enactment of the rules that Peoples was accused of violating.33 Peoples also claims that after Fischer learned of the violations of Peoples’ constitutional rights, he failed to remedy the situation.34 Fischer allegedly created the “policy procedure, or custom which violated the constitutional rights and
29 Id. 30 Id. ¶ 4. 31 See id. ¶¶ 1, 10. 32 See id. ¶ 1. 33 See id. ¶ 14. 34 See id.
8

allowed [it] to continue.”35 Similarly, Deputy Commissioner Leclaire’s involvement was based on the preparation of the July 24, 2009 memorandum advising Superintendents Lee and Rock of the addition of rules 107.21 and 113.30.36
Superintendent Lee’s only involvement seems to be that he received the package of materials from the District Attorneys’s office and sent them to C.O. O’Connor, which precipitated the search of Peoples’ cell.37 C.O. O’Connor’s personal involvement in this action was limited to the search he performed of Peoples’ cell and the subsequent preparation of the Report.38 III. LEGAL STANDARDS
A. Motion to Dismiss Under Rule 12(b)(6) In deciding a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court “accept[s] all factual allegations in the complaint as true, and draw[s] all reasonable inferences in the plaintiff’s favor.”39 The court
35 Id. 36 See id. ¶ 5. See also 7/24/09 Inmate Rule Book Additions, Ex. A to Compl., at 7. 37 See Compl., III(D) ¶ 1. 38 See id. ¶¶ 1, 2. 39 Wilson v. Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011) (quotation marks and citation omitted).
9

then evaluates the sufficiency of the complaint under the “two-pronged approach” suggested by the Supreme Court in Ashcroft v. Iqbal.40 First, a court “‘can choose
to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’”41 “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice” to withstand a motion to dismiss.42 Second, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”43 To survive a Rule 12(b)(6)
motion to dismiss, the allegations in the complaint must meet a standard of “plausibility.”44 A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”45 Plausibility “is not akin to a probability
40 556 U.S. 662, 679 (2009). 41 Hayden v. Patterson, 594 F.3d 150, 161 (quoting Iqbal, 556 U.S. at 664). Accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010). 42 Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 43 Id. at 670. Accord Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010). 44 Twombly, 550 U.S. at 564. 45 Iqbal, 556 U.S. at 678 (quotation marks and citation omitted).
10

requirement,” rather, plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.”46
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.”47 However, the court may also consider a document that is not incorporated by reference, “where the complaint ‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.”48 A court may also take judicial notice of “the status of other lawsuits in other courts and the substance of papers filed in those actions.”49
Where the plaintiff is proceeding pro se, his pleadings must be considered under a more lenient standard than that accorded to “formal pleadings
46 Id. (quotation marks and citation omitted). 47 DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). 48 Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). Accord Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir. 2006). 49 Schenk v. Citibank/Citigroup/Citicorp, No. 10 Civ. 5056, 2010 WL 5094360, at *2 (S.D.N.Y. Dec. 9, 2010) (citing Anderson v. Rochester-Genesee Reg’l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir. 2003)).
11

drafted by lawyers,”50 and must be “interpret[ed] . . . to raise the strongest
arguments they suggest.”51 These same principles apply to briefs and opposition
papers submitted by pro se litigants.52 Notwithstanding liberal treatment of their
pleadings, pro se status does not relieve a plaintiff from satisfying the pleading
requirements set forth above.53
B . Leave to Amend the Complaint
Under Federal Rule of Civil Procedure 15(a), leave to amend a
complaint should be “freely given when justice so requires.”54 A court should not
dismiss a pro se complaint for failure to state a claim “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.”55 However, “it is well established that leave to
50 Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Accord Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (“Because [plaintiff] is a pro se litigant, we read his supporting papers liberally.”).
51 Burgos, 14 F.3d at 790. 52 See Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003); Burgos, 14 F.3d at 790. 53 See Praseuth v. Werbe, 99 F.3d 402 (2d Cir. 1995) (“Failure to comply with Rule 8(a) may result in dismissal of a complaint, even if the pleader is proceeding pro se.”) (citing Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972)). 54 Fed. R. Civ. P. 15(a). 55 Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quotation marks and citations omitted).
12

amend a complaint need not be granted when amendment would be futile.”56
IV. APPLICABLE LAW
A. Section 1983
Section 1983 states, in relevant part, that:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columb ia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by theConstitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .57
Section 1983 “does not create a federal right or benefit; it simply
provides a mechanism for enforcing a right or benefit established elsewhere.”58
“The purpose of [section]1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed rights and to provide
56 Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). 57 42 U.S.C. § 1983. 58 Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). Accord Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“‘[O]ne cannot go into court and claim a ‘violation of § 1983’ – for § 1983 by itself does not protect anyone against anything.’”) (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979)).
13

relief to victims if such deterrence fails.”59 1. Personal Involvement In 1995, the Second Circuit held that the personal involvement of a
supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicated that unconstitutional acts were occurring.60
However, in 2009, the Supreme Court held that “[b]ecause vicarious liability is inapplicable to . . . [Section] 1983 suits, a plaintiff must [prove] that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”61 “Accordingly only the first and third Colon
59 Wyatt v. Cole, 504 U.S. 158, 161 (1992). 60 See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). 61 Iqbal, 556 U.S. at 677 (citations omitted) (explicitly rejecting the argument that “a supervisor’s mere knowledge of his subordinate’s discriminatory
14

factors have survived the Supreme Court’s decision in Iqbal.”62 B. Exhaustion of Remedies The Prison Litigation Reform Act (“PLRA”), provides that “[n]o
action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.”63 This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”64
The requirement to exhaust avaliable remedies, “refer[s] to the procedural means, not the particular relief ordered,” since “one ‘exhausts’ processes, not forms of relief.”65 While exhaustion is a prerequisite to suit, the “PLRA exhaustion requirement is not jurisdictional.”66
purpose amounts to the supervisor’s violating the Constitution”). 62 Spear v. Hugles, No. 08 Civ. 4026, 2009 WL 2176725, at *2
(S.D.N.Y. July 20, 2009). 63 42 U.S.C. § 1997e(a). 64 Porter v. Nussle, 534 U.S. 516, 532 (2002). 65 Booth v. Churner, 532 U.S. 731, 739 (2001). 66 Woodford v. Ngo, 548 U.S. 81, 101 (2006). 15

DOCS has a well established inmate grievance resolution process. To exhaust their administrative remedies, inmates must complete all three steps. Inmates must: “(1) file a grievance with the [Inmate Grievance Resolution Committee (“IGRC”)] . . . ; (2) appeal to the superintendent within four working days of receiving the IGRC’s written response. . . ; and (3) appeal to the CORC in Albany, New York within four working days of receipt of the superintendent’s written response.”67 The CORC then has thirty days to review the appeal and render a decision on the grievance.68
Additionally, the Second Circuit has held that “the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.”69 As noted by the Second Circuit, “[u]ncounselled inmates navigating prison administrative procedures without assistance cannot be expected to satisfy a standard more stringent than that of notice pleading.”70 The “PLRA’s exhaustion requirement . . . require[s] that prison officials be ‘afford[ed] . . . time and opportunity to address
67 Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004). 68 See 7 N.Y.C.C.R. § 701.5. 69 Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004). 70 Id.
16

complaints internally.’”71 “In order to exhaust . . . inmates must provide enough
information about the conduct of which they complain to allow prison officials to
take appropriate responsive measures.”72
An appeal is not exhausted until an inmate appeals to the CORC and
receives a final decision regarding his grievance.73 The Second Circuit, however,
has recognized that in some situations a prisoner who has failed to fully exhaust
administrative remedies may survive a motion to dismiss. In Hemphill v. New
York,74 the Second Circuit announced a three-part inquiry “appropriate in cases
where a prisoner plaintiff plausibly seeks to counter defendants’ contention that the
prisoner has failed to exhaust available administrative remedies as required by the
PLRA.” In examining a complaint the court should determine:
[First,] whether adm inistrative remedies were in fact ‘available’ to the prisoner. [ Second ], . . . whether the defendants’ own actions inhibiting the inmate’s exhaustion of remedies may estop one or more of the defendants from raising the plaintiff’s failure to exhaust as a defense. [Third], [i]f the court finds th at administrative remedies were available to the plaintiff, and that the defendants are
71 Id. (quoting Porter, 534 U.S. at 524-25). 72 Johnson, 380 F.3d at 697. 73 See Partee v. Grood, No. 06 Civ. 15528, 2007 WL 2164529, at *3 (S.D.N.Y. July 25, 2007), aff’d sub nom, Partee v. Wright, 335 Fed. App’x 85 (2d Cir. 2009). 74 380 F.3d 680, 686-91 (2d Cir. 2004).
17

not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether special circumstances have been p lausibly alleged that justify the prisoner’s failure to comply with administrative procedural requirements.75
As noted by the Second Circuit in Hemphill, where an inmate does not
receive a response to a grievance, there may be a question as to whether further
administrative remedies are available.76 As noted by the Supreme Court “[t]he
benefits of exhaustion can be realized only if the prison grievance system is given a
fair opportunity to consider the grievance. The prison grievance system will not
75 Id.
76 See id. at 690, n.6 (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“agree[ing with other circuits] that the failure to respond to a grievance within the time limits contained in the grievance policy renders an administrative remedy unavailable”); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (stating that prison’s failure timely to respond renders administrative remedies unavailable); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (holding that defendants failed to prove non-exhaustion where they presented no evidence to refute plaintiff’s contention that he could not pursue grievance further after warden did not respond to his grievance); Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (holding that “available administrative remedies are exhausted when the time limits for the prison’s response set forth in the prison Grievance Procedures have expired”)). See also Whitington v. Ortiz, 472 F.3d 804, 807-08 (10th Cir. 2007) (“[A] prisoner cannot be required to wait indefinitely for a response to his final grievance before he may seek judicial review. That is, when prison officials fail to timely respond to a grievance, the prisoner has exhausted ‘available’ administrative remedies under the PLRA.”); Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004); Sergent v. Norris, 330 F.3d 1084, 1085 (8th Cir. 2003) (recognizing that officials’ failure timely to respond to grievance could be basis for prisoner to show he exhausted available administrative remedies);.
18

have such an opportunity unless the grievant complies with the system’s critical procedural rules.”77 When a prisoner “complie[s] with all of the administrative
requirements and ma[kes] a good-faith effort to exhaust, he should not be denied
the opportunity to pursue his grievance in federal court simply because the final
administrative decision maker has . . . neglected . . . to issue a final administrative determination.”78
C. Favorable Termination Rule
The favorable termination rule provides that a section 1983 plaintiff
who brings a claim that would implicate the validity of his conviction or sentence, must first prove that the conviction or sentence was vacated or reversed.79
However, this rule does not bar prisoners from bringing section 1983 claims with
respect to the conditions of their confinement that do not implicate the validity of
their underlying sentence. When a section 1983 claim is made, the court must:
consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the com plaint must be dism issed unless the plaintiff can demonstrate that the conviction or sentence has already been inva lidated. But if the district court determines that the plaintiff’s action, even if
77 Woodford, 548 U.S. at 95. 78 Torres v. Carry, 672 F. Supp. 2d 338, 345 (S.D.N.Y. 2009). 79 Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
19

successful, will not demonstrate the in validity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.80 A section 1983 claim implicating the deprivation of good-time credits can be brought only if the good-time credit sanction has been invalidated.81 However, in this Circuit, a prisoner who receives mixed sanctions affecting both the duration and conditions of confinement at a prison disciplinary hearing can proceed to challenge those sanctions, as long as the inmate agrees to waive any challenge to the sanction affecting the length of his confinement.82 D. Eleventh Amendment Immunity The Eleventh Amendment immunizes state agencies and officials acting in their official capacity from suit under section 1983.83 Generally, a suit may “not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity.”84

80 Id. at 487.

81 See Edward v. Balisock, 520 U.S. 641, 645 (1997).

82 See Peralta v. Vasquez, 467 F.3d 98,104 (2d Cir. 2006).

83 See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather a suit against the official’s office. As such, it is no different from a suit against the State itself.”).

84
(1982).

Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 684

20

“‘[It] does not protect [an official] from personal liability if . . . sued in his ‘individual’ or ‘personal’ capacity.’”85
E. Qualified Immunity Agency officials performing discretionary functions are generally
granted qualified immunity and are immune from suit provided that “‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”86 The Second Circuit has held that “[a] right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful.”87
To prevail on a motion to dismiss claiming qualified immunity “[n]ot only must the facts supporting the defense appear on the face of the complaint, but as with all Rule 12(b)(6) motions . . . the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also
85 Dawkins v. Gonyea, 646 F. Supp. 2d 594, 605 (S.D.N.Y. 2009) (quoting Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988)).
86 Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).
87 Id. (quotation marks and citations omitted). 21

those that defeat the immunity defense.”88 F. Access to the Courts “[P]risoners have a constitutional right of access to the courts” that is
“adequate, effective, and meaningful.”89 To establish a constitutional violation based on denial of access to the courts, a plaintiff must show “actual injury.”90 “[A]n inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense.”91 Bounds v. Smith does not “guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.”92 Meaningful access requires that inmates be provided the tools they need “in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.”93 The “[i]mpairment of any other litigating capacity is simply one
88 McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (internal citations omitted). Accord Percinthe v. Julien, No. 08 Civ. 893, 2008 WL 4489777, at *3 (S.D.N.Y. Oct. 4, 2008).
89 Bounds v. Smith, 430 U.S. 817, 821-22 (1977). 90 Lewis v. Casey, 518 U.S. 343, 349 (1996). 91 Id. at 351. 92 Id. at 355. 93 Id.
22

of the incidental (and perfectly constitutional) consequences of conviction and incarceration.”94
G. Procedural Due Process In order to maintain a due process claim with respect to a prisoner’s
disciplinary proceeding, “a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.”95 A prisoner can only establish a due process claim in connection with prison disciplinary proceedings resulting in segregative confinement or loss of privileges by demonstrating that the sanctions “impose[d] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”96 “The duration of SHU confinement is a relevant, but not the only, factor with respect to whether such confinement is ‘atypical.’”97 “Generally, periods of confinement in SHU lasting fewer than 101 days have been found not to amount to atypical and significant hardship.”98 The Second Circuit has held that
94 Id. 95 Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). 96 Sandin v. Conner, 515 U.S. 472, 484 (1995). 97 Alicea v. Howell, 387 F. Supp. 2d 227, 231 (W.D.N.Y. 2005) (citing Ortiz v. McBride, 380 F.3d 649, 654-55 (2d Cir. 2004)). 98 Dawkins, 646 F. Supp. 2d at 606. Accord Ortiz, 380 F.3d at 655 (prison conditions such as “solitary confinement for twenty-three hours a day,
23

confinement in the SHU for a period of 305 days, without anything more, satisfies
the Sandin standard of atypical and significant hardship.99
With respect to process, “[f]or a prison disciplinary proceeding to
provide due process there must be, among other things, ‘some evidence’ to support
the sanction imposed.”100 Additionally, “[a]n inmate subject to a disciplinary
hearing is entitled to an impartial hearing officer.”101
H. Fourth Amendment Right to Be Free from Unreasonable Search and Seizure
“While persons imprisoned for crime enjoy many protections of the
Constitution, it is also clear that imprisonment carries with it the circumscription or
provid[ing] one hour of exercise in the prison yard per day, and permitt[ing] two showers per week” for less than 101 days does not amount to atypical and significant hardship).
99 See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (“Confinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.”).
100 Ortiz, 380 F.3d at 655 (quoting Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001)).
101 Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing Wolff v. McDonnell, 418 U.S. 539, 570-71 (1974)); Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990) (“[A]n impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen.”).
24

loss of many significant rights.”102 “These constraints on inmates, and in some cases the complete withdrawal of certain rights, are ‘justified by the considerations underlying our penal system.’”103 “The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of ‘institutional needs and objectives’ of prison facilities . . . chief among which is internal security.”104 In fact, the Supreme Court has repeatedly “confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld ‘if it is reasonably related to legitimate penological interests.’”105 “[T]he Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”106
I. Eighth Amendment Violations “[P]rison officials have a duty . . . to protect prisoners from violence
at the hands of other prisoners.”107 However, not every incident causing injury
102 Hudson v. Palmer, 468 U.S. 517, 524 (1984) (citing Bell v. Wolfish, 441 U.S. 520, 545 (1979)).
103 Id. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). 104 Id. (internal citations omitted). 105 Florence v. Board of Chosen Freeholders of the County of Burlington, 566 U.S. —, 132 S. Ct. 1510, 1515 (2012). 106 Hudson, 468 U.S. at 526. 107 Farmer v. Brennan, 511 U.S. 825, 833 (1994).
25

“translates into constitutional liability for prison officials responsible for the victim’s safety.”108 Thus, a plaintiff alleging a violation of the Eighth Amendment is required to establish two elements. First, that he is incarcerated under conditions posing a substantial risk of serious harm.109 Second, that the prison officials had a sufficiently culpable state of mind, or at the very least that they were deliberately indifferent.110 The first element is objective while the second element is subjective. The Supreme Court has held that to demonstrate deliberate indifference, an official must “know[] of and disregard[] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”111 V. DISCUSSION
A. Access to the Courts Peoples’ claim that his right of access to the courts was violated is
dismissed. Peoples has failed to allege that he was denied tools needed to attack his sentence directly or collaterally, which is the right he is constitutionally
108 Id. at 834. 109 See id. 110 See id. 111 Id. at 837.
26

guaranteed.112 Peoples alleged that defendants actions violated his right to instigate a special court proceeding under the Uniform Commercial Code for commercial purposes.113 However, the right to institute such proceedings is not the type of meaningful access to the courts that is protected.114 As Peoples has failed to allege that he has been deprived of the right of meaningful access to the courts and that he suffered actual injury, this claim is dismissed.
B. Fourth Amendment Claims Peoples’ claims relating to alleged violations of his Fourth
Amendment rights to be free from unreasonable searches and seizures are similarly dismissed. Peoples has not pled factual allegations that allow this Court to find that the pat frisk search or the search of Peoples’ cell were not reasonably related to legitimate penological interests. As a result, Peoples’ claims arising from the alleged violations of his Fourth Amendment rights are dismissed.
112 See Lewis, 518 U.S. at 355. 113 See Compl., III(D) ¶ 5. 114 See Lewis, 518 U.S. at 355 (“[i]mpairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration”).
27

C. Fourteenth Amendment Claims Defendants have argued that Peoples’ due process claim is barred
because of the favorable termination rule, which provides that a prisoner cannot bring a section 1983 claim if a judgment in his favor would imply the invalidity of his conviction or sentence, unless the “conviction or sentence has been reversed.”115 This rule applies to Peoples’ challenge to his loss of good time credit.116 Thus, Peoples’ due process claim can only proceed if he agrees to waive any challenge to any sanction affecting the length of his confinement, including the loss of good time credit.117
Peoples has adequately pled a protected liberty interest,118 and that he was deprived of his liberty as a result of insufficient process in that there is no evidence to support the sanction of three years in the SHU. However, Peoples has not waived any challenge to the loss of his good time credit. If he were to waive the challenge to the loss of good time credit, Peoples’ due process claim could proceed as it would no longer implicate the length of his underlying criminal
115 Heck, 512 U.S. at 487. 116 See Edward, 520 U.S. at 645. 117 See Peralta, 467 F.3d at 104. 118 See Colon, 215 F.3d at 231 (“Confinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.”).
28

conviction. Accordingly, until Peoples waives his challenge to the loss of good time credit, his due process claim is dismissed.
D. Eighth Amendment Claims Peoples’ Eighth Amendment claim is dismissed to the extent it is
based on his altercation with Larry Allen. Peoples has not alleged any facts that would allow this Court to infer that the prison officials acted with deliberate indifference, in connection with this altercation.119
However, Peoples states a viable Eighth Amendment claim based on his three-year sentence in the SHU. As previously discussed, three years in the SHU is an extraordinary amount of time. Construing the allegations in Peoples’ Complaint liberally, Peoples has adequately pled that he was incarcerated under conditions that pose a substantial risk of harm. Additionally, Peoples’ allegations that the defendants were deliberately indifferent is plausible given the length of his confinement in the SHU. Accordingly, Peoples’ Eighth Amendment claim in connection with his sentence of three years confinement in the SHU, together with the other loss of privileges, may proceed.
119 See Farmer, 511 U.S. at 834-37. Additionally even if he had made these allegations, Peoples’ claim in relation to his altercation with Allen would still be dismissed as he has not exhausted his administrative remedies in connection with this claim.
29

E. Exhaustion of Remedies
Defendants’ argument that plaintiff has failed to exhaust his
administrative remedies fails.120 Peoples complied with all of the DOCS’s
procedural rules, thereby giving DOCS a fair opportunity to consider his
grievance.121 Peoples made his final appeal to the CORC on March 17, 2011.122
Pursuant to New York State Regulations, the CORC had thirty days to respond.123
The final denial of his appeal was issued on June 8, 2011.124 Had the CORC timely
provided a response to Peoples’ appeal, he would have received a response prior to
filing the instant action. Defendants do not contest this fact. Peoples complied
with the administrative requirements and made a good faith effort to exhaust. The
CORC’s failure to timely respond does not bar his claim.125 Moreover, the CORC
120 To the extent defendants sought to dismiss the claims based upon lack of subject matter jurisdiction because they claim Peoples failed to exhaust his remedies, it should be noted that the PLRA is not a jurisdictional requirement. See Woodford, 548 U.S. at 101.
121 See id. at 95. 122 See Appeal Statement, Ex. A to Compl., at 6. 123 See 7 N.Y.C.C.R. § 701.5. 124 See 6/8/11 CORC Response, Ex. B to Pl. Opp., at 1. 125 Cf. Torres, 672 F. Supp. 2d at 345. It is unclear how long an inmate must wait after not receiving a response from the CORC before he can commence a section 1983 action. However, when an inmate has complied with all administrative requirements and waited for the response period to expire, he has
30

has since denied his appeal.126 Thus, Peoples’ claim relating to his three-year confinement in the SHU is deemed to be fully exhausted.127
F. Personal Involvement
Peoples’ surviving Eighth Amendment claim must be dismissed as to
Fischer, Leclaire, Lee, O’Connor and Bellamy as their personal involvement in
unlawfully confining him to the SHU has not been adequately alleged. However,
Peoples’ claim against Ward , Bezio and Rock, remains as he has pled that these defendants were personally involved.128
G. Eleventh Amendment Immunity
Peoples’ claims against the Office of Counsel for DOCS are dismissed
because that Office is an arm of the State of New York, which has not waived its
exhausted all the administrative remedies that are avaliable to him. Peoples should not be penalized for the CORC’s failure to timely respond, especially where the eventual response denied the requested relief.
126 See 6/8/11 CORC Response, Ex. B to Pl. Opp., at 1. 127 See Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997) (holding that where facts are not contested by either party, the pleading may be deemed amended). 128 As there is no indication that the Attorney General’s office represents Drown, I decline to dismiss him from this action. Additionally, because Drown was the officer who imposed the three-year SHU sentence, it is unlikely that he would be dismissed at this stage of these proceedings.
31

sovereign immunity.129 H. Qualified Immunity To succeed on their claim for qualified immunity Ward, Bezio and
Rock must show that from the “face of the complaint they did not violate a clearly established right of which they should have known.”130 By sentencing and confining Peoples to the SHU for three years,131 Ward, Bezio and Rock violated a clearly established right protecting inmates from cruel and unusual punishment. Thus, these defendants are not entitled to the defense of qualified immunity.
I. Leave to Amend Because Peoples cannot cure his claims against Fischer, Leclaire, Lee,
O’Connor and Bellamy due to their lack of personal involvement, the claims against these defendants are dismissed with prejudice and without leave to amend. Furthermore, Peoples may not amend his Complaint as to the alleged Fourth Amendment violations, his right to access to the courts claim, his claim regarding his altercation with a fellow inmate, and his claims against the Office of Counsel
129 See Treasure Salvors, Inc., 458 U.S. at 684. 130 Percinthe, 2008 WL 4489777, at *3. Accord McKenna, 386 F.3d at 436 (internal citations omitted). 131 This is an extraordinary amount of time given the nature of the charges filed against him.
32

for DOCS, as any such amendments would be futile. Peoples may amend his Complaint in connection with his Fourteenth
Amendment due process claim. In order to do so, he must first waive his challenge to the loss of good time credit. Peoples may amend this claim within thirty days of the date of this Order. If Peoples submits a timely Amended Complaint, this Court will review it to determine whether Peoples has adequately pled a Fourteenth Amendment due process claim. VI. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted in part and denied in part. 132 The Clerk of the Court is directed to close this motion [Docket No. 33]. A status conference has been scheduled for June 12,2012, at 4:30 p.m. in Courtroom 15C.
SO ORDERED:

Dated:

New York, New York May 2,2012

132 If Peoples wishes to purse the claims described in his February 13, 2012 letter to this Court, he should do so by commencing a new action.
33

Plaintiff (Pro Se):
LeRoy Peoples # 05-A-2620 Attica Correctional Facility P.O. Box 149 Attica, NY 14011
For Defendants:
Jeb Harben Assistant Attorney General 120 Broadway - 24th Floor New York, NY 10271 (212) 416-6185

- Appearances -

34

 
 Case 1:11-cv-02694-SAS Document 51 Filed 05/17/12 Page 1 of 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
LEROY PEOPLES,
Plaintiff,
- against-
BRIAN FISCHER, DOCS Commissioner, et al.,
Defendants.

Docket Number 11-CV-2694 (SAS)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR RECONSIDERATION
ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for State Defendants 120 Broadway, 24th Floor New York, New York 10271 (212) 416-6185
JEB HARBEN Assistant Attorney General
of Counsel

Case 1:11-cv-02694-SAS Document 51 Filed 05/17/12 Page 2 of 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

LEROY PEOPLES, - against-

Plaintiff,

BRIAN FISCHER, DOCS Commissioner, et al.,
Defendants.

Docket Number 11-CV-2694 (SAS)

PRELIMINARY STATEMENT This memorandum of law is respectfully submitted on behalf of defendants Ward, Bezio and Rock in support of their motion pursuant to S.D.N.Y. Local Rule 6.3 seeking reconsideration the portion of this Court=s May 3, 2012 Opinion and Order (AOpinion@) partially denying their motion to dismiss, while dismissing all other named defendants from this action other than as-ofyet unserved and deceased defendant Drown. I. RECONSIDERATION To succeed on a motion for reconsideration or reargument, Athe moving party must demonstrate that the court overlooked the controlling decisions or factual matters that were placed before the court in the underlying motion.@ Bonnie & Co. v. Bankers Trust Co., 170 F.R.D. 111, 113 (S.D.N.Y. 1997) (citations omitted). It is respectfully submitted that in partially denying defendants Ward, Bezio and Rock's motion, the Court may have overlooked certain legal precedent governing the factual matters raised in the briefing of the motion. II. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY The doctrine of qualified immunity shields the remaining defendants in this action from liability under Section 1983. See Pearson v. Callahan, 129 S. Ct. 808, 815-18 (2009). Public officials such as the remaining defendants herein are protected by qualified immunity Aso long as their conduct does not violate a clearly established statutory or constitutional right.@ Richardson
1

Case 1:11-cv-02694-SAS Document 51 Filed 05/17/12 Page 3 of 8
v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993) (citation omitted). AThe contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.@ Anderson v. Creighton, 483 U.S. 635, 640 (1987). AA right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful.@ Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003); Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987). In the absence of Supreme Court or Second Circuit precedent on point, a constitutional right is not Aclearly established.@ Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) (citation omitted); Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert denied, 503 U.S. 962 (1992) (Athe decisional law of the Supreme Court [or] the applicable circuit court [must] support the existence of the right in question@). Nor can a government official be expected Ato recognize the significance of a few scattered cases from disparate areas of law@ delineating a right that may be evolving. Rakovich v. Wade, 850 F.2d 1180, 1209-10 (7th Cir. 1988) (citations omitted).
The Court's decision appears to find that a 36 month S.H.U. sentence can constitute "cruel and unusual" punishment for the type of violations involved here. While the Complaint does not clearly make that claim, instead arguing that the Eighth Amendment claim centers around plaintiff's alleged assault by another inmate (which was dismissed) and the general indignity of being in S.H.U. (which was dismissed)1 and that the other dismissed claims that the length of the S.H.U. sentence could have violated plaintiff's alleged First Amendment rights (by suppressing his ability to harass public officials by filing liens on them, potentially disrupting their ability to take out a mortgage or borrow to pay for their childrens' educational expenses, for
1 See Plaintiff's Opposition filed January 11, 2012 at p. 5. 2

Case 1:11-cv-02694-SAS Document 51 Filed 05/17/12 Page 4 of 8
example), Due Process and Equal Protection rights 2, there is no law or other precedent to
support the claim that the time plaintiff spent in S.H.U. amounted to cruel and unusual
punishment. Moreover, plaintiff, in fact, actually served less than 26 months in S.H.U. because
his sentence was reduced for good behavior (and plaintiff cannot collect damages for time in S.H.U. he did not serve, nor can a defendant be liable for S.H.U. time that was not served)3 and
there is no clearly established law indicating that the length of a S.H.U. sentence alone can be
considered cruel and unusual punishment. While the Court found that a S.H.U. sentence that
long for a non-violent crime may be unwarranted (despite the fact that the crimes committed
would constitute felonies under New York State law and federal law punishable by prison sentences well in excess of one year),4 the Court may have overlooked that such an Eighth
Amendment claim is not supported by "clearly established law" indicating that such a sentence
can implicate the protections in the U.S. Constitution against cruel and unusual punishment solely due to its length.5
2 See Complaint at pp. 6 - 7, 8 - 9. 3 See Harben Decl., Exh. H (showing two separate reductions in plaintiff's sentence in SHU). Plaintiff never pled that he served 36 months in S.H.U., only that it was his original sentence. In fact, this action was commenced before he was released from S.H.U. after serving almost 26 months. Id. 4 See U.S. v. Speight, 75 Fed. Appx. 802, ** 1 (2d Cir. Aug. 28, 2003) (affirming 72 month sentence imposed on inmate who filed false U.C.C. liens on federal judge and officials); 18 U.S.C. § 1521 (filing false U.C.C. liens on federal official may be punishable by up to ten years of imprisonment); N.Y. Penal Law 175.35 (filing a false U.C.C. lien is a Class E felony).
5 "Normal” conditions of S.H.U. confinement do not constitute an Eighth Amendment violation even for relatively long periods of confinement. See Branch v. Goord, 2006 WL 2807168, at *5 (S.D.N.Y. Sept. 28, 2006); Shannon v. Selsky, 2005 WL 578943, at *2, n. 4 and *6 (S.D.N.Y. Mar. 10, 2005) (twenty months served in S.H.U. for planning to organize a work stoppage and other disruptive protest-related activities allowed; noting solitary confinement for twenty-three hours a day with one hour of exercise is not an Eighth Amendment violation). S.H.U. confinement cannot be cruel and unusual unless it is “'totally without penological
3

Case 1:11-cv-02694-SAS Document 51 Filed 05/17/12 Page 5 of 8
At least one federal court in New York has implicitly concluded that 18 months in S.H.U. for U.C.C. lien violations is not excessive (see Neree v. O’Hara, 2011 WL 3841551 (N.D.N.Y. July 20, 2011), cited in defendants' opening Memorandum of Law regarding qualified immunity), while this Court has held elsewhere that it may be excessive and constitute cruel and unusual punishment. See Richardson v. Coffy, 2012 WL 76910, * 4 (S.D.N.Y. Jan. 9, 2012). Plaintiff, in fact, served less than 26 months in S.H.U., which, objectively is not vastly different than the punishment imposed in Neree and is certainly not "grossly disproportionately" longer than the Neree sentence, particularly when the type of conduct complained of could result in a ten-year prison sentence under some circumstances. Moreover, nothing in plaintiff's pleadings alleges that the conditions in S.H.U. were different from normal, admittedly restrictive, S.H.U. conditions and "pose[d] a substantial risk of harm" (Opinion at 29). Nothing about the length of the sentence shows "deliberate indifference" (id.) given that the Court's objection to the length of the S.H.U. sentence is that it was imposed in connection with a non-violent infraction, not that a 26 or 36 month S.H.U. sentence can never be appropriate. Whatever alleged "injuries" resulting from serving almost 26 (or even 36) months of confinement in S.H.U. would be the same whether the underlying infraction had been violent or non-violent. Clearly, for example, this Court would presumably not consider a 26 (or 36) month S.H.U. confinement to be unconstitutionally long if an inmate brutally murdered a judge, court personnel or corrections employee(s) while incarcerated, so there can be nothing cruel and unusual about the length of a sentence itself (that is a Due Process consideration). In sum, whether a S.H.U. sentence is too
justification', 'grossly disproportionate,' or 'involve[s] the unnecessary and wanton infliction of pain.'” Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir. 1984) (internal quotation marks and citations omitted). We have been unable to find a single Second Circuit or U.S. Supreme Court case, much less a New York district court case, that has found a S.H.U. sentence "grossly disproportionate."
4

Case 1:11-cv-02694-SAS Document 51 Filed 05/17/12 Page 6 of 8
long may raise a Due Process issue in some circumstances, but it does not raise a question of Cruel and Unusual Punishment/Deliberate Indifference.
The fact that different district court judges may have different views on the matter (as is clearly the case with this Court and the Neree court, for example) is why an alleged constitutional violation must be "clearly established" by Second Circuit precedent or higher precedent for qualified immunity to not apply. Otherwise, public officials in New York, for example, will be faced with potentially dozens of different standards from dozens of different judges around the state (if not hundreds of judges if Section 1983 claims are brought in state court) as to what is allowed in a given situation. This motion urges the Court to dismiss, on the basis of qualified immunity, at the very least, plaintiff's remaining Eighth Amendment claim to the extent the Court believes that one was pled. Plaintiff could then appeal that ruling to the Second Circuit. If that court determines that such a period of confinement is inappropriate under the circumstances, the Circuit could issue a ruling that puts prison officials on notice as to what type of S.H.U. sentence can be imposed. III. LIEUTENANT WARD WAS NOT PERSONALLY INVOLVED
Putting aside whether the remaining defendants are entitled to qualified immunity as to plaintiff's purported remaining Eighth Amendment claim, Lt. Ward should be dismissed from this action for lack of personal involvement. Plaintiff has only alleged that Lt. Ward was involved in plaintiff's initial and potentially short-term (depending on the outcome of the disciplinary hearing) confinement to S.H.U. immediately after receiving a misbehavior report and after banned U.C.C. materials were found in plaintiff's cell. Any such claims are interrelated with plaintiff's general challenge to the prison regulations in question (which were dismissed) and his search and seizure claims (which were also dismissed), not with the issue of
5

Case 1:11-cv-02694-SAS Document 51 Filed 05/17/12 Page 7 of 8
whether the subsequent sentence to S.H.U. was unconstitutional.6 The Court's Opinion appears to find nothing wrong with an inmate being placed in
S.H.U. for some period for violating the applicable regulations. The Opinion does not find the regulations themselves unconstitutional, or that plaintiff was unconstitutionally issued a misbehavior report, or that plaintiff's materials were unconstitutionally confiscated. The Court appears to have grounded its decision under the proposition that the sentence imposed by unserved defendant Drown (and upheld by defendants Rock and Bezio) may have been too long. But no inference can be made from plaintiff's Complaint and the record before the Court that Lt. Ward ordered plaintiff to be sentenced to 36 months in S.H.U. (or to actually serve almost 26 months in S.H.U.) or that he had any role in allowing that sentence to stand. In fact, there is no basis to infer from the Complaint or the record that Lt. Ward could have done anything about the S.H.U. sentence that was imposed on plaintiff. Accordingly, Lt. Ward was not personally involved in what the Court has found to be potentially constitutionally objectionable, namely the imposition of a 36 month S.H.U. sentence. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-49 (2009).
6 Interim confinement in S.H.U. prior to a disciplinary hearing is administrative, not punitive, and thus Due Process rights are not implicated as the record demonstrates that plaintiff was advised of the charges against him. See Bolden v. Alston, 810 F.2d 353, 357 n. 3 (2d Cir.), cert. denied, 484 U.S. 896 (1987).
6

Case 1:11-cv-02694-SAS Document 51 Filed 05/17/12 Page 8 of 8

CONCLUSION

For all the foregoing reasons, defendants Rock, Bezio and Ward respectfully request that

reconsideration be granted and all remaining claims against them dismissed.

Dated: New York, New York May 17, 2012

Respectfully submitted,
ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants Rock, Bezio and Ward

JEB HARBEN Assistant Attorney General of Counsel

By:_______/S/_______________ JEB HARBEN Assistant Attorney General 120 Broadway - 24th Floor New York, New York 10271 (212) 416-6185

7

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Case 1:11-cv-02694-SAS Document 51-1 Filed 05/17/12 Page 13 of 13

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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LEROY PEOPLES,
Plaintiff,

USDC SDNY -­
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OPINION AND ORDER

BRIAN FISCHER, DOCS COMMISSIONER, LUCIEN LECLAIRE, JR., DOCS OFFICE OF COUNSEL, WILLIAM LEE, PETER A. CRUSCO, ERIC C. ROSENBAUM, RICHARD A. BROWN, LT. L. WARD, SGT., O'CONNOR, C.O. MALARE, C.O. DROWN, NORMAN BEZIO, D. ROCK, LT. WARD, and KAREN BELLAMY,

11 Civ. 2694 (SAS)

Defendants.
-------------------------------------------------------){
SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

As the Commission on Safety and Abuse in America's Prisons

recently found, "[t]he overreliance on and inappropriate use of segregation hurts

individual prisoners and officers. But the consequences are broader than that: The

misuse of segregation works against the process of rehabilitating people and

threatens public safety.") In 2010, the American Bar Association approved its

John J. Gibbons and Nicholas de B. Katzenbach, Confronting Confinement: A Report ofthe Commission on Safety and Abuse in America's
-1­

Criminal Justice Standards on the Treatment of Prisoners, which recommend that

“[s]egregated housing should be for the briefest term and under the least restrictive

conditions practicable and consistent with the rationale for placement and with the

progress achieved by the prisoner.”2 The ABA emphasized that

Correctional authorities should use long-term segregated housing sparingly and should not place or retain prisoners in such housing except for reasons relating to:

(i)

discipline after a finding that the prisoner has

committed a very severe disciplina ry

infraction, in which safety or security was

seriously threatened; [or]

(ii)

a credible continuing and serious threat to the

security of others or to the prisoner’s own

safety.3

As to disciplinary segregation, the ABA recommended that “only the

most severe disciplinary offenses, in which safety or security are seriously

Prisons at 53-54 (2006) (explaining that “the actual risk someone presents to the prison community should be carefully considered before segregating the person,” that segregation should be “a last resort and a more productive form of confinement,” and that the use of isolation should be ended). Accord Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol’y 325, 327 (2006). See also Jamie Goldberg, Solitary confinement ‘is driving men insane,’ exonerated convict testifies, L.A. Times, June 19, 2012 (describing Senate Judiciary Committee hearing on solitary confinement); Editorial, The Abuse of Solitary Confinement, N.Y. Times, June 20, 2012.
2 Standard 23-2.6 Rationales for segregated housing.
3 Standard 23-2.7 Rationales for long-term segregated housing.
-2-

threatened, ordinarily warrant a sanction that exceeds 30 days placemen t in disciplinary housing, and no placement in disciplinary housing should exceed one year.”4 These ABA standards are not radicaol r fringe views: on the contrary, “[th]e Standards’ unique contribution . . . is to address all the aspects of long-term segregation by presenting solutions that em body a consensus view of representatives of all segments of the criminal justice system who worked on them together in the exhaustive and collaborative ABA Standards process.”5
Leroy Peoples was housed in segregation for over two years, even though there was never any finding that he poseda threat to the safety of others or the security of the prison. His placement in the SHU for such a time period was grossly disproportionate to the non-violent violation that he was found to have committed. He has therefore stated a plausible claim that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. II. PROCEDURAL POSTURE
On May 3, 2012, this Court issued an Opinion and Order (the “May 3, 2012 Order”) dism issing, in part, plain tiff’s Complaint for failure to state a
4 Standard 23-4.3 Disciplinary sanctions (emphasis added). 5 Margo Schlanger, Regulating Segregation: The Contribution of the ABA Criminal Justice Standards on the Treatment of Prisoners, 47 Am. Crim. L. Rev. 1421, 1423 (2010) (emphasis added).
-3-

claim.6 Defendants now seek reconsideration on t he following grounds: (1) defendants Ward, Bezio and Rock are entitled to qualified immunity; and (2) Ward was not personally involved. For the reasons stated below, defendants’ motion for reconsideration is granted in part and denied in part. III. FACTUAL BACKGROUND
Peoples is currently an inmate at Upstate Correctional Facility and was previously an inmate at Green Haven Correctional Facility.7 On October 5, 2009, while Peoples was at Green Haven, Se rgeant O’Connor and Corrections Officer (“C.O.”) Malare approached him while he was working and performed a pat and frisk search.8 Peoples was then escorted tohis cell, F-Block 150, which O’Connor and Malare then searched.9 Peoples alleges that certainpapers were seized and that his personal and legal m ail, family photos, clothing, and other miscellaneous property was scattered all over his cell.10
6 See Peoples v. Fischer, No. 11 Civ. 2694, 2012 WL 1575302 (S.D.N.Y. May 3, 2012).
7 See Compl., I(A) and II(A). 8 See id. III(D) ¶ 2. 9 See id. 10 See id. ¶¶ 1, 11.
-4-

Peoples was immediately taken to the Special Housing Unit (“SHU”)
and placed in solitary confinement.11 The next day, October 6, 2009, Peoples was
served with an Inmate Misbehavior Report (the “Report”), which alleged that he
violated Rules 107.2112 and 113.3013 of the Standards of Inmate Behavior rule book
(hereafter “Rules”). The Report further states that on October 5, 2009, prior to the
cell search, C.O. O’Connor received a pack et of papers from the Queens County
District Attorney’s Office.14 The accompanying cover letter identified the papers
as “U.C.C. [and] other financial claims that are bogus [and] without legal basis.”15
The Report states th at the subseque nt search of Peoples’ cell “produced
approx[imately] 148 docum ents which a ll also appear to violate the above
11 See id. ¶ 2. 12 See id. Rule 107.21 states that “[a]n inmate shall not file or record any document or instrument of any description which purports to create a lien or record a security interest of any kind against the person or property of any officer or employee of the Department, the State of New York, or the United States, absent prior written authorization from the superintendent or a court order authorizing such filing.” 7/24/09 Inmate Rule Book Additions, Ex. A to Compl., at 6. 13 Rule 113.30 provides that “[a]n inmate shall not possess any Uniform Commercial Code (“UCC”) Article 9 Form, including but not limited to any financing statement, . . . correction statement. . . , or information request . . ., whether printed, copied, typed or hand written, or any document concerning a scheme involving an inmate’s ‘strawman.’” 7/24/09 Inmate Rule Book Additions, Ex. A to Compl., at 6. 14 See Compl., III(D) ¶ 1. 15 Id.
-5-

referenced charges.”16 On October 13, 2009, a m isbehavior report hearing was conducted
which Peoples alleges, had the “normal formalities of a hearing.”17 At the end of the hearing, Peoples was sentenced to three years confinement in the SHU, a threeyear loss of phone, package, and commissary privileges, and seventy-two months recommended loss of good time credit.18 Peoples appealed the hearing disposition to SHU Director Bezio who denied his appeal.19 In November of 2009, while still confined in the SHU and under Superintendnet Rock’s watch, Peoples was involved in a fist fight with fellow inmate Larry Allen and lost a tooth.20
On March 7, 2011, Peoples filed a grievance in connection with the alleged violations of his constitutional rights2.1 The grievance referenced violations of his rights under the First, Sixth, and Fourteenth Amendments of the Constitution
16 Id. 17 Compl., III(D) ¶ 3. 18 See id. See also Superintendent Hearing Disposition Report, Ex. A to Compl., at 2. At the time of the hearing, Peoples had not yet accrued seventy-two months of good time credit. See Compl., III(D) ¶ 3. 19 See Compl., III(D) ¶ 4. 20 Id. ¶¶ 8, 9. 21 See 3/7/11 Inmate Grievance, Ex. A to Compl., at 4.
-6-

of the United States.22 Peoples complained about the addition of Rules 107.21 and 113.30 and complained that he was affected by these Rules by being placed in the SHU for three years, along withthree years of lost phone, package and commissary privileges.23
On March 9, 2011, Peoples received a response from the Inm ate Grievance Review Committee (“IGRC”) a nd simultaneously appealed to the Superintendent of the Department of Correctional Services (“DOCS”).24 On March 15, 2011, Superintendent Rock responded to Peoples’ appeal.25 Two days later, on March 17, 2011, Peoples appealed to the Central Office Review Com mittee (“CORC”).26 On April 18, 2011, Peoples commenced the instant action. On June 8, 2011, he received a r esponse from the CORC affirm ing the denial of his grievance.27
22 See id. 23 See id. 24 See Compl., III(D) ¶ 8. See also 3/9/11 IGRC Response, Ex. A to Compl., at 5. 25 See 3/15/11 Response from Inmate Grievance Program Superintendent, Ex. A to Compl., at 6. 26 See id. 27 See 6/8/11 CORC Response, Ex. B to Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Dismiss (“Opp. Mem.”) at 1.
-7-

Peoples generally suffers from “stress, fear . . . depression and other psychological impacts” of his confinement in the SHU, which he has described as “psychological torture.”28 Peoples alleges that Superintendent Rock was personally involved in the deprivation of Peoples’constitutional rights because Rock confined Peoples in the SHU, upheld the CORC’s detremination of Peoples’ appeal, and was in a supervisory role at the time Peoples was involved in a fist fight with Allen.29 SHU Director Bezio is personally involved in his deprivation, Peoples argues, as he “affirmed and confirmed the disposition of unlawful confinement and revoked privileges” in vio lation of Peoples’ constitutional rights. 30 Peoples alleges that Lieutenant Ward was personally involved because he authorized the seizu re of Peoples and his papers as well as his unlawful confinement in the SHU.31 IV. LEGAL STANDARD
A. Motion for Reconsideration Motions for reconsideration are governed by Local Rule 6.3 and are
28 Compl., III(D) ¶¶ 7, 9. 29 See id. ¶¶ 1, 8. 30 Id. ¶ 4. 31 See id. ¶¶ 1, 10. In April 2010, Peoples drafted a request for an Article 78 proceeding addressing some of the issues raised in the instant Complaint. Upon his return from state court, however, the Article 78 motion was confiscated by corrections officers acting under Rock’s orders. See id. ¶ 17(g).
-8-

committed to the sound discretion of the district court.

32 A m otion for

reconsideration is appropriate where “ ‘the moving party can point to controlling

decisions or data that the court overlooke d – matters, in other words, that m ight

reasonably be expected to alter the conclusion reached by the court.’”33 A motion

for reconsideration m ay also be granted to “‘correct a clear error or prevent

manifest injustice.’”34

The purpose of Local Rule 6.3 is to “‘ensure the finality of decisions

and to prevent the practice of a losing praty examining a decision and then plugging

the gaps of a lost m otion with additional matters.’” 35 Local Rule 6.3 m ust be

32 See Patterson v. United States, No. 04 Civ. 3140, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006 ) (“The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court.”) (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
33 In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (quotation marks omitted).
34 RST (2005) Inc. v. Research in Motion Ltd., No. 07 Civ. 3737, 2009 WL 274467, at *1 (S.D.N.Y. Feb. 4, 2009) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
35 Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008) (quoting S.E.C. v. Ashbury Capital Partners, No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001)). Accord Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 233 F.R.D. 355, 361 (S.D.N.Y. 2005) (“[A] movant may not raise on a motion for reconsideration any matter that it did not raise previously to the court on the underlying motion sought to be reconsidered.”).
-9-

“narrowly construed and strictly applie d so as to avoid repetitive argum ents on issues that have been considered fully by the Court.3”6 Courts have repeatedly been forced to warn litigants that such motions should not be made reflexively to reargue “‘those issues already considered when a party does not like the way the original motion was resolved.’”37 A motion for reconsideration is not an “opportunity for making new arguments that could have been previously advanced,” 38 nor is i t a substitute for appeal.39
B. Qualified Immunity Agency officials performing disc retionary functions are generally
granted qualified immunity and are immune from suit provided that “‘their conduct does not violate clearly estab lished statutory or constitutional rights of which a
36 United States v. Treacy, No. 08 CR 366, 2009 WL 47496, at *1 (S.D.N.Y. Jan. 8, 2009) (quotation marks and citation omitted). Accord Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (holding that a court will deny the motion when the movant “seeks solely to relitigate an issue already decided”).
37 Makas v. Orlando, No. 06 Civ. 14305, 2008 WL 2139131, at *1 (S.D.N.Y. May 19, 2008) (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996)).
38 Associated Press v. United States Dep’t of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005).
39 See Grand Crossing, 2008 WL 4525400, at *3. -10-

reasonable person would have known.’”40 The Second Circuit has held that “[a] right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit hasrecognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful.”41
To prevail on a motion to dismiss on the basis of qualified immunity “[n]ot only m ust the facts supporting the defense appear on t he face of the complaint, but as with all Rule 12(b)(6) motions . . . the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense.”42 V. DISCUSSION
A. Personal Involvement of Ward Defendants point out that although Lt. Ward authorized the seizure of
Peoples and his papers as well as his initial confinement in the SHU, Peoples does not allege that Ward was personally i nvolved in the SHU sentence following the
40 Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).
41 Id. (quotation marks and citations omitted). 42 McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). Accord Percinthe v. Julien, No. 08 Civ. 893, 2008 WL 4489777, at *3 (S.D.N.Y. Oct. 4, 2008).
-11-

disciplinary hearing or the denial of Peoples’ appeal of that sentence. Defendants are correct. Because the only remaining claim relates to Peoples’ three-year SHU sentence and not to the initial search, se izure and SHU confinem ent, there is no assertion that Lt. Ward was personally involved in the alle ged constitutional violations.43 Because Ward’s involvement was limited to the initial search, seizure and SHU confinement pending Peoples’ disciplinary hearing, reconsideration is warranted. As such, defendants’ motion to dismiss Lt. Ward for lack of personal involvement is granted.
B. Bezio and Rock are Not Entitled to Qualified Immunity at This Stage of the Proceedings Defendants request reconsideration of the May 3, 2012 Order denying
qualified immunity to Bezio and Rock as to the remaining Eighth Amendment claim.44 To succeed on their claim for qualified immunity, Bezio and Rock must show that from the “face of the complaint they did not violate a clearly established right of which they should have known.”45 Defendants maintain that there is no
43 See Ashcroft v. Iqbal, 556 U.S. —, 129 S. Ct. 1937, 1948-49 (2009). 44 Because Lt. Ward has now been dismissed from this lawsuit due to lack of personal involvement, there is no need to do a qualified immunity analysis as to him. 45 Percinthe, 2008 WL 4489777, at *3. Accord McKenna, 386 F.3d at 436 (internal citations omitted).
-12-

clearly established law indicating that the length of a SHU sentence alone can be considered cruel and unusual punishment.
The Supreme Court has noted that “p[ ]rison walls do not forma barrier separating prison inm ates from the prot ections of the Constitution” and that “‘[w]hen a prison . . . pra ctice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.’” 46 “Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendm ent standards” and “the length of confinem ent cannot be ignored in deciding whether the confinem ent meets constitutional standards.”47 The Eighth Amendment “prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain,’ or are grossly disproportionate to the severity of the crime.”48
The Supreme Court and Second Circuit have clearly established that lengthy durations of SHU confinement can constitute an “atypical and significant” hardship for purposes of determining an inmate’s liberty interest within the context
46 Turner v. Safley, 482 U.S. 78, 85 (1987) (quoting Procunier v. Martinez, 416 U.S. 396, 405-06 (1974)).
47 Hutto v. Finney, 437 U.S. 678, 685-86 (1979). 48 Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
-13-

of a due process claim.49 Moreover, the Second Circuit has held that
lengthy segregated confinem ent of the type considered herein, after an inordinate lapse of time, may necessitate periodic review to insure that conditions once constitutional have not become cruel and unusual[.]50
Here, the defendant served twenty-six months of a thirty-six m onth sentence
imposing SHU confinement. Whether twenty-six or thirty-six months is the starting
point, a sentence of either duration could be considered “atypical and significant”
in determining whether an inmate had a liberty interest for due process purposes
under Sandin and its progeny.51
Although the due process analysis is conceptually distinct from that
of the Eighth Am endment, a finding of atypicality is, by analogy, indicative of
whether a sentence is grossly dispropor tionate to the underlying offense.
49 See Sandin v. Conner, 515 U.S. 472, 484 (1995); Sims v. Artuz, 230 F.3d 14, 22-24 (2d Cir. 2000); Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000).
50 Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir. 1984) (“Restraints on an inmate do not violate the amendment unless they are ‘totally without penological justification,’ ‘grossly disproportionate,’ or ‘involve the unnecessary and wanton infliction of pain.’”) (quoting Rhodes, 452 U.S. at 346).
51 See Sandin, 515 U.S. 472, 484 (1995); Sims, 230 F.3d at 23 (sentence of one year was “of sufficient length to be atypical and significant”); Colon, 215 F.3d at 229 (a prisoner’s SHU confinement for 305 days was ‘atypical’ and a ‘severe hardship’).
-14-

Numerous courts have found that long stretches of segregation can constitute cruel
and unusual punishment.52 Furthermore, courts have repeatedly determined that
conditions of segregated confinem ent are unconstitutional if they do not meet
certain minimum standards.53 Thus, prison officials were arguably put on sufficient
notice that a sentence of three years of SHU conf inement for a non-violent
infraction of prison rules could well be found to be grossly disproportionate and,
therefore, in violation of the Eighth Amendment. Accordingly, the conduct of the
CO defendants could be found to have violated Peoples’s clearly established right
to be free from cruel and unusual punishment. Further development of the record
52 See Morris v Travisono, 549 F. Supp. 291 (D.R.I. 1982) aff’d 707 F. 2d 28 (1st Cir. 1983) (solitary confinement for 8.5 years of prisoner who murdered a prison guard and then engaged in minor acts of disobedience was without sufficient penological justification and constituted cruel and unusual punishment) Silverstein v. Bureau of Prisons, 704 F. Supp. 2d 1077 (D. Colo. 2010) (twentyseven years of solitary confinement for prisoner who murdered three people while in prison stated a claim under the Eighth Amendment); Carothers v. Follette, 314 F. Supp. 1014, 1026 (S.D.N.Y. 1970) (stating, in dicta, that placing a prisoner in solitary confinement for 4.5 months for writing a letter to a judge criticizing the prison administration would constitute grossly disproportionate and therefore unconstitutional punishment); Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999) (administrative segregation of inmates unconstitutional because of its impact on their mental health).
53 See Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (Kennedy, J.) (Eighth Amendment requires that prisoners confined to segregation be allowed regular exercise); Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996) (collecting cases holding that the level of noise, ventilation, temperature, cell size, lighting and the access to personal hygiene items, food, water, and medical care all implicate the Eighth Amendment analysis).
-15-

during discovery will assist in determining whether Peoples' conditions of confinement in the SHU violated a clearly established Eighth Amendment right.54 Thus, Bezio and Rock's motion for reconsideration based on qualified immunity is denied at this stage in the proceedings, without prejudice and with leave to renew. VI. CONCLUSION
For the foregoing reasons, defendants' motion for reconsideration is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 50]. Additionally, Peoples attached an Amended Complaint to his opposition papers, which this Court now accepts for filing. A status conference has been scheduled for July 23,2012, at 4:30 p.m., in Courtroom l5C.
SO ORDERED:

Dated:

New York, New York June 26,2012

54 See Colon v. Howard, 215 F.3d 227, 232 (2d Or. 2000). -16­

- Appearances Plaintiff (Pro Se): LeRoy Peoples # 05-A-2620 Attica Correctional Facility P.O. Box 149 Attica, NY 14011 For Defendants: Jeb Harben Assistant Attorney General 120 Broadway - 24th Floor New York, NY 10271 (212) 416-6185
-17-

 
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+ . INMATE MISf;3.EHAVIOR flEPORT INFORME DE MAL COMPQ,RTAMJ. ENT,o DE. L RECLUSO

OF INMATE (Last. ~ir;tl • NOMBRE DEL RECLUSq (Apellido, Nombrel

NO •• NUM.

HOUSING LOCATION. CELDA

INCIDENT DATE. FECHA
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FIRMAS

1, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2

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NOTE: Fold back Page 2 on dotted linEl before completing below.

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6. WERE OTHER INMATeS INVOLVED?

YESO

N o f t - IF YES,GIVE NAME & It

p

. .

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7. AT THE TIME OF THIS INCIDENT, WAS INMATE UNDER PRIOR CONfINEMENTIAESTRICTION?

YES 0

NO~

OR

AS A RESULT OF THIS INCIDENT, WAS INMATE CONFINEDIAESTRICTED?

YE~ NO 0

B. WAS INMATE MOVED TO ANOTHER HOUSING UNIT?
~J.f-t-/u IF YES, (a) CURRENT HOUSING UNIT

YES~ NO 0
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~EVIEW D~\TE ~

10/05/09

BY: LT. S. HANN

)ELIV,ERY DtHE & TIr1E =

10/156/09

./E..:,.Q5.' flU- BY: GO P !~?)BIDEA;J

(JIL L~~ BY:~·=.=-= -- 1...01 f:!!1 ·IEARING STI~RT DATE
ItLJ13i..l-f-- L 'II3:ARING END D(~TE &.
JAS THERE NEED FOR

& TIi"lE:

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TIME: A FORMAL MENTAL

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I=-N>_'T-1'fu~ ECTU: AL . CAPACITY~(~- SSESSj'~l,E:NT.?--Y-~'~ -A-~"-

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, REPORTED BY
SGT K. O'CONNOR

DISPOSITIoN
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NY GUILTY DISPOSITION WILL RESU~T IN A MANDATORY DISCIPLINARY SURCHARGE IN THE 10UNT OF FIVE(S5.00) DOLLARS BEING ASSESSED AUTOMATICALLY AGAINST THE INMATE.
DEFERRED RESTITUTION MO DAYS SSSS. 1;
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Case 1:11-cv-02694-SAS Document 52 Filed 06/01/12 Page 17 of 22

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Case 1:11-cv-02694-SAS Document 52 Filed 06/01/12 Page 20 of 22
FORM 21} I E (REVERSE) (REV. 6/06)
UST- 45499-11
Response of (GRC:
Pcr prior CORe response ofSPT-47402-09 which sllltes in part: The Commissioner has the authority pursuant to Correctional Law Sections 112 and 138 to
promulgate rules that are necessary for the safe, secure, and orderly operati<m of all correctional Illdlities, /\s such. the Commissioner delegated the primary responsibility for processing the
enactment of these regulations to the Department's Office of Counsel. CORe also notes that these regulations were enacted after due consideration of serious security _ _ _ _ _.Ya.uoM-d operational concerns, and are not unconstitutional, nor arc they retaliatory or vindictive in nature,
Grievant has not presented sufficient evidence 10 indicate a changc in the Standards of Inmate Behavior handbook The JGRe recommends no changes be made, at this time, to the Standards of Inmate Behavior rules 107.21 and/or 113.30.

Rt'furn ',ithin 7 calendar days and check ~lppropriate ho:\cs.*

~disagree 0 with fGRC response and wish to

I have reviewed deadlocked responses,

appeal to the Superintendent.

Pass-Thru to Superintendent.

o ~ I agree with the IGRC response and wish to

apply to the [GP Supervisor for

appeal to the Superintendent.

review of dismissal.

Signed ~ ,,-t.t?nt,--G-=r-i-e=~v=a-+n-t,-=,,-----_ __

3/1/ tt
nate

-----------G"jt'vancc Clerk's l~e("l'jJlt

-------------------- -
Date

To be complf:ted by Grievance Clerk:

Grievance Appealcd to the Superintendent_
nate
Gl"icvancc forwarded to Superintendent for a(,tion ___________________________
Date

* An cx{;cptiol1 to the time -limit may be requested undcr Din:cti\'c 1/4040, scction 70 1..6(g)

Case 1:11-cv-02694-SAS Document 52 Filed 06/01/12 Page 21 of 22

GRIEVANCE NO.
UST-45499-11

DATE ALED

3/9/11.

No

STATE OF NEW YORK

DEPARTMENT OF

FACIUTY

POLICY DESIGNATION

CORRECTIONAL SERVICES
~~

Upstate Correctional Facility
TITLE OF GRIEVANCE

CLASS CODE

rules 107.21 + 113.30 unconstitutio

31

INMAnGru~AN~MOG~Mhs~.~m~M~E~N~~~N~'~~~_ _ _ _ _ _ _ _~~D~M~E_--------

SUPERINTENDENT

3);.s-/;/

GRIEVANT

PEOPLES

L.

05A2620

HOUSING UNIT
10-8-7

Per prior CORC response of SPT-47402~09 which states in part; The Commissioner has the authority pursuant to Correctional Law Sections 112 and 138 to promulgate rules that are necessary for the safe, secure, and orderly operation of all correctional. facilities. As such, the Commissioner delegated the primary responsibility for processing the enactment of these regulations to the Department's Office of Counsel.
CORe also notes that these regulations were enacted after due consideration of serious security and operational concerns, and are not unconstitutional, nor are they retaliatory or vindictive in nature. The grievant has not provided any evidence to warrant any changes in rules 107.21 or 113.30. Grievance is denied.

APPEAL STATEMENT

If you wish to refer the above decision of the Superintendent please sign below and return this copy to your Inmate Grievance

Clerk. You have seven (7) calendar days from receipt of this notice to file your appeal." Please state why you are appealing

r'-\b D. this decision to C.O..s\R .4.f.~·C.··~61<

~

C·oJ?c...·

.
U-e... )"

ft-{n;;!

:;z,b(;\.t~

1():{·2.\ &.

~ G~S SIGNATURE

I

3/1'+/11

I

DATE

!

GAII:VANCE CLERK'S SIGNATURE

DATE

"An exception to the time limit may be requested under Directive #4040, sectio,:\ 701.6(g).

Case 1:11-cv-02694-SAS Document 52

Filed 06/01/12

THi~"Nst'A1£CAMl'US"UlunNOl
Page 22 of 22 1214\V"'$IiII<lCTO~A\I'H(I£ "t."ahff't.N.y,lllZ'·l1;SO

WCIEHLUCLtoUIe,'II.
,,,,,ur.n OC!,,",~.lIOIIft
toMttlQl41.

TO; FROM: DATE: RE:

AU S"".rinlondonl. Lucien J. ~fI(;lalre, Jr.• Deputv Commissioner . July 24, 2009 INMATe RULE SOOK ADDITIONS.

This Il\0111OnIIld\J I. to advloa You 01 the addition of rule. "07.21 and #113.30 to Ihe StandJuds of fnmate I!Ghaxior.

An ]07.21 Inmate shap"{lOt ft19 or meoW any d9Cumenf gr ins1rum8nr

_om D£QDenv of aoy deecdptkin wh1ch qumotb to ctuI8 a Usn or record a sbCUtity

inltueat of any Idnd

the DtUjon or

of any officer or

gmQlO.yge Qf !hk Oeparlmeo! tile State 01 Nu: yO!!< or !he Unj!l!d

Statts .."" priqt writtep authoriuJion fWm lhe sup8(in1ondent or a

coyrl o'll.!auIJm!>!oq such!j\\Dg 1I!!1

.

New rUlol '"07.21. :Ii_rized Lien: will SUbject an '"",olelo disciplinary .ctlon lor
ae!lVltles related 10 1I!fng or r _ 1 n g any document Which claims to cre.te 0 flen or
1Ii<:urilytnw"", against I!lI'I """,tovee of the Oep'rlmen~ the State, or the Unned Stat•• ab$ent ptlar wrill.~ aulhOrluUon.

NOw NI& #113.30. "PO$S..slon of UnllUlharlzed vee Materiar (Po••. Unaulh. !.Jee

•. MDtl, wtII ....bjod an Inmate to dll\lllpU""iy oction for po.sesslon of any UCC FinanCing

Statement 9<,OIher UCC Article 9 101m. any'document concerning Ill. ·redempli••

. pro,.....• $Oheme•.or1liiy d~enllndiceliflg • copyright of the inmate's nome aboel11

.nl

pnOrwrtn.1i authorizaUOn.

.

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(
LEROY PEOPLES,

Plaintiff,
- against­
BRIAN FISCHER, LUCIEN LECLAIRE,: JR., DOCS OFFICE OF COUNSEL, WILLIAM LEE, PETER A. CRUSCO, ERIC C. ROSENBAUM, RICHARD A. BROWN, LT. L. JARD, SGT. O'CONNOR, C.O. MALARE, C.O. DROWN, NORMAN BEZIO, D. ROCK, LT. WARD, and KAREN BELLAMY,

OPINION AND ORDER 11 Civ. 2694 (SAS)

Defendants.
----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

LeRoy Peoples, a pro se inmate, brings this action pursuant to section

1983 of Title 42 of the United States Code ("section 1983") against, inter alia,

Peter A. Crusco, Executive Assistant District Attorney, Queens County, Eric C.

Rosenbaum, Assistant District Attorney, Queens County, and Richard A. Brown,

District Attorney, Queens County, alleging violations of his constitutional rights.

Crusco, Rosenbaum, and Brown (collectively the "Prosecutor Defendants") now

move to dismiss Peoples’s Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the following grounds: (1) lack of personal involvement; (2) failure to state a conspiracy claim; and (3) absolute and qualified immunity. For the reasons that follow, the motion is granted and these defendants are dismissed from the lawsuit. II. BACKGROUND
LeRoy Peoples is an inmate formerly incarcerated at the Green Haven Correctional Facility (“Green Haven”).1 On October 5, 2009, Sergeant O’Connor ordered Corrections Officer Malare to frisk Peoples and to search his work station.2 Officer Malare then led Peoples to his cell, which Malare searched, seizing certain items3 including U.C.C. forms prohibited by Rule 113.30 of the Standards of Inmate Behavior.4 As punishment for possession of these prohibited materials, corrections officers moved Peoples to the Special Housing Unit, where he lost a

1 See Complaint (“Compl.”), Ex. A to Defendants’ Notice of Motion to Dismiss, at 3.

2

See id. ¶ 2.

3

See id.

4 See id. ¶ 1. Rule 113.30 states that “[a]n inmate shall not possess any Uniform Commercial Code (UCC) Article 9 form . . . .” (codified at 7 N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2 (2011)).

2

tooth in a fist fight with another inmate5 and sustained mental and emotional injuries.6
On October 13, 2009, Department of Correctional Services (“DOCS”) personnel held a hearing in connection with Peoples’s misbehavior report stemming from this incident.7 Peoples alleges that Corrections Officer Drown “verbally attacked” him off the record.8 At the close of this hearing, Peoples received a punishment of three years in the Special Housing Unit, a three-year loss of packages, phone and commissary privileges, and seventy-two months of recommended loss of good-time credit.9 In “November/December 2009,” Peoples appealed the hearing disposition to defendant Norman Bezio.10 This appeal was denied.11
Peoples alleges that the Prosecutor Defendants caused the search of his cell by forwarding a package of letters they received from Peoples to William

5

See Compl. ¶ 1.

6

See id. ¶ 7.

7

See id. ¶ 3.

8

Id.

9

See id.

10 See id. ¶ 4.

11 See id.

3

Lee, the Superintendent of Green Haven.12 According to the Inmate Misbehavior Report, the letters forwarded by the Prosecutor Defendants included evidence that Peoples possessed prohibited U.C.C. materials and other financial forms that “are bogus and without legal basis.”13
Peoples alleges that the Prosecutor Defendants violated his constitutional rights by acting in concert with officials at Green Haven to suppress his speech by confiscating his U.C.C. materials.14 The Prosecutor Defendants move to dismiss the Complaint on the following grounds: (1) Peoples has failed to state a plausible claim and (2) the defendants are shielded by absolute and qualified immunity. III. LEGAL STANDARDS
A. Motion to Dismiss In deciding a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must “accept as true all of the factual allegations contained in the complaint”15 and “draw all reasonable inferences in Plaintiff’s
12 See id. ¶ 1. 13 See Inmate Misbehavior Report, Ex. A to Compl. at 1. 14 See Compl. ¶ 11. 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007). Accord Rescuecom Corp. v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009).
4

favor.”16 However, the court need not accord “[l]egal conclusions, deductions, or opinions couched as factual allegations . . . a presumption of truthfulness.”17 To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of “plausibility.”18 A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”19 Plausibility “is not akin to a probability requirement,” rather plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.”20
When determining the sufficiency of a claim under Rule 12(b)(6), a court is generally required to consider only the allegations in the complaint.21 However, a court is allowed to consider documents outside the pleading if the
16 Faber v. Metropolitan Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). 17 In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (quotation marks omitted). 18 Twombly, 550 U.S. at 564. 19 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation marks omitted). 20 Id. (quotation marks omitted). 21 See Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011).
5

documents are integral to the pleading or if they are subject to judicial notice.22 A
pro se plaintiff is entitled to have his pleadings held to “less stringent standards than
formal pleadings drafted by lawyers.”23 Accordingly, a pro se plaintiff’s papers
should be interpreted “to raise the strongest arguments that they suggest.”24
B. Section 1983
Section 1983 states, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .25
Section 1983 “does not create a federal right or benefit; it simply provides a
mechanism for enforcing a right or benefit established elsewhere.”26 “The purpose
22 See Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir. 2006) (vacating district court’s dismissal of plaintiff’s complaint where the court relied on materials outside of the complaint).
23 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).
24 Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009). 25 42 U.S.C. § 1983. 26 Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). Accord Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“‘[O]ne cannot
6

of [section] 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.”27
1. Direct Involvement Imposition of liability under section 1983 requires a defendant’s direct involvement in the alleged constitutional violation.28 “Thus, [a] supervisory official cannot be liable solely on account of the acts or omissions of his or her subordinates.”29 In 1995, the Second Circuit held that the personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional
go into court and claim ‘a violation of § 1983’ - for § 1983 by itself does not protect anyone against anything.’”) (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979)).
27 Wyatt v. Cole, 504 U.S. 158, 161 (1992). 28 See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (“‘It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’”) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). 29 Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *4 (S.D.N.Y. June 26, 2009).
7

practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional practices were occurring.30 However, in 2009, the Supreme Court held that “[b]ecause vicarious liability is inapplicable to . . . [section] 1983 suits, a plaintiff must [prove] that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”31 “Accordingly, only the first and third Colon factors have survived the Supreme Court’s decision in Iqbal.”32
2. Conspiracy Under Section 1983 In order to survive a motion to dismiss a section 1983 conspiracy claim, a plaintiff must allege: “(1) an agreement between [two or more state actors or] a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
30 See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). 31 Iqbal, 129 S. Ct. at 1948-49 (citations omitted) (explicitly rejecting the argument that “a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution”). 32 Spear v. Hughes, No. 08 Civ. 4026, 2009 WL 2176725, at *2 (S.D.N.Y. July 20, 2009).
8

damages.”33 “Thus, a plaintiff must show that defendants acted in a willful manner, culminating in an agreement, understanding, or meeting of the minds, that violated [his] rights, privileges or immunities secured by the Constitution or federal courts.”34 “In addition, ‘complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed.’”35 While conclusory allegations may be insufficient, “‘conspiracies are by their very nature secretive operations,’ and may have to be proven by circumstantial, rather than direct, evidence.”36 Finally, “[a] violated constitutional right is a natural prerequisite to a claim of conspiracy to violate such right.”37 “Without deprivation of a federal constitutional
33 Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2010) (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)).
34 Bussey v. Phillips, 419 F. Supp. 2d 569, 586-87 (S.D.N.Y. 2006) (quotation marks and citations omitted, alteration in original).
35 Ciambriello, 292 F.3d at 325 (quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993) (quotation marks, citations, and alterations omitted)).
36 Pangburn, 200 F.3d at 65 (quoting Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994)).
37 Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000) (“Thus, if a plaintiff cannot sufficiently allege a violation of his rights, it follows that he cannot sustain a claim of conspiracy to violate those rights.”).
9

right, ‘there can be no civil rights conspiracy to deprive that right.’”38 Thus, to survive a motion to dismiss, the plaintiff must allege a constitutional deprivation.
C. Absolute and Qualified Immunity Government officials performing discretionary functions are generally granted qualified immunity from suit provided that “‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”39 The Second Circuit has held that “[a] right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful.”40 In addition, prosecutors enjoy absolute immunity for “prosecutorial actions that are ‘intimately associated with the judicial phase of the criminal
38 Bussey, 419 F. Supp. 2d at 587 (quoting Young v. County of Fulton, 160 F.3d 899, 904 (2d Cir. 1998)). Accord Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (noting that a section 1983 conspiracy claim “will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right”) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)).
39 Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).
40 Id. (quotation marks and citations omitted). 10

process.’”41 “[A]bsolute immunity may not apply when a prosecutor is not acting as ‘an officer of the court,’ but is instead engaged in other tasks, say, investigative or administrative tasks.”42
The doctrines of absolute and qualified immunity do not apply when a plaintiff seeks prospective injunctive relief only.43 Prosecutorial immunity does not bar a claim for prospective injunctive relief,44 so long as a court finds that “‘the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’”45 IV. DISCUSSION
A. Personal Involvement of the Prosecutor Defendants The Prosecutor Defendants argue that because they had no personal
involvement in the constitutional violations allegedly suffered by Peoples, they
41 Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
42 Id. (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)). 43 See Supreme Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 736-37 (1980). 44 See Lewis v. City of N. Y., No. 07 Civ. 7258, 2008 WL 4307985, at *2 (S.D.N.Y. Sept. 16, 2008) (citing Connecticut ex rel. Blumenthal v. Cahill, 217 F.3d 93, 101 (2d Cir. 2000)). 45 Ford v. Reynolds, 316 F.3d 351, 355 (2d Cir. 2003) (quoting Verizon Md., Inc. v. Public Service Comm’n of Md., 535 U.S. 635, 645 (2002)).
11

cannot be held liable for his alleged injuries.46 Peoples argues that the Prosecutor
Defendants were personally involved to the extent that (1) it is their job to “uphold
the Constitutions of N.Y.S. and the U.S.,” and (2) that the injuries Peoples suffered
flowed from his attempted communications with the Prosecutor Defendants.47
However, the injuries alleged by Peoples all stemmed from actions
taken by officials at Green Haven that did not involve the Prosecutor Defendants.48
The seizure of Peoples’s legal materials was ordered and performed by corrections
officers.49 Likewise, corrections officers moved Peoples to the Special Housing
Unit because of People’s possession of materials prohibited by the Standards of
Inmate Behavior promulgated by the Commissioner of DOCS.50 Peoples has not
46 See Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss (“Def. Mem.”) at 6.
47 Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Opp. Mem.”) at 3. I will consider the factual allegations contained in plaintiff’s opposition papers to the extent they are consistent with the allegations in the Complaint. “In general, a court may not look outside the pleadings when reviewing a 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff’s additional materials, such as his opposition memorandum.” Burgess v. Goord, No. 98 Civ. 2077, 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 28, 1999) (quotations marks and citations omitted). Accord Cusamano v. Sobek, 604 F. Supp. 2d 416, 461 (N.D.N.Y. 2009) (same).
48 See Compl. ¶ 1. 49 See id. 50 See id.
12

shown that the Prosecutor Defendants had any direct involvement in these incidents.
To the extent that Peoples is arguing that the Prosecutor Defendants created an unconstitutional policy or that they were deliberately indifferent to a constitutional violation, Peoples has not alleged sufficient facts to support this claim. The Prosecutor Defendants work for an agency entirely separate from DOCS and have no authority over DOCS policy or DOCS officials. For these reasons, Peoples has failed to show that the Prosecutor Defendants were directly involved in any of the alleged constitutional violations. Accordingly, the Prosecutor Defendants are dismissed from this lawsuit based on their lack of personal involvement.
B. Conspiracy Peoples alleges that the Prosecutor Defendants conspired with DOCS
officials to suppress his speech and restrict his access to legal materials.51 He alleges that when the Prosecutor Defendants mailed the correspondence they had received from Peoples to Green Haven officials, they included a cover letter that indicated that DOCS officials should unlawfully suppress Peoples’s speech.52
51 See id. ¶ 11. 52 See Opp. Mem. at 3-4.
13

While Peoples claims that a conspiracy existed, he has not alleged any facts to support this claim. Peoples’s conclusory allegations of conspiracy do not raise a reasonable inference of a meeting of the minds to achieve an unlawful result. Even if a cover letter existed explaining why the Prosecutor Defendants were forwarding the materials, Peoples has failed to set forth any facts showing that this cover letter would contain evidence of a plan to inflict an unconstitutional injury. Thus, Peoples has failed to raise a plausible claim of conspiracy.
C. Qualified Immunity Peoples argues that the Prosecutor Defendants are not entitled to
immunity because their actions “were ‘not within the scope of their duty’ as prosecutor, as they attempted to get a [sic] ‘gage order’ so to speak on plaintiff . . . .”53 Peoples argues that neither absolute nor qualified immunity applies because he is seeking injunctive relief against the Prosecutor Defendants.54
The Prosecutor Defendants are entitled to qualified immunity here. Peoples has failed to show that the Prosecutor Defendants violated any clearly established constitutional or statutory rights when they mailed Peoples’s communication, which revealed his possession of prohibited materials, to DOCS
53 See Compl. ¶ 11. 54 See Opp. Mem. at 2.
14

officials. Regardless of whether the actions taken by the Prosecutor Defendants are administrative, prosecutorial, or investigative, and therefore whether absolute immunity applies, the Prosecutor Defendants are shielded by qualified immunity. Although Peoples argues that he is entitled to injunctive relief and therefore no form of immunity should apply, nothing in the Complaint reveals an ongoing violation of federal law committed by the Prosecutor Defendants. Peoples does not seek any relief that can be considered prospective. Thus, the Prosecutor Defendants are entitled to qualified immunity, which shields them from the instant action. V. CONCLUSION
For the foregoing reasons, the Prosecutor Defendants' motion is granted as to all claims and they are hereby dismissed from this lawsuit. The Clerk of the Court is directed to close this motion (Docket No. 21).
SO ORDERED:

Dated:

New York, New York December 1, 2011

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-AppearancesPlaintiff (Pro Se): Leroy Peoples ID # 05-A-2620 Upstate Correctional Facility P.O. Box 2001 309 Bare Hill Road Malone, New York 12953 For Defendants: Ryan G. Shaffer Assistant Corporation Counsel Special Federal Litigation Division The New York City Law Department 100 Church Street New York, New York 10007 (212) 788-1041
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 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------X

LEROY PEOPLES

:

:

Plaintiff, :

:

-versus-

:

:

BRIAN FISCHER, Commissioner of the

:

New York State Department of Corrections and :

Community Supervision; ALBERT PRACK,

:

Director of Special Housing and Inmate

:

Discipline; NORMAN BEZIO, former Director :

of Special Housing and Inmate Discipline;

:

WILLIAM LEE, former Superintendent of

:

Green Haven Correctional Facility; DAVID ROCK, :

Superintendent of Upstate Correctional Facility, :

and CURTIS DROWN, Commissioner’s Hearing :

Officer at Green Haven Correctional Facility,

:

by his Estate.

:

:

:

Defendants, :

---------------------------------------------------------------X

SECOND AMENDED COMPLAINT
11 Civ. 2694 (SAS) ECF CASE

PRELIMINARY STATEMENT 1. This civil rights action challenges the constitutionality of New York State’s practice of arbitrarily sentencing tens of thousands of incarcerated individuals to months and years of extreme isolation and solitary confinement for alleged infractions that often present no threat to prison safety. A disproportionate number of individuals sent to New York’s isolation cells are black, and many suffer from serious mental illness. New York’s arbitrary use of extreme isolation as punishment inflicts enormous damage on the incarcerated, and it is the essence of “cruel and unusual” punishment. 2. New York State uses extreme isolation as punishment more than any other prison system in the United States. Between 2007 and 2011 alone, New York imposed nearly 70,000
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sentences to extreme isolation, and on any given day, approximately 4,300 people are locked down 23 hours a day in tiny concrete cells. Extreme isolation is imposed as a sanction for offenses as minor as “untidy cell or person,” “unfastened long hair,” “littering,” and “unreported illness.” Many prisoners are sentenced to New York’s isolation cells for years.
3. The conditions inside New York’s isolation cells are deplorable and result in severe physical and psychological harm. Individuals are confined idle and isolated for months and years on end in tiny cells. They are allowed only one hour of exercise a day in barren cages smaller than their cell. As additional punishment, prison staff may issue orders depriving individuals of what little remains—access to nourishing and edible food, exercise, bedding, and showers may all be denied. At some prisons, two men are forced to share a single isolation cell for weeks and months on end, often leading to violence. Requests for mental health care must be discussed through the food slot in the cell door.
4. The experience of plaintiff Leroy Peoples typifies what is wrong and unconstitutional about New York’s disciplinary system. An African-American man with a history of mental illness prior to his incarceration, Mr. Peoples has twice been sentenced to solitary confinement for offenses that involved no violence or threat to prison security. In 2009 he was sentenced to three years in extreme isolation for unauthorized legal materials and filings. Four years earlier, he was sentenced to six months for unauthorized possession of nutritional supplements. These confinements caused severe and long-lasting harm, and he dreads the prospect of being sent back to “the box” as punishment. Defendants’ policies, which result in unjustified, arbitrary, and grossly disproportionate sentences to extreme isolation, pose a substantial risk that Mr. Peoples will be resentenced to extreme isolation. In fact, in just the last
2

few months, corrections officers threatened to do just that because of complaints Mr. Peoples voiced about restrictions on his religious practices.
5. Defendants’ actions, policies, and procedures have violated and are violating Mr. Peoples’ rights under the Eighth Amendment and Fourteenth Amendments to the United States Constitution. Mr. Peoples seeks declaratory and injunctive relief to protect him against the risk of future unlawful sentencing to extreme isolation, and damages for his confinement in 2009.
PARTIES 6. Plaintiff LEROY PEOPLES is a 30 year-old African-American man, married, a practicing Muslim, and currently incarcerated at Attica Correctional Facility. His earliest release date is 2017. When released, Mr. Peoples intends to return to the New York City area to live with his wife. 7. Defendant BRIAN FISCHER is the Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”), and is sued for declaratory and injunctive relief. Commissioner Fischer has final policy-making and supervisory authority within DOCCS. 8. Defendant ALBERT PRACK is the current Director of the Special Housing and Inmate Disciplinary Program. He is sued for declaratory and injunctive relief. Director Prack has policy-making and supervisory authority with regard to the Special Housing Unit (“SHU”) and DOCCS’ disciplinary process. 9. Defendant NORMAN BEZIO was the Director of the Special Housing and Inmate Disciplinary Program at the time of Mr. Peoples’ sentence to three years of punitive isolation in 2009. He is sued for declaratory and monetary relief. In 2009, Mr. Bezio had policy-
3

making and supervisory authority with regard to SHU and the DOCCS’ disciplinary process, and he participated directly in Mr. Peoples’ unconstitutional SHU confinement.
10. Defendant DAVID ROCK is the Superintendent of Upstate Correctional Facility. He is sued for declaratory and monetary relief. Superintendent Rock has policy-making and supervisory authority with regard to Upstate, and he participated directly in Mr. Peoples’ unconstitutional SHU confinement.
11. Defendant WILLIAM LEE was the Superintendent of Green Haven Correctional Facility at the time of Mr. Peoples’ unconstitutional sentence to SHU in 2009. He is sued for declaratory and monetary relief. Superintendent Lee had policy-making and supervisory authority with regard to Green Haven, and he participated directly in Mr. People’s unconstitutional SHU confinement.
12. Defendant CURTIS DROWN, deceased, is a former corrections officer. His estate is being sued for declaratory and monetary relief. Mr. Drown presided over Mr. Peoples’ October 2009 disciplinary hearing at Green Haven. Acting pursuant to DOCCS’ policy and custom, Mr. Drown imposed the unconstitutional three-year SHU sentence on Mr. Peoples.
FACTS The Severe Risk of Harm Caused by Extreme Isolation 13. The practice of punishing incarcerated individuals with isolation and severe deprivation goes by numerous names—solitary confinement, punitive segregation, disciplinary segregation, and extreme isolation. Regardless of the label, the practice has long been shown to cause a risk of severe psychological and physical harm. 14. Subjecting individuals to extreme isolation causes pain, suffering, psychological trauma, physical injury and, in extreme cases, death. Documented psychological harms include
4

hallucinations, anxiety, nervousness, panic attacks, irrational anger, rage, loss of impulse control, paranoia, severe and chronic depression, claustrophobia, concentration deficits, difficulties with memory, perceptual distortions, illusions, social withdrawal, confusion, apathy, nightmares, and depersonalization. Physiological harms include migraines, insomnia, appetite loss, weight loss, heart palpitations, sudden excessive sweating, back and joint pain, dizziness, hypersensitivity to external stimuli, lethargy, gastro-intestinal, cardiovascular and genito-urinary problems, tremulousness, and deterioration of eyesight. These effects are particularly devastating for prisoners who have preexisting physical and mental health conditions. Studies have demonstrated, however, that otherwise healthy prisoners placed in extreme isolation can suffer profound psychological and physiological harm as well, even after short periods of confinement.
15. Precisely because of the risk of harm caused by extreme isolation, correctional authorities in other states, corrections experts, mental health professionals, legal organizations, and human rights bodies have promulgated minimum standards intended to closely govern the circumstances and conditions under which individuals may be separated from the general prison population.
16. For example, the recommended standards of the American Bar Association abolish extreme forms of isolation under any circumstances. In order to avoid the unnecessary and unjustified harm caused by the overuse of isolation as punishment, the ABA standards recommend that correctional authorities adopt criteria to ensure that prisoners are separated from the general prison population only after a finding that (1) the individual committed a severe disciplinary infraction in which safety or security was seriously threatened, or (2) the individual presents a credible continuing and serious threat to others or himself. The ABA standards also
5

require safeguards to ensure that separation is for the briefest term and under the conditions of confinement that are the least restrictive practicable.
17. Human rights bodies have recommended prohibitions and restrictions designed to protect against the harms of extreme isolation. For example, the United Nations Special Rapporteur on Torture has found that using extreme isolation as a punishment for more than 15 days amounts to torture or cruel, inhuman, or degrading treatment, and recommended that the use of extreme isolation in excess of 15 days be abolished in all cases. The UN General Assembly has called for an “absolute abolition” on these types of conditions as punishment. Similarly, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommends that extreme isolation only be used as punishment in exceptional cases as a last resort, and for the shortest period of time possible, due to its potentially damaging effects.
18. The recommendations of these and other various experts and organizations reflect the overwhelming consensus that prisoner isolation should be used sparingly, for short amounts of time, and under tight controls.
New York’s Disciplinary Policies and Procedures 19. Despite the obvious and well-recognized severe risk of harm caused by extreme isolation, New York permits it to be used as a disciplinary tool of first resort for the violation of any one of over one hundred internal prison regulations. New York uses extreme isolation as punishment more frequently than any other prison system in the United States. DOCCS maintains 5,000 isolation beds, located in “Special Housing Units” or “SHUs” throughout the state, that are used to separate individuals from the general prison population and subject them to punishing forms of isolation and deprivation. From 2007-2011, DOCCS issued nearly 70,000
6

sentences to SHU as punishment for the violation of prison rules. On any given day, approximately 4,300 people are locked down 23 hours a day serving months- or years- long sentences in one of New York’s sparse isolation cells.
20. The frequency with which DOCCS uses extreme isolation as punishment is the result of a system-wide regime governing the conduct and punishment of all individuals incarcerated throughout the New York prison system. In contrast to the clearly-defined standards and criteria discussed above, the policies and procedures of the New York prison system readily permit the use of extreme isolation for long amounts of time as punishment for conduct that poses no threat to safety or security. Defendants Fischer, Bezio and Pratt were and are personally involved in the continuation of the unconstitutional policies and customs described below.
21. DOCCS has promulgated over 100 internal regulations governing every aspect of behavior. These rules cover a wide range of conduct, including personal grooming, cafeteria policy, and approved reading materials, as well as prohibiting assault, escape, and the possession of weapons.
22. If corrections staff believe that an individual has violated any one or more of these rules, they may respond to the misbehavior by speaking with the individual or imposing an informal reprimand. At their discretion, they may also initiate a formal disciplinary process by writing a “misbehavior report.” The misbehavior report documents the alleged misbehavior and contains a citation to the regulation or regulations allegedly violated.
23. A “review officer” at the correctional facility assigns a “tier” rating to the misbehavior report that determines the severity of the suspected infraction and, ultimately, the type of punishment imposed on the convicted. A Tier I rating is intended for less serious infractions, and a Tier III rating for the most serious. A conviction for an infraction given a Tier
7

II or III rating may result in a punitive sentence to extreme isolation in SHU. Numerous rule violations that are eligible for such ratings govern behavior that is nonviolent, non-disruptive, and/or poses no threat to the safety and security of others.
24. DOCCS policies provide minimal guidance to corrections staff regarding how to assign tier ratings to alleged misbehavior. DOCCS policies do not provide incarcerated individuals with an adequate explanation of what types of conduct may result in more or less severe tier ratings. DOCCS policies do not provide incarcerated individuals with notice of potential sentencing ranges to SHU if convicted for an infraction.
25. Individuals facing a Tier III charge are afforded a limited hearing, with minimal due process, to adjudicate their guilt. Hearing officers, who are themselves DOCCS employees, may credit the testimony of corrections staff over that of a prisoner. The DOCCS disciplinary process almost always secures a conviction. From 2007 to 2011, DOCCS conducted more than 105,500 Tier III disciplinary hearings, with a conviction rate of approximately 95%.
26. If an individual facing a Tier III charge is among the 95% who are convicted, he or she is more likely than not to be punished with time in extreme isolation. Of all Tier III disciplinary hearings that resulted in a conviction from 2007 to 2011, a SHU sanction was imposed as punishment approximately 70% of the time.
27. DOCCS’ policies permit, and even encourage, sentences to extreme isolation for behavior that demonstrates no risk of harming others or endangering prison security. A substantial number of sentences to SHU are for this type of behavior. From 2007-2011, only 16% of sentences to extreme isolation were for infractions that implicated violent conduct or weapons. For example, from 2007-2011 DOCCS staff imposed SHU as a punitive sanction for the following infractions:
8

a. Over 200 SHU sentences for “untidy cell or person”; b. Over 300 SHU sentences for “smoking in an unauthorized area”; c. Nearly 200 SHU sentences for “no ID card”; d. Over 200 SHU sentences for “delaying cell count”; e. Over 2,100 SHU sentences for “facility correspondence violations”; f. Over 100 SHU sentences for “littering”; g. Over 170 SHU sentences for “excessive tobacco”; h. Nearly 100 SHU sentences for “unauthorized jewelry”; i. Over 50 SHU sentences for “unauthorized literature”; j. Over 1,000 SHU sentences for “refusing double celling” assignments; k. Over 600 SHU sentences for “unreported illness”; l. Over 500 SHU sentences for “tattooing”; m. Over 480 SHU sentences for “messhall serving/seating violations;” n. Over 100 SHU sentences for “unauthorized legal assistance.” 28. DOCCS records show that SHU has also been imposed as a sanction for infractions including “unfastened long hair”; “fire drill violation”; “family reunion violation”; “unauthorized use of phone”; and “unreported ID card loss.” 29. When an individual is sentenced to SHU, DOCCS’ policies permit staff wide discretion in imposing the length of the sentence. DOCCS’ policies provide no mandatory sentence ranges, few guidelines or protocols, and no upper limit on the length of any single sentence.
9

30. DOCCS’ policies also do not place any upper limit on the number of consecutive sentences to SHU that a prisoner may be forced to serve. Individuals may, and do, spend years in extreme isolation as the result of multiple consecutive sentences to SHU.
31. Furthermore, DOCCS’ policies permit staff to impose extreme isolation as punishment without taking into account factors that might make such confinement particularly harmful for that individual. DOCCS’ staff are permitted to use SHU confinement without restriction to punish juveniles, the elderly, the disabled (including those with HIV or other serious medical illness), and those with severe substance abuse problems. For example, as of January 2012, 402 individuals held in SHU were juveniles aged 16-21; 856 individuals were aged 21 to 25.
32. While New York state law requires DOCCS to divert those with the most severe forms of mental illness from SHU into a residential mental health treatment unit, DOCCS’ policies permit staff to use extreme isolation to punish individuals with less severe, but nevertheless serious, mental health illnesses. In January 2012, approximately 14% of the individuals confined in SHU were on DOCCS’ mental health caseload; 35% of these individuals had been diagnosed with a serious mental illness.
33. DOCCS data also reveals that black individuals are more likely to receive SHU sentences, and to receive longer SHU sentences, as compared to individuals of other racial and ethnic groups. For example, in June 2011, black individuals accounted for approximately 62% of the individuals held at Upstate and Southport correctional facilities, where individuals with the longest SHU sentences are generally incarcerated. In contrast, approximately 49% of the general prison population is black.
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34. Once an individual begins serving his or her SHU sentence, DOCCS’ policies do not require subsequent individualized reviews to determine whether it is still necessary to confine that individual in the SHU, even if the individual is serving a years-long SHU sentence.
35. In combination, these policies and customs result in unjustified, inconsistent, and harmful punishments. Individuals receive lengthy SHU sentences that are grossly disproportionate as compared to the underlying misbehavior. Similarly situated prisoners receive inconsistent, often vastly different, sentences for similar misconduct.
36. Commissioner Fischer has final policy-making authority within DOCCS. As commissioner, and pursuant to New York law, he has ultimate authority with regard to all of DOCCS’ internal rules, regulations, policies, procedures and customs. Commissioner Fischer and his staff periodically review these policies and procedures. He reviews data and statistical analyses that reflect the effects of these policies and procedures. If he deems it necessary, Commissioner Fischer has the authority to cause disciplinary policies and procedures to be amended, adopted or repealed.
37. The Director of Special Housing and Inmate Disciplinary Program, a position formerly held by defendant Bezio and now held by defendant Pratt, reviews, develops, implements, amends, and monitors DOCCS’ disciplinary policies and procedures and its consequences. The director evaluates statistical data to analyze trends and patterns in the disciplinary process. The director is responsible for staff training and supervision on disciplinary policies and procedures. The director is responsible for developing a program of on-site inspections of the conditions of DOCCS’ SHU facilities. The director reviews all appealed determinations of Tier III hearings and sustains, overturns or amends those dispositions.
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38. Together, defendants Fischer, Bezio, and Pratt were, and are, aware of all the disciplinary policies and procedures detailed in this complaint. They have the responsibility to review and evaluate DOCCS’ disciplinary policies and procedures, and the authority to adopt, amend, or revise them.
39. Defendants Fischer, Bezio, and Pratt are also aware of the harm caused by DOCCS’ disciplinary policies and customs. Defendants’ own statistical data demonstrates that, for years, these policies have resulted in unjustified, arbitrary, and grossly disproportionate sentences to SHU, often for infractions that pose no arguable threat to prison safety or security.
40. Defendants are aware of the inadequacy of their policies as the result of numerous communications to them from outside advocacy organizations and entities, which for years have documented numerous systemic deficiencies in the DOCCS disciplinary process and the consequences. Defendants are also aware of a pattern of deficiencies through complaints they have received through disciplinary appeals, grievances, and civil litigation challenging the arbitrary and unjustified sentences that result from the disciplinary process.
41. Defendants are aware that DOCCS’ disciplinary procedures fail to provide the minimum safeguards recommended by correctional, legal, mental health, and human rights experts. The certainty that these policies will lead to unjustified and harmful SHU sentences is plain from the lack of adequate guidance contained in DOCCS’ written policies themselves. In fact, Commissioner Fischer made public remarks to the New York State Bar Association in January 2012, conceding that DOCCS “overuse[s]” SHU confinement and that reform would require the agency to “change the culture” of corrections in New York State.
42. There is no penological justification for the defendants’ failure to adopt adequate policies and customs. To the contrary, the overwhelming evidence from other corrections
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systems and from experts is that the unjustified use of punitive extreme isolation exacerbates harms for both incarcerated individuals and staff and that is counterproductive to prison safety and rehabilitative goals. Implementing procedural safeguards—for example, adopting stricter criteria before a formal disciplinary process may be initiated; restricting the use of SHU to behavior that shows a demonstrable safety or security threat; requiring that an individual’s particular vulnerabilities be considered before SHU is imposed for any length of time—would significantly protect against the risk of erroneous deprivations of core constitutional rights, and would not place any undue burden on defendants’ legitimate interests.
43. Despite all of the above, Defendants Fischer, Bezio and Pratt continued these policies and practices although they have the authority, ability, and ultimate responsibility to ensure their policies and procedures do not cause unnecessary harm to individuals incarcerated in New York prisons. By continuing these policies and practices, these defendants are responsible for the systemic and ongoing violations of the constitutional rights of individuals incarcerated in New York prisons, including the injuries caused to Mr. Peoples.
Mr. Peoples’ Unconstitutional Disciplinary Hearing and Sentence at Green Haven Correctional Facility
44. Mr. Peoples, is a 30 year-old African-American and a practicing Muslim. As a juvenile, he struggled with serious mental illness and a tragic and difficult life in an impoverished home with little family support. He began serving a 13-16 year prison sentence in 2005. Originally from the New York City area, Mr. Peoples, who is married, plans to return to the area to life with his wife after his release from prison.
45. In 2005, Mr. Peoples was sentenced to 180 days in SHU for the unauthorized possession of nutritional supplements. The pills discovered by corrections staff were available in the prison commissary, but Mr. Peoples was charged with violating rules against “unauthorized
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medication” and “smuggling.” Mr. Peoples’ nonviolent misconduct posed no threat to the safety of himself or others.
46. In 2009, these policies and procedures again resulted in a second SHU sentence for Mr. Peoples. On October 5, 2009, Mr. Peoples was incarcerated at Green Haven when corrections staff discovered and seized UCC documents from his cell that were considered contraband under DOCCS regulations. Mr. Peoples was escorted to the SHU unit at Green Haven and subject to pre-hearing SHU confinement.
47. On October 6, 2009, Mr. Peoples was served with a misbehavior report that charged him with three infractions: unauthorized filing of a document creating a lien against a state official; unauthorized possession of Uniform Commercial Code documents; and violation of facility correspondence procedures.
48. The infractions were given a Tier III rating by the Green Haven “review officer.” Pursuant to DOCCS’ policies and procedures authorized by Defendants Fischer and Bezio, the review officer was given wide discretion and little guidance when assigning this rating to the alleged misconduct.
49. The misbehavior report, signed by Green Haven Sgt. O’Connor, alleged that the then Green Haven Superintendent William Lee received a packet of documents purporting to contain UCC lien instruments filed by Mr. Peoples against prosecutors from the Queens County District Attorney’s office.
50. Superintendent Lee was informed that Mr. Peoples’ misconduct was given the most serious Tier III rating, resulting in a “Superintendent’s Hearing,” subjecting Mr. Peoples to the possibility of SHU confinement. Upon information and belief, Superintendent Lee did not
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take steps to amend or correct the assignment of the Tier III rating, or otherwise attempt to prevent the risk of unjustified punishment that could result.
51. Superintendent Lee was informed that Mr. Peoples’ had been transferred to prehearing confinement in his facility’s SHU, and that this transfer was based on accusations of misconduct that posed no threat to the safety of staff or other prisoners. Upon information and belief, Superintendent Lee reviewed and ratified Mr. People’s placement in SHU on these grounds.
52. On October 13, after eight days of pre-hearing confinement in the Green Haven SHU, a Tier III Superintendent’s Hearing was conducted. Commissioner’s Hearing Officer (C.H.O.) Curtis Drown presided over the hearing.
53. At the outset of the hearing, C.H.O. Drown reviewed the misbehavior report and commented that he was surprised a sex offender was intelligent enough to file UCC liens. Mr. Peoples responded that was irrelevant to the disciplinary hearing at hand. C.H.O. Drown asserted that Mr. Peoples was refusing to participate in the hearing and, over Mr. Peoples’ objection, ejected him from the disciplinary hearing. Mr. Peoples was escorted back to his SHU cell.
54. In Mr. Peoples’ absence, C.H.O. Drown heard testimony from three Green Haven employees. Upon information and belief, those corrections staff were Green Haven C.O. Malave, C.O. Engstrom, and Captain Bunett.
55. At the conclusion of the hearing, C.H.O. Drown found Mr. Peoples guilty of all three rule violations alleged in the misbehavior report. C.H.O. Drown sentenced Mr. Peoples to thirty-six months confinement in the SHU, as well as thirty-six months loss of commissary, phone and package privileges. C.H.O. Drown also recommended that Mr. Peoples lose seventytwo months of accrued good time credit.
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56. C.H.O. Drown, acting pursuant to DOCCS’ policies and procedures, was permitted to impose the three-year sentence in the absence of sentencing protocols ensuring the proportionality of the sentence, or any upper limit on sentence length. Prior to the hearing, neither Mr. Peoples nor anyone else had notice of the SHU time that might be imposed for this infraction.
57. C.H.O. Drown, acting pursuant to DOCCS’ policies and procedures, did not determine, as a condition of imposing a SHU sentence, whether Mr. Peoples’ culpable conduct posed any actual threat to the physical safety and security of staff and other prisoners.
58. In fact, no accusations of violent behavior were leveled at Mr. Peoples at any time. In explaining his disposition, C.H.O. Drown said that Mr. Peoples needed to “conform” his behavior, that other inmates had to be “dissuaded” from following his example, and that public officers needed to be assured that their private lives would not be harassed by prisoners. Pursuant to DOCCS’ policy and customs, these rationales were sufficient to subject Mr. Peoples to three years of SHU confinement for undisputedly nonviolent misbehavior.
59. Pursuant to DOCCS’ policy and custom, C.H.O. Drown was not required to evaluate the availability of less-restrictive alternatives or whether such alternatives would be just as effective at eliminating and deterring the alleged misbehavior without subjecting Mr. Peoples to the well-known risk of serious harm associated with SHU confinement.
60. Mr. Peoples has a history of mental illness that predates his incarceration. Upon information and belief, defendants Lee, Bezio and Drown knew or should have known of Mr. Peoples’ mental health history. Pursuant to DOCCS’ policy and custom, however, the existence and severity of Mr. Peoples’ mental illness was not considered or evaluated at the time that Green Haven staff imposed the three-year sentence to SHU.
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61. Superintendent Lee was aware of Mr. Peoples’ disciplinary disposition and the resulting three-year SHU sentence. Superintendent Lee had the authority to reduce Mr. Peoples’ penalty of three years of SHU confinement. Upon information and belief, Superintendent Lee did not do so, and instead continued the confinement of Mr. Peoples in his facility’s SHU.
62. Superintendent Lee provided periodic reports, pursuant to New York law, regarding the individuals in custody, including Mr. Peoples, to Commissioner Fischer and Director Bezio. Upon information and belief, no defendant took action to reduce or amend Mr. Peoples’ three-year sentence upon receiving these reports.
63. On November 5, 2009, Mr. Peoples was transferred to Upstate Correctional Facility, a dedicated SHU prison. Superintendent Rock received and reviewed information regarding Mr. Peoples’ transfer to Upstate, the underlying misbehavior, and the SHU sentence imposed. Superintendent Rock had the authority under New York law to reduce Mr. Peoples’ SHU sentence. Upon information and belief, Superintendent Rock did not do so.
64. During the remainder of Mr. Peoples’ approximately 780 day confinement at Upstate, Superintendent Rock provided periodic reports to Commissioner Fischer and Director Bezio regarding the individuals in his custody, including Mr. Peoples. Upon information and belief, no defendant took action to evaluate the adequacy of process that led to Mr. Peoples’ sentence, the proportionality of the sentence, or Mr. Peoples’ mental health history.
65. Mr. Peoples fully exhausted all his available administrative remedies. He timely appealed the disposition and the 3-year sentence to Director Bezio. When presented with Mr. Peoples’ direct appeal, Director Bezio “affirmed and confirmed” Mr. Peoples’ full sentence. Director Bezio’s actions were consistent with the policies, procedures and customs he had
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personally authorized in his capacity as director, and which caused Mr. Peoples’ unconstitutional disciplinary sentence.
66. Mr. Peoples also submitted a grievance challenging the constitutionality of his SHU sentence. On March 9, 2011 the Inmate Grievance Resolution Committee denied Mr. Peoples’ grievance. Mr. Peoples appealed the denial of his grievance to Superintendent Rock. Superintendent Rock denied the appeal, confirming Mr. Peoples’ sentence on March 15, 2011. Two days later, on March 17, 2011, Mr. Peoples made his final appeal to the Central Office Review Committee (CORC). CORC’s final denial of Mr. Peoples’ appeal was rendered on June 8, 2011.
67. Mr. Peoples ultimately spent twenty-six months of his three-year disciplinary sentence in extreme isolation. Pursuant to DOCCS policies and procedures authorized and continued by defendants Fischer and Bezio, no individualized evaluation was conducted to determine whether Mr. Peoples’ continued years-long confinement in SHU was justified, under any criteria.
Mr. Peoples’ Unconstitutional SHU Confinement 68. Mr. Peoples’ life in the SHU was drastically and severely different from his life in the general prison population at Green Haven. Commissioner Fischer, Director Bezio, Superintendent Lee and Superintendent Rock were personally responsible for the policies and customs which resulted in the conditions of confinement at the Green Haven SHU and at Upstate, where Plaintiff was confined for a total of over 780 days, as described below. 69. While in the general prison population, Mr. Peoples was afforded a range of activities and freedoms. Many of the activities most important to Mr. Peoples were those that
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would help his rehabilitation, and help prepare him to positively contribute to his family and community upon release from prison.
70. For example, in the general population Mr. Peoples was able to further his religious education and practice, which had become a central part of his life. Among other things, it had helped him begin the long process of reckoning with the terrible consequences of his criminal offenses. In the general population, he could take part in religious activities and services, and could seek the advice and counsel of Muslim clergy.
71. Mr. Peoples was able to gain valuable experience and skills preparing him for his eventual release by working in the industry program making desks and cabinets. In the general prison population, he was eligible to be placed on the waiting list for mandatory rehabilitative programs related to his criminal offense. He was able to educate himself further through reading and other activities.
72. Mr. Peoples also had access to social interaction and mental stimulation that helped maintain his psychological and emotional health and stability, particularly important in light of his mental illness. Mr. Peoples was able to maintain family ties. He could speak on the phone, have contact visits, and have conjugal visits with his wife. He was able to exercise outdoors in the recreation yard. He was permitted to eat meals with other prisoners in the cafeteria, move around the prison facility, and visit the law library. He could watch television and stay abreast of current events. He was able to have personal possessions, including a typewriter, numerous books, magazines, pictures, a personal jacket, personal sneakers, and other clothing.
73. On October 5, 2009, however, his access to all of these rehabilitative programs and other freedoms ceased when Mr. Peoples was removed from the general prison population
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and confined to the SHU at Green Haven. Once in the Green Haven SHU, Mr. Peoples was subject the extreme deprivations of SHU confinement.
74. Mr. Peoples’ SHU cell at Green Haven was a barren space about the size of an average elevator. His cell contained only a toilet, a sink, and a bedframe with a mattress. Mr. Peoples used his personal possessions as a chair and his bed as a desk. He was confined in the SHU cell 23 hours a day, 7 days a week. He was allowed only one hour of exercise alone in a small empty pen on the roof of the facility barely larger than his cell, surrounded by a high metal fencing.
75. He was deprived of all meaningful human contact and mental stimulation. He was not permitted to take part in activities, programs, or classes. He was only permitted to shower about twice per week, when he was handcuffed and led to the shower area by corrections officers. He was not permitted to speak on the phone to anyone, including his wife. Meals were delivered through a slot in the door. Personal visits were severely restricted.
76. Few personal possessions were permitted: two sets of state issued uniforms, three T-shirts, three pairs of boxers and socks, two towels, paper and pen, cups for drinking. He was not allowed to possess a personal jacket or personal pair of sneakers. He was not permitted personal reading materials. A cart wheeled by the cell had only a few outdated books and magazines.
77. Once in the Green Haven SHU, Mr. Peoples lived under the constant threat of “deprivation orders.” Pursuant to DOCCS’ policies, corrections staff may impose deprivation orders denying individuals in SHU any item or service as punishment. These orders may deprive prisoners of exercise, showers, clothing, bedding, and even toilet paper. Corrections officers are
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granted broad discretion to impose deprivation orders as punishment for a wide range of alleged misbehavior.
78. Mr. Peoples was also subject to the constant threat of being placed on “restricted diet.” DOCCS’ policy permits staff to place individuals in SHU on a restricted diet depriving them of nourishing, edible food as punishment for rule violations. A restricted diet meal consists of a football-sized brick of baked bread-and-vegetable matter known as “the loaf.” The loaf is accompanied by raw cabbage and water. This diet may be imposed for up to seven days prior to the relevant disciplinary hearing and can be reinstated in seven-day periods for an indefinite number of times.
79. Facing extreme isolation, the constant threat of additional deprivations, and with no productive social stimulation or interaction, Mr. Peoples struggled to maintain a semblance of mental and emotional stability in the Green Haven SHU. He planned out his day around mundane events such as meals. He attempted to stave off boredom and torpor by doing pushups, daydreaming, or yelling in his cell.
80. While confined in extreme isolation at Green Haven, Mr. Peoples experienced feelings of dread and fear caused by the isolation and deprivation. He suffered sudden and uncontrollable mood swings. He was alternately anxious, bored, paranoid, and apathetic. He suffered from regular headaches, depression, and creeping lethargy. Mr. Peoples had experienced some of these same effects when he was confined in the SHU in 2005.
81. On November 5, 2009, Mr. Peoples was transferred from the SHU at Green Haven to Upstate. The conditions Mr. Peoples endured at Upstate, which were the direct result of the policies and customs continued by defendants Fischer, Bezio, and Rock as described below, were worse still than those at Green Haven.
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82. At Upstate, one of two DOCCS facilities dedicated to SHU confinement, even harsher, more punitive treatment of individuals in encouraged and tolerated as a matter of policy and custom. The extreme culture of deprivation at Upstate was the discussed at length in a 2006 report by the New York Correctional Association, an organization with statutory authority to inspect New York prisons. Defendants Fischer, Bezio, Pratt and Rock are aware of the report’s findings.
83. Mr. Peoples’ was confined to his tiny cell at Upstate for the entire day, except for the exercise period when a door adjacent to his cell was opened remotely by corrections staff and he was allowed step into the barren concrete recreation area attached to his cell. Mr. Peoples could hear other prisoners shout and curse at all hours. Mr. Peoples was certain some of the men he heard were exhibiting obvious signs of mental illness and deterioration. His cell was lit day and night. Mr. Peoples’ attempts to cover the light with his towel while sleeping resulted in staff waking him in the middle of the night demanding that he remove the towel.
84. Other than sliding his food through the slot in the door, Mr. Peoples had no social interaction with staff. Officers, nurses, mental health workers and other staff would pass infrequently and briskly through the long empty corridors, often ignoring pleas for assistance.
85. Deprivation orders and diet restrictions are used frequently at Upstate. As a matter of unwritten custom, Upstate corrections staff also deprive prisoners of food by failing to ensure the delivery of their meal trays—a custom experienced by Mr. Peoples. Defendants Fischer, Bezio and Rock are aware of the informal disciplinary practice of food deprivation, which has been the subject of numerous prisoner complaints, and was also discussed in the 2006 report by the Correctional Association.
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86. Upstate staff, who are overwhelmingly Caucasian, openly use racial epithets against the Upstate prisoner population, which is overwhelmingly people of color. Racially charged jokes and comments are made by staff over the facility’s internal public address system. The existence of racial tension in Upstate was also addressed in the Correctional Association’s 2006 report.
87. The occurrence and constant threat of unprovoked assaults on incarcerated individuals by Upstate corrections staff is well-known to all prisoners, including Mr. Peoples. The Correctional Association 2006 report documented that 80 percent of prisoners surveyed felt unsafe, and that reports of physical abuse by staff were consistent and credible.
88. Mr. Peoples was double-celled at Upstate. Pursuant to DOCCS’ policy of doublecelling in SHU, a policy authorized by Defendants Fischer, Bezio and Rock, double-celled individuals spend every moment of every day together. In a cell approximately 9 x 11 feet there are two bunks, a shower, a toilet and a writing desk. No partition or curtain provides privacy for an inmate using the shower or toilet. Prisoners must bathe, urinate and defecate in full view and in close proximity with their bunkmate.
89. Placing two adult men in a single isolation cell, while at the same time restricting or prohibiting all other avenues for normal social interaction has well-studied and predictable effects. Double-celling has been shown to generate tension, stress and anger between bunkmates. Double-celled bunkmates may become paranoid, hostile and violent toward one another. Fights and threats of violence between double-celled individuals are commonplace.
90. Defendants Fischer, Bezio and Rock are aware of these effects, nevertheless, they are responsible for continuing DOCCS’ policy of double-celling and refusing separate
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bunkmates until after a violent altercation has already occurred. This policy and custom is wellknown to individuals in the SHU, and it exacerbates the risk of assaults between bunkmates.
91. Mr. Peoples was in almost constant physical conflict with various bunkmates. One bunkmate had a long history of violence and mental and emotional instability, making their close proximity all the more stressful and potentially explosive. Mr. Peoples was assaulted by this bunkmate on numerous occasions. Another bunkmate threatened Mr. Peoples with a razor.
92. Mr. Peoples wrote to the security staff and filed a grievance asking to have a new bunkmate. One Upstate sergeant responded to Mr. Peoples’ grievance by questioning him about it in front of his bunkmate, causing even more tension. Mr. Peoples also wrote to Mr. Kemp, a mental health professional at Upstate, requesting assistance. Pursuant to DOCCS’ policy and custom, staff refused to transfer Mr. Peoples until evidence of a serious assault could be proven.
93. His relationship with one particular bunkmate, Larry Allen, completely deteriorated into violence. While Mr. Peoples and Mr. Allen were able to maintain a healthy relationship for a short time at the outset that they were first double-celled, the lack of privacy and close quarters created ever-increasing conflict between them. Eventually, Mr. Peoples was assaulted by Mr. Allen so violently that Mr. Peoples lost a tooth.
94. Mr. Peoples’ pre-existing mental illness was predictably affected by his SHU confinement. Mr. Peoples was afforded practically no confidentiality, however, with regard to requests for necessary medical or mental health care. Pursuant to DOCCS’ policy authorized and maintained by defendants Fischer, Bezio and Rock, if Mr. Peoples requested such care, staff would come to the cell door and force Mr. Peoples’ to articulate his confidential medical or mental health concerns through the flood slot, within earshot of staff and other prisoners, including his bunkmate.
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95. DOCCS’ policies force double-celled individuals in the SHU to make a choice between divulging highly sensitive and embarrassing personal medical and mental health details that may subject them to abuse or exploitation in order to receive care, or to forego requesting care in order to preserve confidentiality and their personal safety.
96. While in SHU, Mr. Peoples wrote to staff asking for mental health treatment and informing them of his mental health history and current mental health problems. In some instances, staff did not respond at all. When staff did respond, he merely came to speak with Mr. Peoples through his cell door in the presence of his bunkmate, despite the confidential nature of his mental health problems and despite the fact that Mr. Peoples’ concerns often involved problems with the bunkmate who was standing within earshot of the conversation.
97. Defendants Fischer, Bezio, Lee and Rock were personally responsible for the policies and practices that resulted in the harmful conditions of confinement experienced by Mr. Peoples at Green Haven and Upstate. Commissioner Fischer was personally involved in continuing to authorize system-wide policies and practices which regulated the general conditions and deprivations of all SHU units throughout DOCCS, including those at Upstate and Green Haven. Superintendent Rock and Superintendent Lee were directly responsible for the enforcement of these general policies and authorizing and managing the policies, procedures and customs governing day-to-day conditions of SHU confinement at their respective facilities. In his capacity as Director of SHU, defendant Bezio was personally aware of the conditions maintained by Superintendent Lee and Superintendent Rock in 2009, and he had the authority to cause changes to these conditions, but consistent with the policies he authorized as SHU director, he did not do so. Upon information and belief, the policies and procedures that existed at Green
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Haven and Upstate in 2009 have been largely continued through the present day, without significant alteration, by defendants Fischer, Pratt, and Rock.
98. As a result of the combined effects of the isolation, deprivations, inadequate mental health care, and the other conditions described above, Mr. Peoples experienced many of the well-studied and well-known risks of isolated confinement during the approximately 780 days that he spent in the SHU.
99. Mr. Peoples experience in SHU was psychological torture. The SHU left him hopeless and in fear. Days and days on end of isolation and idleness, lack of healthy human interaction, physical assault by his bunkmates, the constant threat of assault by staff, the everpresent threat of deprivation orders, no meaningful mental health care and knowledge the sheer length of his SHU sentence quickly became debilitating and destructive. His emotions became capricious, uncontrollable, and extreme. He had thoughts of harming himself and committing suicide. He was certain he would lose his marriage. He suffered from anxiety, panic, apathy, paranoia, lethargy, uncontrollable rage, and depression. He experienced frequent physiological harms such as headaches and debilitating migraines.
100. Mr. Peoples’ time in extreme isolation left him with lasting physical, psychological and emotional effects. To this day, as a result of his lengthy SHU confinement, Mr. Peoples is withdrawn, has difficulty communicating with others, and avoids social situations. He still has trouble sleeping at night, and finds his mind wandering back to the time he spent in the box.
101. Mr. Peoples fears the effects that additional SHU confinement may have on him. Given the consequences he has already suffered from his lengthy SHU confinement, and his pre-
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existing mental illness, Mr. Peoples is susceptible to a serious risk of harm if subjected to additional isolated confinement.
102. Because of the acts and omissions of Defendants Fischer, Bezio, and Pratt, Mr. Peoples, like all other individuals incarcerated in New York’s prisons, is at risk of future unjustified confinement in extreme isolation for violating just one of DOCCS’ numerous rules even if his perceived misbehavior poses no arguable danger to safety or security. These policies put Mr. Peoples at risk of future SHU confinement for a simple misunderstanding between himself and a corrections officer, a good faith mistake in complying with DOCCS’ many regulations, or for a momentary hesitation in immediately obeying correction officer’s order. Given DOCCS’ policies permitting a disciplinary conviction and SHU sentence based on the contested testimony of a single corrections officer, Mr. Peoples is at risk of SHU confinement for doing nothing culpable at all.
103. Mr. Peoples is also at risk of future unlawful SHU confinement due to his disciplinary history, which includes two prior sentences to extreme isolation and increases his chance of a formal misbehavior report for any rule infraction, and another SHU sanction if convicted. Finally, as an African-American, and as someone who has been convicted of a sex offense, Mr. Peoples is at an increased risk of future unconstitutional confinement because DOCCS’ arbitrary and permissive policies tolerate bias and animus in the disciplinary process.
104. The substantial risk of Mr. Peoples’ future SHU confinement is underscored by the statements of corrections staff threatening Mr. Peoples’ with additional SHU time. For example, just in the last few months corrections staff threatened Mr. Peoples with additional time in isolation after Mr. Peoples’ stated his intention to complain about restrictions on his religious practices.
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JURISDICTION AND VENUE 105. This action is brought pursuant to 42 U.S.C. § 1983. Subject matter jurisdiction is conferred by 28 U.S.C. §§ 1331 and 1343(a)(3). 106. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper. Rule 65 of the Federal Rules of Civil Procedure authorizes injunctive relief. This Court has authority to award costs and attorneys’ fees under 42 U.S.C. § 1988. 107. Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. §§ 1391(b)(1) and (b)(2) because defendants named in this action have their official residence in this district, and because substantial events and omissions giving rise to the claims in this action occurred at Green Haven C.F. in Stormville, NY, located in this district.
CLAIMS FOR RELIEF First Cause of Action: Violation of the Prohibition against Cruel and Unusual Punishment Eighth and Fourteenth Amendments 108. Mr. Peoples’ three-year sentence to extreme isolation and the more than 780 days he was confined in the SHU violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Second Cause of Action Violation of the Guarantee of Due Process of Law Fourteenth Amendment 109. Mr. Peoples’ three-year sentence to extreme isolation in SHU and the more than 780 days he spent in SHU imposed a significant and atypical hardship in relation to the ordinary
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incidents of prison life, and deprived him of a protected liberty interest, without adequate due
process of law.
REQUESTS FOR RELIEF
WHEREFORE Mr. Peoples respectfully requests that the Court:
a. Declare that Defendants’ acts and omissions violated Mr. Peoples’ constitutional rights under the Eighth and Fourteenth Amendments of the United States Constitution and that these acts and omissions continue to cause an ongoing risk of the violation of those rights;
b. Enter permanent injunctive relief requiring the Defendants to adopt policies, procedures, training, supervision and monitoring to abate the risk of future violations of Mr. Peoples’ constitutional rights;
c. Award compensatory and punitive damages for injuries sustained by Mr. Peoples;
d. Award Mr. Peoples reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and;
e. Grant any other relief the Court deems necessary and proper.
Dated: December 6, 2012 New York, New York
____________________________________ Taylor Pendergrass, Esq. TP-3608 Christopher Dunn, Esq. CD-3991 Gabriel Hopkins* William Swearingen* Kyle Valenti* New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3344 (phone) (212) 607-3318 (fax) tpendergrass@nyclu.org
* New York University School of Law Civil Rights Clinic students admitted under the SDNY student practice plan
Counsel for Plaintiff
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------¥·-------------------------------)( LEROY PEOPLES, TONJA FENTON and DEWAYNE RICHARDSON, individually and on behalfofa class ofall others similarly situated,
Plaintiffs,
-versus-
BRIAN FISCHER, Commissioner ofthe New York State Department of Corrections and Community Services; ALBERT PRACK, Director of Special Housing and Inmate Discipline; NORMAN BEZIO, former Director of Special Housing and Inmate Discipline; WILLIAM LEE, former Superintendent of Green Haven Correctional Facility; DAVID ROCK, : Superintendent of Upstate Correctional Facility; CURTIS DROWN, Commissioner's Hearing Officer at Green Haven Correctional Facility, by his Estate; WILLIAM POWERS, Superintendent of Albion Correctional Facility; SABINA KAPLAN, Superintendent of Bedford Hills Correctional Facility; L. COLLINS, corrections officer at Albion Correctional Facility; DIANE CATALFU, Deputy Superintendent at Albion Correctional Facility; ADA PEREZ, Superintendent of Downstate Correctional; PATRICK GRIFFIN, Superintendent of Southport Correctional Facility; and JAMES CAVALERI, Captain at Downstate Correctional Facility,
Defendants.
---------------------------------------------------------------)(

THIRD AMENDED CLASS ACTION COMPLAINT
11 Civ. 2694 (SAS)
ECFCASE

PRELIMINARY STATEMENT 1. This civil rights action challenges the constitutionality of New York State's policies and customs that place every person incarcerated in New York at risk of extraordinarily long and severely harmful extreme isolation and solitary confinement as punishment for

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violating prison rules. This action is brought on behalf of three named plaintiffs incarcerated in New York state prisons and a class of similarly situated individuals. New York's cavalier and arbitrary use of extreme isolation as punishment inflicts enormous damage on the incarcerated for no legitimate reason, and it is the essence of"cruel and unusual" punishment.
2. Between 2007 and 2011 alone, New York imposed nearly 70,000 extreme isolation sentences. On any given day in New York prisons, approximately 4,300 people, constituting approximately 8% of the New York prison population, are locked down 23 hours a day in tiny concrete cells. A dispropmtionate m.unber of individuals sent to New York's isolation cells are black, and many suffer from serious mental illness.
3. The conditions and deprivations in New York' s extreme isolation cells, known as "Special Housing Units" or "SHU," are deplorable. Individuals held in extreme isolation are led in shackles to barren cages smaller than their cell for one hour of "recreation" a day. Food is delivered through a slot in the door. Idle for weeks m1d months on end, they are prohibited from participating in any rehabilitative programming. Requests for mental health treatment must be discussed in front of corrections staff through the cell door. Corrections staff may dispense additional punishment by depriving individuals of what little remains- access to nourishing and edible food, exercise, bedding, and showers may all be arbitrarily denied.
4. Social interaction and mental stimulation are necessary for human beings. Even short periods of forced isolation may cause disruption in neurological functioning in healthy adults. Longer periods of isolation pose a substantial risk of permanent physical and mental harm. New York's practice of "double celling" some prisoners held in SHU- forcing two prisoners to live together in a single isolation cell for weeks, months and sometimes years on end-does not relieve the stress associated with the deprivation of SHU. h1stead, it causes
2

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increased violence and distress, predictable results of housing two strangers in a single isolation cell 23 hours a day.
5. Because of the mental anguish and the well-known risk of serious hann caused by isolated confinement, mental health professionals, legal organizations, human rights experts, and correctional authorities advise that prisoners should be isolated from the general prison population only when absolutely necessary to protect the physical safety and security of prisoners or staff, and for short maximum periods of isolated confinement, such as 15 or 30 days.
6. The policies and customs authorized by New York's top policy-making corrections officials, however, permit extreme isolation to be imposed as a sanction for minor and non-violent misbehavior that demonstrates no risk to the physical safety of prisoners or staff. As a matter of policy and custom, such sentences are imposed arbitrarily with inadequate sentencing procedures and no upper limit on the length ofa sentence an individual may be forced to endure. The average extreme isolation sentence in New York is 150 days, approximately five to ten times the maximum tolerable amount according to mental health, legal, correctional, and human rights authorities. Many, including the plaintiffs in this lawsuit, have been condemned to live in New York's isolation cells for years.
7. The experiences of plaintiffs Leroy Peoples, Tonja Fenton and Dewayne Richardson (collectively "Plaintiffs") typify what is wrong and unconstitutional about New York's disciplinary system. All were given grossly disproportionate sentences by hearing officers for non-violent misbehavior: 1,095 days for Mr. Peoples, 730 days for Ms. Fenton, and 1,095 days for Mr. Richardson. All were forced to endure the severely harmful conditions of SHU isolation for extraordinarily long periods: 780 days for Mr. Peoples, 270 days for Ms.

3

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Fenton, and 425 days for Mr. Richardson. All have suffered serious harm as a result of their sentences.

8. The astonishingly long sentences imposed on the Plaintiffs were arbitrary, grossly disproportionate to the underlying misbehavior, had no legitimate penological justification, and constituted a gratuitous infliction of wanton and unnecessary pain that fell far short of evolving standards of decency. The disciplinary hearing officers that imposed these severe and unjustified punishments, and the superintendents that authorized and enforced plaintiffs' confinement in the extreme isolation cells at their prisons, did so despite the fact that any reasonable official would have known that the extraordinary severity of these punishments would do little more than inflict mmecessary pain and put plaintiffs at an unjustified risk of harm in violation of their clearly established constitutional rights.

9. Plaintiffs' sentences are just a few examples of the ongoing and systemic harms

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officials. Individuals confined in the New York prison system are a captive population in

constant contact with corrections officers who are given wide discretion to enforce over 100

different prison regulations governing everything from failing to comply with cafeteria policy to

failing to comply with an order. Once a conections officer alleges an infraction has been

committed, a conviction is secured 95% of the time. New York's polices and customs put all

cunent and future prisoners at imminent risk of being sent to "the box" for long periods for no

legitimate reason at all.

10. Defendants have violated and continue to violate the Eighth and Fourteenth Amendments to the United States Constitution. The plaintiffs and the class of similarly situated individuals they seek to represent seek declaratory and injm1ctive relief to protect them against

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the risk of future unconstitutional and severely harmful punitive isolation sentences, and the named plaintiffs seek damages for the harms they suffered utmecessarily.
PARTIES 11. Plaintiff LEROY PEOPLES is a 30-year-old African-American man, married, a practicing Muslim, and currently incarcerated at Attica Correctional Facility. Mr. Peoples was sentenced and confined to SHU in Green Haven Correctional Facility, and was later transferred to Upstate Correctional Facility, a dedicated SHU facility. He served a total of approximately 780 consecutive days in extreme isolation. His earliest release date from prison is 2017. When released, Mr. Peoples intends to return to the New York City area to live with his wife. 12. Plaintiff TONJA FENTON is a 39-year-old African-American woman, mother of two teenage sons, a professional songwriter, and is currently incarcerated in Bedford Hills Correctional Facility. Ms. Fenton was sentenced and confined to SHU at Albion Correctional Facility, and then transferred to the Bedford Hills SHU. She was confined in SHU for approximately 270 days until her release from the BeUford Hills SHU on March 1, 2013, and she continues to face an additional 460 days in SHU in the fonn of suspended sentences. Her earliest release from prison is August 2013. In this action, Ms. Fenton does not seek any relief related to the loss of good time credits. When released, Ms. Fenton intends to return to her home in Queens, New York, to live with her domestic partner and her two children. 13. Plaintiff DEWAYNE RICHARDSON is a 40-year-old Afhcan-American man fi·om the Bronx, with two children, currently incarcerated in the Special Housing Unit at MidState Correctional Facility. Mr. Richardson was sentenced and confined to SHU at Downstate Correctional Facility, and was later transferred to Southport Correctional Facility, a dedicated SHU facility. He spent 425 consecutive days in SHU from 2010-2011, and is currently serving
5

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another SHU sentence. His earliest release date is 2015. Mr. Richardson plans to retum to New York City to live with his mother after his release from prison.
14. Defendant BRIAN FISCHER is the Commissioner of the New York State Deparhnent of Corrections and Community Services ("DOCCS"). Commissioner Fischer has final policy-making and supervisory authority within DOCCS, and is personally involved in authorizing and maintaining the unconstitutional policies and customs challenged by plaintiffs. He is sued in his official capacity for declaratory and injunctive relie£
15. Defendant ALBERT PRACK is the cunent Director of the Special Housing and Inmate Disciplinary Program. Director Prack has policy-making and supervisory authority with regard to Special Housing Units and DOCCS' disciplinary process, and is personally involved in authorizing, maintaining and enforcing the unconstitutional policies and customs challenged by plaintiffs. He is sued in his official and individual capacity for declaratory, monetary, and injunctive relief.
16. Defendant NORMAN BEZIO was the Director of the Special Housing and Inmate Disciplinary Program at the time of Mr. Peoples' and Mr. Richardson's unconstitutional SHU sentences. At that time, Mr. Bezio had policy-making and supervisory authority with regard to SHU and the DOCCS' disciplinary process, was personally involved in authorizing and maintaining, and enforcing the unconstitutional policies and customs challenged by plaintiffs, and authorized and continued Mr. Peoples' and Mr. Richardson's unconstitutional SHU confmements. He is sued in his individual capacity for monetary relief.
17. Defendant WILLIAM LEE was the Superintendent of Green Haven Correctional Facility at the time of Mr. Peoples' unconstitutional sentence to SHU in 2009. Superintendent Lee had policy-making and supervisory authority with regard to Green Haven, and he authorized
6

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and continued Mr. Peoples' unconstitutional confinement in his facility's SHU. He is sued in his individual capacity for monetary relief.
18. Defendant DAVID ROCK is the Superintendent of Upstate Correctional Facility. Superintendent Rock has policy-making and supervisory authmity with regard to Upstate, and he authorized and continued Mr. Peoples' tmconstitutional confinement in his facility's SHU. He is sued in his individual and official capacity for monetary relief.
19. Defendant CURTIS DROWN, deceased, is a former commissioner's hearing officer. Mr. Drown acted as the hearing officer presiding over Mr. Peoples' October 2009 disciplinary hearing at Green Haven and imposed the unconstitutional SHU sentence on Mr. Peoples. He is sued in his individual capacity for monetary relief.
20. Defendant WILLIAM POWERS was the Superintendent of Albion Conectional Facility at the time of Ms. Fenton's unconstitutional SHU sentences in 2012. Superintendent Powers had policy-making and supervisory authority with regard to Albion, and he authorized and continued Ms. Fenton's unconstit-utional confinement in his facility's SHU. He is sued in his individual capacity for monetary relief.
21. Defendant SABINA KAPLAN is the Superintendent of Bedford Hills Correctional Facility. Superintendent Powers has policy-making and supervisory authority with regard to Bedford Hills, and she authorized and continued Ms. Fenton's unconstitutional confinement in her facility' s SHU. She is sued in her official and individual capacity for declaratory, monetary and injunctive relief.
22. Defendant L. COLLINS is a corrections officer at Albion Conectional Facility. Captain Collins acted as the hearing officer presiding over two of Ms. Fenton's disciplinary

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hearings and imposed unconstitutional SHU sentences on Ms. Fenton in both instances. She is sued in her individual capacity for monetary relief.
23. Defendant DIANE CATALFU is the Deputy Superintendent of Programs at Albion Correctional Facility. Deputy Superintendent Catalfu acted as the hearing officer presiding over one of Ms. Fenton's disciplinary hearings and imposed an unconstitutional SHU sentence on Ms. Fenton. She is sued in her individual capacity for monetary relief.
24. Defendant ADA PEREZ is the Superintendent of Downstate Conectional Facility. Superintendent Perez had policy-making and supervisory authority with regard to Downstate, and authorized and continued Mr. Richardson' s unconstitutional confinement in her facility's SHU. Supe1i ntendent Perez is sued in her individual capacity for monetary relief.
25. Defendant PATRICK GRIFFIN is the Superintendent of Southport Conectional Facility. Superintendent Griffin had policy-making and supervisory authority with regard to Southport, and he authorized and continued Mr. Richardson's unconstitutional confinement in his facility's SHU in 2010 and 2011. He is sued in his individual capacity for monetary relief.
26. Defendant JAMES CAVALERI is a corrections officer. Captain Calaveri acted as a hearing officer presiding over Mr. Richardson's February 2010 disciplinary hearing at Downstate Correctional Facility and imposed the unconstitutional SHU sentence on Mr. Richardson in 2010. He is sued in his individual capacity for monetary relief.
FACTS The Severe Risk of Harm Caused by Extreme Isolation 27. The practice of punishing incarcerated individuals by removing them from the general population and subjecting them to harsh isolation and severe deprivation goes by numerous names-solitary confinement, punitive segregation, disciplinary segregation, extreme
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isolation. Regardless of the label, the practice has long been shown to cause a risk of severe psychological and physical harm. Subjecting individuals to extreme isolation causes pain, suffering, psychological trauma, physical injury, and, in extreme cases, death.
28. Documented physical and physiological hanns include suicide, self-harm, cardiovascular and genito-urinary problems, tremulousness, gastro-intestinal problems, deterioration of eyesight, heart palpitations, insomnia, migraines, appetite loss, weight loss, sudden excessive sweating, back and joint pain, dizziness, hypersensitivity to external stimuli, and lethargy.
29. Psychological and neurological harms caused by isolation include hallucinations, severe and chronic depression, depersonalization, social withdrawal, confusion, apathy, anxiety, nervousness, night terrors, panic attacks, irrational anger, rage, loss of impulse control, paranoia, claustrophobia, concentration deficits, difficulties with memory, and perceptual distortions.
30. For healthy adults these combined effects, referred to by some mental health professionals as "SHU Synurum~," can result in profound harm even after short periods of confinement. The consequences can be particularly devastating, permanent, and even deadly if the length of confinement extends beyond days and into weeks, months or years, particularly for individuals with preexisting physical and mental health conditions.
31. Precisely because of the risk of harm, the severe pain it causes, and the affront it represents to basic human dignity, almost all states in the country, including New York, have long prohibited the imposition of solitary confinement as punishment for a criminal offense.
32. Isolation continues to be used, however, by corrections officials. Because of the serious and pennanent harm that extreme isolation can cause, correctional authorities in other states, cotTections experts, mental health professionals, legal organizations, and human rights
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bodies have adopted standards intended to ensure it is used only as a last resort. These standards closely govern the circumstances and conditions under which individuals may be separated from the general prison population after they have been incarcerated, the conditions of the isolation confinement, and the maximum length of time a human being should ever be subjected to such conditions.
33. For example, the New York State Bar Association, noting the serious risk ofhann posed by extreme isolation, adopted a resolution stating that "solitary confinement, if used at all, should be measured in days, not years, months, or even weeks ...."The Bar Association noted that "it is becoming increasingly clear that longterm solitary confinement is not only unnecessary, but counterproductive .. as such, the continued use thereof constitutes an 'unnecessary infliction ofpain' ...."
34. The American Bar Association has also promulgated standards to abolish extreme isolation under any circumstances. In order to avoid the unnecessary and unjustified hann caused by the overuse of isolation, the ABA standards require that any isolation of prisoners be for the briefest tenn and under the least restrictive conditions possible. To ensure prisoners are not unnecessarily subjected to the severe risk of harm caused by isolation, the ABA standards require that prisoners be separated from the general population only after a finding that (1) the individual committed a severe disciplinary infraction in which safety or security was seriously threatened, or (2) the individual presents a credible continuing and serious tlU'eat to others or himself.
35. Human rights authorities and bodies have similarly found that minimum safeguards are absolutely necessary to protect against the harms of extreme isolation. For example, the United Nations Special Rapporteur on Torture has concluded that solitary
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confinement used specifically for the purpose of punishment can never be justified, given the magnitude of suffering it imposes. Where isolation is absolutely necessary for protecting the safety of the prisoner or staff, the UN Special Rapporteur has held that more than 15 days amounts to torture or cruel, inhuman, or degrading treatment, and recommended that the use of extreme isolation in excess of 15 days be abolished in all cases. Likewise, the UN General Assembly has called for an "absolute abolition" -on these types of conditions as punishment, and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommends that extreme isolation only be used as punishment in exceptional cases and for the shortest period of time possible, due to its potentially damaging effects.
36. The recommendations of various experts and organizations reflect the overwhelming consensus that if isolation is to be used at all, sufficient protocols and safeguards are necessary to prevent the severe harms caused by its inadequately constrained use, and to ensure that isolation is used sparingly as a last resort, for short amounts of time, and under tight controls.
New York's Unconstitutional Policies and Customs 37. New York, however, uses extreme isolation as a disciplinary tool of first resort with astonishing frequency and length for the violation of any one of over one hundred internal prison regulations. DOCCS maintains 5,000 isolation beds, located in Special Housing Units throughout the state- including two "SHU~only" prisons, Southport and Upstate Conectional Facilities-that are used to separate individuals from the general prison population and subject them to punishing forms of isolation and deprivation. From 2007-2011, DOCCS issued nearly 70,000 sentences to SHU as punishment for the violation of prison rules. On any given day,

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approximately 4,300 people are locked down 23 hours a day serving months- or years- long sentences in one ofNew York's sparse isolation cells.
38. The frequency with which DOCCS uses extreme isolation as punishment is a direct consequence of system-wide policies and customs governing the conduct and punishment of all individuals incarcerated throughout the New York prison system. In contrast to the clearlydefined standards and criteria discussed above, New York readily permits the use of extreme isolation as punishment for conduct that poses no threat to safety or security, and for extraordinary and disproportionate lengths of time that have no connection to any legitimate penological rationale. Defendants Fischer, Bezio and Prack were and are personally involved in authorizing and continuing the unconstitutional policies and customs described below.
39. DOCCS has promulgated over 100 intemal regulations governing every aspect of the behavior of individuals incarcerated in New York state prisons. These mles cover a wide range of conduct, governing personal grooming, cafeteria policy, and approved reading materials, as well as prohibiting assault, escape, and the possession of weapons.
40. If corrections staff believe that an individual has violated any one or more of these rules, they may respond to the misbehavior by speaking with the individual or imposing an infonnal reprimand. They may also initiate a formal disciplinary process by writing a "misbehavior report." The misbehavior report documents the alleged misbehavior and contains a citation to the regulation or regulations allegedly violated.
41. A "review officer" at the correctional facility assigns a "tier'' rating to the misbehavior report that detennines the severity of the suspected infraction and, ultimately, the type of punishment convicted. A Tier I rating is intended for less serious infractions, and a Tier III rating for the most serious. A conviction for an infraction given a Tier II or III rating may
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result in a sentence to extreme isolation in SHU. Numerous rule violations that are eligible for Tier II or III ratings govern behavior that is nonviolent, non-disruptive, and/or poses little or no threat to the safety of the prisoners or others.
42. DOCCS' policies provide minimal guidance to corrections staff regarding how to assign tier ratings to alleged misbehavior. DOCCS' policies do not provide incarcerated individuals with an explanation of what types of conduct may result in more or less severe tier ratings. DOCCS' policies do not provide incarcerated individuals with any notice of potential sentencing ranges to SHU if convicted for an infraction.
43. Individuals facing a Tier III charge are afforded a limited hearing, with minimal process, to adjudicate their guilt. DOCCS' employees themselves act as hearing officers, and many of these employees may have a variety of other primary work responsibilities.
44. ·With regard to adjudicating guilt, hearing officers are pennitted to credit the testimony of corrections staff over that of a prisoner. The prisoner can be denied the opportunity to present his own evidence. The prisoner can be denied the right to question adverse witnesses. The prisoners can be denied the ability to know the identity of witnesses. Ptisoners can be, and frequently are, convicted of infractions based only on the disputed word of a single conections officer.
45. The DOCCS disciplinary process almost always secures a conviction. From 2007 to 2011, DOCCS conducted more than 105,500 Tier III disciplinary hearings, with a conviction rate of approximately 95%. If an individual facing a Tier III charge is among the 95% who are convicted, he or she is more likely than not to be punished with time in extreme isolation. Of Tier III disciplinary heruings that resulted in a conviction from 2007 to 2011, a Tier III SHU sanction was imposed as punishment approximately 70% of the time.
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46. DOCCS' policies pennit and encourage sentences to extreme isolation for behavior that demonstrates no risk of hann, and where there is no showing that the prisoner needs to be removed from the general prison population in order to protect staff or other prisoners. A substantial number of sentences to SHU are for this type of behavior. For example, from 2007N2011, only 16% of sentences to extreme isolation involved infractions that implicated violent conduct or weapons. From 2007N2011 DOCCS staff imposed SHU confinement as a punitive sanction in Tier III hearings that involved the following infractions:
a. Over 200 SHU sentences in hearings involving "untidy cell or person"; b. Over 300 SHU sentences in hearings involving "smoking in an unauthorized
area"; c. Nearly 200 SHU sentences in hearings involving "no ID card"; d. Over 200 SHU sentences in hearings involving "delaying cell count"; e. Over 2,100 SHU sentences in hearings involving "facility correspondence
violations"; f. Over 100 SHU sentences in hearings involving "littering"; g. Over 170 SHU sentences in hearings involving "excessive tobacco"; h. Nearly 100 SHU sentences in hearings involving "unauthorized jewelry"; i. Over 50 SHU sentences in hearings involving "unauthorized literature"; J. Over 1,000 SHU sentences 111 hearings involving "refusing double ceiling
assignments"; k. Over 600 SHU sentences in hearings involving "unreported illness";
1. Over 500 SHU sentences in hearings involving "tattooing";

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m. Over 480 SHU sentences in hearings involving "messhall serving/seating violations";
n. Over 100 SHU sentences in hearings involving "unauthorized legal assistance." 47. DOCCS' policies and customs regarding sentencing are a key factor in the arbitrary and inconsistent punislunents that result. When it comes to the question of when SHU should or should not be imposed, for how long, and why, DOCCS' written policies are plainly inadequate. These policies and customs fail in numerous and obvious ways to ensure consistent and proportionate disciplinary outcomes. 48. With regard to sentence length, DOCCS' policies provide no mandatory sentence ranges and no upper limit on the length of any single sentence. DOCCS' policies and customs recommend 90-day minimum sentences for types of non-violent misbehavior. DOCCS' policies also do not place any upper limit on the number of consecutive sentences to SHU that a prisoner may be forced to serve. Consequently, even SHU sentences of 30 days may have the practical effect of ensuring the prisoner will spend months or years confined in extreme isolation as the prisoner serves multiple consecutive SHU sentences. 49. When it comes to the rationale for when SHU is justified as a sanction, DOCCS' policies provide only vague and generic criteria. DOCCS' policies do not require an adequate articulation of the rationale for imposing extreme isolation as a sanction or for the length of the sentence. As reflected in the Plaintiffs' misbehavior reports, discussed below, hearing officers often provide explanations for these sentences that are, on their face, plainly insufficient to justify the severity of the sanction. Such sentences are routinely authorized and enforced as a matter of policy and custom.

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50. Furthermore, DOCCS' policies pennit staff to impose extreme isolation as punishment without taking into account factors that might make such confinement particularly painful and harmful, and the punishment particularly disproportionate, for that individual. DOCCS' staff are permitted to impose SHU confinement without restriction on juveniles, the elderly, the disabled (including those with HIV or other serious medical illness) and those with severe substance abuse problems. While New York state law requires DOCCS to divert those with the most severe forms of mental illness from SHU into a residential mental health treatment unit, DOCCS' policies still permit staff to use extreme isolation to punish individuals with less severe, but nevertheless significant, mental health issues (as of January 2012, approximately 14% ofthe individuals confined in SHU were on DOCCS' mental health caseload; 35% of these individuals had been diagnosed with a serious mental illness). As a result, individuals who may have the least capacity to tolerate the extreme harms of extreme isolation-for whom even a short time in SHU would be a weighty punishment- may nevertheless end up conde1m1ed to months or years in SHU suffering terribl~ consequences.
51. Once an individual begins serving his or her SHU sentence, DOCCS' policies allow lengthy confinements without any subsequent individualized reviews to detennine whether it is still necessary to confine that individual in the SHU. Nor do policies require that officials periodically evaluate whether, as the sentence drags on for weeks, months and years, the punitive confinement may be causing the individual increasingly severe and grave harm.
52. DOCCS' policies and customs goveming the post-sentencing review of SHU sanctions, including the disciplinary appeals process and discretionary review that can be requested by prisoners, fail to ensure any consistent or meaningful relief from grossly disproportionate SHU sanctions. Upon review, and as evidenced by the experience of the
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Plaintiffs detailed below, SHU sentences are affirmed, modified or vacated arbitrarily and inconsistently.
53. All the above policies work in conjunction with customs that have the force of fonnal policy throughout the DOCCS system, tolerating and encouraging needlessly and purposefully hannful SHU sentences for all fonns of misbehavior and for perceived disobedience. Unconstrained by adequate policies and procedures, DOCCS' staff impose unjustified and arbitrary punishments that are customarily authorized, ratified, and enforced system-wide.
54. In combination, DOCCS' policies and customs result in unjustified, inconsistent, and harmful SHU sentences. Individuals receive lengthy sentences that are grossly disproportionate as compared to the underlying misbehavior. Similarly situated prisoners receive inconsistent, often vastly different, sentences for similar misconduct. African-American prisoners are more likely to receive SHU sentences, and to receive longer SHU sentences, as compared to individuals of other racial and ethnic groups.
55. Commissioner Fischer has final policy-making and supervisory authority within DOCCS. As commissioner, and pursuant to New York law, he is aware of and has ultimate authority with regard to all of DOCCS' internal rules, regulations, policies, procedures and customs. Cmmnissioner Fischer and his staff periodically review these policies and customs. He reviews data and statistical analyses that reflect the effects of these policies and customs. If he deems it necessary, Commissioner Fischer has the authority to cause DOCCS' policies to be amended, adopted or repealed.
56. The Director of Special Housing and Inmate Disciplinary Program, a position formerly held by defendant Mr. Bezio and now held by defendant Director Prack, reviews,
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develops, implements, amends, and monitors DOCCS' disciplinary policies and procedures and their consequences and reports to the Commissioner. The director evaluates statistical data to analyze trends and patterns in the disciplinary process. The director is responsible for staff training and supervision on disciplinary policies and procedure, and for developing a program of on-site inspections of the conditions of DOCCS' SHU facilities. The director, along with staff under his direct supervision and guidance, reviews all appealed detenninations of Tier III hearings and sustains, overturns or amends those dispositions.
57. Defendants Fischer, Bezio, and Prack were, and Fischer and Prack are, personally involved in authorizing and maintaining the disciplinary policies, procedures and customs detailed in this complaint, and their consequences and effects. They have the responsibility to review and evaluate DOCCS' disciplinary policies and the authority to adopt, amend, or revise them.
58. Defendants Fischer, Bezio, and Prack are aware of the harm caused by DOCCS' existing disciplinary policies and customs. These defendants are aware that SHU confinement causes pain, suffering, mental deterioration, and physical injury. DOCCS' statistical data demonstrates that, for years, these policies have resulted in arbitrary, inconsistent, and grossly disproportionate sentences to SHU. They are aware sentences are often for infractions that pose no threat to prison safety or security, and for lengths of time that far exceed any legitimate punitive goal and do little more than inflict u1mecessary pain and an unjustified risk ofhann.
59. Defendants Fischer, Bezio and Prack are aware of the consequences of their policies and customs as the result of numerous communications to them from outside organizations and entities, which for years have documented systemic deficiencies in the DOCCS' disciplinmy process m1d the consequences of these deficiencies. Defendants are also
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aware of a pattern of deficiencies through complaints they have received through disciplinary appeals, grievances, civil litigation, and Article 78 petitions challenging the arbitrary and unjustified sentences that result from the disciplinary process.
60. Defendants have long been aware that DOCCS' disciplinary procedures fail to provide many of the minimum safeguards recommended by correctional, legal~ mental health~ and human rights experts. The certainty that these policies and customs have and will continue to lead to unjustified and hannful SHU sentences is plain from the lack of adequate guidance contained in DOCCS' written policies themselves, and the fact that DOCCS' staff customarily impose SHU penalties far exceeding even the minimal guidance that is provided.
61. The extraordinary length of SHU sentences imposed by New York officials-150 days on average, some five to ten times longer than the maximum allowable time recommended by mental health, legal and human rights experts-serves no legitimate penological justification. In fact, the overwhelming evidence from other state conections systems is that the use of punitive extreme isolation exacerbates physical violence and psychological harms for both incarcerated individuals and corrections staff, and that it is counterproductive to legitimate penological goals such as prison safety, deterrence, and rehabilitation.
62. Implementing procedural safeguards-for example, adopting adequate criteria designed to ensure proportionality and curtail the length of SHU sentences, avoid the risk of harm for vulnerable prisoners, and provide notice to prisoners and staff of the length of SHU punishment that may be imposed for particular misbehavior-would significantly protect against the risk of erroneous deprivations of the most fundamental constitutional rights, and would not unduly interfere with defendants' legitimate interests.

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63. Despite all of the above, Defendants Fischer and Prack- and Defendant Bezio before them-personally authorized these policies and customs although they have the authority, ability, and ultimate responsibility to ensure DOCCS' policies and customs do not inflict unnecessary and avoidable harm on individuals incarcerated in New York prisons. By continuing these policies and practices, these defendants are responsible for the systemic and ongoing violations of the constitutional rights of individuals incarcerated in New Yark prisons, including the banns suffered by each ofthe Plaintiffs, as described below.
Plaintiff Let·oy Peoples 64. Leroy Peoples is a 30-year-old African-American and a practicing Muslim. As a juvenile, he struggled with serious mental illness and a tragic and difficult life in an impoverished home. He began serving a 13- to 16-year prison sentence in 2005. Originally from the New York City area, Mr. Peoples, who is maiTied, plans to return to the area to live with his wife after his release from prison. 65. Mr. Peoples has been sent to SHU on two occasions. In 2005, Mr. Peoples was sentenced to 180 days in SHU for the unauthorized possession of nutritional supplements. The supplements discovered by cotTections staff were available in the prison conunissary. Mr. Peoples was charged with violating rules against "unauthorized medication" and "smuggling." 66. In 2009, the defendants' policies and procedures resulted in a second SHU sentence. On October 5, 2009, Mr. Peoples was incarcerated at Green Haven when corrections staff discovered and seized Uniform Commercial Code ("UCC") documents from his cell that were considered contraband under DOCCS regulations. Mr. Peoples was escotied to the SHU unit at Green Haven and subjected to pre-hearing SHU confinement.

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67. On October 6, 2009, Mr. Peoples was served with a misbehavior report alleging that then-Green Haven Superintendent Defendant William Lee received a packet of documents purporting to contain UCC lien instruments filed by Mr. Peoples against prosecutors from the Queens County District Attorney's office. Upon information and belief, Superintendent Lee was infonned that Mr. Peoples' misconduct was given the most serious Tier III rating by the "review officer," resulting in a "Superintendent's Hearing," subjecting Mr. Peoples to the possibility of SHU confinement. Superintendent Lee was informed that Mr. Peoples had been transferred to pre-hearing confinement in his facility's SHU unit, and he was aware that the accusations of misconduct posed no threat to the safety of staff or other prisoners. Superintendent Lee personally authorized Mr. Peoples' confinement in his facility's SHU.
68. On October 13, after eight days of pre-hearing confinement in the Green Haven SHU, the hearing was conducted. Defendant Commissionet's Hearing Officer (C.H.O.) Curtis Drown presided over the hearing. C.H.O. Drown reviewed the misbehavior report and cmmnented that he was surprised a sex offender was intelligent enough to file UCC liens. Mr. Peoples responded that that was irrelevant to the disciplinary hearing at hand. C.H.O. Drown asserted that Mr. Peoples was refusing to participate in the hearing and, over Mr. Peoples' objection, ejected him from the disciplinaty hearing. Mr. Peoples was escorted back to his SHU cell. In Mr. Peoples' absence, C.H.O. Drown heard testimony from three Green Haven employees.
69. At the conclusion of the hearing, C.H.O. Drown found Mr. Peoples guilty of an unauthorized filing of a document creating a lien against a state official, unauthorized possession of UCC documents, and violation of facility correspondence procedures. C.H.O. Drown sentenced Mr. Peoples to 1,095 days of confinement in the SHU, as well as the loss of
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commissary, phone and package privileges for the same amount of time. C.H.O. Drown also recommended that Mr. Peoples lose seventy-two months of accrued credit towards a reduced sentence (known as "good time"). No criminal court in the state of New York would have had authority to impose this extreme isolation sentence as a punislunent for Mr. Peoples' alleged misconduct.
70. In explaining the SHU sentence, C.H.O. Drown said that Mr. Peoples needed to "conform" his behavior, that other prisoners had to be "dissuaded" from following his example, and that public officers needed to be assmed that their private lives would not be harassed by prisoners. No accusations of violent behavior were leveled at Mr. Peoples at any time, and no finding was made that Mr. Peoples needed to be removed and isolated from the general prison population for the safety of prisoners or staff.
71. Upon information and belief, Superintendent Lee reviewed Mr. Peoples' disciplinary disposition and the 1,095-day SHU sentence that followed his "Superintendent's Hearing." Like all DOCCS superintendents, Superintendent Lee had the policy-making and final supervisory authority for his facility, including the specific authority under New York law to reduce or vacate the term of Mr. Peoples' SHU confinement. Superintendent Lee authorized Mr. Peoples' continued confinement in his facility's SHU.
72. On November 5, 2009, Mr. Peoples was transferred to Upstate Correctional Facility, a dedicated SHU prison. Upstate Superintendent Defendant David Rock, like Superintendent Lee before him, received and reviewed infonnation regarding Mr. Peoples' transfer to Upstate, the underlying misbehavior, and the SHU sentence imposed. Superintendent Rock also had the authority and ability to reduce or vacate Mr. Peoples' penalty of 1,095 days of

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SHU confinement. Superintendent Rock authorized the continuation of Mr. Peoples' extraordinarily long SHU sentence in his facility.
73. Mr. Peoples exhausted all of his available administrative remedies regarding his 2009 SHU sentence by appealing the disposition and the SHU sentence to Director Bezio. Director Bezio reviewed information related to Mr. Peoples' behavior, the rationales for the SHU sentence, and the length of the punishment imposed. Director Bezio "affirmed and confim1ed" Mr. Peoples' full sentence on December 15, 2010, ending the administrative process available to prisoners for challenging a SHU sanction. Director Bezio's actions were consistent with the policies, procedures and customs he had personally authorized and continued in his capacity as SHU director. Mr. Peoples also submitted a grievance challenging the constitutionality of his SHU sentence. Mr. Peoples filed his Section 1983 lawsuit pro se while he was in the midst of serving his SHU sentence.
74. Mr. Peoples ultimately spent approximately 780 days in extreme isolation as a result of the 2009 SHU sentence. Pursuant to DOCCS' policies and procedures, no evaluation was conducted by Director Bezio or Superintendent Rock to determine whether the extraordinary length of the confinement was causing severe and irreparable harm as the days in extreme isolation turned into weeks, months, and years.
75. Mr. Peoples' life in the SHU was drastically and severely different from his life in the general prison population at Green Haven. While in the general prison population, Mr. Peoples was afforded a range of activities and freedoms that he took advantage of to prepare for life after he had finished serving his criminal sentence.
76. For example, Mr. Peoples was able to further his religious education and worship, which had become a central part of his life, and had helped him begin the long process of
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reckoning with the terrible consequences of his criminal offenses. In the general population, he could take part in religious activities and services, and could freely seek the advice and counsel of Muslim clergy. Mr. Peoples was able to maintain family ties by phone, contact visits, and conjugal visits with his wife.
77. Mr. Peoples was able to gain valuable experience and skills preparing him for his eventual release by working in the prison industry program making desks and cabinets. In the general population, he was eligible to be placed on the waiting list for mandatory rehabilitative programs related to his criminal offense. He was able to educate himself further through reading and other activities. The availability of these rehabilitative opportunities was particularly important to Mr. Peoples to help him prepare to positively contribute to his family and community upon release.
78, Mr. Peoples also had access to social interaction and mental stimulation that helped maintain his psychological and emotional health and stability. He was able to exercise outdoors in the recreation yard. He was permitted to eat meals with other prisoners in the cafeteria, move around the prison facility, and visit the law library. He could watch television and stay abreast of current events. He was able to have personal possessions, including a typewriter, numerous books, magazines, pictures, a personal jacket, personal sneakers, and other clothing.
79. On October 5, 2009, however, Mr. Peoples' access to all of these rehabilitative programs and other freedoms ceased when he was removed fi·om the general prison population and confined to the SHU at Green Haven. Once in SHU, Mr. Peoples became subject to the extreme deprivations of SHU confinement.

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80. Mr. Peoples' SHU cell at Green Haven was a barren space about the size of an average elevator. His cell contained only a toilet, a sink, and a bedframe with a mattress. Mr. Peoples used his personal possessions as a chair and his bed as a desk. He was confined in the SHU cell 23 hours a day, 7 days a week. He was allowed only one hour of exercise daily, alone in a sma11 empty pen on the roof of the facility barely larger than his cell, surrounded by a high metal fencing.
81. Mr. Peoples was deprived of all meaningful human contact and mental stimulation. He was not pennitted to take part in activities, programs, or classes. He was only permitted to shower about twice per week, when he was handcuffed and led to the shower area. He was not permitted to speak on the phone to anyone, including his wife. Meals were delivered through a slot in the door. Personal visits were severely restricted, and took place through a thick glass banier while Mr. Peoples was fully shackled.
82. Few personal possessions were pennitted: two sets of state-issued unifonns, three T-shirts, three pairs of boxers and socks, two towels, paper and pen, and cups for drinking. Mr. Peoples was not allowed to possess a personal jacket or personal pair of sneakers. He was not permitted personal reading materials. A cart that was periodically wheeled by the cell had only a few outdated books and magazines.
83. Once in SHU, Mr. Peoples lived under the constant threat of "deprivation orders." Pursuant to DOCCS' policies, corrections staff may impose deprivation orders denying individuals in SHU any item or service as punishment. These orders may deprive prisoners of exercise, showers, clothing, bedding, and even toilet paper. Corrections officers are granted broad discretion to impose deprivation orders as punishment for a wide range of alleged misbehavior.
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84. Mr. Peoples was also subject to the constant threat of being placed on "restricted diet." DOCCS' policy pennits staff to place individuals in SHU on a restricted diet depriving them of nourishing, edible food as punislunent for rule violations. A restricted diet meal consists of a football-sized brick of baked bread-and-vegetable matter known as "the loaf." The loaf is accompanied by raw cabbage and water. This diet may be imposed for up to seven days prior to a disciplinary hearing and can be reinstated in seven-day periods for an indefinite number of times.
85. Facing extreme isolation, the constant threat of additional arbitrary deprivations, and with no productive social stimulation or interaction, Mr. Peoples struggled to maintain a semblance of mental and emotional stability in SHU. He planned his day around mundane events such as meals. He attempted to stave off boredom and torpor by doing pushups, daydreaming, or yelling in his cell simply to hear his own voice.
86. While confined in extreme isolation, Mr. Peoples experienced feelings of dread and fear caused by the isolation and deprivation. He suffered sudden and uncontrollable mood swings. He was alternately anxious, bored, paranoid, and apathetic. He suffered from regular headaches, depression, and lethargy. Mr. Peoples had experienced some of these same effects when he was confined in the SHU in 2005.
87. On November 5, 2009, Mr. Peoples was transferred from the SHU at Green Haven to Upstate. The conditions Mr. Peoples endured at Upstate were worse still than those at Green Haven. At Upstate, one of two SHU-only facilities run by DOCCS, the harshest punitive treatment of individuals is encouraged and tolerated as a matter of policy and custom. The extreme culture of deprivation at Upstate was the subject of a 2006 report by the Correctional Association, a New York state oversight organization statutorily charged with inspecting New
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York's prisons. Upon information and belief, defendants Bezio and Rock are aware of this

report. 88.

Deprivation orders and diet restrictions are used frequently at Upstate. In addition,

as a matter of unwritten custom, Upstate corrections staff deprive prisoners of food by failing to ensure the delivery of their meal trays- a custom experienced by Mr. Peoples. Defendants are aware of this informal disciplinary practice of food deprivation, which has been the subject of numerous prisoner complaints, and was also discussed in the 2006 report by the Correctional

Association. 89. The occunence and constant threat of unprovoked assaults on incarcerated
individuals by Upstate corrections staff is well-known to all prisoners, including Mr. Peoples.

The Correctional Association 2006 report documented that 80 percent of prisoners surveyed felt unsafe, and that reports by incarcerated individuals of physical abuse and abuse of power by staff

were consistent and credible. 90. Mr. Peoples' cell at Upstate did not allow a direct view outdoors, except for the
exercise period when he was allowed to enter the barren concrete recreation area attached to his cell. Mr. Peoples could hear other prisoners shout and curse at all hours. Mr. Peoples believed that some of the men he heard were exhibiting obvious signs of mental illness. His cell was lit day and night. Mr. Peoples' attempts to cover the light with his towel while sleeping resulted in

staff waking him in the middle of the night demanding that he remove the towel. 91. Mr. Peoples was double-celled at Upstate. Pursuant to DOCCS' policy, double-
celled individuals are subject to all the same harsh rules, regulation, and deprivations of any other SHU prisoner but, in addition, are forced to spend every moment of every day in a cell with a bunkmate. In a single cell approximately 9 x 11 feet there are two bunks, a shower, a toilet and

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a writing desk. No partition or curtain provides privacy for an inmate using the shower or toilet. Prisoners must bathe, urinate and defecate in full view and in close proximity with their bunkmate.
92. Placing two adult men in a single isolation cell with such limited personal floor space, while at the same time restricting or prohibiting all other avenues for normal social interaction, has well-studied and predictable effects. Double-celling has been shown to generate tension, stress and anger between bunkmates. Double-celled bunkmates may become paranoid, hostile and violent toward one another. Assaults and threats of violence between double-celled individuals are commonplace. As a matter of policy and custom, DOCCS refuses to separate bunlanates until after a violent altercation has already occurred. This policy and custom is wellknown to individuals in the SHU, and it exacerbates the risk of assaults between bunkmates who may commit an assault in order to be separated from a bunkmate.
93. Mr. Peoples was in almost constant conflict with various bunkmates. One bunkmate had a long history of violence and mental and emotional instability, making their close proximity all the more stressful and potentially explosive. Mr. Peoples was assaulted by this bunkmate on numerous occasions. Another bunkmate threatened Mr. Peoples with a razor.
94. Mr. Peoples wrote to the security staff and filed a grievance asldng to have a new bunlm1ate. One Upstate sergeant responded to Mr. Peoples' grievance by questioning him about it in front of his bunkmate, causing even more tension. Yir. Peoples also wrote to a mental health professional at Upstate, requesting assistance. Pursuant to DOCCS' policy and custom, staff refused to transfer Mr. Peoples without evidence of a serious assault.
95. His relationship with one particular bunkmate, Larry Allen, completely deteriorated into violence. While Mr. Peoples and Mr. Allen were able to maintain a healthy
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relationship for a short time when they were first double-celled, the lack of privacy and close quarters created ever-increasing conflict between them. Eventually, Mr. Allen assaulted Mr. Peoples so violently that Mr. Peoples lost a tooth.
96. DOCCS' policies force individuals in the SHU to make a choice between divulging highly personal medical and mental health details that may subject them to abuse or exploitation in order to receive care, or to forego requesting care in order to preserve confidentiality and their personal safety. DOCCS' policies foreseeably force many prisoners to stifle requests for necessary care.
97. Mr. Peoples was afforded practically no confidentiality with regard to requests for necessary medical or mental health care. When Mr. Peoples requested such care, staff would come to the cell door and force Mr. Peoples to articulate his confidential medical or mental health concerns through the flood slot, within earshot of staff and other prisoners, including his bunkmate, despite the confidential nature of his mental health problems and despite the fact that Mr. Peoples' concerns often involved problems with the bunkmate who was standing within earshot of the conversation.
98. As a result of the combined effects of the isolation, deprivations, inadequate mental health care, and the other conditions described above, Mr. Peoples experienced many of well-studied and well-known risks of isolated confinement during the approximately 780 days that he spent in the SHU.
99. Mr. Peoples' experience in SHU was torturous. The SHU left him hopeless and in fear. Days and days on end of isolation and idleness, lack of healthy human interaction, physical assault by bunkmates, the constant threat of assault by staff, the ever-present threat of deprivation orders, stymied access to mental health care and the knowledge of the sheer length of
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his SHU sentence were debilitating and destructive. His emotions became capricious, uncontrollable, and extreme. He had thoughts of harming himself and cmm11itting suicide. He was certain he would lose his malTiage. He suffered from anxiety, panic, apathy, paranoia, lethargy, uncontrollable rage, and depression. He experienced frequent physiological hanns such as headaches and debilitating migraines.
100. Mr. Peoples' time in extreme isolation left him with lasting physical, psychological and emotional effects. To this day, as a result of his lengthy SHU confinement, Mr. Peoples is withdrawn, has difficulty cmmnunicating with others, and avoids social situations. He still has trouble sleeping at night. He finds his mind wandering back to the time he spent in the boxl and fears the effect that additional SHU confinement may have on him.
Plaintiff Tonja Fenton 101. Tonja Fenton is a 39-year-old African American woman and mother of two teenage sons. Ms. Fenton lived in Queens, New York with her domestic partner and children until she was incarcerated in 2011. Ms. Fenton plans to return to her family and to resume her career as a professional songwriter after her release from prison. 102. Ms. Fenton received three SHU sentences in 2012 totaling approximately 730 days. Ms. Fenton's first SHU sentence of 365 days arose from allegations that she facilitated the purchase of personal hair care appliances and sneakers for another prisoner. A second SHU sentence of six months was imposed for Ms. Fenton reporting a sexual assault that DOCCS later deemed unsubstantiated. A third SHU sentence of six months arose from Ms. Fenton's act of sending a sample of food she was served in SHU to the Western District ofNew York in support ofherprose lawsuit alleging retaliation and food tampering by corrections officers.

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103. The first SHU sentence of 365 days arose from allegations that Ms. Fenton gave her domestic partner's credit card information to another prisoner. This other prisoner allegedly used the credit card information to purchase a hair dryer, curling iron, and a pair of sneakers. Ms. Fenton was served with a misbehavior report for this alleged misconduct on May 22, 2012. At a Tier III hearing that concluded on June 6, 2012, Commissioner's Hearing Officer Defendant Captain L. Collins found Ms. Fenton guilty of the infractions of "soliciting," "money/auth01ized property,'' "phone program violation," and "facility correspondence violations," and sentenced her to 365 days in SHU. In addition, Ms. Fenton was penalized with twelve months loss of recreation, packages, co1m11issary, phone privileges, and reco1mnended loss of twelve months of good time credit.
104. Ms. Fenton's second SHU sentence arose from an incident on September 11, 2012, when Ms. Fenton reported to corrections officials that a male corrections officer had sexually assaulted her as he escorted her outside her SHU cell. During the escort, the corrections officer forced his hand under her undergarments and threatened Ms. Fenton by saying "Don't eyeball me."
105. Sexual misconduct by Albion corrections staff has been well-documented in the last decade in news reports, trial judgments against corrections staff, and reports by prison monitors. In 2005, more women at Albion reported fear of sexual misconduct than at any other women's prison in the state, according to a report by the Con-ectional Association ofNew York. Furthermore, the Correctional Association documented the consistency of women's reports about retaliation for filing grievances and, for women in SHU, the consistency of reports about staff harassment.

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106. Ms. Fenton reported the sexual assault to a social worker during a scheduled phone call. Later the same day, Ms. Fenton was seen by Albion medical staff and taken to Medina Hospital for an examination. Ms. Fenton was questioned by corrections officials about her allegation. During interviews, corrections officials discouraged the complaint and stated that there would be negative consequences if her complaint could not be substantiated.
107. On September 25, 2012, Ms. Fenton was served with a misbehavior report alleging that neither videotape footage nor interviews with anonymous and unidentified colleagues of the accused corrections officer could substantiate the sexual assault allegation. At a Tier III hearing d1at concluded on October 16, 2012, Deputy Superintendent Defendant Diane Catalfu, who presided over the hearing, found Ms. Fenton guilty of "false statements" and sentenced Ms. Fenton to 180 days of SHU, with 90 days of that sentence suspended and deferred for a period of 180 days. Ms. Fenton also was penalized with six months loss of phone privileges with three months suspended and deferred for a period of six months; six months loss of package privileges; and three months loss of personal property privileges.
108. Ms. Fenton's third SHU sentence arose from a prose Section l983 case she filed in the Westem District of New York. In July 2012, Ms. Fenton filed a lawsuit alleging d1at corrections staff were retaliating against her and failing to protect her fTOm harm. She sought injunctive relief alleging that staff were tampering with the food that she was served in SHU. Shortly after filing the case, Ms. Fenton sent the court a food sample as evidence in support of her al1egations. Then in mid-September 2012, Ms. Fenton mailed the Western District a second sample of food, along with a cover letter identifying the food sample as evidence, and other papers to be filed in the litigation. In both d1e cover letter and legal papers, Ms. Fenton stated that she was a recent victim of sexual assault.
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109. Notwithstanding that it was the second time she had sent the court a food sample as evidence, and that she had clearly identified the food sample in her cover letter to the court, the second food sample caused alann for the Western District court personnel, who were worried that it was a hazardous substance. On September 27, 2012, Ms. Fenton was given a misbehavior report. Ms. Fenton's cover letter to the court and documents she filed in her litigation alleging violations of her constitutional rights were made part of the Tier III hearing record. The misbehavior report observed that no language in Ms. Fenton's letter to the comi identifying the food sample was threatening in nature and the hearing officer, Captain Collins, affinned that "I believe no threat was intended by you."
110. Captain Collins found Ms. Fenton guilty of "threats" and sentenced her to 180 days of SHU, with 90 days suspended and deferred for a period of 180 days. She also was penalized with six months loss of recreation, packages, commissary, and phone privileges, with three months suspended and deferred for a period of six months.
111. In explaining the first lengthy SHU sentence-punishment for facilitating the purchase of hair care appliances and sneakers- Captain Collins noted the "seriousness of this case," the "overwhelming'' evidence, and that Ms. Fenton, who vigorously disputed the charges, refused to take responsibiHty. Similarly, when imposing the second SHU sentence in response to Ms. Fenton's allegation of sexual assault, Deputy Superintendent Catalfu stated that SHU confinement was intended to impress upon Ms. Fenton and others that making false sexual allegations is "extremely dan1aging and dangerous and will not be tolerated." As justification for the third SHU sentence regarding the food sample sent by Ms. Fenton to the court, Captain Collins stated that Ms. Fenton's actions caused considerable alarm to court personnel, and the

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SHU sentence was necessary to deter her from acting similarly in the future, even though all agreed Ms. Fenton's actions were taken in good faith.
112. When imposing the three SHU sentences, Captain Collins and Deputy Superintendent Catalfu did not find that Ms. Fenton's conduct posed a threat to the physical safety and security of staff and other prisoners, or that it demonstrated any need to remove and isolate Ms. Fenton from the general prison population.
113. Albion Superintendent Defendant Williams Powers was aware of Ms. Fenton's disciplinary dispositions and the resulting SHU sentences. Ms. Fenton also separately wrote to Superintendent Powers asking that he review the penalties. Superintendent Powers had the authority and ability to vacate or reduce Ms. Fenton's SHU sentences. He authorized the continued confinement of Ms. Fenton in his facility's SHU.
114. On November 6, 2012, Ms. Fenton was transfened to Bedford Hills Correctional Facility. Bedford Hills Superintendent Defendant Kaplan received and reviewed information regarding Ms. Fenton's transfer to the Bedford Hills SHU and has spoken with Ms. Fenton about her SHU confinement. Superintendent Kaplan was aware that Ms. Fenton was serving a lengthy SHU sentence for misbehavior that demonstrated no risk of violence, and that she was facing additional sentences imposed for similarly non-violent misbehavior.
115. Upon information and belief, Superintendent Kaplan suspended the remaining 97 days of Ms. Fenton's first SHU sentence, and Ms. Fenton was removed fimn SHU on March 1, 2013, after approximately 270 consecutive days in extreme isolation. Superintendent Kaplan converted Ms. Fenton's second and third SHU sentences to "suspended" time. Consequently, approximately 460 days of pending SHU confinement may be enforced against Ms. Fenton at a moment's notice if she is found to commit even a minor infraction. If forced to serve this
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suspended SHU time, Ms. Fenton may be held in SHU until she is released from prison. Superintendent Kaplan and Director Prack continue to have the authority and ability to enforce or vacate Ms. Fenton's suspended SHU sentences for non-violent misconduct.
116. Ms. Fenton fully exhausted all her available administrative remedies. Ms. Fenton filed timely disciplinary appeals of all three dispositions and SHU sentences. Director Prack reviewed information related to her misbehavior and the punishments imposed. Director Prack "reviewed and affirmed, the first hearing decision on July 20, 2012 and again on January 23, 2013. Director Prack "reviewed and affinned" the second and third hearing decisions on December 10, 2012. Director Prack's actions were consistent with the policies, procedures and customs he has personally authorized in his capacity as director and that caused Ms. Fenton's unconstitutional disciplinary sentence. Ms. Fenton also filed grievances challenging her SHU confinement through the Inmate Grievance Program.
117. Ms. Fenton has a serious medical illness requiring intensive treatment and monitoring. These defendants knew or should have lmown of Ms. Fenton's illness. Pursuant to DOCCS' policy and custom, however, whether Ms. Fenton's serious medical condition would malce SHU confinement particularly harmful for her was not considered or evaluated at the time that staffimposed the sentences to SHU.
118. For approximately 270 days, Ms. Fenton was subjected to the extreme deprivations of twenty-three-hour SHU confinement. After her removal from the general population and during her confinement to SHU, her ability to maintain her family ties and to plan for her imminent release fTom prison was severely disrupted. As a result of being placed in SHU, Ms. Fenton's physical, emotional, and psychological health suffered severely, and she continues to deal with these effects and the constant stress of }mowing that the lengthy SHU time hanging
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over her head could be summarily enforced against her for any sustained accusation of breaking

a prison rule. 119. Ms. Fenton's life in general population was vastly different than the extreme
isolation and deprivations she experienced in SHU. In the general population, Ms. Fenton maintained strong ties with the three most important people in her life: her domestic partner and her two sons. Above all, the most important privileges available to Ms. Fenton in the general population were the ability to telephone her children each day and have regular visits with her

family. 120. While in the general population, Ms. Fenton would begin each day by watching

the morning news and calling home at seven o'clock in the morning to speak with her sons before they left for school. In the afternoon or early evening, Ms. Fenton called home again to check on her sons. This routine enabled Ms. Fenton to continue to parent and communicate with her children. Ms. Fenton also spoke frequently throughout the day to her domestic partner by phone, and together they talked about Ms. Fenton's upcoming release from prison. Ms. Fenton

also received frequent visits from her domestic partner and her sons.

121. In the general population, Ms. Fenton prepared for her release from prison by

participating in both required and elective rehabilitative programming, including women's health

programming, AIDS awareness progrmmning, and money addiction progrmm11ing. Ms. Fenton

i.

also focused on resuming her professional songwriting career m1d wrote many songs while in

general population. Ms. Fenton interacted with fellow prisoners every day. Each morning, Ms.

Fenton sat down in the same spot and smg, and women in her unit would listen m1d talk to her.

122. These meaningful rehabilitative m1d life-affinning activities came to an abrupt

end when Ms. Fenton was placed in SHU. Ms. Fenton has been confined, first in Albion and then

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in Bedford Hills, in a small cell for 23 hours a day, 7 days a week without mental stimulation or social interaction. At Bedford Hills, Ms. Fenton spent her day in a grimy cell that contained only a desk, toilet, and sink and that was frequently infested with insects. The door to her cell had a slot for a food tray and a plexiglass window. When Ms. Fenton looked through the window, all she could see was a concrete wall. Her ce11lacked sufficient ventilation, and the stench of toilet backups on the SHU block permeated her cell on a weekly basis.
123. While in the SHU, Ms. Fenton was permitted used state-issued property and was given used linen stained with what appeared to be blood. In addition to being handcuffed to and from showers and recreation, Ms. Fenton was also handcuffed while seeing medical staff, even while her blood pressure was taken.
124. Once in SHU, Ms. Fenton was denied any meaningful confidentiality for her medical and mental health care. For example, staff outside Ms. Fenton's cell asked in a loud voice-that other prisoners and staff could hear- if Ms. Fenton wished to take psychotropic drugs that had been prescribed to her. In addition, corrections officers were present during Ms. Fenton's highly personal and very intimate medical exams, and were also present when a rape kit was performed following the sexual assault that Ms. Fenton reported in September 2012.
125. Ms. Fenton was deprived of all meaningful social interaction while in SHU. She was permitted only one non-legal visit per week. Ms. Fenton's family was occasionally arbitrarily turned away from visits.
126. Showers or recreation provided the rare opportunity for Ms. Fenton to exit her cell and interact with other human beings, but conections practices and customs restricted Ms. Fenton's ability to meaningfully exercise these few opportunities. For example, Ms. Fenton's required one hour of recreation tended to be far shorter because the "hour" ran from the moment
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corrections officers began the slow process of gathering prisoners to escort them from SHU to their recreation cages.
127. In addition, from mid-September to early November 2012, DOCCS assigned a "supervisor escort" to Ms. Fenton and, because the escort was rarely available, Ms. Fenton seldom was permitted to take recreation at all. Futihennore, Ms. Fenton was deprived of recreation when corrections officers would announce "go around" (when prisoners must verbally confirm their desire to take recreation) so quietly in the early morning that none of the women received notice that they were to announce their requests. If Ms. Fenton or the other women called out to aleti each other that "go around" was happening, they were immediately threatened with discipline for talking.
128. Ms. Fenton was informally deprived of food and her weight fell significantly after her placement in SHU. For example, a corrections officer refused to give Ms. Fenton her meal after announcing falsely that Ms. Fenton was not at her door to receive her food tray. On another occasion, a corrections officer rumounced to Ms. Fenton and another prisoner, "One ofyou is not going to eat," because there was one meal tray remaining and two prisoners left to be served. At Bedford Hills, Ms. Fenton, who is allergic to wheat gluten, was denied her gluten-fi·ee meals. Pained by hunger, Ms. Fenton eventually ate a bit of bread and rashes broke out over her body, including her mouth and her tongue.
129. Ms. Fenton was warned to keep her fingernails short or else face disciplinary sanctions. Because nurses fail to bring nail clippers to the women in SHU, however, Ms. Fenton had to resoti to filing her nails on the cell walls.
130. Ms. Fenton pleaded with mental health staff for a puzzle book or some other activity to provide stimulation and maintain her mental health. To cope with the forced idleness
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and monotony of SHU, Ms. Fenton invented a game for herself that involved poking small holes in a paper folder. Corrections staff told her the paper game was "contraband."
131. While in SHU, Ms. Fenton was exposed to other women's psychological deterioration, exacerbating her own. For example, a prisoner in a neighboring SHU cell with serious mental illness spent hour after hour compulsively and inexplicably screaming Ms. Fenton's name. Ms. Fenton complained to conections staff about her distress in listening to this prisoner's calls. Corrections staff made jokes about the prisoner and occasionally turned on loud fans that simply masked the anguished cries.
132. Ms. Fenton's physical health deteriorated after being placed in SHU. Deprived of regular meaningful physical activity, Ms. Fenton developed pain and stiffness in her back and experienced overwhelming lethargy. She lost weight. The physical enviromnent of her cell-the combination of tint of the windows, the metal bru·s, and the fluorescent light which is on 24 hours a day- affected Ms. Fenton's eyesight. Ms. Fenton had severe dizziness after being confined in SHU. In January 2013, Ms. Fenton experienced an episode in which her vision went blurry and she was overcome by an inability to speak. Ms. Fenton was deeply distressed by this episode and feared that she had suffered a stroke.
133. Forced to focus on nothing but the same four walls day after day and with no meaningful mental stimulation, Ms. Fenton's psychological health deteriorated significantly after being placed in SHU. Ms. Fenton experienced loss of motivation, anxiety, nervousness, panic attacks, irrational anger, rage, loss of impulse control, paranoia, severe and chronic depression, concentration deficits, difficulties with memory, social withdrawal, and confusion.
134. SHU has altered Ms. Fenton's way of thinking and has made her prone to fixation. Ms. Fenton fears these changes are pem1anent. Her family has recognized changes in
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Ms. Fenton: she speaks differently, is less focused when she speaks, does not complete one thought before jumping to the next and snaps impatiently. After hours of forced idleness, Ms. Fenton would be overcome by sudden impulses to scream. Ms. Fenton talked to herself just to hear a human voice.
135. For Ms. Fenton, SHU was hell. She struggled to maintain her sanity in extreme conditions of deprivation. Prior to her incarceration, Ms. Fenton had no mental health history. Once placed in SHU, doctors diagnosed her with depression and prescribed psychotropic drugs. SHU caused Ms. Fenton to contemplate suicide, which she never contemplated prior to being in SHU. She lives in fear that her suspended sentences will be enforced, and that she will receive yet another unjustified and harmful SHU sentence.
Plaintiff Dewavne Richardson 136. Dewayne Richardson is a 40-year-old African-American father of two. He suffered from mental illness prior to being sent to prison for a seven-year sentence in 2010. He is fi·om the Bronx originaHy and plans to return to that area to live with his mother after his release from prison. 137. Mr. Richardson is currently serving a term of confinement in SHU, and has previously served several other SHU sentences, including a sentence of 1,095 days, served over 2010 and 2011, for non-violent misbehavior. 138. On February 19, 2010, Mr. Richardson was incarcerated at Downstate Correctional Facility when cmrections staff discovered and seized UCC documents from his cell that were considered contraband under DOCCS regulations. Mr. Richardson removed from general population and confined in SHU at Downstate.

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139. Upon information and belief, Downstate Superintendent Defendant Ada Perez was informed that Mr. Richardson's misconduct was given the most serious Tier III rating by the "review officer," resulting in a "Superintendent's Hearing," subjecting Mr. Richardson to the possibility of SHU confrnement. Upon information and belief, Superintendent Perez was infonned that Mr. Richardson had been transferred to prewhearing confinement 1n the facility's SHU unit. She was aware of the accusations of misconduct and that they posed no threat to the safety of staff or other prisoners. Superintendent Perez authorized Mr. Richardson's placement and continued confinement in the facility's SHU.
140. After pre-hearing confinement in Downstate SHU, a Tier III Superintendent' s Hearing concluded on March 5, 2010. Defendant Captain James Cavaleri, acting as a hearing officer, found Mr. Richardson guilty of unauthorized possession of UCC documents and unauthorized filing of a document creating a lien. Captain Cavaleri sentenced Mr. Richardson to 1,095 days confinement in the SHU, as well as the loss of recreation, commissary, phone, and package privileges for the same amount of time. Captain Cavaleri also recommended that Mr. Richardson lose six months of accrued good time credit. No state court in New York would have had authority to impose this sentence of SHU confinement as a criminal punishment for Mr. Richardson's alleged conduct. Neither Mr. Richardson nor anyone else had any prior notice of the range of SHU confinement he would face for this misbehavior.
141. In explaining the SHU sentence, Captain Cavaleri wrote: "Inmate Richardson's blatant disregard for the Department's rules and regulations, as well as for state and federal law can not and will not be tolerated. This disposition is intended to not only discourage imnate Richardson from repeating his conduct, but to also discourage others from acting likewise." No accusations of violent behavior were leveled at Mr. Richardson at any time, nor was there any
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finding that Mr. Richardson needed to be removed and isolated from the general pnson population for the safety of himself or others. The existence and severity of Mr. Richardson's mental illness, and whether it made him particularly vulnerable to the well-known harms of SHU confinement and the punishment particularly severe, was not adequately evaluated.
142. Upon information and belief, after the SHU sentence was imposed Superintendent Perez again considered Mr. Richardson's misbehavior, this time reviewing Mr. Richardson's disciplinary disposition and the 1,095-day SHU sentence. Superintendent Perez had the authority and ability to reduce or vacate Mr. Richardson's SHU confinement penalty. Superintendent Perez did not do so, and instead authorized the continued confinement of Mr.
Richardson in her facility's SHU. 143. Mr. Richardson exhausted all available administrative remedies regarding his
1,095-day SHU sentence. He appealed his disciplinary disposition and the SHU sentence to thenDirector Bezio. Director Bezio reviewed information related to Mr. Richardson's behavior, the rationales for the SHU sentence, and the length of the punishment imposed. On April12, 2010, in an order signed by Director Bezio, DOCCS adjudicated the appeal and detennined that Mr. Richardson should serve 540 days in SHU. Director Bezio's acts were consistent with the policies, procedures and customs he had personally authorized in his capacity as director and that caused Mr. Richardson's unconstitutional disciplinary sentence. Upon information and belief, Director Prack, as acting SHU director and then as SHU director, also reviewed and affirmed Mr. Richardson's SHU sentence. Mr. Richardson also submitted grievances challenging the constitutionality of his SHU confinement. Mr. Richardson filed a Section 1983 lawsuit, prose, while he was in the midst of serving his SHU sentence.

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144. On March 19, 2010, Mr. Richardson was transfeiTed to Southport CoiTectional Facility, a dedicated SHU prison. Defendant Patrick CiJ:iffin, the Superintendent of Southport, received and reviewed information regarding Mr. Richardson's transfer to Southport, the underlying misbehavior, and the SHU sentence imposed. Superintendent Griffin had the authority under New York law to reduce Mr. Richardson's SHU sentence. Upon infonnation and belief, Superintendent Griffin did not do so, and instead authorized the continuation of Mr. Richardson's extraordinarily long SHU sentence in his facility.
145. Mr. Richardson ultimately served approximately 425 days in extreme isolation as a result of the March 2010 SHU sentence. No adequate evaluation was conducted by then Director Bezio or Supedntendent Griffin to determine whether Mr. Richardson's continued lengthy confinement in SHU was causing severe and ineparable harm as the days in extreme isolation turned into weeks, months, and years.
146. Mr. Richardson's life in the SHU was drastically and severely different from his life in the general population. While in the general population, Mr. Richardson was afforded a range of activities and fieedoms that he took advantage of to prepare for life after his release. Mr. Richardson was eligible to gain valuable experience and skills preparing him for his eventual release through vocational and rehabilitation programs. While in the general population, he enrolled for a vocational program in custodial maintenance and a mandatory anger management program related to his criminal offense.
147. While in the general population, Mr. Richardson also had access to social interaction and mental stimulation that helped maintain his psychological and emotional health and stability, particularly important in light of his mental illness. Mr. Richardson maintained family ties through regular phone calls. He exercised daily in the outdoor recreation yard and the
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gym. He prepared food for himself nearly every day. He ate meals and socialized with other prisoners in the cafeteria, moved around the prison facility, and visited the law library, where he could use computers and obtain assistance from other prisoners. He watched the news virtually every day. He was able to have personal possessions, including a cassette player, music cassettes, and food from the commissary.
148. Mr. Richardson's access to all of these rehabilitative programs and other freedoms ceased when he was removed from the general prison population on February 9, 2010, and confined to the SHU. Once in SHU, Mr. Richardson became subject to the policies and practices that create the extreme deprivations of SHU confinement. He was deprived of all meaningful human contact and mental stimulation. Several months into his SHU confinement, Mr. Richardson considered suicide for the first time in his life.
149. Facing extreme isolation, the constant threat of additional deprivations, and with no productive social stimulation or interaction, Mr. Richardson experienced many of wellstudied and well-known risks of isolated confinement during the approximatdy 425 con::;ecutive days that he spent in the SHU. He alternately felt bored, nervous, lonely, apathetic, lethargic, and depressed. He started talking to himself, pacing his cell, and subconsciously rubbing his arms and legs. He spent much of his time reading magazines or legal documents, but often felt stagnated and unable to concentrate and just stared at the walls in his cell.
150. Mr. Richardson lost weight and suffered :fi.·om frequent gastro-intestinal problems and loss of appetite. He has suffered fi·om insomnia, in part because his SHU cells have a light on 24 hours a day that makes it difficult to sleep. He has experienced painful headaches that only subside once he falls asleep. He frequently sweats due to nervousness as well as the

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uncomfortable temperatures in his SHU cells. He has suffered from pain in his lower back caused by lying in bed for long periods oftime.
151. While in SHU, Mr. Richardson often felt i1mnense and overwhelming anger. He was verbally and physically mistreated by corrections staffon numerous occasions, and he wrote many grievances complaining about that mistreatment. Corrections officers threatened to assault him while he was handcuffed.
152. The conditions Mr. Richardson faced while confined in SHU at Southport were particularly harsh. A 2003 report by the Correctional Association about disciplinary confinement in New York prisons described the shocking and dangerous conditions at Southport. The report noted numerous instances of inmates throwing feces and urine. The report said that "the level of chaos was striking" when visiting Southport, that "[a]t times the noise level was so extreme that we had to tenninate interviews," and that staff at Southport described the conditions as "out of control." The report quoted a civilian employee at Southport who said that corrections officers "screw with the inmates" by harassing them and denying them recreation, showers, and meals because "[t]he bad officers lrnow they can get away with anything because it's sanctioned at the top." Upon infom1ation and belief, Defendant Griffin lmew of the report's findings about the conditions of confinement at Southport.
153. The conditions described above still hold true today and reflect Mr. Richardson's experience while confined alone in his SHU cell at Southport, a barren space about the size of an average elevator. His cell contained only a toilet, a sink, a locker, a desk, a small chair, and a bedframe with a mattress. Mr. Richardson was confined in the SHU cell 23 hours a day, 7 days a week.

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154. He was allowed only one hour of exercise daily alone in a small empty pen outdoors, surrounded by a high metal fencing. Corrections officers discouraged Mr. Richardson from going to the pennitted hour of recreation, and inmates were not pennitted to wear boots outside, even when snow covered the ground. As a result, Mr. Richardson almost never went to recreation. The 2003 Correctional Association report found that in a survey of 88 prisoners with mental health issues at Southport, 39% reported that they "never or rarely, attended recreation. The most common reason they cited was fear of harassment by correction officers, around whom prisoners feel particularly vulnerable while wearing restraints.
155. During his time in SHU, Mr. Richardson was not petmitted to take part in activities, programs, or classes. He was permitted to shower only about three times per week, when he was handcuffed and led to the shower area. Cold or lukewann meals were delivered through a slot in the door. He was only pennitted one six-minute phone call with family members per month, and on several occasions corrections staff arbitrarily denied him that phone call as punishment for Mr. Richardson not taking recreation. His access to legal materials was largely limited to books or cases that he could request by name, which he often did not know. His hmnan contact was often limited to seeing inmates deliver meals to him through the cell door three times per day and seeing corrections officers walk by to com1t the inmates twice a day. He was only able to see a mental health counselor approximately once a month. In January 2011, Mr. Richardson told a nurse at Southport that he was allergic to a tuberculosis test. He was told that he had to submit to the test or face additional SHU time for lying if the allergy was not already indicated on his medical record. Mr. Richardson submitted to the test, and it resulted in bumps on his arms and legs that continue to tlus day.

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156. Mr. Richardson's time in extreme isolation has left him with lasting physical, psychological and emotional effects. As a result of his past and current confinement in SHU, Mr. Richardson suffers from a profound anger that he had not previously felt. Mr. Richardson's long time in SHU has changed him permanently, and recently he has avoided calling his family members, even while in the general prison population. He is short-tempered and less able to control himself. Mr. Richardson is less able to respond appropriately to corrections officers, and the additional SHU time he has received since, as detailed below, is partially a result of the ongoing effects of his approximately 425 consecutive days spent in solitary confinement.
157. In September 2012, while incarcerated at Greene Correctional Facility, Mr. Richardson was sentenced to 90 days in SHU for allegedly threatening to spit at corrections staff and possessing unauthorized UCC materials.
158. In January 2013, while confined at Mid-State, Mr. Richardson told corrections staff that he did not want to work in the mess hall, in part because of discomfort he now feels in social environments after enduring his 425-day solitary SHU sentence. He was sentenced to 30 days in SHU for the infractions of creating a disturbance and failing to comply with a direct order.
159. In early February 2013, while incarcerated at Mid-State, Mr. Richardson was sentenced to 30 days in SHU, after allegedly arguing with corrections officers about whether he was carrying tobacco in a location where it was prohibited. For the bulk of this SHU sentence, from approximately February 2 to February 22, Mr. Richardson was denied recreation.
160. On February 22, 2013, while at Mid-State, Mr. Richardson was sentenced to 60 days in SHU for alleged possession of synthetic marijuana. At Mid-State SHU, Mr. Richardson has no right to make any phone calls and has been double-celled with several inmates with
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mental illness and histories of violence. The frequent arguments he has experienced underscore the constant threat of violence that exists between double-celled prisoners. Mr. Richardson is currently confined in SHU at Mid-State as a result of the February 22, 2013, sentence, and is scheduled to remain in SHU until approximately April23, 2013.
161. With regard to the SHU conditions experienced by Mr. Richardson, Ms. Fenton, and Mr. Peoples as described in this complaint, Commissioner Fischer, Director Bezio, Director Prack, and all facility superintendents named as defendants in this action were personally responsible for authorizing and maintaining the policies and customs that resulted in the SHU conditions described above. Commissioner Fischer was personally involved in authorizing and continuing the policies and customs that govern the general conditions and deprivations in all SHUs. As SHU directors, Mr. Bezio and Director Prack were and are personally aware of and responsible for inspecting, reviewing and authorizing the SHU conditions maintained by the superintendents at their various facilities. In particular, Directors Bezio and Prack and Superintendent Rock, were and are aware that the policies and customs regarding double-ceiling placed prisoners' physical safety at risk. The superintendents were personally responsible for the management of the day-to-day conditions of SHU confinement at their respective facilities, and authorized and continued policies and customs that resulted in the SHU conditions experienced by Mr. Richardson, Ms. Fenton and Mr. Peoples as described above.
162. A reasonable official would know the SHU sentences imposed on the Plaintiffs were not supported by any legitimate interest, including those identified in the misbehavior reports, and that the grossly disproportionate length of these SHU sentences would simply inflict unnecessary pain on Mr. Peoples, Ms. Fenton and Mr. Richardson, and place them at an unjustified risk of harm, in violation of their clearly established constitutional rights. Despite
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this, however, the sentences were imposed by the hearing officers, and authorized and enforced by the SHU directors and the facility superintendents named as defendants in this action. The system-wide policies and customs detailed in this complaint permitted and caused these defendants' unconstitutional acts and omissions.
Risk of Ongoing Harm to Named Plaintiffs and the Class 163. The plaintiffs and class members are incarcerated twenty-four hours a day in prison facilities govemed by uniform disciplinary polices and customs and come into constant contact with corrections officers charged with enforcing a list of over 100 rules and prohibitions, including vague rules enforceable and interpretable at the discretion of coiTections officers. Plaintiffs and class members may be charged, convicted and sentenced to SHU for an infraction for any reason, or for no legitimate reason at all. Approximately 8% of the prison population is confined in SHU at any given time. From 2007-2011, over 70,000 SHU sentences were imposed, compared to a prison population that has averaged about 57,000 individuals over the same time period. 164. DOCCS' policies and customs put Plaintiffs and class members at risk of a SHU sentence for a simple misunderstanding between a prisoner and a corrections officer. These policies put prisoners at risk of a lengthy SHU sentence for a good-faith mistake in complying with one of DOCCS' many regulations. Prisoners can, and are, sent to SHU for a momentary hesitation in immediately obeying a correction officer's order- a significant risk for prisoners with mental health diagnoses, like Mr. Richardson, whose illness makes it more difficult for him to comply with corrections officers' demands. Given DOCCS' policies and customs permitting a disciplinary conviction and SHU sentence based on the contested testimony of a single corrections officer, prisoners are at risk of SHU confinement for doing nothing culpable at all.
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Once a prisoner is accused of committing a Tier III infraction, it is almost a certainty that the prisoner will be convicted, and far more likely than not that SHU will be imposed as punishment.
165. Prisoners who spend any time in SHU-as an astounding percentage have--are at patiicular risk of additional SHU sanctions. DOCCS' policies and customs encourage SHU sanctions when the prisoner's disciplinary hearing includes prior misbehavior reports and SHU sentences.
166. In addition, for many prisoners SHU confinement will cause psychological and neurological harms resulting, among other things, loss of impulse control, depersonalization, and rage. These effects may lead to acts that DOCCS' staff will respond to with additional SHU sanctions. For others, severe depression and lethargy may result in punishment for failing to promptly obey orders.
167. The substantial and real risk of future SHU confinement for all individuals as a result of DOCCS' policies and customs is illustrated by the statements of con-ections staff threatening Plaintiffs with additional SHU time. For example, con-ections staff threatened Mr. Peoples with additional SHU time after Mr. Peoples' stated his intention to complain about restrictions on his religious practices. Similarly, at every facility he has been housed in, corrections officers have threatened Mr. Richardson with SHU time if he does not do exactly as they say. Furthermore, both Ms. Fenton and Mr. Richardson face additional time in "suspended" SHU sentences that they may be forced to serve at an officer's discretion for any future misbehavior, no matter how minor.
168. The policies and customs detailed in tllis complaint are uniformly applicable to the Plaintiffs and the class, cause ongoing and systemic violations of constitutional rights, and put all current and future prisoners at a risk offuture unjustified SHU confinement.
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CLASS ACTION ALLEGATIONS 169. Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), the plaintiffs will seek to certify a class of all current and future prisoners seeking declaratory and injunctive relief. All class members face a substantial risk of receiving unconstitutionally arbitrary, disproportionate, harmful and unjustified SHU sentences as a result of DOCCS' policies and customs. 170. All four requirements of Rule 23(a) are satisfied:
a. Numerosity: Joinder of all class members is impracticable because of the size of the class. There are approximately 56,000 individuals currently held in DOCCS' facilities-with approximately 4,300 confined in SHU at any given time-and all face a substantial risk of an tmconstitutional SHU sentence as a result of the defendants' system-wide policies and customs.
b. Commonality: There are questions of law and fact common to all members of the class, including, but not limited to, whether the defendants' policies and procedures have resulted in and continue to result in unconstitutional SHU sentences in violation of the class members' Eighth and Fourteenth Amendment rights.
c. Typicality: The claims of the class representatives are typical of those of the class. All plaintiffs are currently held in DOCCS facilities. All face substantial risk of receiving unconstitutional SHU sentences as a result of the challenged policies and procedures.
d. Adequacy of Representation: The class representatives and class counsel will fairly and adequately represent the interests of the class. The named plaintiffs are
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committed to obtaining declaratory and injunctive relief that will benefit the entire class by abating the risk of constitutional harm caused by defendants' current policies and customs, and their interests in this matter are not antagonistic to other class members. Class counsel has many years of experience in civil rights and class action1itigation. 171. Class-wide declaratory and injunctive relief is appropriate under Rule 23(b)(2) because the defendants have acted and refused to act on grounds generally applicable to the class as a whole.
JURISDICTION AND VENUE 172. This action is brought pursuant to Title 42 U.S.C. § 1983. Subject matter jurisdiction is conferred by Title 28 U.S.C. §§ 1331 and 1343(a)(3). 173. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has jurisdiction to declare the rights of the parties and to grant all further relief deemed necessary and proper. Rule 65 of the Federal Rules of Civil Procedure authorizes injunctive relief. This Court has ~uthority to award costs and attorneys' fees under 42 U.S.C. 1988. 174. Venue is proper in the United States District Court for the Southem District of New York pursuant to 28 U.S.C. §§ 1391(b)(l) and 1391(b)(2) because defendants named in this action have their official residence in this district, and because substantial events and omissions giving rise to the claims in this action occurred in this district.

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CLAIMS FOR RELIEF First Cause of Action: Declaratory and Injunctive Relief for the Named Plaintiffs and the Class Against Defendants Fischer and Prack for Violation of the Eighth Amendment 175. As a result of the unconstitutional policies and customs authorized and maintained by defendants Commissioner Fischer and Director Prack, the named plaintiffs and members of the putative class have suffered and continue to suffer SHU sentences that violate the Eighth Amendment's protection against cruel and unusual punishment. The named plaintiffs and members of the putative class seek declaratory and injunctive relief remedying these ongoing
and systemic constitutional violations. Second Cause of Action:
Declaratory and Injunctive Relief for Named Plaintiffs and the Class Against Defendants Fischer and Prack for
Violation of the Fourteenth Amendment Due Process Clause 176. As a result ofthe unconstitutional policies and customs authorized and maintained by defendants Commissioner Fischer and Director Prack, the named plaintiffs and members of the class have suffered and continue to suffer SHU sentences that violate the Due Process Clause of the Fourteenth Amendment. The named plaintiffs and members of the putative class seek declaratory and injunctive relief remedying these ongoing and systemic constitutional violations.

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Third Cause of Action: Monetary Relief for Individual Plaintiffs Against Defendant Superintendents, Hearing Officers and SHU Director for
Violations ofthe Eighth Amendment 177. The defendant hearing officers, superintendents and SHU directors violated the named plaintiffs' clearly established constitutional rights when they personally imposed, authorized and enforced SHU sentences that violated the Eighth Amendment. 178. The named plaintiffs seek monetary relief for the violation of their Eighth Amendment rights against the following defendant hearing officers and superintendents: Mr. Peoples against defendants Director Bezio, Superintendent Lee, Superintendent Rock, and C.H.O. Drowns for the 780 days he spent in SHU beginning in October 2009; Ms. Fenton against Director Prack, Superintendent Kaplan, Superintendent Powers, Deputy Superintendent Catalfu and Captain Collins for the 270 days she spent in SHU from 2012 to 2013; and Mr. Richardson against defendants Director Bezio, Superintendent Perez, Superintendent Griffin, and Captain Cavaleri for the 425 days he spent in SHU fi:om 2010 to 2011. 179. Tlu·ough their Third Cause of Action, Mr. Peoples, Ms. Fenton, and Mr. Richardson seek monetary relief solely in their capacity as individual plaintiffs, and not as named plaintiffs on behalfof a class.
Fourth Cause of Action: Monetary Relief for Individual Plaintiffs Against Defendant Superintendents, Hearing Officers and SHU Directors for Violations of the Fomieenth Amendment Due Process Clause 180. The defendant hearing officers, superintendents and SHU directors violated Plaintiffs' clearly established constitutional rights when they personally imposed, authorized and enforced SHU sentences that violated the Due Process Clause ofthe Fourteenth Amendment.
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181. Plaintiffs seek monetary relief for the violation of their Due Process rights against the following defendant hearing officers and superintendents: Mr. Peoples against defendants Directm Bezio, Superintendent Lee, Superintendent Rock, and C.H.O. Drowns for the 780 days he spent in SHU beginning in October 2009; Ms. Fenton against Director Prack, Superintendent Kaplan, Superintendent Powers, Deputy Superintendent Catalfu and Captain Collins for the 270 days she spent in SHU from 2012 to 2013; and Mr. Richardson against defendants Director Bezio, Director Prack, Superintendent Perez, Superintendent Griffin, and Captain Cavaleri for the 425 days he spent in SHU from 2010 to 2011.
182. Through their Fourth Cause of Action, Mr. Peoples, Ms. Fenton, and Mr. Richardson seek monetary relief solely in their capacity as individual plaintiffs, and not as named plaintiffs on behalf of a class.

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REQUESTS FOR RELIEF
WHEREFORE the plaintiffs respectfully request that the Court:
a. Declare that Defendants' acts and omissions violated the plaintiffs and class members' rights under the Eighth and Fourteenth Amendments to the United States Constitution and that these acts and omissions continue to cause ongoing violations of these rights;
b. Enter pennanent injunctive relief, in the form of policies, procedures, training, supervision and monitoring, requiring defendants Fischer and Prack to end the ongoing constitutional violations;
c. Enter permanent injunctive relief prohibiting the suspended SHU sentences from being enforced against Ms. Fenton;
d. Award compensatory and punitive damages for all injuries sustained by the individual named plaintiffs, including the loss of liberty, economic loss, loss of familial contact, and the loss of all other privileges except for good time credits, as a result of the violations of their constitutional rights;
e. Award the plaintiffs reasonable attorneys' fees and costs under 42 U.S.C. 1988; and;
f. Grant any other relief the Court deems necessary and proper.

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Dated: March. D' .fc, 2013
New York, New York

~tldb-grasS(P-3608)
Christopher Dunn (CD~3991) Daniel Mullkoff (DM~5557) Gabriel Hopkins* William Swearingen* Kyle Valenti* NEW YORK CIVIL LffiERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, NY 10004 Tel: (212) 607-3344 Fax: (212) 607-3318 tpendergrass@nyclu.org
David J. Fioccola (DF-1622) JelUlifer K. Brown (JB-4222) Kayvan B. Sadeghi (KS-7463) Daniel Matza-Brown (DM~1106) Adam J. Hunt (AH-0627) MORRISON & FOERSTER LLP 1290 Avenue of the Americas New York, NY 10104 Tel: (212) 468-8000 Fax: (212) 468-7900 dfioccola@mofo.com
Alexander A. Reinert (AR-1740) 55 Fifth Avenue, Room 938 New York, New York 10003 Tel: (212) 790-040 Fax: (212) 790-0805 areinert@yu. edu
Counselfor Plaintiffs
*New York University Civil Rights Clinic
students admitted under the student practice act.

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"l,iU\11.) ~·~Jl~,,D'\ ?,.b

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1

 
 Case 1:11-cv-02694-SAS Document 117 Filed 05/01/13 Page 1 of 3

UNlTBD STATBS DISmCf COURT SOUTHBRNDISTlUCl" OFNBW YORK
------------------------~x
LBROY PBOPLES. at Bl••

PlaintiffS,
-venus-
BRIAN FISCHER. cst aL,
---------------D-e-fe-nd-a-nts-. ----x.•

11 Civ. 2694 (BAS)
STIPOLA.TION ANJ)OBDER

WHBRBAS. the Plafntiffa aud DefimdBDw have agreed to a 9O-day adJOUl1lIIlflDt to

conduct sett1ameot negotiatiODl put'8'WUlt to the attached AprIl 29, 2013, latter agrecmcmt

batwem the parties;
NOW. 'I'.HRRBFORB, rr IS HBRBBY STlPULATBD AND ORDERED:

Defendanta· Motion to Dismiss Plaintiffs' Corrected. Third Amaoded Complaint on the Basis of

QuaUfied Immunity (BCF. No. 101) :is haniby withdrawn without pejudice, and the Pro-Trlal

Scheduling Order (BCF No. 104) is hereby auspaaded.

12zr:= 
 FORP.LAJNTD'.FS:
TaJol-o~rlP.~
ChrJstophcr Dunn Daniel Mullkoff *Gabrlel HopldDa
*WDJiam Swearingen *Ky1e VBlenti .NBWYORK CIVIL LIBERTIES FOUNDATION
125 Broad Street, 19th Floor
New York, NY 10004
(212) 607-3344

BRIC T. SCHBlNDBRMAN Attornay GtmcraJ:fortbe State ofNew York
JebHarbtm. Aaaistant Attorney Gmcral 120 Broadway- 24th Floor New YoJk, New York 10271
(212)-416-6185

1012 


Case 1:11-cv-02694-SAS Document 117 Filed 05/01/13 Page 2 of 3
Dav.lil1. Jlioaco1a JcmrdferIt. Bmwn
KamaB. Sadeghi
DaDiel Ma1zar.Brown AdamI. HlJDt MOR1USON &POBRSTBRLLP 1290Avemut of1baAmadcu NawYork,NY 10104 (212) 46S..s000 Almflmdlll' A. B.ainart
AssociatDPmfaasor ofLaw BBN1AM1NN. CARDOZO SCHOOLPPLAW '5 PiBhAVIIIltIO, ltoom. 938 NawYork, Naw ymt 10003 (112) 19c)"040 *New Yodc Uniwrslty Cbi! lUgbts CliDic studerdl admittedlJIldarthe Student Pradice Act. SOOBDE, RED:
2012

Case 1:11-cv-02694-SAS Document 117 Filed 05/01/13 Page 3 of 3

Sincerely. '
c::31t,~
Taylor PendergraSS
on behalfoJ Plalntlfft

...klk·· 

Jab Harbftn
On behalf0/De[endanfJ

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORI(
.---------"-----------------------------------------------x
LEROY PEOPLES, et al.,
Plaintiffs,

STIPULATION FOR A STAY WITH CONDITIONS
Docket Number ll-CV-2694 (SAS)

BRIAN FISCHER, et al.,
Defendants.
The parties, by their attorneys, hereby stipulate as follows:
WHEREAS, Plaintiffs Leroy Peoples, Dwayne Richardson and Tonja Fenton, inmates in custody of the New York State Department of Corrections and Community Supetvision ("DOCCS"), filed a Third Amended Class Action Complaint (herein, as amended and corrected, referred to as the "Complaint") alleging that the use and length of confinement sanctions and conditions. in DOCCS Special Housing Units ("SI-IU") create an unconstitutional risk of harm, and seeking declaratory and injunctive relief on behalf of a: putative class of similarly situated individuals and damages on behalf of the named plaintiffs;
WHEREAS, following the filing by Defendants of a motion to dismiss Plaintiffs' damages claims and before the filing of an answer to the Complaint or a class certification motion, a Stipulation and Order was entered on May 1,2013, pursuant to which the Defendants' motion to dismiss was withdrawn without prejudice and all scheduling of briefing and discovery in the lawsuit was suspended for ninety (90) days to permit the parties to conduct settlement negotiations;
WHEREAS, pursuant to endorsed Orders entered on July 29, 2013, October 1,2013, and December 19,2013, the Court has extended the litigation stay to and including January 30; 2014, to allow the parties to continue their settlement discussions;
WHEREAS, the parties have each designated an expert in prison operations and segregated housing to assess current prison disciplinary practices in New York State and make recommendations to assist the parties in achieving a resolution of the claims for injunctive relief raised in the Complaint;
WHEREAS, DOCeS recognizes a sound progressive disciplinary system protects the health, safety, and security of all persons within DOCCS correctional facilities;

WHEREAS, DOCCS recognizes that disciplinary sanctions must never be arbitrary or capricious or overly severe and. that a sound disciplínary system relies on certainty and promptness of action rather than upon severity;
WHEREAS, inmates designated as seriously mentally ill with SHU confinement
sanctions in excess of thirty (30) days have since 2007 been diverted from SHU to alternative programs absent exceptional circumstances; and
WHEREAS, the parties in good faith have negotiated the terms of this Stipulation providing for a further stay of the litigation to establish a process for expert evaluation and consultation and to permit the implementation and evaluation of initial changes with regard to DOCCS' disciplinary system and SHU conditions with the goals of (i) removing certain vulnerable populations from SHU confinement to alternative programs, (ii) increasing systemwide oversight to promote consistent prison disciplinary practices and confinement sanctions that are appropriate and necessary to protect the safety of both staff and inmates, (iii) implementing guidelines for all confinement sanctions to promote transparency and consistency of disciplinary confinement sanctions, (iv) improving SHU conditions as provided in this Stipulation, and (v) reaching a final comprehensive settlement agreement;
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED:
SECTION 1. STAY OF LITIGATION.
A. This action shall be stayed for a period (the "Stay Period") of twenty-four (24) months from the Effective Date under Section 8 of this Stipulation or until the Stipulation is vacated and/or the Stay lifted pursuant to Section 5' and, subject to the Court's approval, shall be placed on the Court's Suspense Calendar. During the Stay Period none of the parties may seek judicial relief in this action, except to vacate the Stipulation and/or lift the Stay and proceed with the litigation in accordance with the terms, conditions and procedures set forth in Section 5 of this Stipulation.
B. The actions set forth in Sections 2 and 4 of this Stipulation are being voluntarily undertaken by the Defendants and DOCCS to implement policy goals shared by the parties. The parties agree that none of the terms of this Stipulation contained in Sections 2 and 4 below shall constitute "So Ordered" prospective relief enforceable in any court, nor do such terms constitute contractual obligations of the Defendants or DOCeS enforceable as binding provisions of a stipulation or settlement agreement. During the Stay Period the sole remedy föl' Plaintiffs isa motion to vacate the Stipulation and/or lift the Stay in accordance with the terms, conditions and procedures set forth in Section 5 of this Stipulation.
C. The actions set forth in Section 2 below shall be implemented in accordance with the time periods specified and goals set in Section 2 and in any event as S0011 as practicable after the "Effective Date" of this Stipulation as defined in Section 8.
2

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SECTION 2. ACTIONS TO BE TAKEN.
A. Alternatives to SHU Sanctions for Juveniles.
1. Contingent on DOCCS' ability to secure the necessary funding, DOCCS shall ensure that even under the most restrictive form of disciplinary housing, 16 and 17 year old inmates shall five (5) days a week be offered out-of-cell programmingand outdoor exercise, limiting time in their cells to nineteen (19) hours a day, except in exceptional circumstances referred to Central Office.
2. Contingent on DOCCS' ability to secure the necessary funding, DOCCS will implement a program to separately house medium security classified 16 and 17 year olds at a thirty (30) cell general population housing unit at Woodbourne Correctional Facility and at a fifty (50) bed donnitory general population housing unit at Greene Correctional Facility. DOCCS will continue to admit qualifying 16 and 17 year olds to its Shock Incarceration program. Maximum security 16 and 17 year old inmates will be housed separately in a twenty-two (22) cell general population housing unit at Coxsackie Correctional Facility. Aged 16 and 17 year old inmates with disciplinary confinement sanctions of less than thirty (30) days will remain at Woodbourne or Greene Correctional Facilities and there will be an eight (8) bed separation unit at Greene Correctional Facility. Aged 16 and 17 year old inmates with SHU confinement sanctions in excess of thirty (30) days will be placed in a separate twenty-two (22) cell housing unit, as an alternative to placement in SHU, at Coxsackie Correctional Facility.
3. If the necessary funding is provided, Doces will comply with these provisions as soon as practicable and with an implementation goal in no event later than eighteen (18) months after the Effective Date.
B. Presum:Qtionagainst SHU Sanctions for Pregnant Inmates.
1. Within one month of the Effective Date, DOCCS shall implement a written policy by means of a memorandum issued by the Deputy Commissioner for Correctional Facilities establishing a presumption against placement of a pregnant female inmate in SHU for disciplinary purposes, except in exceptional circumstances referred to Central Office.
C. Alternatives to SHU Sanctions for Special Needs Imnates.
1. DOCCS shall implement a program that, absent exceptional circumstances referred to DOCCS' Central Office and to the extent that space is available in the program, provides an alternative to SHU for certain inmates who have a BETA/WAlS of 70 01' below or who DOCCS otherwise determines have significantly limited intellectual capabilities and/or adaptive
3

functioning and coping skills and have received SHU confinement sanctions exceeding thirty (30) days. This program will be established at Sullivan Correctional Facility and entitled the "Correctional Alternative Rehabilitation" or "CAR" program.

2.

The CAR program will involve three phases: (i) assessment and orientation,

(ii) treatment, and (iii) transition to non-disciplinary housing settings. Two

hours per day of out of cell group programming will be offered in the

orientation phase and four hours per day in the second and third phases,

five (5) days a week for each phase. In addition to programming, the CAR

program will use a range of incentives to reward behavioral progress. The

incentives will be offered on an individualized basis and will be treatment"

plan chiven.

3. . DOCCS will implement these provisions as soon as practicable and in no event later than three (3) months after the Effective Date.

D. Central Office Oversight of SHU Confinement.

1. Contingent on DOCCS' ability to secure the necessary funding, a new Assistant Commissioner and a research staff position will be created and filled by DOCCS to oversee and monitor the disciplinary system throughout the State by data collection and performance tracking procedures with the goals of promoting consistency and fairness of SHU confinement sanctions and the health, safety and security of inmates and staff.

2.

If the necessary funding is provided, DOCCS will implement this provision

as soon as practicable with an implementation goal in no event later than

three (3) months after the Effective Date.

E. Disciplinary Confinement Sanctions: Guidelines, Policies and Training.

l.

With the exception of guidelines for certain violent and drug-related

offenses, no guidelines currently exist for confinement sanctions imposed

in prison disciplinary hearings. The existing guidelines for violent and

drug-related offenses were put into effect throughout the system by a

memorandum issued by the Deputy Commissioner for Correctional

Facilities.

2.

DOCCS shall implement new comprehensive and prospective guidelines

for all disciplinary confinement sanctions (documents Bates-stamped

S3682 to 83705, pursuant to and subject to the May 15, 2013

confidentiality agreement ("Confidentiality Agreement") executed by the

parties in this litigation).

4

i I

3. DOCCS shall also implement new disciplinary policies and reinforce

¡

existing policies, including without limitation the following: (i) a

requirement that Tier Review Officers document reasons for any decision

to assign a disciplinary violation other than to the lowest possible tier; (ii) a

presumption against consecutive confinement sanctions for violations that

arise from the same event absent exceptional circumstances; (iii) guidelines

for the application of second and third infractions of a particular rule only

where the subsequent infraction occurs within a specified time after the

original incident as reflected in the new guidelines; and (iv) discretion for

hearing officers to depart upward from . these guidelines in appropriate

circumstances that shall be articulated by the heating. officer and

subsequently referred to Central Office.

4. DOCCS shall develop new training materials for hearing officers to implement the new guidelines for disciplinary sanctions and related policies. Experts retained by the parties will review the training materials and be provided with an opportunity to comment before implementation.

5. DOCCS shall give full consideration to the experts' comments 011 the training materials, The parties shall meet to discuss the experts' comments within the two-week comment period referred to in Section 2(E)(7)(A), When the training materials are finalized, DOCCS shall share a final version with Plaintiffs' counsel and experts pursuant to the May 15, 2013 Confidentiality Agreement,

6, DOCCS shall undertake a comprehensive training of DOCeS hearing officers on a regional basis in each of the hubs as to the guidelines and related policies, The experts may attend and observe relevant portions of the first training and shall be provided with an opportunity to comment on the training, Any training materials that are revised in response to the experts' comments shall be provided to plaintiffs and the experts pursuant . to the Confidentiality Agreement, and all observations by the experts at such training, the content of such training and statements made by any person during such training shall be covered by all provisions of the Confidentiality Agreement.

7, DOCeS will implement the provisions of Subsection E above on the following schedule, with all dates starting from the Effective Date:

i.

Within three (3) months, DOCeS shall have shared draft training

materials with the experts, Within two weeks thereafter, the experts will

have provided their comments on the training materials to DOCeS;

ii. Within five (5) months, DOCCS shall have finalized all training materials; and

5

111. Within nine (9) months, Doces shall have completed training at all regional hubs, and the guidelines referred to in Section 2(E)(2) of this Stipulation will be fully implemented and issued to all staff and inmates in the system by means of ft memorandum issued by the Deputy Commissioner for Correctional Facilities.
F. Interim Actions on SHU Conditions.
1. DOCCS shall take the following initial actions with regard to SHU conditions: (i) Outdoor exercise time shall be increased in SHU 200s and Upstate Correctional Facility by one hom per day; (ii) an additional hour of outdoor exercise can be earned on weekends for inmates at PIMS level 3 at Upstate and SHU 200s; and (iii) at Upstate, Southport and SHU 200s, DOCCS shall provide headphones to all inmates after initial processing following admission to SHU and in-cell study packets to all inmates on PIMS Level 1.
2. DOCCS will implement these provisions as SOOl1 as practicable and in no event later than three (3) months after the Effective Date.
G. ReQuired Budgetary Awroval. Funding provisions required to carry out the actions to be taken during the Stay Period under Sections 2(A) and2(D) of this Stipulation shall be requested by DOCCS to the Executive fol' inclusion in the proposed budget to be submitted to the Legislature on or about January 21,2014. The actions necessary to implement Sections 2(A) and 2(D) of this Stipulation shall be subject-to the necessary budgetary approval by the Legislature for the fiscal year beginning April I , 2014.
SECTION 3. RESOLUTION OF MATTERS ADDRESSED BY TI-IlS INTERIM STIPULATION.
A. Waiver of Further Relief For Vulnerable Populations. Absent the Court vacating this Interim Stipulation pursuant to Section 5(B), infra, Plaintiffs waive the right to seek additional relief specific to the following groups of inmates, which Plaintiffs have identified as "vulnerable populations": (i) inmates who are younger than 21 years old; (ii) pregnant inmates; (iii) inmates who are cognitively impaired; (iv) inmates over the age of 55; ancl Cv)inmates whoare legally blind or deaf
B. Limited Waiver of Further Relief With Respect To The Length of Sanctions. During the Stay Period, Plaintiffs waive the right to seek additional relief with respect to the length of disciplinary sanctions.
C. Limitation of Waivers. The aforementioned waivers are specifically limited to items identified in 3CA) and3(B).
6

SECTION 4, REPORTING AND EXPERT CONSULTATION DURING STAY PERIOD,

A. Petiodic Reporting, During the Stay Period, DOCCS shall provide Plaintiffs' counsel with reports and data concerning the implementation and effects of the actions described in Subsections A through F of Section 2 above, All such reports and information shall be covered by the Confidentiality Agreement. Wherever practicable DOCCS shall provide the data in electronic spreadsheets, such as Excel or .csv file format. The periodic reports and data provided shall include the following:

1, Monthly Data Production, Beginning April 1, 2014, DOCCS shall provide data on the first of each month sufficient to evaluate the following:

i. Demographics of inmates in SHU: who is in SHU and for what reason (for example, administrative segregation, voluntary or involuntary protective custody, 01' disciplinary confinement by infractionisj), including demographic information (name, DIN, age, race, sex, facility, OMH level, etc.) and the length of total continuous SHU time served by inmates currently in SHU;

ii. Deprivation orders: the frequency, length and rationale for

deprivation orders including demographic information (name, DIN, age,

race, sex, facility, OMR level, etc.); and

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111. Exceptional Circumstances: any instances in which Central Office authorizes or reviews an exception to the policies or presumptions in Section 2 and the reasons therefor, including placing a juvenile in SHU, placing a pregnant female in SHU, imposing a SHU sanction that exceeds the maximlun allowable under the guidelines, and assigning an infraction to the highest rather than lowest possible tier.

2. Quarterly Periodic Reporting on Outcome and Performance Measures. DOeCS, and in particular the Assistant Commissioner to be hired under Section 2(D), shall consult with the parties' experts to develop reports and performance tracking measures regarding the outcomes of the disciplinary SI-lU program and various altcmatives to SHU programs (fol' example, the CAR program, the Juvenile Program), These reports shall be produced to Plaintiffs starting on July 1, 2014, and on a quarterly basis thereafter, and may include reports on disciplinary measures: for every instance of an infraction eligible for confinement sanctions, the infractioms), the confinement and/or non-confinement sanction imposed (including, nonpunitive interventions such as referrals to offender rehabilitation coordinators or referrals to OMl-I, etc.), demographic information (name, DIN, age, race, sex, facility, OMH level, etc.), the facility, and the hearing officer, DOCCS shall give full consideration to any expert comment regarding the quarterly reports. Any underlying data used to produce the quarterly reports not already available to Plaintiffs may also be produced to

7

Plaintiffs upon request and, where practicable, in electronic spreadsheet format.
B. Non-:Reriodic Re:Rorting. DOCCS shall keep Plaintiffs promptly informed as to any material developments bearing on the timely implementation of the provisions in Section 2, including without limitation the successful completion of relevant benchmarks and the budgetary approval process.
C. Facility Tours, Central Office Meetings, and EX:RertRequests for Additional Information. During the Stay Period the parties' experts may conduct up to three tours total, each consisting of threeindividual facilities or three days at one facility. The experts may submit the facilities they wish to tour, but the final selection will be by the Commissioner of Corrections and Community Supervision. The experts may combine such tours with a meeting with DOCeS' Central Office officials and staff. Such tours shall span no more than three (3) consecutive days, including any meeting requested with DOCCS' Central Office. At the request of the experts, the facility tours may include SHU and Keeplock units and locations specified in Subsections A and C of Section 2 of this Stipulation for the program for the 16 and 17 year old inmates and for the CAR program. Tours shall be conducted ona mutually agreed schedule. DOCCS shall provide documents, including SHU rosters and a reasonable number of disciplinary history printouts and disciplinary hearing packets, as may be requested by the experts thirty (30) days in advance of the tour in order for the experts to select inmates to interview during a particular facility visit. All communioations between the experts and staff or inmates during the course of such tours and Central Office visits shall be covered by the terms of the Confidentiality Agreement. Nothing shall preclude the experts from making additional reasonable requests for documents and information, which DOCeS shall make available to the experts, if not unduly burdensome. All such documents, reports and information provided under Section 4 shall be subject to the Confidentiality Agreement.
D. Consideration Of EX:Rcrts'Recommendations.
1. All parties will give full consideration to advice, suggestions 01' proposals offered by either party's expert during the Stay Period. Any decisions made or actions taken by DOCCS following any such advice, suggestions or proposals shall be made by DOeCS in accordance with the goals of this Stipulation and DOeCS' statutory responsibilities for the care, custody and control of the offender population. The experts may address any issues they determine the parties should consider with regard to the disciplinary SHU system.
2. The parties agree to direct their respective experts to provide their initial advice, suggestions Ol' proposals to Doces and the parties' counsel, in New York City or Albany, on or before March 31, 2014. The parties shall separately agree upon a timetable to meet and confer about the experts' advice. Should DOCeS, during the Stay Period, undertake any additional actions in response to the proposals, suggestions or advice of the experts,
8

the parties shall meet to discuss the implementation and assessment of those actions. The parties shall otherwise continue engaging the experts during the Stay Period with the goal of using the expert process collaboratively to reach a final comprehensive settlement agreement.

SECTION 5. VACATING THE INTERIM STIPULATION AND/OR LIFTING THE STAY.

A. Motion to Vacate Interim Stipulation and/or to Lift Stay. Plaintiffs may move this Court

for an order vacating the Interim Stipulation and/or lifting the stay and returning the case

to the Court's active calendar for good cause as defined in Section 5CB) or exhaustion of

good faith negotiations as defined in 5(C) and subject to the conditions set forth in

Section SeD). Upon such return ofthe case to the active calendar, the parties will propose

an appropriate schedule for motions and responsive pleadings.

.

B. Vacating the Interim Stipulation and/or Lifting the Stay for Good Cause.

1. The motion to vacate the Interim Stipulation and/or lift the Stay under this Section shall be Plaintiffs' sole and exclusive remedy and recourse for actions or inactions that Plaintiffs perceive to be not in conformity with the provisions of Sections 2 and 4 of this Stipulation. As set forth in Section 1(B) of this Stipulation, the parties agree that the terms of this Stipulation set forth in Sections 2 and 4 above are voluntarily undertaken by Defendants and DOCCS and do not constitute legally binding obligations of Defendants 01' DOCCS. Plaintiffs may not seek an award of damages, injunctive relief or a finding of contempt based on the alleged non-performance by the Defendants or DOCCS of any provision or term contained in Section 2 or 4 of this Stipulation.

2. Good cause shall exist for vacating the Interim Stipulation and lifting the Stay under the following circumstances:

i. Funding necessary to implement changes in Sections 2(A) or 2(D) of this Stipulation is not allocated, and after meeting and conferring the parties are unable to reach any agreement to continue the interim stipulation in lieu of the funding allocation; 01'

ii. DOCCS is not acting in substantial conformity with the terms of Sections 2 and 40fthis Stipulation.

C. Lifting the Stay for Exhaustion of GooclFaith Negotiations.

Plaintiffs may seek to lift the stay of litigation if the parties cannot reach agreement, after fully exhausting all good faith negotiations, regarding proposals, suggestions 01' advice provided by the experts pursuant to Section 4(D), supra, provided that such proposals, suggestions 01' advice cloes110tpertain to issues subject to the waivers contained in Section 3, supra.

9

D. Procedures A1212licableto Motion. The parties shall meet and confer before any motion to vacate the Interim Stipulation and/or lift the Stay is filed pursuant to S(B) or SeC) of this Stipulation. The provisions of the Confidentiality Agreement shall remain in effect during the pendency of any motion to vacate and/or lift the Stay, and shall survive any order to lift the Stay and/or to vacate the Interim Stipulation.

1. Motions Made Pursuant to Section 5(B). Where good cause for vacating the Interim Stipulation and lifting the Stay is alleged pursuant to Sections SeB)(2)(i} or
SeB)e2)eii), supra, Plaintiffs may not file a motion to vacate the Interim Stipulation,
lift the Stay and reinstate the action until the following conditions are also
satisfied:

l.

At least six (6) months shall have passed since the Effective Date;

ii. Plaintiffs' attorneys have provided Defendants' attorneys with a written notice setting forth with specificity the facts that support Plaintiffs' belief that DOCCS is not acting in substantial conformity with the terms of Sections 2 and 4 of this Stipulation and, thereafter, afforded DOCCS thirty (30) days to confer, respond to and/or remedy the alleged nonconformance; and

111. Following such thirty (30) day period for DOCCS to respond and/or remedy the alleged nonconformance, in the event that Plaintiffs' attorneys believe that substantial nonconformance exists and/or persists, Plaintiffs' attorneys may thereafter move the Court upon twenty (20) days written notice of motion, for an order lifting the Stay and returning the case to the Court's active calendar for motions, discovery and trial.

2. Motions Made Pursuant toSecHan S(C). Where Plaintiffs seek to lift the Stay due
to the exhaustion of good faith negotiations pursuant to Section 5(C), supra,
Plaintiffs may not file a motion to lift the Stay and reinstate the action until the
following conditions are also satisfied:

i. At least twelve (12) months shall have passed since the Effective Date;

ii. Plaintiffs' attorneys have provided Defendants' attorneys with a written notice setting forth with specificity the facts that support Plaintiffs' belief that the parties have exhausted good faith negotiations and, thereafter, afford DOCCS thirty (30) days to confer and respond to the allegation that negotiations have been exhausted; and

111. Following such thirty (30) day period for DOCeS to respond to the alleged exhausted negotiation, in the event that Plaintiffs' attorneys believe that further negotiations would be futile, Plaintiffs' attorneys may thereafter move the Court upon twenty (20) days written notice of motion, for an order lifting the Stay and returning the case to the Court's active calendar for motions, discovery and trial.

10

SECTION 6. NO ADMISSIONS AND OTHER RESERVATIONS. This Stipulation and its contents do not constitute (i) an admission by Defendants 01' DOCCS of any constitutional violation 01' other violation of law 01' wrongdoing; (ii) an admission by Defendants or DOCCS that any action, policy, practice 01' procedure challenged in this action violates Ol' fails to comply with any constitutional requirement or any other applicable law, rule 01' regulation; Ol' (iii) an admission by Plaintiffs that any action, policy, practice 01' procedure challenged in this action is constitutional. This Stipulation and its contents are not a waiver of Plaintiffs' individual claims for monetary damages or any other individual claims that might arise after the Effective Date ..
SECTION 7. CONCLUSION OF STA Y_PERIOD. Unless the parties agree otherwise during the Stay Period, at the conclusion of the Stay Perlad the litigation will be removed from the suspense calendar and returned to active litigation status, in which case the parties shall propose to the Court a reasonable schedule for motions, responsive pleadings, discovery and trial.
SECTION 8. EFFECTIVE DATE. This Stipulation shall be submitted to the Court by counsel to the parties anel shall become effective on the date when the so-ordered Stipulation is entered by the Court.
11

SECTION 9, ßXEClltlQN Qf 'l'BE INTIDllM STIPULATIONI

This Interim Stipulation may be executed in multiple counterparts, and faxed and/or

emailed signatures will be valid and enforceable, each of which shall bo deemod an

,

original, and all of which shan constitute one and the same instrument,

¡

I

l¡

Dated: New York, New York January24, 2914'

NEW YORK CIVIL LIBERTIES UNION

ERIC T, SCHNEIDERMAN

Counsel to Plaintiffs

Attorney General of the State of New York

¡

Defendants

¡

t¡¡

ChristopherDunn

,

W. Brewster Assistant Attorney General

I
l

î

l

Counsel to Plaintiffs 55 Fifth Avenue, Room 93 g

New York) New York 10003

!

NEW YORK STATE DEPARTMENT OF CORRECTIONS
AND COMMUNITY StJ11ERVISION

]~')i_,_~_~

._."_d

Maureen E. BoU

Deputy Commissioner and Counsel

New York, New York

So Ordered:

2014

'Shira A. Scheindlin-United States Disu'let Judge

12

 
 Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 2 of 79

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------x

LEROY PEOPLES, TONJA FENTON and

:

DEWAYNE RICHARDSON, on behalf of

:

themselves and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

:

-against-

:

:

BRIAN FISCHER, et al.,

: :

Defendants. --------------------------------------------------------------x

Docket Number 11-CV-2694 (SAS)

SETTLEMENT AGREEMENT

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 3 of 79
TABLE OF CONTENTS
Page
I. SHU-ALTERNATIVE PROGRAMS...................................................................................... 4
A. Southport Step-Down Program ............................................................................... 4
1. Program Overview ...................................................................................... 4 2. Physical Layout. .......................................................................................... 5 3. Staffing........................................................................................................ 5 4. Program Modules ........................................................................................ 6
(a) Orientation ......................................................................................... 6 (b) Phase 1............................................................................................... 6
(i) Programming....................................................................... 6 (ii) Recreation ........................................................................... 6 (iii) Total Daily Out-of-Cell Time.............................................. 6 (iv) Restraints............................................................................. 7 (v) Time Cuts ............................................................................ 7 (c) Phase 2 ............................................................................................... 7 (i) Programming....................................................................... 7 (ii) Recreation ........................................................................... 7 (iii) Incentives ............................................................................ 7 (iv) Total Daily Out-of-Cell Time ............................................ 7 (v) Restraints............................................................................. 8 (vi) Time Cuts............................................................................ 8 (d) Phase 3 ............................................................................................ 8 (i) Programming....................................................................... 8 (ii) Recreation ........................................................................... 8 (iii) Incentives ............................................................................ 8 (iv) Total Daily Out-of-Cell Time ............................................ 8 (v) Restraints............................................................................. 9 (vi) Time Cuts............................................................................ 9 (e) Curriculum ...................................................................................... 9 (f) Projected Opening Date .................................................................. 9 B. Mid-State Step-Down and Substance-Abuse Programs ......................................... 9 1. Physical Layout...........................................................................................9 2. Initial Operation as an SDP....................................................................... 10 (a) Recreation ..................................................................................... 10 (b) Congregate Leisure Activities....................................................... 10 (c) Total Daily Out-of-Cell Time ....................................................... 10 3. Reassessment on Opening of Southport SDP ........................................... 11 4. Overview of Mid-State Substance Abuse Program .................................. 11 5. Drug-Free Environment ............................................................................ 12 6. Staffing...................................................................................................... 12 7. Orientation ................................................................................................ 13 8. Program Modules...................................................................................... 13 9. Curriculum ................................................................................................ 13
i

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 4 of 79

10. Incentives .................................................................................................. 14

11. Projected Opening of Mid-State Unit ....................................................... 14

C. Lakeview Substance-Abuse Program ................................................................... 14

1. Program Overview .................................................................................... 15

2. Drug-Free Environment ............................................................................ 15

3. Physical Layout......................................................................................... 15

4. Staffing...................................................................................................... 16

5. Orientation ................................................................................................ 17

6. Programming............................................................................................. 17

7. Curriculum ................................................................................................ 17

8. Incentives .................................................................................................. 18

9. Projected Opening of Lakeview Substance Abuse Program .................... 18

D. Step-Down to the Community Programs .............................................................. 18

1. Program Overview .................................................................................... 19

2. Physical Layout......................................................................................... 19

3. Staffing...................................................................................................... 19

4. Program Modules...................................................................................... 19

5. Recreation ................................................................................................. 20

6. Incentives .................................................................................................. 20

7. Eligibility .................................................................................................. 20

8. Initial Program Cohort .............................................................................. 21

9. Projected Opening of Step-Down to the Community Programs............... 21

E. Programs for Juveniles.......................................................................................... 21

1. Continuation of Programs ......................................................................... 21

2. Limit On Time In Cell .............................................................................. 21

3. Separate Housing For Juveniles................................................................ 21

4. Shock Incarceration Program.................................................................... 22

5. Disciplinary Sanctions .............................................................................. 22

6. Relationship to Cookhorne ....................................................................... 22

7. Program Contingency ............................................................................... 22

F. SHU-Alternative Programs for Special Need Inmates ......................................... 23

1. Continuation of Programs ......................................................................... 23

2. Eligibility .................................................................................................. 23

3. Program Overview .................................................................................... 23

II. AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS .......... 24

A. Eligibility and Placement ...................................................................................... 24

B. Program Management Team................................................................................. 24

C. Continuation of Programming .............................................................................. 24

D. Restraints, Privileges, Incentives and Out-of-Cell Time ...................................... 25

E. Out-of-Cell Interviews .......................................................................................... 25

F. Discipline in SHU-Alternative Programs ............................................................. 26

G. Discharge Upon Completion of SHU-Alternative Program ................................. 27

H. Disciplinary Sanction Ends Prior to Program Completion ................................... 28

I

Early Discharge to SHU........................................................................................ 28

J. Full Utilization of Capacity……………………………………………………...29

K. Inmate Orientation Material.................................................................................. 29

L. Timeframes ........................................................................................................... 29

ii

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 5 of 79

III. IV.
V. VI.
VII. VIII.
IX. X.
XI.

PRESUMPTION AGAINST SHU FOR PREGNANT INMATES ................................. 30 SEPARATE KEEPLOCK UNITS.................................................................................... 30 A. Conditions in New Units....................................................................................... 30
1. Fishkill ...................................................................................................... 30 2. Five Points ................................................................................................ 31 B. Projected Opening of New Keeplock Units.......................................................... 31 C. Placement Priority................................................................................................. 31 D. Reduction of Certain Keeplock Sanctions ............................................................ 32 UNIFORM “PIMS” PROGRAM FOR ALL SHUs ......................................................... 32 CONFINEMENT PROGRAM PLAN (“CPP”) ............................................................... 32 A. Overview............................................................................................................... 33 1. Program Plan............................................................................................. 33 2. Program Management Team..................................................................... 33 3. Program Overview .................................................................................... 33 4. Progress Evaluation .................................................................................. 34 B. Programs Offered.................................................................................................. 34 1. Behavior Modification/Aggression........................................................... 34 2. ASAT Pre-Treatment Workbook .............................................................. 35 3. Educational Cell Study ............................................................................. 36 4. Incentives .................................................................................................. 36 5. Inmate Orientation Manual ....................................................................... 37 UPSTATE ASAT PROGRAM EXPANSION ................................................................. 37 SHU CONDITIONS ......................................................................................................... 38 A. Phone Calls ........................................................................................................... 38 B. Shower Curtains.................................................................................................... 39 C. Library Services .................................................................................................... 39 D. Head Phones.......................................................................................................... 39 E. Double-Celling Assignments ................................................................................ 39 F. Correspondence Courses....................................................................................... 40 G. Tablet Pilot Program ............................................................................................. 40 H. Mental Health Contacts......................................................................................... 41 I. Additional Changes in Conditions……………………………………………….41 DEPRIVATIONS ORDERS............................................................................................. 41 A. Deprivation Order Limitations.............................................................................. 41 B. Notification to OMH............................................................................................. 42 C. Review and Renewal............................................................................................. 42 D. Special Management Meal.................................................................................... 42 E. Record Keeping .................................................................................................... 42 SENTENCING PRACTICES ........................................................................................... 42 A. Modifications of Guidelines ................................................................................. 42 B. Special Management Meal.................................................................................... 43 C. Guidance for Hearing Officers.............................................................................. 43 D. Time Cuts.............................................................................................................. 44 1. SHU Sanctions less than 90 days.............................................................. 44 2. SHU Sanctions of 90 days or more........................................................... 44 E. SHMC Calendar.................................................................................................... 45 TRAINING ....................................................................................................................... 45

iii

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 6 of 79
A. Training Academy ................................................................................................ 45 B. SHU-Alternative Units.......................................................................................... 46 C. CPP Staff............................................................................................................... 46 D. SHU Staff.............................................................................................................. 46
1. Initial Training .......................................................................................... 46 2. Annual Refresher Course .......................................................................... 46 E. SHMC ................................................................................................................... 47 F. Entire DOCCS Staff.............................................................................................. 47 G. Annual Peace Officer Training ............................................................................. 47 H. Guidance on Transfer Procedures………………………………………………..48 1. Advance Notice of Transfer...................................................................... 48 2. Electronic Scheduling of Initial Interview ................................................ 48 3. Memorandum ............................................................................................ 48 I. Grant Opportunities……………………………………………………………...48 J. Training Materials................................................................................................. 49 XII. POST-SETTLEMENT ACTIVITIES............................................................................... 49 A. Designation and Role of Experts........................................................................... 49 B. Periodic Tours and Assessments ........................................................................... 49 C. Access to Documents ............................................................................................ 50 1. In Conjunction With Tours ....................................................................... 50 2. Annual Meeting ........................................................................................ 52 3. Document Review by Experts .................................................................. 53 4. Rule-Making ............................................................................................. 53 5. Quarterly Reporting .................................................................................. 53 6. Annual Reporting...................................................................................... 55 D. Confidentiality ......................................................................................................55 E. Consideration of Experts’ Recommendations ......................................................56 F. Public Reporting on DOCCS’ Website………………………………………….56 G. Policy Structure Review…………………………………………………………56 XIII. ENFORCEMENT POWERS............................................................................................57 A. Notice, Meet and Confer Obligations ...................................................................57 B. Magistrate Judge Nonbinding Mediation..............................................................57 C. Adjudication of Disputes Unresolved by Mediation ............................................57 D. Substantial Noncompliance Proven ......................................................................58 E. Agreement as to 18 U.S.C. § 3626 .......................................................................59 F. No Waiver for Failure to Enforce .........................................................................59 XIV. ATTORNEYS’ FEES; POST-SETTLEMENT ACTIVITIES .........................................59 XV. DISMISSAL OF COMPLAINT AND CLAIMS CASES, RESERVATON OF JURISDICTION……………….. ................................................................................................. 61 XVI. MISCELLANEOUS PROVISIONS ................................................................................. 61 XVII. TERM ............................................................................................................................... 62 XVIII. BINDING EFFECT .......................................................................................................... 63 XIX. DEADLINES AND UNFORESEEN DELAY ................................................................. 63 XX. STIPULATION AS TO CLASS CERTIFICATION ........................................................ 63 XXI. COMMUNICATION WITH AND ACTIONS BY CLASS COUNSEL.......................... 64 XXII. FUNDING......................................................................................................................... 64 A. Agreement Terms Contingent on Funding ...........................................................64
iv

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 7 of 79 B. Obligations If Funding Not Appropriated.............................................................65 XXIII. STAFFING........................................................................................................................ 66 XXIV. NO ADMISSIONS OR PRECEDENTIAL EFFECT....................................................... 66 XXV. ENTIRE AGREEMENT .................................................................................................. 66 XXVI. NOTICES......................................................................................................................... 67 XXVII. EXECUTION AND EFFECTIVE DATE ....................................................................... 68 Exhibit 1 – Stipulation of Dismissal of Complaint Exhibit 2 – Projected Timetable for Implementation
v

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 8 of 79

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------x

:

LEROY PEOPLES, TONJA FENTON and :

DEWAYNE RICHARDSON, on behalf of :

themselves and all others similarly situated, :

:

Plaintiffs,

:

:

-against-

: :

:

BRIAN FISCHER, et al.,

: :

Defendants.

SETTLEMENT AGREEMENT
Docket Number 11-CV-2694 (SAS)

---------------------------------------------------------x

The parties hereto, by their attorneys, hereby stipulate and agree as follows:

WHEREAS, Plaintiffs Leroy Peoples, Dwayne Richardson and Tonja Fenton, inmates in custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at the time this Action was commenced, filed a Third Amended Class Action Complaint (herein, as amended and corrected, referred to as the “Complaint”) alleging that the use and length of confinement sanctions and conditions in DOCCS Special Housing Units (“SHU”) create an unconstitutional risk of harm, and seeking declaratory and injunctive relief on behalf of a putative class of similarly situated individuals and damages on behalf of the named Plaintiffs;
WHEREAS, DOCCS recognizes that a sound, progressive disciplinary system protects the health, safety and security of both inmates and correctional staff;
WHEREAS, DOCCS recognizes that disciplinary sanctions must never be arbitrary or capricious or overly severe and that a sound disciplinary system relies on certainty and promptness of action rather than severity;

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 9 of 79
WHEREAS, following the filing by Defendants of a motion to dismiss and before the filing of an answer to the Complaint or a class certification motion, a Stipulation and Order was entered on May 1, 2013, pursuant to which the Defendants’ motion to dismiss was withdrawn without prejudice and all scheduling of briefing and discovery in the lawsuit was suspended to permit the parties to conduct settlement negotiations to resolve all remaining claims in the lawsuit and further promote the goal of protecting the health, safety and security of all persons within DOCCS correctional facilities;
WHEREAS, on January 24, 2014, following extensions of the above-referenced stay, the parties entered into an interim settlement (the “Interim Settlement”), entitled “Stipulation for a Stay with Conditions”, so ordered by the Court on February 19, 2014, pursuant to which Defendants: (i) created programs providing alternatives to SHU sanctions for juveniles and special needs inmates; (ii) established a presumption against SHU sanctions for pregnant inmates; (iii) increased oversight by DOCCS’ Central Office of the disciplinary system throughout the State under a newly created Assistant Commissioner position; (iv) implemented comprehensive guidelines for all disciplinary confinement sanctions; and (v) took certain interim actions with regard to SHU conditions, specifically by increasing outdoor exercise and providing headphones and in-cell study packets to SHU inmates in specified circumstances and locations;
WHEREAS, since February 19, 2014, DOCCS has provided Plaintiffs’ counsel with extensive data and reports concerning the implementation and effects of the actions taken pursuant to the Interim Settlement, and the parties have engaged in extensive settlement negotiations, with the assistance of experts in prison operations and segregated housing retained
2

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 10 of 79
by the parties to assist in achieving a comprehensive resolution of all claims for injunctive relief raised in the Complaint;
WHEREAS, the parties, without conceding any infirmity in their claims or defenses, have in good faith negotiated the terms of this settlement agreement in order to provide programs and progressive incentives in an effort to change the behaviors leading to disciplinary sanctions and SHU confinement and to address certain aspects of the conditions of SHU confinement, for the purpose of improving institutional safety and enabling inmates to earn time cuts and incentives by changing their behavior, ultimately returning to the general prison population and the community with a diminished likelihood of recidivism;
WHEREAS, the parties share the goal of significantly reducing the use and duration of SHU and reducing isolation and idleness in SHU, consistent with safety and security;
WHEREAS, Defendants have denied the allegations in the complaint that they have violated Plaintiffs’ constitutional or statutory rights;
WHEREAS, the parties represent and agree that this Agreement is fair, reasonable and adequate to protect the interests of all parties and the class, and that entering into this Agreement will improve institutional safety for all persons within the State’s correctional system;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the parties, as follows:
3

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 11 of 79
I. SHU-ALTERNATIVE PROGRAMS A. Southport Step-Down Program DOCCS will create a Step-Down Program (“SDP”) in Housing Block C at
Southport Correctional Facility (“Southport”). The SDP will have a capacity of 252 inmates. The goal of the SDP is to offer behavioral modification programming to longterm SHU inmates with a violent behavioral history and the capacity to benefit from the SDP with the aim of returning inmates who successfully complete the program back to general population, consistent with achieving overall program success and the safety and security of participants and staff.
1. Program Overview. The SDP will be a three-phase progressive program for inmates serving a minimum of 9 months of SHU confinement (including consecutive sanctions that total at least 9 months) who would likely benefit from structured programming, including programming based on principles of cognitive behavioral therapy, to improve behavior and reduce future disciplinary infractions. Suitability and selection for the program will be determined in DOCCS’ discretion. Inmates will progress through the stages of the SDP, earning fewer restrictions and increased incentives, as they meet benchmarks and individual goals. Inmates will receive the incentives specified below for each phase of the Program, subject to the possibility of losing them for negative behavior. On successful program completion, inmates will be returned to general population, following a review for general population placement and programming to meet individually identified needs and behavioral plans by the Superintendent, who will forward his or her recommendations to the DOCCS Central Office for a final placement decision.
4

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 12 of 79
2. Physical Layout. Participating inmates will be housed in 252 cells on three floors, each floor consisting of four 21-cell housing galleries and five classrooms. Orientation and program phases will be situated as follows:
(a) Orientation (63 beds): Housing Block C, 1st Floor (b) Phase 1 (21 beds): Housing Block C, 1st Floor (c) Phase 2 (84 beds): Housing Block C, 2nd Floor (d) Phase 3 (84 beds): Housing Block C, 3rd Floor
3. Staffing. (a) The unit will have a projected staff of 54 full-time
employees, which includes a Program Management Team consisting of security, counseling, substance abuse and teaching staff who will manage the SDP. The Program Management Team will conduct weekly case conferences, outside of scheduled program time, for staff to evaluate inmates’ progress. The Program Management Team will offer quarterly out-of-cell meetings with each participant to discuss progress and benchmarks with the inmate, and to make any adjustments in the inmate’s program plan. In addition, a DOCCS Offender Rehabilitation Coordinator (“ORC”) will offer a similar out-of-cell meeting with each participating inmate during orientation and conduct cell-side meetings with participants between Phases 1 and 2. Unless the Program Management Team requests a participating inmate’s presence during the weekly case conferences, such weekly conferences shall be conducted outside the presence of the inmates.
5

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 13 of 79
(b) The Program Management Team will assess participating inmates’ achievement of benchmarks and readiness to move to higher phases of the SDP or regress to a lower phase, if necessary, and on completion of the program will provide appropriate discharge planning and make recommendations to the Superintendent of Southport regarding participating inmates’ discharge/placement.
4. Program Modules. (a) Orientation. The orientation phase will have a duration of
not more than 30 days to assess an inmate’s willingness to participate and determine individual program needs. Participants in the orientation phase will be housed in SHU cells in standard SHU conditions and will be in restraints when they are out of cell.
(b) Phase 1. This phase will have a duration of not less than 30 days and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week (excluding Fridays and holidays) including behavioral programming and orientation for Phases 2 and 3. The Program Management Team will conduct out-of-cell meetings with a sufficient number of inmates on Fridays (excluding holidays), so as to conduct a quarterly out-of-cell meeting with each participant in accordance with § I(A)(3)(a) above.
(ii) Recreation: Two hours of individual recreation, seven days per week.
(iii) Total Daily Out-of-Cell Time: Four hours total outof-cell time Monday through Thursday (except holidays where the total will be two hours) and two hours total out-of-cell time Friday, Saturday and Sunday.
6

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 14 of 79
(iv) Restraints: Participants will move in restraints. During programming, restart chairs with leg restraints only will be used.
(v) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(c) Phase 2. This phase will have a duration of not less than 90 days and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week (excluding Fridays and holidays). The Program Management Team will conduct out-of-cell meetings with a sufficient number of inmates on Fridays (excluding holidays) so as to conduct a quarterly out-of-cell meeting with each participant as provided in § I(A)(3)(a) above.
(ii) Recreation: Two hours of congregate recreation will be offered to participants, 7 days per week, in congregate recreation pens.
(iii) Incentives: All participants will be offered increased access to personal property; at least one phone call every 60 days; extra showers, and commissary purchases. In addition, a participant has the ability to earn congregate TV/activity in restart chairs. A participant has the possibility of losing one or more of these incentives for negative behavior.
(iv) Total Daily Out-of-Cell Time: Minimum four hours out-of-cell time Monday through Thursday (except holidays where the total will be two hours); minimum two hours out-of-cell time Friday, Saturday and Sunday, with the ability to earn congregate leisure time, such as congregate TV/activity in restart chairs.
7

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 15 of 79
(v) Restraints: Participants will move in restraints, and during programming, will use restart chairs with leg restraints only.
(vi) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(d) Phase 3. This phase will continue until participants are discharged and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week. The Program Management Team will conduct out-ofcell meetings with a sufficient number of inmates on Fridays (excluding holidays), so as to conduct a quarterly out-of-cell meeting with each participant in accordance with § I(A)(3)(a) above.
(ii) Recreation: Two hours of congregate recreation will be offered to participants in Phase 3, seven days per week, in a general confinement recreation yard.
(iii) Incentives: As incentives for positive behavior, all participants will be offered congregate TV and other congregate activities; increased access to personal property; the opportunity to access the phones in the general confinement recreation yard (extra calls may be earned); extra showers, and commissary purchases, subject to the possibility of losing one or more of these incentives for negative behavior.
(iv) Total Daily Out-of-Cell Time: Minimum four hours daily out-of-cell time Monday through Thursday (except holidays where the total will be
8

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 16 of 79
two hours); minimum two hours daily out-of-cell time Friday, Saturday, and Sunday, with the ability to earn congregate leisure time.
(v) Restraints: Participants will move without restraints, and there will be no restraints during programming.
(vi) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(e) Curriculum. As appropriate to each Phase, the curriculum will include aggression replacement training, anger management, emotional regulation techniques and social skills, with increasing focus in later Phases on applying these skills and techniques in the general population environment.
(f) Projected Opening Date. Southport SDP will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate that approximately three years will be required to complete construction needed for Southport SDP, DOCCS’ goal is to open Southport SDP with an initial group of inmates in the Orientation Phase within three years of the enactment of the Fiscal Year 2016-2017 Budget.
B. Mid-State Step-Down and Substance-Abuse Programs DOCCS will convert one-half of the S-Block located at Mid-State
Correctional Facility (“Mid-State”) into a SHU-alternative program for up to 75 inmates selected by DOCCS.
1. Physical Layout. (a) Program housing will be provided in 50 cells, consisting of
25 single cells and 25 double cells.
9

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 17 of 79
(b) Three classrooms, each with 8 restart chairs, will be constructed in the basement, and two classrooms, each with 10 restart chairs, will be constructed on the second floor.
(c) A semi-private area with separate seating will be provided for individual meetings with staff.
(d) One of the basement classrooms will be used for orientation and assessment of inmates newly admitted to the program. Upstairs classrooms will also be available for earned evening congregate leisure activities (e.g., movies, card games).
2. Initial Operation as an SDP. Until the opening of the Southport SDP, the Mid-State unit will provide a step-down program that will be operated as described above with respect to the Southport SDP, except that congregate recreation cannot be provided at Mid-State. Accordingly, the following program adjustments will be made:
(a) Recreation: Each participating inmate will be offered two hours of recreation at the rear of the cell, seven days per week. Program classrooms at Mid-State will be available in the evenings for earned congregate activities.
(b) Congregate Leisure Activities: Congregate leisure activities may be earned by inmates in Phase 2, and will be offered to inmates in Phase 3.
(c) Total Daily Out-of-Cell Time: The Program Management Team will make every effort to afford participants in the Mid-State SDP a minimum of two hours daily out-of-cell time in Phase 2 and Phase 3, spent in programming or congregate leisure activities.
10

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 18 of 79
3. Reassessment on Opening of Southport SDP. On or before the opening of the Southport SDP, the parties will confer as to whether to continue the MidState unit as an SDP, or to convert the unit to a SHU-alternative program for inmates on the mental health caseload who are subject to confinement sanctions for non-violent substance abuse-related misbehavior. If the unit is converted to a substance abuse program, participating inmates will be housed in 25 double and 25 single cells. In determining whether to continue the Mid-State unit as an SDP or convert the unit to a substance abuse program, DOCCS will give full consideration to any recommendations by Plaintiffs’ counsel and the parties’ experts, but the decision as to the use of the Mid-State unit as either an SDP or substance abuse program will be made by DOCCS, consistent with the goals of this Agreement, the needs of the inmate population at the time of the decision, and its statutory responsibilities. In the event that the Mid-State unit is converted to a substance abuse SHU-alternative program following the opening of the Southport SDP, the provisions of §I(B)(4)-(10) et seq. shall apply.
4. Overview of Mid-State Substance Abuse Program. If opened, the Mid-State Substance Abuse SHU-Alternative Program will provide a six-month intensive alcohol and substance abuse treatment (“I-ASAT”) program for inmates at high risk for continued drug and alcohol abuse who have received individual or combined confinement sanctions of more than 120 days for substance abuse-related offenses and have an OMH service level of 1 or higher. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance dependency condition, as determined by a comprehensive substance dependency assessment conducted by qualified personnel, shall be eligible for the program. Inmates who have displayed
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satisfactory program participation and have completed their confinement sanctions in the unit before completing the six-month I-ASAT program will receive expedited placement into ASAT at their next general confinement facility.
5. Drug-Free Environment. In order to maintain the drug-free environment essential to recovery, visits will be non-contact and participating inmates may not receive packages from outside the facility.
6. Staffing. (a) The unit will have a projected staff of 34 full-time
employees and which includes a multi-disciplinary Program Management Team, including an Area Sergeant, a Supervising Offender Rehabilitation Counselor, an Offender Rehabilitation Counselor, a Teacher, an Alcohol and Substance Abuse Treatment (“ASAT”) Program Assistant (“PA”) staff, and a Recreation Program Leader (“RPL”). The staffing may vary during the period of time that Mid-State is operating as a Step Down Unit as outlined in § I(B)(2).
(b) The Program Management Team will oversee the development of individual treatment plans for participating inmates, determine staff and classroom assignment for inmates during orientation and initial assessment, conduct case conferences twice per week to evaluate inmates’ progress in meeting treatment plan goals, modify the time required to meet goals, otherwise modify treatment plans as needed, approve earned incentives and, if necessary, make recommendations to the Superintendent at Mid-State for his or her determination regarding discharge of inmates from the program for refusal to participate and lack of progress in programming.
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(c) The Program Management Team will prepare a discharge plan with recommendations for continuing recovery and ongoing treatment for all inmates leaving the program, regardless of whether the reason for discharge is completion of the IASAT program, transfer to a general confinement ASAT for completion of the ASAT program, release to the community, or, upon the Superintendent’s determination, removal from the program due to misbehavior or refusal to participate.
7. Orientation. Participating inmates will have one week of orientation and assessment which will include classroom sessions for up to eight participants and individual meetings with inmates’ assigned I-ASAT staff in order to review program expectations (the “ASAT contract”), collaboratively develop an initial treatment plan with assigned staff, and identify strengths and problems requiring attention for the particular inmate (e.g., alcohol or substance abuse issues, history of trauma, compulsive behaviors, cognitive distortions, health or family issues).
8. Program Modules. (a) Participating inmates will engage in three hours of morning
or afternoon classroom programming per day, five days per week (exclusive of holidays). Programs will be conducted in three-hour AM and PM modules.
(b) Each participating inmate will be offered 2 hours of recreation at the rear of the cell, 7 days per week, with the ability to earn evening congregate leisure time in the upstairs classroom.
9. Curriculum. The program will be informed by principles of cognitive behavioral therapy, focusing on withdrawal and craving management, relapse prevention strategies, and developing skills to avoid substance abuse disciplinary
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infractions and promote positive engagement in general population programming. Educational cell study will be available during non-program hours depending on the inmate’s educational needs.
10. Incentives. As incentives for positive behavior, all participants will be offered increased access to personal property; at least one phone call in the first 60 days of the program and every 30 days thereafter (extra calls may be earned); additional showers, additional commissary purchases, and recommendation for time cuts. In addition, participants also have the ability to earn evening congregate leisure activities. Participants have the possibility of losing one or more of these incentives for negative behavior. The availability of these incentives will be based on inmate participation and progress throughout the program, as determined by the Program Management Team.
11. Projected Opening of Mid-State Unit. Mid-State SDP will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate of the time required to complete construction for the Mid-State unit, DOCCS’ goal is to open the Mid-State unit, as an SDP, with an initial group of inmates in the Orientation Phase within 1.2 years of the enactment of the Fiscal Year 2016-2017 Budget.
C. Lakeview Substance-Abuse Program DOCCS will convert the entire maximum security S-Block (100 double
cells) located at Lakeview Correctional Facility (“Lakeview”) into a single cell SHUalternative substance abuse program for 88 inmates selected by DOCCS who are serving confinement sanctions for non-violent substance abuse-related misbehavior.
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1. Program Overview. The Lakeview Substance Abuse SHUAlternative Program will provide a six-month intensive alcohol and substance abuse treatment (“I-ASAT”) program for inmates at high risk for continued drug and alcohol abuse who have received individual or combined confinement sanctions of more than 120 days related to substance abuse-related offenses. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance dependency condition as determined by a comprehensive substance dependency assessment conducted by qualified personnel shall be eligible for the program. Inmates who have displayed satisfactory program participation and have completed their confinement sanctions in the unit before completing the six-month I-ASAT program will receive expedited placement into ASAT at their next general confinement facility
2. Drug-Free Environment. In order to maintain the drug-free environment essential to recovery, visits will be non-contact and participating inmates may not receive packages from outside the facility.
3. Physical Layout. (a) Participating inmates will be housed in 88 single cells in
four galleries, with the remaining 12 cells of the former S-Block repurposed to provide three dedicated phone booths in each gallery.
(b) Three classrooms, each with 8 restart chairs, will be constructed in the facility basement, and two classrooms, each with 10 restart chairs, will be constructed on the second floor.
(c) A semi-private area will be provided with separate seating for individual meetings with staff.
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(d) One of the basement classrooms will be used for orientation and assessment of inmates newly admitted to the program.
(e) Upstairs classrooms will also be available for earned evening congregate leisure activities (movies, card games, etc.).
4. Staffing. (a) The unit will have a projected staff of 30 full-time
employees and include a multi-disciplinary Program Management Team including an Area Sergeant, a Supervising Offender Rehabilitation Counselor, an Offender Rehabilitation Counselor, a Teacher, an Alcohol and Substance Abuse Treatment Program Assistant, and a Recreation Program Leader.
(b) The Program Management Team will oversee the development of individual treatment plans for participating inmates, determine staff and classroom assignments for inmates during orientation and initial assessment, conduct case conferences twice per week to evaluate inmates’ progress in meeting treatment plan goals, modify the time required to meet goals, otherwise modify treatment plans as needed, approve earned incentives and, if necessary, make recommendations for determination by the Superintendent regarding discharge of inmates from the program for refusal to participate and lack of progress in programming.
(c) The Program Management Team will prepare a discharge plan with recommendations for continuing recovery and ongoing treatment for all inmates leaving the program, regardless of whether the reason for discharge is completion of the IASAT program, transfer to a general confinement ASAT for completion of the program, release to the community, or, upon the Superintendent’s determination, removal from the
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program due to misbehavior or refusal to participate consistent with the policies in Section II, infra.
5. Orientation. Inmates will have an initial week of orientation and assessment which will include classroom sessions in up to eight-person groups and individual meetings with inmates’ assigned I-ASAT staff in order to review program expectations (the “ASAT contract”), collaboratively develop an initial treatment plan with assigned staff and identify strengths and problems requiring attention for the particular inmate (e.g., alcohol or substance abuse issues, history of trauma, compulsive behaviors, cognitive distortions, health or family issues).
6. Programming (a) Each participating inmate will engage in three hours of
classroom programming each day, five days per week (excluding holidays). (b) Programs will be conducted in three-hour morning and
afternoon modules in all five classrooms, allowing the total classroom capacity (44) to provide programming for all 88 participants in either a morning or afternoon session.
(c) Each participating inmate will be offered two hours of recreation at the rear of the cell, seven days per week, with the ability to earn evening congregate leisure time in the upstairs classrooms.
7. Curriculum. The program will be informed by principles of cognitive behavioral therapy, focusing on withdrawal and craving management, relapse prevention strategies, and developing skills to avoid substance abuse disciplinary infractions and promote positive engagement with general population programming.
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Educational cell study will be available during non-program hours depending on the inmate’s educational needs.
8. Incentives. As incentives for positive behavior, all participants will be offered increased access to personal property; at least one phone call in the first 60 days of the program and every 30 days thereafter (extra calls may be earned); additional showers, additional commissary purchases, and recommendation for time cuts. In addition, evening congregate leisure activities may be earned. Participants are subject to the possibility of losing one or more of these incentives for negative behavior. The availability of these incentives will be based on inmate participation and progress throughout the program, as determined by the Program Management Team.
9. Projected Opening of Lakeview Substance Abuse Program. The Lakeview Substance Abuse Program will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate of the time required to complete construction relating to the Lakeview Substance Abuse Program, DOCCS anticipates opening the Program within 2.9 years of the enactment of the Fiscal Year 2016-2017 Budget.
D. Step-Down to the Community Programs SHU Step-down to the Community Programs will be established at Green
Haven Correctional Facility (“Green Haven”) and Wende Correctional Facility (“Wende”) to provide re-entry programming to inmates who have been in a SHU cell for 60 days or more serving a SHU or keeplock sanction and who have a minimum of 45 days and a maximum of 60 days to release.
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1. Program Overview. (a) A 60-day two-step program will be established at Wende
(17 beds) and Green Haven (12 beds) to provide re-entry programming for inmates being released to the community after SHU confinement in excess of 60 days.
(b) The program goal is to assist participants with the development of a comprehensive release plan, incorporating social skills practice, relapse prevention, family reintegration and employment readiness. Behavior modification and relapse prevention will be addressed by modalities such as identifying high-risk behaviors, emotional regulation exercises, social skills practice, discussing how to deal with fear and the feelings of others, and how to ask and respond to questions.
2. Physical Layout. At both Wende and Green Haven, programs will be provided in a classroom with 6 restart chairs.
3. Staffing. Combined, the unit will have a projected staff of 9.5 employees which includes a multi-disciplinary Program Management Team comprised of security and program staff, which will determine participants’ readiness to move from Step 1 to Step 2 and, if necessary, removal from the program.
4. Program Modules. (a) The program will provide all participants with a three-hour
module of programming five days per week (excluding holidays) and will seek to incorporate in-reach services by community-based organizations and Community Supervision staff through video-conferencing.
(b) Green Haven will operate 2 modules per day. Wende will operate 3 modules per day.
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(c) Step 1 programming will be provided to participants using restart chairs. Step 2 programming will be conducted without restraints.
5. Recreation. (a) Wende: Individual exercise for two hours per day, seven
days per week. (b) Green Haven: Congregate recreation for two hours per day,
seven days per week. 6. Incentives. In Step 2, participants will be eligible to receive, as
incentives, additional visits, additional phone calls, and increased commissary. 7. Eligibility. The Department shall design a system for identifying
each month inmates who are expected to qualify for this program. Placement in the program shall be in the discretion of DOCCS, employing these criteria:
(a) Prospective participants must have a minimum of 45 days and a maximum of 60 days to release.
(b) Priority shall be given to inmates who have been in SHU the longest.
(c) DOCCS will conduct an individualized eligibility review to screen out individuals who would presently pose a serious threat to safety or are likely to be so disruptive to the program that it would disrupt program operations. The parties agree that inmates with violent or disruptive histories may be in the greatest need of step-down programming prior to release and that a history of violence, by itself, will not preclude placement in the program.
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(d) Priority will be given to inmates being released to the community in the facility’s region.
8. Initial Program Cohort. At each of the two facilities involved, the initial program will be limited to six participants, until a cohort of inmates is identified by the multi-disciplinary team as ready to progress to Step 2, an anticipated minimum of two weeks after program start-up.
9. Projected Opening of Step-Down to the Community Programs. The Step Down to the Community Programs will commence operations as soon as the housing blocks and trained staff are available. DOCCS anticipates opening the Program within 6 months of the enactment of the Fiscal Year 2016-2017 Budget.
E. Programs for Juveniles 1. Continuation of Programs. The programs for juveniles, including
SHU-alternative programs, created pursuant to the parties’ January 24, 2014 Stipulation, filed February 19, 2014, are hereby continued and incorporated herein, as provided in the following paragraphs.
2. Limit On Time In Cell. DOCCS will ensure that even under the most restrictive form of disciplinary housing, 16 and 17 year-old inmates shall, 5 days per week (excluding holidays), be offered out-of-cell programming and outdoor exercise, limiting time in their cells to 19 hours a day, except in exceptional circumstances referred to Central Office.
3. Separate Housing For Juveniles. Medium security 16 and 17 year olds will be separately housed in a general population housing unit or units for juveniles at one or more medium security facilities. Maximum security 16 and 17 year-old inmates
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will be housed separately in a general population housing unit for juveniles at a maximum security facility.
4. Shock Incarceration Program. DOCCS may continue to admit qualifying 16 and 17 year-old inmates to its Shock Incarceration program.
5. Disciplinary Sanctions. Aged 16 and 17 year-old inmates with disciplinary confinement sanctions of less than 30 days will remain in the facility in which they are housed at the time the sanction is imposed. Aged 16 and 17 year-old inmates with SHU confinement sanctions in excess of 30 days will be placed in a separate housing unit, as an alternative to placement in SHU, absent extraordinary circumstances.
6. Relationship to Cookhorne. Nothing in this Agreement shall be deemed to be inconsistent with, or to diminish, DOCCS’ agreements and responsibilities under the settlement agreement in Cookhorne v. Fischer, 2012-1791. DOCCS shall promptly notify Plaintiffs in the event that any developments in Cookhorne are expected to impact the provisions of this Agreement.
7. Program Contingency. In the event that aged 16 and 17 year old inmates are removed from DOCCS adult facility or facilities and placed into dedicated juvenile facilities operated by DOCCS, paragraphs 2 and 5 of this section shall remain in full effect at the new facility(ies). In the event that aged 16 and 17 year olds are removed system-wide from DOCCS custody during the term of this Agreement, DOCCS will meet and confer with Plaintiffs regarding how it plans to reallocate the facility space and staff previously dedicated to the juvenile program.
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F. SHU-Alternative Program for Special Needs Inmates 1. Continuation of Program. The Correctional Alternative
Rehabilitation (“CAR”) program at Sullivan Correctional Facility (“Sullivan”) for special needs inmates, created pursuant to the parties’ January 24, 2014 Stipulation, filed February 19, 2014, is hereby continued and incorporated herein, as provided in the following paragraphs.
2. Eligibility. The CAR program shall, absent exceptional circumstances referred to the DOCCS’ Central Office, and to the extent that space is available in the program, provide an alternative to SHU for certain inmates who have a Beta Wechsler Adult Intelligence Scale (“BETA-WAIS”) of 70 or below or who DOCCS otherwise determines have significantly limited intellectual capabilities and/or adaptive functioning and coping skills and have received SHU confinement sanctions exceeding 30 days.
3. Program Overview. The CAR program will continue to have three phases: (i) assessment and orientation, (ii) treatment, and (iii) transition to nondisciplinary housing settings. Two hours per day of out-of-cell group programming will be offered in the orientation phase and four hours per day in the second and third phases, five days a week for each phase. In addition to programming, the CAR program will use a range of incentives to reward behavioral progress. The incentives will be offered on an individualized basis and will be treatment-plan driven.
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II. AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS
The following agreements shall apply to all SHU–Alternative Programs discussed in Section I, supra:
A. Eligibility and Placement. Suitability and selection for SHU-Alternative programs will be determined in DOCCS’ discretion in accordance with the criteria stated herein for each program, and will be subject to space availability.
B. Program Management Team. Each SHU-Alternative Program will be managed by a multi-disciplinary team (“Program Management Team”), as described in this Agreement with respect to each such Program.
C. Continuation of Programming. 1. Programming and/or recreation offered to an inmate in each SHU-
Alternative Program may be denied to an inmate only in exceptional circumstances where it is believed that the inmate presents an unacceptable risk to the safety of staff or other inmates or to the security of the facility, and shall not be denied as punishment. This limitation does not apply to the revocation of conditions enhancements that are described as “Incentives” for each of the SHU-Alternative Programs set forth herein.
2. All denials of programming based upon exceptional circumstances shall be reported to Central Office. A request for a determination that an inmate should be denied out-of-cell programming and/or recreation because it is believed he or she poses an unacceptable risk to the safety of staff, inmates or the security of the facility will be submitted for approval to the Deputy Superintendent for Security (or the equivalent) and the Superintendent of the facility, as soon as possible, but no later than the first business day following the suspension of an inmate’s out-of-cell programming and/or recreation. If
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the request is not approved, the inmate shall be restored to his or her regular out-of-cell programming and/or recreation immediately. If the request is approved, programming shall resume as soon as the Program Management Team determines the risk to safety or staff has abated.
D. Restraints, Privileges, Incentives and Out-of-Cell Time. Each SHUAlternative Program will have a program and operations manual detailing, inter alia, the use of restraints, access to privileges, incentives, and out-of-cell time applicable to the needs of the inmates in that program and consistent with this Agreement. With respect to restraints, the goal will be to progressively reduce the use of restraints that an inmate may be subject to at each level, consistent with the need to operate the SHU-Alternative Program in a safe, secure manner, allowing the inmate fewer restraints and a greater simulation of the general population environment prior to release from the SHUAlternative Program. Inmates will receive the specified incentives for each phase of a particular program as specified in the program and operations manual, subject to the possibility of losing them for negative behavior.
E. Out-of-Cell Interviews. In addition to the specific program commitments in each SHU-Alternative Program described herein, the Program Management Team in Alternative Units will be encouraged to make use of out-of-cell interviews with inmates entering into, and participating in, a SHU-Alternative Program to engage the inmate and review the inmate’s progress with program objectives. The decision to offer an out-of-cell interview, however, remains with the Program Management Team. Unless the Program Management Team requests a participating inmate’s presence during a case conference, such conferences shall be conducted outside the presence of the inmates.
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F. Discipline in SHU-Alternative Programs. 1. Informational Reports will be utilized in the SHU-Alternative
programs to convey information (whether positive or negative) to the Program Management Team to consider for program assessment and security decisions. The Program Management Team will use this information to determine if an increase or decrease in incentives is indicated or to determine other programmatic or security needs (e.g., need for individual session, program review).
2. The Informational Report will be used as a tool to implement progressive discipline short of the formal disciplinary process and will allow staff to document less serious inmate misconduct and bring it to the attention of the Program Management Team. The Program Management Team and facility administration will collaborate to determine which approach or action should be employed in specific instances.
3. De-escalation, intervention, Informational Reports and the withdrawal of incentives shall be the preferred methods of responding to less serious negative behavior in the SHU-Alternative programs.
4. Misbehavior reports can only be issued in circumstances where the inmate is accused of serious offenses, the alleged behavior demonstrates a threat to safety, and/or the inmate has engaged in repeated acts of disruptive misbehavior despite prior alternative interventions.
5. Hearing officers will be instructed by hearing officer guidance that they should avoid imposing additional SHU sanctions on persons in SHU Alternative Units and should instead consider non-confinement and/or progressive sanctions,
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consistent with the need to maintain safety and security. SHU sanctions may be appropriate, however, where the inmates have been found guilty of a serious offense, the misbehavior demonstrates a threat to safety, and/or the inmate has engaged in repeated acts of disruptive misbehavior despite prior alternative interventions.
6. Even when additional SHU sanctions are issued, in the discretion of the Program Management Team, additional SHU sanctions may result in extending the inmate’s time in the SHU Alternative Program, rather than result in removal from the Program.
7. Before a SHU or Keeplock confinement sanction imposed by a Hearing Officer on an inmate already in a SHU Alternative Unit is served by the inmate, the Superintendent shall review the sanction and either approve or disapprove it.
8. All SHU sanctions imposed on persons who are already in a SHU Alternative Unit shall be reported every quarter to Central Office.
G. Discharge Upon Completion of SHU-Alternative Program. Upon successful completion of a SHU-Alternative Program, an inmate will be moved into a general population environment. The remainder of the inmate’s SHU sanction, if any, will be suspended upon the inmate’s release from the SHU-Alternative Program. If the inmate does not engage in any sanctionable conduct during the duration of the suspended SHU confinement sanction, that disciplinary sanction will expire on the earlier of the sanction end-date or 6 months from the date of release to general confinement. Service of suspended SHU confinement penalties may be imposed as a sanction, based on an individualized assessment, only for serious misbehavior or for committing the same or similar violation as that leading to the suspended sanction.
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H. Disciplinary Sanction Ends Prior to Program Completion. In the event that an inmate’s disciplinary sanction expires prior to the completion of the SHUAlternative Program, such inmates will return to general confinement, where DOCCS will make efforts to continue programming and treatment. Nothing in this section precludes the continued selective use of Protective Custody or Administrative Segregation in accordance with established procedures.
I. Early Discharge to SHU. 1. An inmate serving a disciplinary sanction in a SHU-Alternative
Program will only be discharged to SHU under the following specific, limited circumstances:
(a) When it is determined by the Program Management Team that an inmate has been chronically failing to comply with the program objectives, the Program Management Team will first attempt to obtain program compliance. All efforts to obtain compliance will be fully documented by the Program Management Team. Absent compliance, a recommendation may be made for alternate program placement or discharge to SHU. The recommendation by the Program Management Team shall be forwarded to the Superintendent for determination. The Superintendent’s determination will be forwarded to Central Office for review, and if necessary, transfer action.
(b) When it is determined that an inmate poses an immediate or continuing unacceptable threat to the safety of staff or other inmates or to the security of the facility, the Deputy Superintendent for Security will consult with the Program Management Team and make a recommendation. The recommendation by the Deputy Superintendent for Security will be forwarded to the Superintendent for determination.
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The Superintendent’s determination will in turn be forwarded to Central Office for review, and if necessary, transfer action.
J. Full Utilization of Capacity. The parties agree on the goal of full utilization of the capacity of the SHU-Alternative Programs created under this Agreement. In the event that any SHU-Alternative Program, after being open for at least one year, shall be operating at less than 75% of capacity for two quarters in a row, DOCCS agrees to meet and confer with Plaintiffs’ counsel and the parties’ experts to discuss any such underuse of a SHU-Alternative Program, and to consider potential modification of eligibility criteria as well as whether a particular SHU-Alternative Program should be terminated, if the parties agree that there is no longer a need for the Program. This provision shall also apply to capacity questions regarding new Separate Keeplock Units and the Confined Program Plan, discussed infra.
K. Inmate Orientation Material. Upon admission to a SHU-Alternative program, inmates shall be provided with information, in the form of orientation materials and meetings with the Program Management Team, to make them aware of the program mission, phase levels and incentives, and expectations in order to assist them in successfully completing the program and earning release back to general population.
L. Timeframes. The agreements in this section will be implemented in conjunction with the opening of any new SHU-Alternative Unit. With regard to CAR and the juvenile program, these agreements will be implemented within 6 months of the Effective Date.
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III. PRESUMPTION AGAINST SHU FOR PREGNANT INMATES DOCCS will maintain a written policy in the form of a memorandum by the
Deputy Commissioner for Correctional Facilities continuing the presumption against placement of a pregnant inmate in SHU for disciplinary purposes, except in exceptional circumstances as determined by the DOCCS Central Office. IV. SEPARATE KEEPLOCK UNITS
DOCCS will create two new Keeplock Units with a combined capacity of 175 inmates at Fishkill Correctional Facility (“Fishkill”) (75 beds) and Five Points Correctional Facility (“Five Points”) (100 beds) intended for inmates serving Keeplock sanctions in excess of 45 days. The target population is 175 inmates statewide.
A. Conditions in New Units. DOCCS will remove inmates selected by DOCCS who are serving
Keeplock sanctions in excess of 45 days from more restrictive SHU cells and place them in new Keeplock Units with the following conditions of confinement:
1. Fishkill. 75 medium security cells in Housing Units O, P and Q. All Inmates in these units will have access to the following privileges, subject to the possible loss of one or more of these privileges for a specified time, consistent with the principles of progressive discipline:
(a) One hour of daily congregate recreation, seven days per week, including chin-up bars and basketball.
(b) Access to phone calls in yard during daily congregate recreation.
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(c) Access to the same personal property as available in general population.
(d) Visits as permitted in general population. 2. Five Points. 50 maximum security double cells as Keeplock cells with a total capacity of 100 inmates. Inmates in these units will have access to the following privileges, subject to the possible loss of one or more of these privileges for a specified time, consistent with the principles of progressive discipline:
(a) Two hours of congregate recreation twice weekly on alternate days, including chin-up bars and basketball.
(b) Access to phone calls in yard during twice a week congregate recreation.
(c) Access to the same personal property as in general population.
(d) In-cell showers 5 days per week. (e) Visits the same as those in general population. B. Projected Opening of New Keeplock Units. The parties agree that the Keeplock Units will be opened as soon as construction has been completed. Based on DOCCS’ estimate of the time required to complete construction relating to the Keeplock Units, DOCCS’ goal is to open the Keeplock Units during the fiscal year of April 1, 2016 to March 31, 2017. C. Placement Priority. DOCCS will give priority to inmates with longer Keeplock sanctions for placement in the new Keeplock Units.
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D. Reduction of Certain Keeplock Sanctions. When a Keeplock sanction is imposed and is served in a SHU cell, service
of the sanction will be credited at the rate of three days for every two days served in the SHU cell. V. UNIFORM “PIMS” PROGRAM FOR ALL SHUs
A uniform behavioral incentive program – Progressive Inmate Movement System (“PIMS”) – shall be established for all SHUs with progressive increases in privileges in accordance with the PIMS level table provided to Plaintiffs’ counsel (document Bates stamped S048163).1 Upon admission to SHU, all inmates will begin at PIMS I, and their time in PIMS I shall be calculated as of the date their SHU sanction begins. Hearing officers will be instructed to give credit for pre-hearing confinement in a SHU cell when assigning the SHU sanction start date. The new PIMS system, except for congregate recreation, will be implemented within 6 months of the Effective Date. The Department shall implement the new PIMS system in a way that maintains or improves the conditions of confinement for SHU inmates (e.g., an inmate at PIMS II under the old PIMS system will be maintained at PIMS II or higher upon implementation of the new PIMS system). VI. CONFINEMENT PROGRAM PLAN (“CPP”)
A total of 84 single cell beds at Southport Correctional Facility and 150 double cells at Upstate Correctional Facility, for up to 84 inmates and 300 inmates, respectively, will be used to house inmates selected by DOCCS who are confined to SHU with a sanction or combined sanctions in excess of 6 months and who do not qualify for one of
1 Documents referenced in this Agreement by Bates number, until disclosed to DOCCS’ staff and the inmate population, shall be and remain subject to the parties’ May 15, 2013 confidentiality agreement, which is incorporated herein by reference (the “2013 Confidentiality Agreement”).
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the SHU-Alternative Programs. These inmates, upon reaching PIMS Level IV, will be eligible for additional time cuts and other privileges as a result of continued good behavior and positive programming.
A. Overview. 1. Program Plan. The assigned ORC will develop an individualized
Confinement Program Plan (“CPP”) for inmates in this program during an out-of-cell initial interview. The CPP will provide each inmate with a plan through which positive behavior and programming participation can lead to additional reductions of disciplinary sanctions. The plan will be individualized to the inmate, and appropriate and achievable for that inmate taking into account any limitations, such as a low literacy level.
2. Program Management Team. The program will be supervised by a Program Management Team that will include a Teacher, an ORC, an ASAT ORC, and a SHU Sergeant.
3. Program Overview. The program will incorporate cell study for inmates identified with an educational need or desire to continue with post-secondary education, such as correspondence courses. Inmates at PIMS Level II or higher will also be eligible for workbook programs to address errors in thinking, aggression and substance abuse, where applicable. Once an inmate begins CPP programming, programming may be denied only (1) in exceptional circumstances consistent with Section II(C), or; (2) where an inmate regresses from a higher PIMS level to PIMS I and adequate CPP program staff are not available to continue programming at PIMS I, programming may be temporarily interrupted provided that such programming shall resume as soon as CPP staff become available. An inmate may be removed from CPP for chronic failure to comply
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with program objectives in accordance with the policies in Section II(I)(1)(a), except that the recommendation to remove an inmate will be made by the ORC instead of the Program Management Team.
4. Progress Evaluation. CPP updates and evaluations of progress will be reviewed with each inmate quarterly out-of-cell, except that in PIMS IV, evaluation of progress will be reviewed with each inmate monthly out-of-cell. One of these reviews may be conducted with the Program Management Team and/or the ORC in conjunction with the inmate’s regularly scheduled case plan review.
B. Programs Offered. 1. Behavior Modification/Aggression. (a) Inmates at PIMS Level II or higher who have an identified
aggression management need will be enrolled in a workbook program conducted by an ASAT ORC/ORC. Program workbooks will be provided at no cost to the inmate.
(b) The program will assist inmates in identifying personal behaviors that may have led to acts of aggression and/or violence.
(c) The program length will be approximately 180 days (six months) in duration. During this time, the inmate will be seen by the ASAT ORC or ORC cell-side a minimum of twice per week in order to provide direct cell-side instruction, give assignments, correct all inmate work, provide feedback, and review the inmate’s status within the program.
(d) Inmates who participate in cell-side ART in CPP for the full program length of 180 days shall receive full credit for completing two out of six ART modules, shall not be required to retake those two modules upon enrollment in ART in
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general population, and shall be considered for expedited placement into general population ART upon release from SHU. Participation in cell-side ART programming shall be duly considered by the Time Allowance Committee.
2. ASAT Pre-Treatment Workbook. (a) Inmates at PIMS Level II or higher, and with an identified
substance abuse problem will be enrolled in a workbook program conducted by an ASAT ORC.
(b) The ASAT Pre-Treatment Workbook is designed to provide inmates with a substance abuse disorder an opportunity to examine the effects of alcohol and substance abuse on their lives and to increase the probability of a positive treatment outcome when the inmate is released from SHU confinement and is able to participate in DOCCS substance abuse treatment. Program workbooks will be provided at no cost to the inmate.
(c) Participating inmates will be seen by the program’s coordinator cell-side a minimum of twice per week in order to provide direct cell-side instruction, give assignments, correct all inmate work, provide feedback, and review the inmate’s status within the program. Satisfactory completion will generally occur within 6 months.
(d) Inmates who participate in cell-side ASAT in CPP shall receive credit for at least 25% program completion and up to 50% program completion, based upon the instructor’s assessment, and shall be considered for expedited placement into general population ASAT upon release from SHU. Participation in cell-side ASAT programming shall be duly considered by the Time Allowance Committee.
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3. Educational Cell Study. (a) The Educational Cell Study program will be conducted by a
teacher. (b) Each Cell Study Teacher will evaluate each inmate’s needs
and write an academic plan for each inmate enrolled in Cell Study. The teacher will be responsible for determining each inmate’s academic level and developing an academic plan. The teacher will obtain each inmate’s previous standardized test scores. The teacher will be expected to provide direct cell-side instruction, give assignments, correct all inmate work and provide feedback.
(c) Each participating inmate will be seen by the teacher cellside at least once a week.
(d) Any inmate who participates in Cell Study at Adult Basic Education, Pre-High School Equivalency, High School Equivalency, or Bilingual/English as a Second Language levels will be eligible to take standardized academic tests. All inmates enrolled in Cell Study will receive standardized testing on a schedule that coincides with the general population. Testing available will include the English oral proficiency test known as BEST Plus, and TABE, TABE Español, SABE, the Readiness Exam, and the TASC™.
4. Incentives. (a) Two hours of congregate recreation will be offered at PIMS
Level III, one day per week on a rotating basis, and at PIMS Level IV, three days per week. Congregate recreation shall be made available as soon as construction has been
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completed. Based on DOCCS’ estimate that approximately three years will be required to complete construction needed for congregate recreation at Upstate and Southport Correctional Facilities, DOCCS’ goal is to make congregate recreation available within three years of the enactment of the Fiscal Year 2016-2017 Budget.
(b) Once the inmate reaches PIMS Level IV, an inmate’s record of participation in CPP programming will weigh in favor of granting time cuts and other privileges. As long as an inmate demonstrates positive participation in programming, the inmate’s lack of progress in the programming shall be irrelevant in determining if the inmate is to receive time cuts and other privileges.
5. Inmate Orientation Manual. Upon admission to a CPP program, inmates shall be provided with information, in the form of orientation materials and meetings with the ORC, to make them aware of the program mission, PIMS levels, and expectations in order to earn Time Cuts. VII. UPSTATE ASAT PROGRAM EXPANSION
The ASAT program currently operated by Upstate Correctional Facility two days a week, with two modules a day, with up to six inmates in each module, for a total of up to 12 inmates per week, will be expanded so that the program will operate four days per week, with two modules a day, with up to six inmates in each module, for a total of up to 24 inmates per week. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance abuse disorder will be placed into the program, as determined by an admission and comprehensive evaluation procedure to be conducted by DOCCS substance abuse personnel. In order to support the Upstate ASAT program expansion, there will be a projected staff increase of six full-time
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employees. The program expansion will commence operations after the enactment of the budget in Fiscal Year 2018 -2019. VIII. SHU CONDITIONS
Without limiting the agreements set forth herein with respect to conditions in particular programs, the parties agree to the following with respect to SHU conditions:
A. Phone Calls. Absent a court order or exceptional circumstances where there is a threat to the safety and security of staff, inmates, the public or state property, DOCCS will offer at least the following:
1. For the purposes of this Agreement, a “phone call” in SHU, a SHU Alternative Unit or the Separate Keeplock Unit means at least 15 minutes of phone use time, exclusive of the time needed to escort the inmate to or from the phone and without limitation to the number of calls an inmate may make within that 15 minutes. Such phone access will be presumed during such times as an inmate is offered access to a yard containing operating inmate telephones;
2. One phone call while the inmate is in PIMS Level II; 3. One phone call every 30 days to every inmate in PIMS Level III and Level IV; 4. Conduct a pilot program in the Mid-State Step-Down/Drug Treatment unit using a rolling phone cart to provide access to telephone calls. The pilot will begin when the unit opens, and within 3 months of initiating the pilot the parties will meet to discuss whether rolling carts are a feasible method of increasing phone access in SHUs and, if not, other possible alternatives that could be considered.
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5. Greater access to phones may be provided in particular programs or at particular facilities, as provided in this Agreement.
B. Shower Curtains. Shower curtains will be provided in all SHU 200s, and at Upstate Correctional Facility.
C. Library Services. 1. An inmate is currently allowed to have two books and one
magazine at a time in his or her SHU cell, and to make new selections of reading materials one time per week. DOCCS agrees that inmates who have finished with their books and/or magazine in less than a week may request two new books and a new magazine on an exchange basis;
2. DOCCS will increase library cart re-stocking and rotation from every 60 to every 30 days.
D. Head Phones. A wall jack for headphones will be provided in all SHU cells that are not currently equipped.
E. Double-Celling Assignments. 1. A policy similar to the double-celling criteria currently in place in
the Fishkill facility, Bates-stamped S048181-S048186, will be implemented in all double occupancy SHU units;
2. Double-cell assignments will be immediately reassessed following a fight between cellmates reported to or observed by DOCCS staff;
3. The final decision on any double-cell assignment will be made by the Deputy Superintendent for Security.
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4. DOCCS will ensure that all inmates are advised in the SHU orientation manual that they may request an OMH review of a double cell assignment on mental health grounds and instructed on how to make such a request; provided, however, that it is in OMH’s sole discretion to decide whether or not to conduct such a review and to what extent.
F. Correspondence Courses. All SHU inmates will be permitted to enroll in approved correspondence courses at their own expense. DOCCS will give full consideration to requests to approve correspondence courses offered by accredited institutions of higher education that seek to provide SHU inmates with no-cost or low-cost post-secondary correspondence courses.
G. Tablet Pilot Program. DOCCS will establish a pilot program deploying 30 tablet style computers (without internet access) to inmates in traditional SHU units and is considering three potential sites for the pilot. The tablets will have educational and recreational software pre-loaded and otherwise will be configured in such a way as to satisfy security concerns and ease of use by the inmate. DOCCS will issue an RFI for a pilot of at least 30 such tablets within two months after the Effective Date of this Agreement. After the tablets have been in use for six months, DOCCS will share the results of the pilot program with the Plaintiffs’ counsel and will discuss with Plaintiffs’ counsel the feasibility of expanding and making the pilot program permanent, giving consideration to any recommendations made by the experts. The pilot program outcome will be measured by the tablets’ durability, utility, user feedback and security considerations.
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H. Mental Health Contacts. DOCCS shall ensure that meetings between inmates and mental health professionals occur out-of-cell in a confidential setting whenever approved by OMH. The following advisement shall be prominently displayed in orientation materials provided to all inmates upon admission to SHUs located in facilities that are OMH Level 1-4:
In this Special Housing Unit, OMH will offer a confidential meeting with a mental health professional within ___ days of admission to SHU and every ____ days thereafter. You may submit a confidential request for a private consultation with an OMH mental health clinician at any time as follows: ____.
The following advisement shall be prominently displayed in orientation materials provided to all inmates upon admission to SHUs located in non-OMH facilities:
In this Special Housing Unit you may submit a confidential request for a private consultation with an OMH mental health clinician as follows: ______________.
I. Additional Changes in Conditions. The parties agree that the changes in SHU conditions set forth in this §VIII are the minimum to be achieved and that DOCCS may make further changes, if deemed practicable, to improve conditions. DOCCS’ efforts to make changes exceeding the minimum requirements under this Agreement shall not create enforceable obligations on the part of DOCCS and any such additional changes shall be in DOCCS’ sole discretion, consistent with the goals of this Agreement and DOCCS’ statutory responsibilities. IX. DEPRIVATION ORDERS
A. Deprivation Order Limitations. Deprivation orders will not be imposed as punishment, but only where there is a threat to the safety and security of staff, inmates or state property. Deprivation orders will be terminated when threat has abated, as determined by security staff.
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B. Notification to OMH. DOCCS will notify OMH of the issuance, renewal and termination of all deprivation orders issued to inmates on the OMH caseload.
C. Review and Renewal. After 7 days, deprivation orders will be reviewed, and can be renewed, by the Superintendent.
D. Special Management Meal. DOCCS will replace the Loaf within three months of the Effective Date of this Agreement with a nutritious, calorie-sufficient, and palatable alternative meal composed of regular food items that can be safely delivered to and eaten by inmates. For example, a sack lunch consisting of fruit, cheese, cold cuts, sandwich bread, and coleslaw would meet the requirements of this subsection.
E. Record Keeping. DOCCS will hire an additional staff member to support the Assistant Commissioner for Special Housing/Inmate Disciplinary Programs in order to establish a system of electronic record keeping and reporting of deprivation orders, and any such other tasks deemed appropriate by the Assistant Commissioner. X. SENTENCING PRACTICES
A. Modifications of Guidelines. DOCCS will implement revised guidelines (the “Revised Guidelines”) for disciplinary confinement sanctions (document Batesstamped S048164 to S048180), in certain respects modifying the guidelines implemented pursuant to the terms of the Interim Settlement (Bates-stamped S3682 to S3705). As shown in the Revised Guidelines, sanction ranges for certain charges are broken down based upon different levels of seriousness (“disaggregated”) in order to promote progressive discipline. Disaggregation will not result in additional numbered charges under DOCCS disciplinary rules, and previous offenses relating to the same numbered charge, regardless of disaggregation, will be considered “prior charges” for the purpose of
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determining whether a particular violation is a “first,” “second,” or “third” offense. Staff and inmates shall be notified of the revised guidelines by means of a memorandum issued by the Deputy Commissioner for Correctional Facilities.
B. Special Management Meal 1. Effective within three months after the signing of this Agreement,
DOCCS will, by a memorandum to all Superintendents, cease and desist from using the Special Management Meal as a disciplinary sanction for acts of inmate misbehavior.
2. The imposition of the Special Management Meal shall comply with all the policies in § IX above. In addition, a Special Management Meal may only be ordered by the Superintendent or his or her designee (the OD or higher ranking authority) in connection with one of the following behaviors:
(a) Throwing food while assigned to the SHU; (b) Committing unhygienic acts in the SHU, such as spitting at staff or other inmates or throwing feces or urine; (c) Refusing to obey a direct order at the time of meal distribution or refusing to obey a direct order to return a food container or utensil at the conclusion of a meal while assigned to SHU. C. Guidance for Hearing Officers. Hearing officers will receive a memorandum (document Bates stamped S048157 to S148162) providing guidance regarding the proper exercise of their discretion with regard to the issuance of inmate sanctions. After issuance of the memorandum the Department will review data to assess general adherence by hearing officers with the guidance provided, and provide additional counseling and/or training to hearing officers as necessary.
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D. Time Cuts. 1. SHU Sanctions less than 90 days. Inmates serving individual sanctions of less than 90 days for infractions which do not involve certain infractions related to escape, violent conduct, or unhygienic acts2 will, in the absence of a subsequently issued Tier II or III misbehavior report, earn a time-cut of 7 days from the original sanction after serving 30 days of the sanction and a further 7 day time cut after serving 60 days. The time cuts provided herein will be computed electronically and automatically reported to the inmate’s facility. 2. SHU Sanctions of 90 days or more. Inmates who are serving individual sanctions of 90 days or more will receive time cuts reducing the original sanction in accordance with the following procedures:
(a) If the inmate exhibits good behavior, has positive interactions with staff, and shows progress and achievement in cell study (where applicable), the inmate will be presumptively awarded a time cut of 25% of the original sanction by the Special Housing Management Committee (“SHMC”) after the inmate has served one-half of his or her SHU confinement sanction. The SHMC may exceed the presumptive 25% time cut, which is not a cap, up to and including release from SHU. If the SHMC finds that the inmate should receive less than the presumptive 25% time cut, the SHMC will articulate a specific reason why the inmate should get less time based on his or her behavior during service of the sanction. Issuance of additional Tier 2 or Tier 3 misbehavior reports while the inmate is serving a sanction may justify the denial of a time cut, but is not an automatic bar precluding the SHMC from granting time cuts if the
2 Disciplinary infractions numbered 108.10, 108.13, 100.10, 100.11, 100.12, 101.11, 113.10, 100.13, 104.10, 117.10, 118.10, 118.22, 101.10 and 104.11.
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inmate has otherwise demonstrated progress. Half-way through the inmate’s initial sanction, the computer will electronically add the respective inmate to the queue of inmates to be reviewed at the next SHMC meeting. The SHMC will promptly report the results of its deliberations in writing to the Superintendent. The Superintendent will have responsibility for review and decision.
(b) Any inmate serving a sanction of 90 days or more for infractions which do not involve the referenced infractions involving escape or violent conduct or unhygienic acts who does not earn a time cut through the above-described SHMC process will receive an automatic time-cut of 10% of the original sanction, provided he or she has not been issued a Tier 2 or Tier 3 misbehavior report.
3. Nothing regarding time-cuts provided in this Agreement shall be construed to create a liberty or due process interest on the part of inmates in the issuance of time-cuts.
E. SHMC Calendar. The calendar for SHMC meetings shall include the OMH Level of all inmates in SHU. In determining whether a time cut is warranted, the SHMC shall consider whether an inmate’s OMH level weighs in favor of granting a time cut, for example, whether a time cut above the presumptive 25% should be granted to an OMH caseload inmate to permit that inmate an earlier return to a general population environment. XI. TRAINING
In order to carry out the goals of this Agreement, DOCCS will provide training as follows:
A. Training Academy. The training program for recruits will include:
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1. Incorporating principles of motivational interviewing into existing interpersonal communication training;
2. Incorporating principles of de-escalation into existing three-day training relating to mental health issues; and
3. Incorporating principles of de-escalation into existing use of force training.
B. SHU-Alternative Units. At the SHU-Alternative Units at Southport, MidState, Lakeview, Wende and Green Haven Correctional Facilities, a one-week training will be provided to the staff of those units regarding the context of this Agreement, the SHU environment and principles of de-escalation.
C. CPP Staff. For all staff assigned to Southport and Upstate CPP programming, a one-day training program will be provided as to the context of this Agreement, the SHU environment and principles of de-escalation. For all teachers and ORCs assigned to these CPP programs, a second day of training will be provided including active case management principles and practices.
D. SHU Staff. For all security staff and ORCs assigned to SHU blocks: 1. Initial Training. A one-day training program will be provided with
respect to the context of this Agreement, the SHU environment and principles of deescalation.
2. Annual Refresher Course. (a) At OMH Level 1 and 2 facilities, principles of de-escalation
will be emphasized during the next annual 4-hour mental health refresher course;
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(b) At all facilities other than OMH Level 1 and 2 facilities, a refresher course will be provided by supervisory staff through training bulletins discussed in informal meetings with staff concerning the following progressive alternatives to misbehavior reports for less serious incidents of misbehavior by inmates already housed in SHU:
(c) De-escalation and intervention as the preferred method of responding to negative behavior in SHU.
(d) If de-escalation and intervention do not achieve the desired effect, PIMS regression should be utilized prior to the issuance of a misbehavior report for less serious offenses.
(e) Misbehavior reports may be issued for serious offenses, or if the above alternatives do not attain the desired effect.
E. SHMC. In the course of its annual audits of SHU facilities the Office of Special Housing and Inmate Discipline will carry out training for SHMCs on new SHMC protocols and guidelines under this Agreement.
F. Entire DOCCS Staff. DOCCS Commissioner will ensure the delivery of a four-hour mandatory training program to the entire DOCCS staff during the first quarter of 2017, including the context of this Agreement, the SHU environment, and de-escalation principles and techniques.
G. Annual Peace Officer Training. Principles and techniques of deescalation will be emphasized during the regular four hours of use of force training.
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H. Guidance on Transfer Procedures. The Department shall augment and reinforce existing policies and procedures to ensure the continuity of case oversight for an inmate returning to general population from a SHU or Alternative Unit, as follows:
1. Advance Notice of Transfer. Inmates moving to general confinement in another facility will be submitted for transfer consideration by the assigned ORC within two (2) weeks prior to transfer. Programming completed while an inmate has been in a SHU-Alternative Program or confined in SHU, along with the inmate’s continuing program needs, will be included in the transfer referral by the ORC.
2. Electronic Scheduling of Initial Interview. Upon arrival at the general confinement facility, the inmate will be electronically scheduled for an out-of-cell interview with the assigned ORC in the general confinement facility within five business days of arrival. The assigned ORC at the receiving facility will review the entire guidance file, including information provided by the ORC at the transferring facility, and will prepare appropriate and necessary program referrals. Inmates returned to general confinement in the same facility where they served a SHU sanction or were in a SHUAlternative Program will have continuity of case oversight by the assigned ORC in that facility.
3. Memorandum. A policy memo issued by DOCCS Central Office to ORCs in all facilities will reinforce the above procedures.
I. Grant Opportunities. DOCCS will explore grant opportunities available through the Office of Justice Programs (“OJP”), United States Department of Justice, for resources, staff training or other technical assistance in furtherance of the goals of this Agreement.
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J. Training Materials. The parties’ designated experts will be afforded an opportunity, prior to the use of training materials and/or training bulletins required under this Agreement, to review and comment on all such training materials. DOCCS will give full consideration to all such comments received within 15 days after the proposed training materials are provided to the parties’ experts. The final version of all training materials shall be approved by DOCCS in its discretion and shall be shared with Plaintiffs’ counsel and the experts. XII. POST-SETTLEMENT ACTIVITIES
A. Designation and Role of Experts. Plaintiffs and Defendants will each designate an expert in prison operations. No designated expert will be a monitor, but will advise and consult with the parties as provided in this Agreement.
B. Periodic Tours and Assessments. Based on an agreed schedule of specified tours, each party’s expert will report to the retaining party concerning his or her assessment of Defendants’ compliance with the terms of this Agreement. In the first quarter of 2016, the experts will conduct a tour of CAR and the juvenile program, as provided under the Interim Settlement. In the Fall of 2016, the experts will be permitted to conduct an initial consecutive four-day tour at mutually agreed correctional facilities in which programs under this Agreement are located or to be located. The parties’ experts, according to a schedule to be determined, will be permitted to conduct further consecutive four-day tours at mutually agreed correctional facilities twice each calendar year thereafter. Tours will include SHU-Alternative Programs, the new separate Keeplock Units at Fishkill C.F. and Five Points C.F., and any other locations of concern to the experts in assessing compliance with this Agreement. During tours, the parties’ experts will be
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permitted to conduct both cell-side and confidential out-of-cell interviews of up to twelve (12) inmates per facility, per tour, and shall be afforded a reasonable opportunity to speak with the related Program Management Teams.
C. Access to Documents. 1. In Conjunction With Tours. The parties’ counsel will be provided
with the following documents reasonably related to the tours. In instances where the documents are to be provided in advance of a tour, they shall be delivered to the parties’ counsel no later than 14 days prior, assuming the parties have finalized the tour dates and locations at least 60 days in advance of the tours. In instances in which the documents are to be inspected by the experts on-site during the tour, the experts or parties’ counsel may request copies of those documents during the tour. Such copies shall be provided to experts or parties’ counsel within 30 days of a request, provided the request is not unduly burdensome, and also provided that in no case will such request be denied where it is agreed between the parties’ counsel that the documents are related to an issue of substantial breach under Section XIII. This section shall not preclude the experts from making requests to review specific additional documents as they deem necessary and relevant to a tour, and such requests shall not be unreasonably denied by DOCCS unless not relevant to the terms of this Agreement, unduly burdensome, or privileged.
(a) The most recent Operations Manual for that SHU or SHUAlternative Program, to the extent not previously provided to the expert;
(b) On-site inspection of the disciplinary files for up to 6 inmates pre-identified in advance of the tour by Plaintiffs’ expert, and up to 6 additional files as requested on-site by Plaintiffs’ expert;
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(c) For the most recent six-month period prior to the tour, records of any SHU double-celling reviews, and the outcomes;
(d) For the most recent six-month period prior to the tour, on site access to records of cases reviewed for time cuts, including who was considered for time cuts, how much time those considered were eligible to receive, how much they did receive and the reasons for the actions taken, to the extent that such records are created and maintained in the ordinary course of business;
(e) For the most recent six-month period prior to the tour, onsite access to records, such as logbooks, tracking phone access;
(f) For the most recent six-month period prior to the tour, onsite access to records/logbooks showing recreation access, including congregate recreation;
(g) For the most recent six-month period prior to the tour, onsite access to records, such as logbooks, showing whether mental health contacts occurred out-of-cell;
(h) In addition to the above, for the most recent six-month period prior to the tour of a SHU-Alternative Program, (a) the number of inmates admitted and inmates rejected for the program, including reasons for rejection; (b) the number of inmates who have completed the program (including length of time in the program) and the number of inmates who were discharged (including how long they were in the program and the reasons for discharge); (c) general outlines or lesson plans of classes and programs offered; (d) a snapshot of the number of inmates in the different program levels; and (e) the number of hours of out-of-cell time offered in the program and recreation by phase level (if not reflected in the Operations Manual), to the extent that records of the
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information referred to in (a) through (e) above are made and maintained in the ordinary course of business.
(i) With regard to a tour including a CPP, for the most recent six-month period prior to the tour, (a) samples of individual Confinement Program Plans and (b) summary notes of meetings of the CPP Program Management Team.
(j) During tours Plaintiffs' expert will be permitted to meet with the local grievance coordinator and, if DOCCS chooses, the Superintendent or their designee, for a discussion of grievance trends in the SHU unit(s). Plaintiffs' expert may receive copies of grievances filed by an individual inmate (the original grievance filed and the written reasoned response from each level of review) if the inmate filing the grievance consents. Central Office staff will accompany the experts on the tour and may attend all such discussions.
2. Annual Meeting. The parties will meet annually in either New York City or Albany to discuss implementation of this Agreement, any compliance issues hereunder, and the Agreement’s effect to date on reducing the use and duration of SHU. The parties’ experts may be available by telephone during the meetings. The initial annual meeting shall occur no later than one year after the effective date of this Agreement. Approximately 30 days before each such scheduled annual meeting, DOCCS will provide an annual report as to the construction progress relating to all programs to be established pursuant to this Agreement. In addition to information concerning construction progress, the annual report will include updates on the timeliness of implementation of the terms of this Agreement, such as the scheduling or completion of training components hereunder and the phasing in of programs and policies hereunder.
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3. Document Review by Experts. DOCCS will provide the parties’ experts, 30 days in advance of finalization, documents created to comply with provisions of this Agreement, including training materials and memoranda. DOCCS will give full consideration to comments, if any, provided by the experts within 15 days. The final version of all materials shall be approved by DOCCS in its discretion and shall be shared with Plaintiffs’ counsel.
4. Rule-Making. If DOCCS initiates a rule-making process to add or amend regulations affecting the terms of this Agreement, DOCCS will provide Plaintiffs’ counsel with the draft proposed non-emergency regulations no later than 15 days in advance of the initiation of rule-making and will give full consideration to any comments by Plaintiffs’ counsel, provided that the final determination as to the contents of any such proposed regulations shall be in the discretion of DOCCS. This Section shall not preclude DOCCS from undertaking emergency rulemaking, if required in DOCCS’ sole judgment, without notice to Plaintiffs’ counsel.
5. Quarterly Reporting. (a) The following reports and spreadsheets will be produced on the 15th of the month in January, April, July, and September (or the next business day if the 15th of the month falls on a weekend or holiday) and will cover the prior 3-month period.
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Topic Inmates in SHU Cells Demographics
Inmates in SHU Cells - Charges
Disciplinary Incidents
Inmates in Alternative Programs, including CAR
PIMS Level
Deprivation/Control Orders Special Management Meal Orders Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances

Description Demographic and Sanction Status Start and End Dates for inmates housed in SHU cells Disciplinary charges of the inmates housed in SHU cells serving SHU or Keeplock sanctions Inmate demographic information, disciplinary incident and hearing sanction information for all tier 2 and tier 3 incidents. Population Statistics, including the beginning population, the number of arrivals and releases, and the population at the end of the quarter. Counts of PIMS Levels at each facility Demographics, dates, reasons Demographics, dates, reasons
Juveniles in SHU Pregnant Inmates Tier Level Departures Guideline Departures Alternate Program Removals Alternate Program Denials

Type File
File
File
Report
Report Excel Spreadsheet Excel Spreadsheet Report Report Report Report Report Report

(b) The Excel spreadsheets for restricted diets and deprivation orders referred to in the table set forth in (a) above shall contain the same fields as the “Dep Report” and “Res Diet Report” spreadsheets produced to Plaintiffs on a monthly basis during the course of the stay period under the Interim Settlement.
(c) The “Exceptional Circumstances” reports referred to in the table set forth in (a) above shall contain at least the same level of detail as the “Monthly Exceptional Circumstances Reports” produced to Plaintiffs monthly since January 1, 2015.

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Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 62 of 79
(d) The “Inmates in SHU Cells-Demographics” file referenced in (a) above shall contain the same data fields as the “SHUCELLS.DETAILS” dataset that has been produced monthly by the Department since April 3, 2014, and was most recently produced to Plaintiffs by email on November 3, 2015.
(e) The “Inmates in SHU Cells-Charges” file referenced in (a) above shall contain the same data fields as the “SHUCELLS.CHARGES” dataset that has been produced monthly by the Department since April 3, 2014, and was most recently produced to Plaintiffs by email on November 3, 2015.
(f) The “Disciplinary Incidents” file referenced in (a) above shall contain the same data fields as the “Disciplinary.Incidents” dataset that was produced by the Department on May 28, 2015 and September 1, 2015.
6. Annual Reporting. In addition to being provided quarterly as discussed above, the “Disciplinary Incidents” dataset will also be provided annually on April 15th containing data for the prior calendar year.
D. Confidentiality. Upon initial production, materials provided to Plaintiffs’ expert and counsel are automatically designated as confidential and for use only in conjunction with tasks specified in this Agreement and its enforcement, regardless of whether the material is marked “confidential” by Defendants’ counsel. If Plaintiffs’ counsel raise no objection to the confidentiality designation within sixty (60) days of receipt, the materials shall be deemed confidential. If Plaintiffs’ counsel raise such an objection, they shall send by email attachments the specific materials at issue and state the reasons the designation should be withdrawn in whole or in part. Defendants’ counsel shall respond in writing within thirty (30) days to substantiate the designation and state the
55

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 63 of 79
reasons therefore, or to withdraw the designation. Defendants’ counsel shall withdraw the designation for material that would be obtainable under the Freedom of Information Law (“FOIL”).
E. Consideration of Experts’ Recommendations. The experts’ reports may include, in addition to an assessment of Defendants’ compliance with the terms of this Agreement, suggestions or proposals relating to implementation of the settlement as the experts deem appropriate. Although the Defendants will give full consideration to advice, suggestions and proposals offered by the experts, all decisions concerning the DOCCS correctional system will be made by Defendants, in accordance with DOCCS’ statutory responsibilities.
F. Public Reporting on DOCCS’ Website. DOCCS will add information to its existing quarterly Fact Sheet, posted on DOCCS’ website, reflecting information on the size and composition of inmates in segregated confinement and any changes since the prior quarter. During the first quarter of each calendar year, DOCCS will post on its website a brief annual update on the status of efforts completed under this Agreement.
G. Policy Structure Review. DOCCS will conduct a comprehensive review of its rules and regulations governing the disciplinary process and conditions of confinement in SHU and initiate any additional rule-making it may deem necessary to carry out the terms of this Agreement and will provide any additional guidance to staff through directives, memoranda, post orders, manuals, orientation materials and other similar guidance it may deem necessary to carry out the terms hereof.
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Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 64 of 79
XIII. ENFORCEMENT POWERS A. Notice, Meet and Confer Obligations. In the event that Plaintiffs believe
that Defendants have committed a substantial breach of a material term of this Agreement, Plaintiffs’ counsel may provide Defendants with a written statement describing the alleged breach (“Notice of Substantial Breach”). Defendants shall provide a written statement responding to the Notice of Substantial Breach within thirty (30) calendar days from receipt of the Notice of Substantial Breach and, within thirty (30) calendar days of receipt of Defendants’ written response, counsel for the parties shall meet and confer in a good faith effort to resolve their dispute informally. In no instance shall the Plaintiffs be permitted to seek mediation or file an enforcement motion as permitted in §§ XIII(B) and XIII(C) without first having provided the defendants with a Notice of Substantial Breach.
B. Magistrate Judge Nonbinding Mediation. In the event that a Notice of Substantial Breach pursuant to § XIII(A) of this Agreement cannot be resolved informally, counsel for the parties may notify the District Court of the dispute, in which case the Court will appoint a Magistrate Judge to mediate the dispute. The parties agree to make a good faith effort to resolve any dispute in mediation.
C. Adjudication of Disputes Unresolved by Mediation. If the dispute has not been resolved through mediation in conformity with this Agreement within seventyfive (75) days of such appointment of a Magistrate Judge and the issue is a substantial breach of a material term of this Agreement, Plaintiffs may file a motion with the Court seeking specific enforcement of the terms of this Agreement, reinstatement of the claims for prospective relief in the lawsuit, or an extension of the duration of this Agreement by up to one additional year. It shall be Plaintiffs’ burden in making such a motion to
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Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 65 of 79
demonstrate there has been a substantial breach of a material term. A substantial breach must be either (i) sufficiently frequent and widespread so as to be pervasive or (ii) a breach that deviates from a material provision in a way that denies an essential benefit of this Agreement to class members. Minimal or isolated failures, noncompliance with mere technicalities, failure to give “full consideration” to the experts’ or plaintiffs’ input, or temporary failure to comply during a period of otherwise sustained compliance will not constitute a substantial breach of a material term.
D. Substantial Noncompliance Proven. In the event the Court finds that Defendants have not substantially complied with a material term of this Agreement in accordance with the standards of C above, the Court shall have the power to order specific performance of the material terms in the Agreement, including ordering that the duration of this Agreement be extended for one additional year, provided that there may be no more than a single one-year extension of the term of this Agreement, or reinstatement of the claims for prospective relief in the lawsuit. In a remedial order directing specific performance, the Court shall not impose any additional or different terms from those set forth in this Agreement provided, however, that the Court may set new deadlines for specific performance consistent with the Agreement’s term under § XVII. Should the defendants fail to comply with an order of the Court directing specific performance, nothing in this Agreement shall prevent Plaintiffs’ counsel from making a motion seeking a finding of contempt, which motion may be granted or denied in accordance with controlling standards for such a finding. Any contempt finding shall be without prejudice to Defendants’ rights of appellate review of such a finding as a final order under 28 U.S.C. § 1291.
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E. Agreement as to 18 U.S.C. § 3626. Solely for the purposes of settlement, the parties agree and jointly request that the Court find that this Agreement satisfies the requirements of 18 U.S.C. § 3626(a)(1)(A).
F. No Waiver for Failure to Enforce: Failure by Plaintiffs to enforce this entire Agreement or any provision thereof with respect to any deadline or other provision herein shall not be construed as a waiver of Plaintiffs’ right to seek enforcement of any provisions of this Agreement. XIV. ATTORNEYS’ FEES; POST-SETTLEMENT ACTIVITIES
A. Defendants shall pay the sum of $1,100,000 for attorneys’ fees, costs and disbursements, including incentive payments, in full satisfaction of any and all claims in the lawsuit. Costs and disbursements shall be substantiated by documentation satisfactory to Defendants’ counsel. In the event that payment of the amounts referred to in § XIV(A) is not made within 120 days after the receipt by Defendants’ counsel of a copy of this fully executed Agreement, approved by the Court as provided on page 68 below, interest shall accrue on the outstanding balance at the rate set forth in 28 U.S.C. § 1961, beginning on the 121st day after receipt by Defendants’ counsel of a copy of this fully executed and court-approved Agreement.
B. During the term of this Agreement, as provided in § XVII, it is anticipated that Plaintiffs will incur certain legal fees, expert and other costs and disbursements with respect to §§ XII and XIII. Plaintiffs and Plaintiffs’ counsel agree to limit all such attorneys’ and experts’ fees, costs and disbursements to what is directly and reasonably necessary up to a combined total, which shall not exceed $100,000 per year, calculated on the basis of a 365 day year, beginning on the effective date of this Agreement under §
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Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 67 of 79
XXVII and ending on the date this Agreement terminates pursuant to the provisions of § XVII. During the term of this Agreement, as the same may be extended, Plaintiffs’ counsel agree to submit vouchers to Defendants’ counsel on a semi-annual basis documenting any such attorneys’ fees, costs and disbursements and Defendants agree to reimburse Plaintiffs’ counsel within 90 days of receipt of such vouchers. If payment is delayed beyond 90 days, Defendants will also pay interest at the rate set forth in 28 U.S.C. § 1961, which shall accrue beginning on the 91st day. If Plaintiffs prevail on a motion asserting a substantial breach of a material term pursuant to §XIII, the cap provided in this Section for fees, costs and disbursements shall not apply to fees, costs and disbursements in connection with such motion.
C. Processing payment of each of the amounts referred to in § XIV is subject to the approval of all appropriate New York State officials in accordance with the provisions of § 17 of the New York Public Officers Law. In the event that payment of such fees and costs is delayed more than 60 days beyond the time for payment provided in § XIV (A) or (B), Plaintiffs’ counsel may, on 20 days’ written notice to Defendants’ counsel, make a motion for appropriate relief to the Court. If such a motion is made, Defendants may respond, including based on any failure by Plaintiffs’ counsel to submit documentation necessary to process such a payment under § 17 of the New York Public Officers Law, but will not contest that Plaintiffs are entitled to an award of fees and costs in accordance with § XIV. In the event of such motion practice relating to payments under § XIV, the remainder of the Agreement shall remain in full force and effect.
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XV. DISMISSAL OF COMPLAINT AND CLAIMS CASES, RESERVATION OF JURISDICTION
Upon approval of this Agreement by the Court, Plaintiffs shall execute, deliver and file a stipulation of dismissal with prejudice of the Complaint, substantially in the form attached hereto as Exhibit 1. Plaintiffs agree that they will not file any Notice of Intention to file a Claim based on SHU confinements identified in paragraphs 178 and 181 of the Complaint and further agree that if any such Notice of Intention has been filed, that they will not file a Claim based thereon. The parties agree that after the Court orders said Stipulation of Dismissal, the Court shall retain jurisdiction subject to the limitations of § XIII of this Agreement and the termination provisions of § XVII. XVI. MISCELLANEOUS PROVISIONS
This Agreement shall not constitute a consent decree or an adjudication on the merits. Neither this Agreement, nor any policies or procedures established thereunder, shall define any state or federal constitutional rights or be deemed an admission or a waiver of sovereign immunity or Eleventh Amendment protection. Moreover, none of the parties will contend that any of the provisions, policies, procedures, and goals stated herein define clearly established constitutional rights of inmates or create any private right of action against the State of New York, its agents, employees or representatives. This Agreement in no way waives or otherwise affects, limits or modifies the obligations of inmates to comply with the exhaustion requirements of the Prison Litigation Reform Act, DOCCS directives and regulations, or any current or future state or federal law governing the rights and obligations of incarcerated persons, except that the parties agree that exhaustion shall not be required for noncompliance actions arising under § XIII of this
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Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 69 of 79
Agreement. Nothing in this Agreement shall be deemed to limit any existing authority of DOCCS to transfer inmates to other state or federal jurisdictions. Moreover, nothing in this Agreement shall be deemed to require or permit Defendants to violate the laws of the State of New York or the United States, or to violate any terms or conditions of any collective bargaining agreement to which DOCCS or the State of New York is a party, nor shall Defendants agree to any terms in a future collective bargaining agreement that would be in conflict with the terms of the Agreement. Defendants are not aware of any conflict between any of the provisions of this Agreement and any such law or collective bargaining agreement referred to in this Section. If at any future time a conflict becomes apparent, Defendants shall promptly notify Plaintiffs’ counsel. Defendants know of no reason why the payments referred to in § XIV may not be approved and processed in accordance with the provisions of § XIV of this Agreement and § 17 of the New York Public Officers Law and will use their best efforts to obtain such approvals. XVII. TERM
Without further action by the parties or the Court, this Agreement shall expire two years from the commencement of operation of the Southport SDP to be created under § I(A) of this Agreement. There may be a single one year extension of the term of this Agreement either by direction of the Court pursuant to § XIII or in the event that DOCCS shall have failed to achieve a sustained and significant reduction in the use and duration of SHU by the expiration of this Agreement under § XVII. The failure to achieve a significant reduction in SHU shall not, however, constitute a violation of this Agreement.
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XVIII. BINDING EFFECT This Agreement is binding upon Plaintiffs and the class, the Defendants named in
this lawsuit in their individual and official capacities, and on Defendants’ successors in office, employees and agents. XIX. DEADLINES AND UNFORESEEN DELAY
The timeframes reflected in Exhibit 2 to this Agreement memorialize the projected timetable for implementation reflected throughout this Agreement. In the event an unforeseen circumstance occurs that causes DOCCS to fail to timely fulfill any material requirement of this Agreement, Defendants shall notify Plaintiffs’ counsel in writing within twenty (20) days after Defendants become aware of the unforeseen circumstance, its anticipated impact on Defendants’ ability to perform the material terms of this Agreement and the measures taken to prevent or minimize the failure, and, as appropriate, a proposed new timeline for completion. Requests by Defendants to amend deadlines due to unforeseen circumstances shall not be unreasonably withheld by Plaintiffs. XX. STIPULATION AS TO CLASS CERTIFICATION
The parties agree that this matter is appropriate for certification as a class action pursuant to Fed. R. Civ. P. 23(b)(2). The class is defined as all DOCCS inmates who are now serving or will in the future serve a disciplinary confinement sanction in a SHU or in one of the programs created under or referenced in this agreement. The parties agree that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, the claims of the named plaintiffs are typical of the claims of the class, and the plaintiffs and their counsel will fairly and adequately protect
63

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 71 of 79
the interests of the class. The parties agree that the confinement policies that are the subject of this action apply generally to the class, making relief appropriate for the class as a whole. The parties agree that, in the event that the Court denies Plaintiffs’ unopposed motion for class certification, filed separately with the Court, this Agreement shall be void. Defendants agree that they shall not move to decertify the class for the duration of this Agreement, and shall not unreasonably oppose the designation by Plaintiffs of new class representatives if necessary. XXI. COMMUNICATIONS WITH AND ACTIONS BY CLASS COUNSEL
Legal mail, legal visits and telephone calls by inmates shall be permitted with class counsel regarding any aspect of this Agreement or the litigation settled hereby without adverse consequences, subject to generally applicable DOCCS’ rules relating to legal visits, mail and the use of telephones. Any complaints or concerns by any member of the class relating to this Agreement shall be referred to class counsel, who shall determine whether action, if any, is permitted or warranted under § XIII. The enforcement provisions of § XIII are exclusive and only class counsel may seek enforcement of any of the terms and conditions of this Agreement. Except for motions by class counsel pursuant to § XIII, no person, including any member of the class, may serve or file any contempt motion for alleged non-compliance with a term of this Agreement or to bring any separate action or proceeding based upon this Agreement. XXII. FUNDING
A. Agreement Terms Contingent on Funding. Defendants will use their best efforts to seek approval of the funding necessary to implement activities described in §§ I(A)(3)(a), I(A)(4)(f), I(B)(6)(a), I(B)(11), I(C)(4)(a), I(C)(9), I(D)(2), I(D)(3), IV(B),
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VI(A)(2), VI(B)(2), VI(B)(4)(a), VII, VIII(B), VIII(D), VIII(G), IX(E), XI(B), XI(C), XI(D), and XI(E) under this Agreement, including seeking sufficient appropriation authority in the Executive budget appropriation bill to be submitted to the Legislature for State fiscal year 2016-2017, and in each fiscal year for the term of the Agreement. Funding for activities described in the sections enumerated above are subject to approvals and budgetary processes and contingent upon legislative appropriations therefor. The failure of the Legislature to provide funding, notwithstanding Defendants' best efforts, for the activities enumerated in this section shall not be deemed a violation of a federal right by Defendants or a breach of the Agreement by Defendants.
B. Obligations if Funding Not Appropriated. If at any time Defendants believe that they cannot fully implement one or more of the material provisions of this Agreement in light of the Legislature's failure to provide adequate funding for one or more of the Sections enumerated above, Defendants shall promptly notify Plaintiffs in writing, and the parties shall meet and confer to discuss whether the affected terms can nevertheless be implemented with modifications agreed upon by the parties. If an agreement is reached, the parties shall modify this Agreement accordingly in writing. If agreement is not reached, the affected settlement term(s) shall become null and void and Defendants shall have no further obligations to fulfill the affected term(s) except as otherwise stated below. Defendants shall continue to fulfill all of their other obligations under this Agreement that are not impacted by the Legislature’s failure to provide adequate funding. Without limiting the foregoing, in the event the Legislature fails to provide adequate funding in a fiscal year, Defendants shall continue to use best efforts to retain the needed appropriation in all subsequent fiscal years under the Agreement Term.
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If a previously denied appropriation is later made by the Legislature, the Defendants shall then be obligated to implement the Settlement term in accordance with timeframes in Exhibit 2, measured from the date the appropriation is made. XXIII. STAFFING
To the extent that specific sections of this Agreement reference a corresponding staffing number or specific title to be utilized, the parties recognize that this staffing number represents the number of positions or titles that are funded for the specific program, that positions may become vacant through staff attrition and may remain vacant through the recruitment process. Such vacancies shall not be deemed a breach of this Agreement. XXIV. NO ADMISSIONS OR PRECEDENTIAL EFFECT
Nothing in this Agreement shall be construed as an admission or acknowledgment of liability whatsoever by any of the Defendants or DOCCS regarding any of the allegations made by Plaintiffs in the Complaint. It is the parties’ intention that this Agreement shall have no precedential value or effect whatsoever and shall not be used by the parties as evidence or for any other purpose, except in an action or proceeding to enforce this Agreement. XXV. ENTIRE AGREEMENT
This Agreement embodies the entire agreement of the parties in this matter and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Agreement regarding the subject matter of the instant proceedings, shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein. Captions are included herein solely for convenience of reference, are not
66

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 74 of 79 part of this Agreement, and shall not be used to limit or otherwise interpret the terms hereof. XXVI. NOTICES
All notices under this Agreement shall be in writing and shall be sent by both U.S. Mail and electronic mail to the recipient or recipients at the address or addresses specified in the signature pages of this Agreement. Copies of any notice to a party shall also be mailed in the manner provided above to the below-listed counsel to the parties at the addresses specified for such counsel.
67

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 75 of 79

XXVIT. EXECOTJON AND f:FFF.CTTVE DATE

This Agreement may be executed in multiple countl'rparts, and faxed and/()r

l.'.fllailt'd signatun.:s will h.• rnlid am! enforceable, each (Jf which shalt be deemed an

original. and all of which shall cpnsritule one and the same document. This Agreement

shall be cftcctive upon the approval of this Settlement Agrixmcnt by the Court.

Dat1:J: New Yyk. New York
December _./.j_, 2015

NEW YORK CIVIL LIBF.RflES UNION
Attorneys for Plaintiffs
8 y_</·-- -"?r.~U(-'=a-y~-l~o\r.-:P---e:n-0d:e~r_~,",'.Ld;:;:3--------"

.: . fZ/L-. ,.,, · /l~r /1.,J( "}'

/ ,.....,.,!,

'\

Al6xanckr A. Reinert !\ctomey for Plaintiffs

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Att ; . for D!:!fendants
Assislant Attorney General
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPF.RVISION

Kevin P. Bmen Deputy Commissioner and Cmmsd

So Ordered:

···-·-' 2015

Shin.-\ Schcindlin

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 76 of 79 EXHIBIT 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------- x

LEROY PEOPLES, et al.,

Plaintiffs,

: : STIPULATION OF DISMISSAL

-against-

: : Docket Number

BRIAN FISCHER, et al.,

: 11-CV-2694 (SAS) Defendants. :

--------------------------------------------------------- x

IT IS HEREBY STIPULATED AND AGREED by and between the parties, by their

respective counsel, that, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, this

Action be and hereby is dismissed and discontinued with prejudice. The Court retains

jurisdiction to enforce the Settlement Agreement entered into on _________, as set forth in, and

subject to § XIII of the Agreement, until its termination as set forth in § XVII of the Agreement.

Dated: New York, New York December ____, 2015
NEW YORK CIVIL LIBERTIES UNION Counsel to Plaintiffs
By _____________________________ Taylor Pendergrass
_______________________________ Alexander A. Reinert Counsel to Plaintiffs
MORRISON & FOERSTER LLP Attorneys for Plaintiffs
By_______________________________ David Fioccola

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorneys for Defendants
By_________________________________ Richard W. Brewster Assistant Attorney General
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
By_________________________________ Kevin P. Bruen Deputy Commissioner and Counsel

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 77 of 79

EXHIBIT 2

Settlement Agreement Implementation Timetable

Action Item

Section

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

SHU ALTERNATIVE PROGRAMS

Southport Step-Down Program

I(A)(4)(f)

36 months

Mid-State Step-Down Unit

I(B)(11)

14 months

Lakeview Substance Abuse Program

I(C)(9)

33 months

Step-Down to the Community Programs

I(D)(9)

6 months

AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS

As applied to juvenile program and CAR

I(E) & (F)

6 months

As applied to all other SHU-Alternative Programs

II(A)-(L)

See above program

implementation dates

SEPARATE KEEPLOCK UNITS

Separate Keeplock Units

IV(B)

15 months

Reduction of Certain Keeplock Sanctions

IV(D)

3 months

UNIFORM “PIMS” PROGRAM FOR ALL SHUS

New PIMS implemented, excepting congregate recreation. V

6 months

See SHU conditions timeline for specific incentive

implementation.

CONFINEMENT PROGRAM PLAN

CPP Begins

VI

36 Months

UPSTATE ASAT EXPANSION

ASAT Program Expansion

VII

24 Months

SHU CONDITIONS

Phone calls

VIII(A)

6 months

Library services

VIII(C)

6 months

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 78 of 79

Action Item
Shower curtains Head phones/ Additional Phones installed in all SHUs Double-celling assignment policy – Issuance of Memo Double-celling assignment policy – Updating Facility Operations Manuals and Review with Staff Correspondence courses Tablet Pilot Program Issuance of RFI Tablet Pilot Program evaluation period
Mental Health Contact Policy – Issuance of Memo and template Mental Health Contact – Updating Facility Operations Manuals and Review with Staff DEPRIVATIONS Deprivation Order policies Special Management Meal Hire additional staff member SENTENCING PRACTICES Modification of guidelines Guidance for hearing officers Time Cuts Notice to SHMC of OMH Levels TRAINING Training Academy
SHU-Alternative Units one-week training
CPP staff training

Section
VIII(B) VIII(D) VIII(E) VIII(E)
VIII(F) VIII(G) VIII(G)
VIII(H)
VIII (H)

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

3 months

48 Months

3 months

6 months

3 months 2 months 6 months after tablets available 3 months

6 months

IX(A)-(C) IX(D) & X(B) IX(E)
X(A) X(C) X(D)(1)&(2) X(E)
XI(A)

3 months 3 months
12 months 2 months 12 months 6 months

XI(B) XI(C)
2

6 months
Starting with FY 2016/2017 Recruit Classes See above program implementation dates See above CPP

Case 1:11-cv-02694-SAS Document 137-1 Filed 12/16/15 Page 79 of 79

Action Item
SHU Staff one-day training SHU Staff refresher at OMH 1 and 2 facilities Issuance of training bulletin SHMC Training All staff training Peace officer training
GUIDANCE ON TRANSFER PROCEDURES Electronic Scheduling Issuance of memorandum

Section
XI(D)(1) XI(D)(2)(a) XI(D)(2)(b) XI(E) XI(F) XI(G)
XI(H)(2) XI(H)(3)

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

implementation date

12 months

12 months

12 months

12 months

First quarter 2017

Start with FY

2016/2017 annual

training

3 months 4 months

3

 
 Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 1 of 87

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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 5 of 87
EXHIBIT A

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 6 of 87

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------x

LEROY PEOPLES, TONJA FENTON and

:

DEWAYNE RICHARDSON, on behalf of

:

themselves and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

:

-against-

:

:

:

BRIAN FISCHER, et al.,

:

Defendants. --------------------------------------------------------------x

Docket Number 11-CV-2694 (SAS)

SETTLEMENT AGREEMENT

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 7 of 87
TABLE OF CONTENTS
Page
I. SHU-ALTERNATIVE PROGRAMS...................................................................................... 4
A. Southport Step-Down Program ............................................................................... 4
1. Program Overview ...................................................................................... 4 2. Physical Layout. .......................................................................................... 5 3. Staffing........................................................................................................ 5 4. Program Modules ........................................................................................ 6
(a) Orientation ......................................................................................... 6 (b) Phase 1............................................................................................... 6
(i) Programming....................................................................... 6 (ii) Recreation ........................................................................... 6 (iii) Total Daily Out-of-Cell Time.............................................. 6 (iv) Restraints............................................................................. 7 (v) Time Cuts ............................................................................ 7 (c) Phase 2 ............................................................................................... 7 (i) Programming....................................................................... 7 (ii) Recreation ........................................................................... 7 (iii) Incentives ............................................................................ 7 (iv) Total Daily Out-of-Cell Time ............................................ 7 (v) Restraints............................................................................. 8 (vi) Time Cuts............................................................................ 8 (d) Phase 3 ............................................................................................ 8 (i) Programming....................................................................... 8 (ii) Recreation ........................................................................... 8 (iii) Incentives ............................................................................ 8 (iv) Total Daily Out-of-Cell Time ............................................ 8 (v) Restraints............................................................................. 9 (vi) Time Cuts............................................................................ 9 (e) Curriculum ...................................................................................... 9 (f) Projected Opening Date .................................................................. 9 B. Mid-State Step-Down and Substance-Abuse Programs ......................................... 9 1. Physical Layout...........................................................................................9 2. Initial Operation as an SDP....................................................................... 10 (a) Recreation ..................................................................................... 10 (b) Congregate Leisure Activities....................................................... 10 (c) Total Daily Out-of-Cell Time ....................................................... 10 3. Reassessment on Opening of Southport SDP ........................................... 11 4. Overview of Mid-State Substance Abuse Program .................................. 11 5. Drug-Free Environment ............................................................................ 12 6. Staffing...................................................................................................... 12 7. Orientation ................................................................................................ 13 8. Program Modules...................................................................................... 13 9. Curriculum ................................................................................................ 13
i

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 8 of 87

10. Incentives .................................................................................................. 14

11. Projected Opening of Mid-State Unit ....................................................... 14

C. Lakeview Substance-Abuse Program ................................................................... 14

1. Program Overview .................................................................................... 15

2. Drug-Free Environment ............................................................................ 15

3. Physical Layout......................................................................................... 15

4. Staffing...................................................................................................... 16

5. Orientation ................................................................................................ 17

6. Programming............................................................................................. 17

7. Curriculum ................................................................................................ 17

8. Incentives .................................................................................................. 18

9. Projected Opening of Lakeview Substance Abuse Program .................... 18

D. Step-Down to the Community Programs .............................................................. 18

1. Program Overview .................................................................................... 19

2. Physical Layout......................................................................................... 19

3. Staffing...................................................................................................... 19

4. Program Modules...................................................................................... 19

5. Recreation ................................................................................................. 20

6. Incentives .................................................................................................. 20

7. Eligibility .................................................................................................. 20

8. Initial Program Cohort .............................................................................. 21

9. Projected Opening of Step-Down to the Community Programs............... 21

E. Programs for Juveniles.......................................................................................... 21

1. Continuation of Programs ......................................................................... 21

2. Limit On Time In Cell .............................................................................. 21

3. Separate Housing For Juveniles................................................................ 21

4. Shock Incarceration Program.................................................................... 22

5. Disciplinary Sanctions .............................................................................. 22

6. Relationship to Cookhorne ....................................................................... 22

7. Program Contingency ............................................................................... 22

F. SHU-Alternative Programs for Special Need Inmates ......................................... 23

1. Continuation of Programs ......................................................................... 23

2. Eligibility .................................................................................................. 23

3. Program Overview .................................................................................... 23

II. AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS .......... 24

A. Eligibility and Placement ...................................................................................... 24

B. Program Management Team................................................................................. 24

C. Continuation of Programming .............................................................................. 24

D. Restraints, Privileges, Incentives and Out-of-Cell Time ...................................... 25

E. Out-of-Cell Interviews .......................................................................................... 25

F. Discipline in SHU-Alternative Programs ............................................................. 26

G. Discharge Upon Completion of SHU-Alternative Program ................................. 27

H. Disciplinary Sanction Ends Prior to Program Completion ................................... 28

I

Early Discharge to SHU........................................................................................ 28

J. Full Utilization of Capacity……………………………………………………...29

K. Inmate Orientation Material.................................................................................. 29

L. Timeframes ........................................................................................................... 29

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III. IV.
V. VI.
VII. VIII.
IX. X.
XI.

PRESUMPTION AGAINST SHU FOR PREGNANT INMATES ................................. 30 SEPARATE KEEPLOCK UNITS.................................................................................... 30 A. Conditions in New Units....................................................................................... 30
1. Fishkill ...................................................................................................... 30 2. Five Points ................................................................................................ 31 B. Projected Opening of New Keeplock Units.......................................................... 31 C. Placement Priority................................................................................................. 31 D. Reduction of Certain Keeplock Sanctions ............................................................ 32 UNIFORM “PIMS” PROGRAM FOR ALL SHUs ......................................................... 32 CONFINEMENT PROGRAM PLAN (“CPP”) ............................................................... 32 A. Overview............................................................................................................... 33 1. Program Plan............................................................................................. 33 2. Program Management Team..................................................................... 33 3. Program Overview .................................................................................... 33 4. Progress Evaluation .................................................................................. 34 B. Programs Offered.................................................................................................. 34 1. Behavior Modification/Aggression........................................................... 34 2. ASAT Pre-Treatment Workbook .............................................................. 35 3. Educational Cell Study ............................................................................. 36 4. Incentives .................................................................................................. 36 5. Inmate Orientation Manual ....................................................................... 37 UPSTATE ASAT PROGRAM EXPANSION ................................................................. 37 SHU CONDITIONS ......................................................................................................... 38 A. Phone Calls ........................................................................................................... 38 B. Shower Curtains.................................................................................................... 39 C. Library Services .................................................................................................... 39 D. Head Phones.......................................................................................................... 39 E. Double-Celling Assignments ................................................................................ 39 F. Correspondence Courses....................................................................................... 40 G. Tablet Pilot Program ............................................................................................. 40 H. Mental Health Contacts......................................................................................... 41 I. Additional Changes in Conditions……………………………………………….41 DEPRIVATIONS ORDERS............................................................................................. 41 A. Deprivation Order Limitations.............................................................................. 41 B. Notification to OMH............................................................................................. 42 C. Review and Renewal............................................................................................. 42 D. Special Management Meal.................................................................................... 42 E. Record Keeping .................................................................................................... 42 SENTENCING PRACTICES ........................................................................................... 42 A. Modifications of Guidelines ................................................................................. 42 B. Special Management Meal.................................................................................... 43 C. Guidance for Hearing Officers.............................................................................. 43 D. Time Cuts.............................................................................................................. 44 1. SHU Sanctions less than 90 days.............................................................. 44 2. SHU Sanctions of 90 days or more........................................................... 44 E. SHMC Calendar.................................................................................................... 45 TRAINING ....................................................................................................................... 45

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A. Training Academy ................................................................................................ 45 B. SHU-Alternative Units.......................................................................................... 46 C. CPP Staff............................................................................................................... 46 D. SHU Staff.............................................................................................................. 46
1. Initial Training .......................................................................................... 46 2. Annual Refresher Course .......................................................................... 46 E. SHMC ................................................................................................................... 47 F. Entire DOCCS Staff.............................................................................................. 47 G. Annual Peace Officer Training ............................................................................. 47 H. Guidance on Transfer Procedures………………………………………………..48 1. Advance Notice of Transfer...................................................................... 48 2. Electronic Scheduling of Initial Interview ................................................ 48 3. Memorandum ............................................................................................ 48 I. Grant Opportunities……………………………………………………………...48 J. Training Materials................................................................................................. 49 XII. POST-SETTLEMENT ACTIVITIES............................................................................... 49 A. Designation and Role of Experts........................................................................... 49 B. Periodic Tours and Assessments ........................................................................... 49 C. Access to Documents ............................................................................................ 50 1. In Conjunction With Tours ....................................................................... 50 2. Annual Meeting ........................................................................................ 52 3. Document Review by Experts .................................................................. 53 4. Rule-Making ............................................................................................. 53 5. Quarterly Reporting .................................................................................. 53 6. Annual Reporting...................................................................................... 55 D. Confidentiality ......................................................................................................55 E. Consideration of Experts’ Recommendations ......................................................56 F. Public Reporting on DOCCS’ Website………………………………………….56 G. Policy Structure Review…………………………………………………………56 XIII. ENFORCEMENT POWERS............................................................................................57 A. Notice, Meet and Confer Obligations ...................................................................57 B. Magistrate Judge Nonbinding Mediation..............................................................57 C. Adjudication of Disputes Unresolved by Mediation ............................................57 D. Substantial Noncompliance Proven ......................................................................58 E. Agreement as to 18 U.S.C. § 3626 .......................................................................59 F. No Waiver for Failure to Enforce .........................................................................59 XIV. ATTORNEYS’ FEES; POST-SETTLEMENT ACTIVITIES .........................................59 XV. DISMISSAL OF COMPLAINT AND CLAIMS CASES, RESERVATON OF JURISDICTION……………….. ................................................................................................. 61 XVI. MISCELLANEOUS PROVISIONS ................................................................................. 61 XVII. TERM ............................................................................................................................... 62 XVIII. BINDING EFFECT .......................................................................................................... 63 XIX. DEADLINES AND UNFORESEEN DELAY ................................................................. 63 XX. STIPULATION AS TO CLASS CERTIFICATION ........................................................ 63 XXI. COMMUNICATION WITH AND ACTIONS BY CLASS COUNSEL.......................... 64 XXII. FUNDING......................................................................................................................... 64 A. Agreement Terms Contingent on Funding ...........................................................64
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 11 of 87 B. Obligations If Funding Not Appropriated.............................................................65 XXIII. STAFFING........................................................................................................................ 66 XXIV. NO ADMISSIONS OR PRECEDENTIAL EFFECT....................................................... 66 XXV. ENTIRE AGREEMENT .................................................................................................. 66 XXVI. NOTICES......................................................................................................................... 67 XXVII. EXECUTION AND EFFECTIVE DATE ....................................................................... 68 Exhibit 1 – Stipulation of Dismissal of Complaint Exhibit 2 – Projected Timetable for Implementation
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 12 of 87

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------x

:

LEROY PEOPLES, TONJA FENTON and :

DEWAYNE RICHARDSON, on behalf of :

themselves and all others similarly situated, :

:

Plaintiffs,

:

:

:

-against-

:

:

BRIAN FISCHER, et al.,

: :

Defendants.

SETTLEMENT AGREEMENT
Docket Number 11-CV-2694 (SAS)

---------------------------------------------------------x

The parties hereto, by their attorneys, hereby stipulate and agree as follows:

WHEREAS, Plaintiffs Leroy Peoples, Dwayne Richardson and Tonja Fenton, inmates in custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at the time this Action was commenced, filed a Third Amended Class Action Complaint (herein, as amended and corrected, referred to as the “Complaint”) alleging that the use and length of confinement sanctions and conditions in DOCCS Special Housing Units (“SHU”) create an unconstitutional risk of harm, and seeking declaratory and injunctive relief on behalf of a putative class of similarly situated individuals and damages on behalf of the named Plaintiffs;
WHEREAS, DOCCS recognizes that a sound, progressive disciplinary system protects the health, safety and security of both inmates and correctional staff;
WHEREAS, DOCCS recognizes that disciplinary sanctions must never be arbitrary or capricious or overly severe and that a sound disciplinary system relies on certainty and promptness of action rather than severity;

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 13 of 87
WHEREAS, following the filing by Defendants of a motion to dismiss and before the filing of an answer to the Complaint or a class certification motion, a Stipulation and Order was entered on May 1, 2013, pursuant to which the Defendants’ motion to dismiss was withdrawn without prejudice and all scheduling of briefing and discovery in the lawsuit was suspended to permit the parties to conduct settlement negotiations to resolve all remaining claims in the lawsuit and further promote the goal of protecting the health, safety and security of all persons within DOCCS correctional facilities;
WHEREAS, on January 24, 2014, following extensions of the above-referenced stay, the parties entered into an interim settlement (the “Interim Settlement”), entitled “Stipulation for a Stay with Conditions”, so ordered by the Court on February 19, 2014, pursuant to which Defendants: (i) created programs providing alternatives to SHU sanctions for juveniles and special needs inmates; (ii) established a presumption against SHU sanctions for pregnant inmates; (iii) increased oversight by DOCCS’ Central Office of the disciplinary system throughout the State under a newly created Assistant Commissioner position; (iv) implemented comprehensive guidelines for all disciplinary confinement sanctions; and (v) took certain interim actions with regard to SHU conditions, specifically by increasing outdoor exercise and providing headphones and in-cell study packets to SHU inmates in specified circumstances and locations;
WHEREAS, since February 19, 2014, DOCCS has provided Plaintiffs’ counsel with extensive data and reports concerning the implementation and effects of the actions taken pursuant to the Interim Settlement, and the parties have engaged in extensive settlement negotiations, with the assistance of experts in prison operations and segregated housing retained
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by the parties to assist in achieving a comprehensive resolution of all claims for injunctive relief raised in the Complaint;
WHEREAS, the parties, without conceding any infirmity in their claims or defenses, have in good faith negotiated the terms of this settlement agreement in order to provide programs and progressive incentives in an effort to change the behaviors leading to disciplinary sanctions and SHU confinement and to address certain aspects of the conditions of SHU confinement, for the purpose of improving institutional safety and enabling inmates to earn time cuts and incentives by changing their behavior, ultimately returning to the general prison population and the community with a diminished likelihood of recidivism;
WHEREAS, the parties share the goal of significantly reducing the use and duration of SHU and reducing isolation and idleness in SHU, consistent with safety and security;
WHEREAS, Defendants have denied the allegations in the complaint that they have violated Plaintiffs’ constitutional or statutory rights;
WHEREAS, the parties represent and agree that this Agreement is fair, reasonable and adequate to protect the interests of all parties and the class, and that entering into this Agreement will improve institutional safety for all persons within the State’s correctional system;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the parties, as follows:
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I. SHU-ALTERNATIVE PROGRAMS A. Southport Step-Down Program DOCCS will create a Step-Down Program (“SDP”) in Housing Block C at
Southport Correctional Facility (“Southport”). The SDP will have a capacity of 252 inmates. The goal of the SDP is to offer behavioral modification programming to longterm SHU inmates with a violent behavioral history and the capacity to benefit from the SDP with the aim of returning inmates who successfully complete the program back to general population, consistent with achieving overall program success and the safety and security of participants and staff.
1. Program Overview. The SDP will be a three-phase progressive program for inmates serving a minimum of 9 months of SHU confinement (including consecutive sanctions that total at least 9 months) who would likely benefit from structured programming, including programming based on principles of cognitive behavioral therapy, to improve behavior and reduce future disciplinary infractions. Suitability and selection for the program will be determined in DOCCS’ discretion. Inmates will progress through the stages of the SDP, earning fewer restrictions and increased incentives, as they meet benchmarks and individual goals. Inmates will receive the incentives specified below for each phase of the Program, subject to the possibility of losing them for negative behavior. On successful program completion, inmates will be returned to general population, following a review for general population placement and programming to meet individually identified needs and behavioral plans by the Superintendent, who will forward his or her recommendations to the DOCCS Central Office for a final placement decision.
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2. Physical Layout. Participating inmates will be housed in 252 cells on three floors, each floor consisting of four 21-cell housing galleries and five classrooms. Orientation and program phases will be situated as follows:
(a) Orientation (63 beds): Housing Block C, 1st Floor (b) Phase 1 (21 beds): Housing Block C, 1st Floor (c) Phase 2 (84 beds): Housing Block C, 2nd Floor (d) Phase 3 (84 beds): Housing Block C, 3rd Floor
3. Staffing. (a) The unit will have a projected staff of 54 full-time
employees, which includes a Program Management Team consisting of security, counseling, substance abuse and teaching staff who will manage the SDP. The Program Management Team will conduct weekly case conferences, outside of scheduled program time, for staff to evaluate inmates’ progress. The Program Management Team will offer quarterly out-of-cell meetings with each participant to discuss progress and benchmarks with the inmate, and to make any adjustments in the inmate’s program plan. In addition, a DOCCS Offender Rehabilitation Coordinator (“ORC”) will offer a similar out-of-cell meeting with each participating inmate during orientation and conduct cell-side meetings with participants between Phases 1 and 2. Unless the Program Management Team requests a participating inmate’s presence during the weekly case conferences, such weekly conferences shall be conducted outside the presence of the inmates.
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(b) The Program Management Team will assess participating inmates’ achievement of benchmarks and readiness to move to higher phases of the SDP or regress to a lower phase, if necessary, and on completion of the program will provide appropriate discharge planning and make recommendations to the Superintendent of Southport regarding participating inmates’ discharge/placement.
4. Program Modules. (a) Orientation. The orientation phase will have a duration of
not more than 30 days to assess an inmate’s willingness to participate and determine individual program needs. Participants in the orientation phase will be housed in SHU cells in standard SHU conditions and will be in restraints when they are out of cell.
(b) Phase 1. This phase will have a duration of not less than 30 days and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week (excluding Fridays and holidays) including behavioral programming and orientation for Phases 2 and 3. The Program Management Team will conduct out-of-cell meetings with a sufficient number of inmates on Fridays (excluding holidays), so as to conduct a quarterly out-of-cell meeting with each participant in accordance with § I(A)(3)(a) above.
(ii) Recreation: Two hours of individual recreation, seven days per week.
(iii) Total Daily Out-of-Cell Time: Four hours total outof-cell time Monday through Thursday (except holidays where the total will be two hours) and two hours total out-of-cell time Friday, Saturday and Sunday.
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 18 of 87
(iv) Restraints: Participants will move in restraints. During programming, restart chairs with leg restraints only will be used.
(v) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(c) Phase 2. This phase will have a duration of not less than 90 days and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week (excluding Fridays and holidays). The Program Management Team will conduct out-of-cell meetings with a sufficient number of inmates on Fridays (excluding holidays) so as to conduct a quarterly out-of-cell meeting with each participant as provided in § I(A)(3)(a) above.
(ii) Recreation: Two hours of congregate recreation will be offered to participants, 7 days per week, in congregate recreation pens.
(iii) Incentives: All participants will be offered increased access to personal property; at least one phone call every 60 days; extra showers, and commissary purchases. In addition, a participant has the ability to earn congregate TV/activity in restart chairs. A participant has the possibility of losing one or more of these incentives for negative behavior.
(iv) Total Daily Out-of-Cell Time: Minimum four hours out-of-cell time Monday through Thursday (except holidays where the total will be two hours); minimum two hours out-of-cell time Friday, Saturday and Sunday, with the ability to earn congregate leisure time, such as congregate TV/activity in restart chairs.
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 19 of 87
(v) Restraints: Participants will move in restraints, and during programming, will use restart chairs with leg restraints only.
(vi) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(d) Phase 3. This phase will continue until participants are discharged and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week. The Program Management Team will conduct out-ofcell meetings with a sufficient number of inmates on Fridays (excluding holidays), so as to conduct a quarterly out-of-cell meeting with each participant in accordance with § I(A)(3)(a) above.
(ii) Recreation: Two hours of congregate recreation will be offered to participants in Phase 3, seven days per week, in a general confinement recreation yard.
(iii) Incentives: As incentives for positive behavior, all participants will be offered congregate TV and other congregate activities; increased access to personal property; the opportunity to access the phones in the general confinement recreation yard (extra calls may be earned); extra showers, and commissary purchases, subject to the possibility of losing one or more of these incentives for negative behavior.
(iv) Total Daily Out-of-Cell Time: Minimum four hours daily out-of-cell time Monday through Thursday (except holidays where the total will be
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 20 of 87
two hours); minimum two hours daily out-of-cell time Friday, Saturday, and Sunday, with the ability to earn congregate leisure time.
(v) Restraints: Participants will move without restraints, and there will be no restraints during programming.
(vi) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(e) Curriculum. As appropriate to each Phase, the curriculum will include aggression replacement training, anger management, emotional regulation techniques and social skills, with increasing focus in later Phases on applying these skills and techniques in the general population environment.
(f) Projected Opening Date. Southport SDP will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate that approximately three years will be required to complete construction needed for Southport SDP, DOCCS’ goal is to open Southport SDP with an initial group of inmates in the Orientation Phase within three years of the enactment of the Fiscal Year 2016-2017 Budget.
B. Mid-State Step-Down and Substance-Abuse Programs DOCCS will convert one-half of the S-Block located at Mid-State
Correctional Facility (“Mid-State”) into a SHU-alternative program for up to 75 inmates selected by DOCCS.
1. Physical Layout. (a) Program housing will be provided in 50 cells, consisting of
25 single cells and 25 double cells.
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 21 of 87
(b) Three classrooms, each with 8 restart chairs, will be constructed in the basement, and two classrooms, each with 10 restart chairs, will be constructed on the second floor.
(c) A semi-private area with separate seating will be provided for individual meetings with staff.
(d) One of the basement classrooms will be used for orientation and assessment of inmates newly admitted to the program. Upstairs classrooms will also be available for earned evening congregate leisure activities (e.g., movies, card games).
2. Initial Operation as an SDP. Until the opening of the Southport SDP, the Mid-State unit will provide a step-down program that will be operated as described above with respect to the Southport SDP, except that congregate recreation cannot be provided at Mid-State. Accordingly, the following program adjustments will be made:
(a) Recreation: Each participating inmate will be offered two hours of recreation at the rear of the cell, seven days per week. Program classrooms at Mid-State will be available in the evenings for earned congregate activities.
(b) Congregate Leisure Activities: Congregate leisure activities may be earned by inmates in Phase 2, and will be offered to inmates in Phase 3.
(c) Total Daily Out-of-Cell Time: The Program Management Team will make every effort to afford participants in the Mid-State SDP a minimum of two hours daily out-of-cell time in Phase 2 and Phase 3, spent in programming or congregate leisure activities.
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 22 of 87
3. Reassessment on Opening of Southport SDP. On or before the opening of the Southport SDP, the parties will confer as to whether to continue the MidState unit as an SDP, or to convert the unit to a SHU-alternative program for inmates on the mental health caseload who are subject to confinement sanctions for non-violent substance abuse-related misbehavior. If the unit is converted to a substance abuse program, participating inmates will be housed in 25 double and 25 single cells. In determining whether to continue the Mid-State unit as an SDP or convert the unit to a substance abuse program, DOCCS will give full consideration to any recommendations by Plaintiffs’ counsel and the parties’ experts, but the decision as to the use of the Mid-State unit as either an SDP or substance abuse program will be made by DOCCS, consistent with the goals of this Agreement, the needs of the inmate population at the time of the decision, and its statutory responsibilities. In the event that the Mid-State unit is converted to a substance abuse SHU-alternative program following the opening of the Southport SDP, the provisions of §I(B)(4)-(10) et seq. shall apply.
4. Overview of Mid-State Substance Abuse Program. If opened, the Mid-State Substance Abuse SHU-Alternative Program will provide a six-month intensive alcohol and substance abuse treatment (“I-ASAT”) program for inmates at high risk for continued drug and alcohol abuse who have received individual or combined confinement sanctions of more than 120 days for substance abuse-related offenses and have an OMH service level of 1 or higher. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance dependency condition, as determined by a comprehensive substance dependency assessment conducted by qualified personnel, shall be eligible for the program. Inmates who have displayed
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 23 of 87
satisfactory program participation and have completed their confinement sanctions in the unit before completing the six-month I-ASAT program will receive expedited placement into ASAT at their next general confinement facility.
5. Drug-Free Environment. In order to maintain the drug-free environment essential to recovery, visits will be non-contact and participating inmates may not receive packages from outside the facility.
6. Staffing. (a) The unit will have a projected staff of 34 full-time
employees and which includes a multi-disciplinary Program Management Team, including an Area Sergeant, a Supervising Offender Rehabilitation Counselor, an Offender Rehabilitation Counselor, a Teacher, an Alcohol and Substance Abuse Treatment (“ASAT”) Program Assistant (“PA”) staff, and a Recreation Program Leader (“RPL”). The staffing may vary during the period of time that Mid-State is operating as a Step Down Unit as outlined in § I(B)(2).
(b) The Program Management Team will oversee the development of individual treatment plans for participating inmates, determine staff and classroom assignment for inmates during orientation and initial assessment, conduct case conferences twice per week to evaluate inmates’ progress in meeting treatment plan goals, modify the time required to meet goals, otherwise modify treatment plans as needed, approve earned incentives and, if necessary, make recommendations to the Superintendent at Mid-State for his or her determination regarding discharge of inmates from the program for refusal to participate and lack of progress in programming.
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 24 of 87
(c) The Program Management Team will prepare a discharge plan with recommendations for continuing recovery and ongoing treatment for all inmates leaving the program, regardless of whether the reason for discharge is completion of the IASAT program, transfer to a general confinement ASAT for completion of the ASAT program, release to the community, or, upon the Superintendent’s determination, removal from the program due to misbehavior or refusal to participate.
7. Orientation. Participating inmates will have one week of orientation and assessment which will include classroom sessions for up to eight participants and individual meetings with inmates’ assigned I-ASAT staff in order to review program expectations (the “ASAT contract”), collaboratively develop an initial treatment plan with assigned staff, and identify strengths and problems requiring attention for the particular inmate (e.g., alcohol or substance abuse issues, history of trauma, compulsive behaviors, cognitive distortions, health or family issues).
8. Program Modules. (a) Participating inmates will engage in three hours of morning
or afternoon classroom programming per day, five days per week (exclusive of holidays). Programs will be conducted in three-hour AM and PM modules.
(b) Each participating inmate will be offered 2 hours of recreation at the rear of the cell, 7 days per week, with the ability to earn evening congregate leisure time in the upstairs classroom.
9. Curriculum. The program will be informed by principles of cognitive behavioral therapy, focusing on withdrawal and craving management, relapse prevention strategies, and developing skills to avoid substance abuse disciplinary
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 25 of 87
infractions and promote positive engagement in general population programming. Educational cell study will be available during non-program hours depending on the inmate’s educational needs.
10. Incentives. As incentives for positive behavior, all participants will be offered increased access to personal property; at least one phone call in the first 60 days of the program and every 30 days thereafter (extra calls may be earned); additional showers, additional commissary purchases, and recommendation for time cuts. In addition, participants also have the ability to earn evening congregate leisure activities. Participants have the possibility of losing one or more of these incentives for negative behavior. The availability of these incentives will be based on inmate participation and progress throughout the program, as determined by the Program Management Team.
11. Projected Opening of Mid-State Unit. Mid-State SDP will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate of the time required to complete construction for the Mid-State unit, DOCCS’ goal is to open the Mid-State unit, as an SDP, with an initial group of inmates in the Orientation Phase within 1.2 years of the enactment of the Fiscal Year 2016-2017 Budget.
C. Lakeview Substance-Abuse Program DOCCS will convert the entire maximum security S-Block (100 double
cells) located at Lakeview Correctional Facility (“Lakeview”) into a single cell SHUalternative substance abuse program for 88 inmates selected by DOCCS who are serving confinement sanctions for non-violent substance abuse-related misbehavior.
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 26 of 87
1. Program Overview. The Lakeview Substance Abuse SHUAlternative Program will provide a six-month intensive alcohol and substance abuse treatment (“I-ASAT”) program for inmates at high risk for continued drug and alcohol abuse who have received individual or combined confinement sanctions of more than 120 days related to substance abuse-related offenses. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance dependency condition as determined by a comprehensive substance dependency assessment conducted by qualified personnel shall be eligible for the program. Inmates who have displayed satisfactory program participation and have completed their confinement sanctions in the unit before completing the six-month I-ASAT program will receive expedited placement into ASAT at their next general confinement facility
2. Drug-Free Environment. In order to maintain the drug-free environment essential to recovery, visits will be non-contact and participating inmates may not receive packages from outside the facility.
3. Physical Layout. (a) Participating inmates will be housed in 88 single cells in
four galleries, with the remaining 12 cells of the former S-Block repurposed to provide three dedicated phone booths in each gallery.
(b) Three classrooms, each with 8 restart chairs, will be constructed in the facility basement, and two classrooms, each with 10 restart chairs, will be constructed on the second floor.
(c) A semi-private area will be provided with separate seating for individual meetings with staff.
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 27 of 87
(d) One of the basement classrooms will be used for orientation and assessment of inmates newly admitted to the program.
(e) Upstairs classrooms will also be available for earned evening congregate leisure activities (movies, card games, etc.).
4. Staffing. (a) The unit will have a projected staff of 30 full-time
employees and include a multi-disciplinary Program Management Team including an Area Sergeant, a Supervising Offender Rehabilitation Counselor, an Offender Rehabilitation Counselor, a Teacher, an Alcohol and Substance Abuse Treatment Program Assistant, and a Recreation Program Leader.
(b) The Program Management Team will oversee the development of individual treatment plans for participating inmates, determine staff and classroom assignments for inmates during orientation and initial assessment, conduct case conferences twice per week to evaluate inmates’ progress in meeting treatment plan goals, modify the time required to meet goals, otherwise modify treatment plans as needed, approve earned incentives and, if necessary, make recommendations for determination by the Superintendent regarding discharge of inmates from the program for refusal to participate and lack of progress in programming.
(c) The Program Management Team will prepare a discharge plan with recommendations for continuing recovery and ongoing treatment for all inmates leaving the program, regardless of whether the reason for discharge is completion of the IASAT program, transfer to a general confinement ASAT for completion of the program, release to the community, or, upon the Superintendent’s determination, removal from the
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 28 of 87
program due to misbehavior or refusal to participate consistent with the policies in Section II, infra.
5. Orientation. Inmates will have an initial week of orientation and assessment which will include classroom sessions in up to eight-person groups and individual meetings with inmates’ assigned I-ASAT staff in order to review program expectations (the “ASAT contract”), collaboratively develop an initial treatment plan with assigned staff and identify strengths and problems requiring attention for the particular inmate (e.g., alcohol or substance abuse issues, history of trauma, compulsive behaviors, cognitive distortions, health or family issues).
6. Programming (a) Each participating inmate will engage in three hours of
classroom programming each day, five days per week (excluding holidays). (b) Programs will be conducted in three-hour morning and
afternoon modules in all five classrooms, allowing the total classroom capacity (44) to provide programming for all 88 participants in either a morning or afternoon session.
(c) Each participating inmate will be offered two hours of recreation at the rear of the cell, seven days per week, with the ability to earn evening congregate leisure time in the upstairs classrooms.
7. Curriculum. The program will be informed by principles of cognitive behavioral therapy, focusing on withdrawal and craving management, relapse prevention strategies, and developing skills to avoid substance abuse disciplinary infractions and promote positive engagement with general population programming.
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Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 29 of 87
Educational cell study will be available during non-program hours depending on the inmate’s educational needs.
8. Incentives. As incentives for positive behavior, all participants will be offered increased access to personal property; at least one phone call in the first 60 days of the program and every 30 days thereafter (extra calls may be earned); additional showers, additional commissary purchases, and recommendation for time cuts. In addition, evening congregate leisure activities may be earned. Participants are subject to the possibility of losing one or more of these incentives for negative behavior. The availability of these incentives will be based on inmate participation and progress throughout the program, as determined by the Program Management Team.
9. Projected Opening of Lakeview Substance Abuse Program. The Lakeview Substance Abuse Program will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate of the time required to complete construction relating to the Lakeview Substance Abuse Program, DOCCS anticipates opening the Program within 2.9 years of the enactment of the Fiscal Year 2016-2017 Budget.
D. Step-Down to the Community Programs SHU Step-down to the Community Programs will be established at Green
Haven Correctional Facility (“Green Haven”) and Wende Correctional Facility (“Wende”) to provide re-entry programming to inmates who have been in a SHU cell for 60 days or more serving a SHU or keeplock sanction and who have a minimum of 45 days and a maximum of 60 days to release.
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1. Program Overview. (a) A 60-day two-step program will be established at Wende
(17 beds) and Green Haven (12 beds) to provide re-entry programming for inmates being released to the community after SHU confinement in excess of 60 days.
(b) The program goal is to assist participants with the development of a comprehensive release plan, incorporating social skills practice, relapse prevention, family reintegration and employment readiness. Behavior modification and relapse prevention will be addressed by modalities such as identifying high-risk behaviors, emotional regulation exercises, social skills practice, discussing how to deal with fear and the feelings of others, and how to ask and respond to questions.
2. Physical Layout. At both Wende and Green Haven, programs will be provided in a classroom with 6 restart chairs.
3. Staffing. Combined, the unit will have a projected staff of 9.5 employees which includes a multi-disciplinary Program Management Team comprised of security and program staff, which will determine participants’ readiness to move from Step 1 to Step 2 and, if necessary, removal from the program.
4. Program Modules. (a) The program will provide all participants with a three-hour
module of programming five days per week (excluding holidays) and will seek to incorporate in-reach services by community-based organizations and Community Supervision staff through video-conferencing.
(b) Green Haven will operate 2 modules per day. Wende will operate 3 modules per day.
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(c) Step 1 programming will be provided to participants using restart chairs. Step 2 programming will be conducted without restraints.
5. Recreation. (a) Wende: Individual exercise for two hours per day, seven
days per week. (b) Green Haven: Congregate recreation for two hours per day,
seven days per week. 6. Incentives. In Step 2, participants will be eligible to receive, as
incentives, additional visits, additional phone calls, and increased commissary. 7. Eligibility. The Department shall design a system for identifying
each month inmates who are expected to qualify for this program. Placement in the program shall be in the discretion of DOCCS, employing these criteria:
(a) Prospective participants must have a minimum of 45 days and a maximum of 60 days to release.
(b) Priority shall be given to inmates who have been in SHU the longest.
(c) DOCCS will conduct an individualized eligibility review to screen out individuals who would presently pose a serious threat to safety or are likely to be so disruptive to the program that it would disrupt program operations. The parties agree that inmates with violent or disruptive histories may be in the greatest need of step-down programming prior to release and that a history of violence, by itself, will not preclude placement in the program.
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(d) Priority will be given to inmates being released to the community in the facility’s region.
8. Initial Program Cohort. At each of the two facilities involved, the initial program will be limited to six participants, until a cohort of inmates is identified by the multi-disciplinary team as ready to progress to Step 2, an anticipated minimum of two weeks after program start-up.
9. Projected Opening of Step-Down to the Community Programs. The Step Down to the Community Programs will commence operations as soon as the housing blocks and trained staff are available. DOCCS anticipates opening the Program within 6 months of the enactment of the Fiscal Year 2016-2017 Budget.
E. Programs for Juveniles 1. Continuation of Programs. The programs for juveniles, including
SHU-alternative programs, created pursuant to the parties’ January 24, 2014 Stipulation, filed February 19, 2014, are hereby continued and incorporated herein, as provided in the following paragraphs.
2. Limit On Time In Cell. DOCCS will ensure that even under the most restrictive form of disciplinary housing, 16 and 17 year-old inmates shall, 5 days per week (excluding holidays), be offered out-of-cell programming and outdoor exercise, limiting time in their cells to 19 hours a day, except in exceptional circumstances referred to Central Office.
3. Separate Housing For Juveniles. Medium security 16 and 17 year olds will be separately housed in a general population housing unit or units for juveniles at one or more medium security facilities. Maximum security 16 and 17 year-old inmates
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will be housed separately in a general population housing unit for juveniles at a maximum security facility.
4. Shock Incarceration Program. DOCCS may continue to admit qualifying 16 and 17 year-old inmates to its Shock Incarceration program.
5. Disciplinary Sanctions. Aged 16 and 17 year-old inmates with disciplinary confinement sanctions of less than 30 days will remain in the facility in which they are housed at the time the sanction is imposed. Aged 16 and 17 year-old inmates with SHU confinement sanctions in excess of 30 days will be placed in a separate housing unit, as an alternative to placement in SHU, absent extraordinary circumstances.
6. Relationship to Cookhorne. Nothing in this Agreement shall be deemed to be inconsistent with, or to diminish, DOCCS’ agreements and responsibilities under the settlement agreement in Cookhorne v. Fischer, 2012-1791. DOCCS shall promptly notify Plaintiffs in the event that any developments in Cookhorne are expected to impact the provisions of this Agreement.
7. Program Contingency. In the event that aged 16 and 17 year old inmates are removed from DOCCS adult facility or facilities and placed into dedicated juvenile facilities operated by DOCCS, paragraphs 2 and 5 of this section shall remain in full effect at the new facility(ies). In the event that aged 16 and 17 year olds are removed system-wide from DOCCS custody during the term of this Agreement, DOCCS will meet and confer with Plaintiffs regarding how it plans to reallocate the facility space and staff previously dedicated to the juvenile program.
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F. SHU-Alternative Program for Special Needs Inmates 1. Continuation of Program. The Correctional Alternative
Rehabilitation (“CAR”) program at Sullivan Correctional Facility (“Sullivan”) for special needs inmates, created pursuant to the parties’ January 24, 2014 Stipulation, filed February 19, 2014, is hereby continued and incorporated herein, as provided in the following paragraphs.
2. Eligibility. The CAR program shall, absent exceptional circumstances referred to the DOCCS’ Central Office, and to the extent that space is available in the program, provide an alternative to SHU for certain inmates who have a Beta Wechsler Adult Intelligence Scale (“BETA-WAIS”) of 70 or below or who DOCCS otherwise determines have significantly limited intellectual capabilities and/or adaptive functioning and coping skills and have received SHU confinement sanctions exceeding 30 days.
3. Program Overview. The CAR program will continue to have three phases: (i) assessment and orientation, (ii) treatment, and (iii) transition to nondisciplinary housing settings. Two hours per day of out-of-cell group programming will be offered in the orientation phase and four hours per day in the second and third phases, five days a week for each phase. In addition to programming, the CAR program will use a range of incentives to reward behavioral progress. The incentives will be offered on an individualized basis and will be treatment-plan driven.
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II. AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS
The following agreements shall apply to all SHU–Alternative Programs discussed in Section I, supra:
A. Eligibility and Placement. Suitability and selection for SHU-Alternative programs will be determined in DOCCS’ discretion in accordance with the criteria stated herein for each program, and will be subject to space availability.
B. Program Management Team. Each SHU-Alternative Program will be managed by a multi-disciplinary team (“Program Management Team”), as described in this Agreement with respect to each such Program.
C. Continuation of Programming. 1. Programming and/or recreation offered to an inmate in each SHU-
Alternative Program may be denied to an inmate only in exceptional circumstances where it is believed that the inmate presents an unacceptable risk to the safety of staff or other inmates or to the security of the facility, and shall not be denied as punishment. This limitation does not apply to the revocation of conditions enhancements that are described as “Incentives” for each of the SHU-Alternative Programs set forth herein.
2. All denials of programming based upon exceptional circumstances shall be reported to Central Office. A request for a determination that an inmate should be denied out-of-cell programming and/or recreation because it is believed he or she poses an unacceptable risk to the safety of staff, inmates or the security of the facility will be submitted for approval to the Deputy Superintendent for Security (or the equivalent) and the Superintendent of the facility, as soon as possible, but no later than the first business day following the suspension of an inmate’s out-of-cell programming and/or recreation. If
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the request is not approved, the inmate shall be restored to his or her regular out-of-cell programming and/or recreation immediately. If the request is approved, programming shall resume as soon as the Program Management Team determines the risk to safety or staff has abated.
D. Restraints, Privileges, Incentives and Out-of-Cell Time. Each SHUAlternative Program will have a program and operations manual detailing, inter alia, the use of restraints, access to privileges, incentives, and out-of-cell time applicable to the needs of the inmates in that program and consistent with this Agreement. With respect to restraints, the goal will be to progressively reduce the use of restraints that an inmate may be subject to at each level, consistent with the need to operate the SHU-Alternative Program in a safe, secure manner, allowing the inmate fewer restraints and a greater simulation of the general population environment prior to release from the SHUAlternative Program. Inmates will receive the specified incentives for each phase of a particular program as specified in the program and operations manual, subject to the possibility of losing them for negative behavior.
E. Out-of-Cell Interviews. In addition to the specific program commitments in each SHU-Alternative Program described herein, the Program Management Team in Alternative Units will be encouraged to make use of out-of-cell interviews with inmates entering into, and participating in, a SHU-Alternative Program to engage the inmate and review the inmate’s progress with program objectives. The decision to offer an out-of-cell interview, however, remains with the Program Management Team. Unless the Program Management Team requests a participating inmate’s presence during a case conference, such conferences shall be conducted outside the presence of the inmates.
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F. Discipline in SHU-Alternative Programs. 1. Informational Reports will be utilized in the SHU-Alternative
programs to convey information (whether positive or negative) to the Program Management Team to consider for program assessment and security decisions. The Program Management Team will use this information to determine if an increase or decrease in incentives is indicated or to determine other programmatic or security needs (e.g., need for individual session, program review).
2. The Informational Report will be used as a tool to implement progressive discipline short of the formal disciplinary process and will allow staff to document less serious inmate misconduct and bring it to the attention of the Program Management Team. The Program Management Team and facility administration will collaborate to determine which approach or action should be employed in specific instances.
3. De-escalation, intervention, Informational Reports and the withdrawal of incentives shall be the preferred methods of responding to less serious negative behavior in the SHU-Alternative programs.
4. Misbehavior reports can only be issued in circumstances where the inmate is accused of serious offenses, the alleged behavior demonstrates a threat to safety, and/or the inmate has engaged in repeated acts of disruptive misbehavior despite prior alternative interventions.
5. Hearing officers will be instructed by hearing officer guidance that they should avoid imposing additional SHU sanctions on persons in SHU Alternative Units and should instead consider non-confinement and/or progressive sanctions,
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consistent with the need to maintain safety and security. SHU sanctions may be appropriate, however, where the inmates have been found guilty of a serious offense, the misbehavior demonstrates a threat to safety, and/or the inmate has engaged in repeated acts of disruptive misbehavior despite prior alternative interventions.
6. Even when additional SHU sanctions are issued, in the discretion of the Program Management Team, additional SHU sanctions may result in extending the inmate’s time in the SHU Alternative Program, rather than result in removal from the Program.
7. Before a SHU or Keeplock confinement sanction imposed by a Hearing Officer on an inmate already in a SHU Alternative Unit is served by the inmate, the Superintendent shall review the sanction and either approve or disapprove it.
8. All SHU sanctions imposed on persons who are already in a SHU Alternative Unit shall be reported every quarter to Central Office.
G. Discharge Upon Completion of SHU-Alternative Program. Upon successful completion of a SHU-Alternative Program, an inmate will be moved into a general population environment. The remainder of the inmate’s SHU sanction, if any, will be suspended upon the inmate’s release from the SHU-Alternative Program. If the inmate does not engage in any sanctionable conduct during the duration of the suspended SHU confinement sanction, that disciplinary sanction will expire on the earlier of the sanction end-date or 6 months from the date of release to general confinement. Service of suspended SHU confinement penalties may be imposed as a sanction, based on an individualized assessment, only for serious misbehavior or for committing the same or similar violation as that leading to the suspended sanction.
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H. Disciplinary Sanction Ends Prior to Program Completion. In the event that an inmate’s disciplinary sanction expires prior to the completion of the SHUAlternative Program, such inmates will return to general confinement, where DOCCS will make efforts to continue programming and treatment. Nothing in this section precludes the continued selective use of Protective Custody or Administrative Segregation in accordance with established procedures.
I. Early Discharge to SHU. 1. An inmate serving a disciplinary sanction in a SHU-Alternative
Program will only be discharged to SHU under the following specific, limited circumstances:
(a) When it is determined by the Program Management Team that an inmate has been chronically failing to comply with the program objectives, the Program Management Team will first attempt to obtain program compliance. All efforts to obtain compliance will be fully documented by the Program Management Team. Absent compliance, a recommendation may be made for alternate program placement or discharge to SHU. The recommendation by the Program Management Team shall be forwarded to the Superintendent for determination. The Superintendent’s determination will be forwarded to Central Office for review, and if necessary, transfer action.
(b) When it is determined that an inmate poses an immediate or continuing unacceptable threat to the safety of staff or other inmates or to the security of the facility, the Deputy Superintendent for Security will consult with the Program Management Team and make a recommendation. The recommendation by the Deputy Superintendent for Security will be forwarded to the Superintendent for determination.
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The Superintendent’s determination will in turn be forwarded to Central Office for review, and if necessary, transfer action.
J. Full Utilization of Capacity. The parties agree on the goal of full utilization of the capacity of the SHU-Alternative Programs created under this Agreement. In the event that any SHU-Alternative Program, after being open for at least one year, shall be operating at less than 75% of capacity for two quarters in a row, DOCCS agrees to meet and confer with Plaintiffs’ counsel and the parties’ experts to discuss any such underuse of a SHU-Alternative Program, and to consider potential modification of eligibility criteria as well as whether a particular SHU-Alternative Program should be terminated, if the parties agree that there is no longer a need for the Program. This provision shall also apply to capacity questions regarding new Separate Keeplock Units and the Confined Program Plan, discussed infra.
K. Inmate Orientation Material. Upon admission to a SHU-Alternative program, inmates shall be provided with information, in the form of orientation materials and meetings with the Program Management Team, to make them aware of the program mission, phase levels and incentives, and expectations in order to assist them in successfully completing the program and earning release back to general population.
L. Timeframes. The agreements in this section will be implemented in conjunction with the opening of any new SHU-Alternative Unit. With regard to CAR and the juvenile program, these agreements will be implemented within 6 months of the Effective Date.
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III. PRESUMPTION AGAINST SHU FOR PREGNANT INMATES DOCCS will maintain a written policy in the form of a memorandum by the
Deputy Commissioner for Correctional Facilities continuing the presumption against placement of a pregnant inmate in SHU for disciplinary purposes, except in exceptional circumstances as determined by the DOCCS Central Office. IV. SEPARATE KEEPLOCK UNITS
DOCCS will create two new Keeplock Units with a combined capacity of 175 inmates at Fishkill Correctional Facility (“Fishkill”) (75 beds) and Five Points Correctional Facility (“Five Points”) (100 beds) intended for inmates serving Keeplock sanctions in excess of 45 days. The target population is 175 inmates statewide.
A. Conditions in New Units. DOCCS will remove inmates selected by DOCCS who are serving
Keeplock sanctions in excess of 45 days from more restrictive SHU cells and place them in new Keeplock Units with the following conditions of confinement:
1. Fishkill. 75 medium security cells in Housing Units O, P and Q. All Inmates in these units will have access to the following privileges, subject to the possible loss of one or more of these privileges for a specified time, consistent with the principles of progressive discipline:
(a) One hour of daily congregate recreation, seven days per week, including chin-up bars and basketball.
(b) Access to phone calls in yard during daily congregate recreation.
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(c) Access to the same personal property as available in general population.
(d) Visits as permitted in general population. 2. Five Points. 50 maximum security double cells as Keeplock cells with a total capacity of 100 inmates. Inmates in these units will have access to the following privileges, subject to the possible loss of one or more of these privileges for a specified time, consistent with the principles of progressive discipline:
(a) Two hours of congregate recreation twice weekly on alternate days, including chin-up bars and basketball.
(b) Access to phone calls in yard during twice a week congregate recreation.
(c) Access to the same personal property as in general population.
(d) In-cell showers 5 days per week. (e) Visits the same as those in general population. B. Projected Opening of New Keeplock Units. The parties agree that the Keeplock Units will be opened as soon as construction has been completed. Based on DOCCS’ estimate of the time required to complete construction relating to the Keeplock Units, DOCCS’ goal is to open the Keeplock Units during the fiscal year of April 1, 2016 to March 31, 2017. C. Placement Priority. DOCCS will give priority to inmates with longer Keeplock sanctions for placement in the new Keeplock Units.
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D. Reduction of Certain Keeplock Sanctions. When a Keeplock sanction is imposed and is served in a SHU cell, service
of the sanction will be credited at the rate of three days for every two days served in the SHU cell. V. UNIFORM “PIMS” PROGRAM FOR ALL SHUs
A uniform behavioral incentive program – Progressive Inmate Movement System (“PIMS”) – shall be established for all SHUs with progressive increases in privileges in accordance with the PIMS level table provided to Plaintiffs’ counsel (document Bates stamped S048163).1 Upon admission to SHU, all inmates will begin at PIMS I, and their time in PIMS I shall be calculated as of the date their SHU sanction begins. Hearing officers will be instructed to give credit for pre-hearing confinement in a SHU cell when assigning the SHU sanction start date. The new PIMS system, except for congregate recreation, will be implemented within 6 months of the Effective Date. The Department shall implement the new PIMS system in a way that maintains or improves the conditions of confinement for SHU inmates (e.g., an inmate at PIMS II under the old PIMS system will be maintained at PIMS II or higher upon implementation of the new PIMS system). VI. CONFINEMENT PROGRAM PLAN (“CPP”)
A total of 84 single cell beds at Southport Correctional Facility and 150 double cells at Upstate Correctional Facility, for up to 84 inmates and 300 inmates, respectively, will be used to house inmates selected by DOCCS who are confined to SHU with a sanction or combined sanctions in excess of 6 months and who do not qualify for one of
1 Documents referenced in this Agreement by Bates number, until disclosed to DOCCS’ staff and the inmate population, shall be and remain subject to the parties’ May 15, 2013 confidentiality agreement, which is incorporated herein by reference (the “2013 Confidentiality Agreement”).
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the SHU-Alternative Programs. These inmates, upon reaching PIMS Level IV, will be eligible for additional time cuts and other privileges as a result of continued good behavior and positive programming.
A. Overview. 1. Program Plan. The assigned ORC will develop an individualized
Confinement Program Plan (“CPP”) for inmates in this program during an out-of-cell initial interview. The CPP will provide each inmate with a plan through which positive behavior and programming participation can lead to additional reductions of disciplinary sanctions. The plan will be individualized to the inmate, and appropriate and achievable for that inmate taking into account any limitations, such as a low literacy level.
2. Program Management Team. The program will be supervised by a Program Management Team that will include a Teacher, an ORC, an ASAT ORC, and a SHU Sergeant.
3. Program Overview. The program will incorporate cell study for inmates identified with an educational need or desire to continue with post-secondary education, such as correspondence courses. Inmates at PIMS Level II or higher will also be eligible for workbook programs to address errors in thinking, aggression and substance abuse, where applicable. Once an inmate begins CPP programming, programming may be denied only (1) in exceptional circumstances consistent with Section II(C), or; (2) where an inmate regresses from a higher PIMS level to PIMS I and adequate CPP program staff are not available to continue programming at PIMS I, programming may be temporarily interrupted provided that such programming shall resume as soon as CPP staff become available. An inmate may be removed from CPP for chronic failure to comply
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with program objectives in accordance with the policies in Section II(I)(1)(a), except that the recommendation to remove an inmate will be made by the ORC instead of the Program Management Team.
4. Progress Evaluation. CPP updates and evaluations of progress will be reviewed with each inmate quarterly out-of-cell, except that in PIMS IV, evaluation of progress will be reviewed with each inmate monthly out-of-cell. One of these reviews may be conducted with the Program Management Team and/or the ORC in conjunction with the inmate’s regularly scheduled case plan review.
B. Programs Offered. 1. Behavior Modification/Aggression. (a) Inmates at PIMS Level II or higher who have an identified
aggression management need will be enrolled in a workbook program conducted by an ASAT ORC/ORC. Program workbooks will be provided at no cost to the inmate.
(b) The program will assist inmates in identifying personal behaviors that may have led to acts of aggression and/or violence.
(c) The program length will be approximately 180 days (six months) in duration. During this time, the inmate will be seen by the ASAT ORC or ORC cell-side a minimum of twice per week in order to provide direct cell-side instruction, give assignments, correct all inmate work, provide feedback, and review the inmate’s status within the program.
(d) Inmates who participate in cell-side ART in CPP for the full program length of 180 days shall receive full credit for completing two out of six ART modules, shall not be required to retake those two modules upon enrollment in ART in
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general population, and shall be considered for expedited placement into general population ART upon release from SHU. Participation in cell-side ART programming shall be duly considered by the Time Allowance Committee.
2. ASAT Pre-Treatment Workbook. (a) Inmates at PIMS Level II or higher, and with an identified
substance abuse problem will be enrolled in a workbook program conducted by an ASAT ORC.
(b) The ASAT Pre-Treatment Workbook is designed to provide inmates with a substance abuse disorder an opportunity to examine the effects of alcohol and substance abuse on their lives and to increase the probability of a positive treatment outcome when the inmate is released from SHU confinement and is able to participate in DOCCS substance abuse treatment. Program workbooks will be provided at no cost to the inmate.
(c) Participating inmates will be seen by the program’s coordinator cell-side a minimum of twice per week in order to provide direct cell-side instruction, give assignments, correct all inmate work, provide feedback, and review the inmate’s status within the program. Satisfactory completion will generally occur within 6 months.
(d) Inmates who participate in cell-side ASAT in CPP shall receive credit for at least 25% program completion and up to 50% program completion, based upon the instructor’s assessment, and shall be considered for expedited placement into general population ASAT upon release from SHU. Participation in cell-side ASAT programming shall be duly considered by the Time Allowance Committee.
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3. Educational Cell Study. (a) The Educational Cell Study program will be conducted by a
teacher. (b) Each Cell Study Teacher will evaluate each inmate’s needs
and write an academic plan for each inmate enrolled in Cell Study. The teacher will be responsible for determining each inmate’s academic level and developing an academic plan. The teacher will obtain each inmate’s previous standardized test scores. The teacher will be expected to provide direct cell-side instruction, give assignments, correct all inmate work and provide feedback.
(c) Each participating inmate will be seen by the teacher cellside at least once a week.
(d) Any inmate who participates in Cell Study at Adult Basic Education, Pre-High School Equivalency, High School Equivalency, or Bilingual/English as a Second Language levels will be eligible to take standardized academic tests. All inmates enrolled in Cell Study will receive standardized testing on a schedule that coincides with the general population. Testing available will include the English oral proficiency test known as BEST Plus, and TABE, TABE Español, SABE, the Readiness Exam, and the TASC™.
4. Incentives. (a) Two hours of congregate recreation will be offered at PIMS
Level III, one day per week on a rotating basis, and at PIMS Level IV, three days per week. Congregate recreation shall be made available as soon as construction has been
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completed. Based on DOCCS’ estimate that approximately three years will be required to complete construction needed for congregate recreation at Upstate and Southport Correctional Facilities, DOCCS’ goal is to make congregate recreation available within three years of the enactment of the Fiscal Year 2016-2017 Budget.
(b) Once the inmate reaches PIMS Level IV, an inmate’s record of participation in CPP programming will weigh in favor of granting time cuts and other privileges. As long as an inmate demonstrates positive participation in programming, the inmate’s lack of progress in the programming shall be irrelevant in determining if the inmate is to receive time cuts and other privileges.
5. Inmate Orientation Manual. Upon admission to a CPP program, inmates shall be provided with information, in the form of orientation materials and meetings with the ORC, to make them aware of the program mission, PIMS levels, and expectations in order to earn Time Cuts. VII. UPSTATE ASAT PROGRAM EXPANSION
The ASAT program currently operated by Upstate Correctional Facility two days a week, with two modules a day, with up to six inmates in each module, for a total of up to 12 inmates per week, will be expanded so that the program will operate four days per week, with two modules a day, with up to six inmates in each module, for a total of up to 24 inmates per week. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance abuse disorder will be placed into the program, as determined by an admission and comprehensive evaluation procedure to be conducted by DOCCS substance abuse personnel. In order to support the Upstate ASAT program expansion, there will be a projected staff increase of six full-time
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employees. The program expansion will commence operations after the enactment of the budget in Fiscal Year 2018 -2019. VIII. SHU CONDITIONS
Without limiting the agreements set forth herein with respect to conditions in particular programs, the parties agree to the following with respect to SHU conditions:
A. Phone Calls. Absent a court order or exceptional circumstances where there is a threat to the safety and security of staff, inmates, the public or state property, DOCCS will offer at least the following:
1. For the purposes of this Agreement, a “phone call” in SHU, a SHU Alternative Unit or the Separate Keeplock Unit means at least 15 minutes of phone use time, exclusive of the time needed to escort the inmate to or from the phone and without limitation to the number of calls an inmate may make within that 15 minutes. Such phone access will be presumed during such times as an inmate is offered access to a yard containing operating inmate telephones;
2. One phone call while the inmate is in PIMS Level II; 3. One phone call every 30 days to every inmate in PIMS Level III and Level IV; 4. Conduct a pilot program in the Mid-State Step-Down/Drug Treatment unit using a rolling phone cart to provide access to telephone calls. The pilot will begin when the unit opens, and within 3 months of initiating the pilot the parties will meet to discuss whether rolling carts are a feasible method of increasing phone access in SHUs and, if not, other possible alternatives that could be considered.
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5. Greater access to phones may be provided in particular programs or at particular facilities, as provided in this Agreement.
B. Shower Curtains. Shower curtains will be provided in all SHU 200s, and at Upstate Correctional Facility.
C. Library Services. 1. An inmate is currently allowed to have two books and one
magazine at a time in his or her SHU cell, and to make new selections of reading materials one time per week. DOCCS agrees that inmates who have finished with their books and/or magazine in less than a week may request two new books and a new magazine on an exchange basis;
2. DOCCS will increase library cart re-stocking and rotation from every 60 to every 30 days.
D. Head Phones. A wall jack for headphones will be provided in all SHU cells that are not currently equipped.
E. Double-Celling Assignments. 1. A policy similar to the double-celling criteria currently in place in
the Fishkill facility, Bates-stamped S048181-S048186, will be implemented in all double occupancy SHU units;
2. Double-cell assignments will be immediately reassessed following a fight between cellmates reported to or observed by DOCCS staff;
3. The final decision on any double-cell assignment will be made by the Deputy Superintendent for Security.
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4. DOCCS will ensure that all inmates are advised in the SHU orientation manual that they may request an OMH review of a double cell assignment on mental health grounds and instructed on how to make such a request; provided, however, that it is in OMH’s sole discretion to decide whether or not to conduct such a review and to what extent.
F. Correspondence Courses. All SHU inmates will be permitted to enroll in approved correspondence courses at their own expense. DOCCS will give full consideration to requests to approve correspondence courses offered by accredited institutions of higher education that seek to provide SHU inmates with no-cost or low-cost post-secondary correspondence courses.
G. Tablet Pilot Program. DOCCS will establish a pilot program deploying 30 tablet style computers (without internet access) to inmates in traditional SHU units and is considering three potential sites for the pilot. The tablets will have educational and recreational software pre-loaded and otherwise will be configured in such a way as to satisfy security concerns and ease of use by the inmate. DOCCS will issue an RFI for a pilot of at least 30 such tablets within two months after the Effective Date of this Agreement. After the tablets have been in use for six months, DOCCS will share the results of the pilot program with the Plaintiffs’ counsel and will discuss with Plaintiffs’ counsel the feasibility of expanding and making the pilot program permanent, giving consideration to any recommendations made by the experts. The pilot program outcome will be measured by the tablets’ durability, utility, user feedback and security considerations.
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H. Mental Health Contacts. DOCCS shall ensure that meetings between inmates and mental health professionals occur out-of-cell in a confidential setting whenever approved by OMH. The following advisement shall be prominently displayed in orientation materials provided to all inmates upon admission to SHUs located in facilities that are OMH Level 1-4:
In this Special Housing Unit, OMH will offer a confidential meeting with a mental health professional within ___ days of admission to SHU and every ____ days thereafter. You may submit a confidential request for a private consultation with an OMH mental health clinician at any time as follows: ____.
The following advisement shall be prominently displayed in orientation materials provided to all inmates upon admission to SHUs located in non-OMH facilities:
In this Special Housing Unit you may submit a confidential request for a private consultation with an OMH mental health clinician as follows: ______________.
I. Additional Changes in Conditions. The parties agree that the changes in SHU conditions set forth in this §VIII are the minimum to be achieved and that DOCCS may make further changes, if deemed practicable, to improve conditions. DOCCS’ efforts to make changes exceeding the minimum requirements under this Agreement shall not create enforceable obligations on the part of DOCCS and any such additional changes shall be in DOCCS’ sole discretion, consistent with the goals of this Agreement and DOCCS’ statutory responsibilities. IX. DEPRIVATION ORDERS
A. Deprivation Order Limitations. Deprivation orders will not be imposed as punishment, but only where there is a threat to the safety and security of staff, inmates or state property. Deprivation orders will be terminated when threat has abated, as determined by security staff.
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B. Notification to OMH. DOCCS will notify OMH of the issuance, renewal and termination of all deprivation orders issued to inmates on the OMH caseload.
C. Review and Renewal. After 7 days, deprivation orders will be reviewed, and can be renewed, by the Superintendent.
D. Special Management Meal. DOCCS will replace the Loaf within three months of the Effective Date of this Agreement with a nutritious, calorie-sufficient, and palatable alternative meal composed of regular food items that can be safely delivered to and eaten by inmates. For example, a sack lunch consisting of fruit, cheese, cold cuts, sandwich bread, and coleslaw would meet the requirements of this subsection.
E. Record Keeping. DOCCS will hire an additional staff member to support the Assistant Commissioner for Special Housing/Inmate Disciplinary Programs in order to establish a system of electronic record keeping and reporting of deprivation orders, and any such other tasks deemed appropriate by the Assistant Commissioner. X. SENTENCING PRACTICES
A. Modifications of Guidelines. DOCCS will implement revised guidelines (the “Revised Guidelines”) for disciplinary confinement sanctions (document Batesstamped S048164 to S048180), in certain respects modifying the guidelines implemented pursuant to the terms of the Interim Settlement (Bates-stamped S3682 to S3705). As shown in the Revised Guidelines, sanction ranges for certain charges are broken down based upon different levels of seriousness (“disaggregated”) in order to promote progressive discipline. Disaggregation will not result in additional numbered charges under DOCCS disciplinary rules, and previous offenses relating to the same numbered charge, regardless of disaggregation, will be considered “prior charges” for the purpose of
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determining whether a particular violation is a “first,” “second,” or “third” offense. Staff and inmates shall be notified of the revised guidelines by means of a memorandum issued by the Deputy Commissioner for Correctional Facilities.
B. Special Management Meal 1. Effective within three months after the signing of this Agreement,
DOCCS will, by a memorandum to all Superintendents, cease and desist from using the Special Management Meal as a disciplinary sanction for acts of inmate misbehavior.
2. The imposition of the Special Management Meal shall comply with all the policies in § IX above. In addition, a Special Management Meal may only be ordered by the Superintendent or his or her designee (the OD or higher ranking authority) in connection with one of the following behaviors:
(a) Throwing food while assigned to the SHU; (b) Committing unhygienic acts in the SHU, such as spitting at staff or other inmates or throwing feces or urine; (c) Refusing to obey a direct order at the time of meal distribution or refusing to obey a direct order to return a food container or utensil at the conclusion of a meal while assigned to SHU. C. Guidance for Hearing Officers. Hearing officers will receive a memorandum (document Bates stamped S048157 to S148162) providing guidance regarding the proper exercise of their discretion with regard to the issuance of inmate sanctions. After issuance of the memorandum the Department will review data to assess general adherence by hearing officers with the guidance provided, and provide additional counseling and/or training to hearing officers as necessary.
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D. Time Cuts. 1. SHU Sanctions less than 90 days. Inmates serving individual sanctions of less than 90 days for infractions which do not involve certain infractions related to escape, violent conduct, or unhygienic acts2 will, in the absence of a subsequently issued Tier II or III misbehavior report, earn a time-cut of 7 days from the original sanction after serving 30 days of the sanction and a further 7 day time cut after serving 60 days. The time cuts provided herein will be computed electronically and automatically reported to the inmate’s facility. 2. SHU Sanctions of 90 days or more. Inmates who are serving individual sanctions of 90 days or more will receive time cuts reducing the original sanction in accordance with the following procedures:
(a) If the inmate exhibits good behavior, has positive interactions with staff, and shows progress and achievement in cell study (where applicable), the inmate will be presumptively awarded a time cut of 25% of the original sanction by the Special Housing Management Committee (“SHMC”) after the inmate has served one-half of his or her SHU confinement sanction. The SHMC may exceed the presumptive 25% time cut, which is not a cap, up to and including release from SHU. If the SHMC finds that the inmate should receive less than the presumptive 25% time cut, the SHMC will articulate a specific reason why the inmate should get less time based on his or her behavior during service of the sanction. Issuance of additional Tier 2 or Tier 3 misbehavior reports while the inmate is serving a sanction may justify the denial of a time cut, but is not an automatic bar precluding the SHMC from granting time cuts if the
2 Disciplinary infractions numbered 108.10, 108.13, 100.10, 100.11, 100.12, 101.11, 113.10, 100.13, 104.10, 117.10, 118.10, 118.22, 101.10 and 104.11.
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inmate has otherwise demonstrated progress. Half-way through the inmate’s initial sanction, the computer will electronically add the respective inmate to the queue of inmates to be reviewed at the next SHMC meeting. The SHMC will promptly report the results of its deliberations in writing to the Superintendent. The Superintendent will have responsibility for review and decision.
(b) Any inmate serving a sanction of 90 days or more for infractions which do not involve the referenced infractions involving escape or violent conduct or unhygienic acts who does not earn a time cut through the above-described SHMC process will receive an automatic time-cut of 10% of the original sanction, provided he or she has not been issued a Tier 2 or Tier 3 misbehavior report.
3. Nothing regarding time-cuts provided in this Agreement shall be construed to create a liberty or due process interest on the part of inmates in the issuance of time-cuts.
E. SHMC Calendar. The calendar for SHMC meetings shall include the OMH Level of all inmates in SHU. In determining whether a time cut is warranted, the SHMC shall consider whether an inmate’s OMH level weighs in favor of granting a time cut, for example, whether a time cut above the presumptive 25% should be granted to an OMH caseload inmate to permit that inmate an earlier return to a general population environment. XI. TRAINING
In order to carry out the goals of this Agreement, DOCCS will provide training as follows:
A. Training Academy. The training program for recruits will include:
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1. Incorporating principles of motivational interviewing into existing interpersonal communication training;
2. Incorporating principles of de-escalation into existing three-day training relating to mental health issues; and
3. Incorporating principles of de-escalation into existing use of force training.
B. SHU-Alternative Units. At the SHU-Alternative Units at Southport, MidState, Lakeview, Wende and Green Haven Correctional Facilities, a one-week training will be provided to the staff of those units regarding the context of this Agreement, the SHU environment and principles of de-escalation.
C. CPP Staff. For all staff assigned to Southport and Upstate CPP programming, a one-day training program will be provided as to the context of this Agreement, the SHU environment and principles of de-escalation. For all teachers and ORCs assigned to these CPP programs, a second day of training will be provided including active case management principles and practices.
D. SHU Staff. For all security staff and ORCs assigned to SHU blocks: 1. Initial Training. A one-day training program will be provided with
respect to the context of this Agreement, the SHU environment and principles of deescalation.
2. Annual Refresher Course. (a) At OMH Level 1 and 2 facilities, principles of de-escalation
will be emphasized during the next annual 4-hour mental health refresher course;
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(b) At all facilities other than OMH Level 1 and 2 facilities, a refresher course will be provided by supervisory staff through training bulletins discussed in informal meetings with staff concerning the following progressive alternatives to misbehavior reports for less serious incidents of misbehavior by inmates already housed in SHU:
(c) De-escalation and intervention as the preferred method of responding to negative behavior in SHU.
(d) If de-escalation and intervention do not achieve the desired effect, PIMS regression should be utilized prior to the issuance of a misbehavior report for less serious offenses.
(e) Misbehavior reports may be issued for serious offenses, or if the above alternatives do not attain the desired effect.
E. SHMC. In the course of its annual audits of SHU facilities the Office of Special Housing and Inmate Discipline will carry out training for SHMCs on new SHMC protocols and guidelines under this Agreement.
F. Entire DOCCS Staff. DOCCS Commissioner will ensure the delivery of a four-hour mandatory training program to the entire DOCCS staff during the first quarter of 2017, including the context of this Agreement, the SHU environment, and de-escalation principles and techniques.
G. Annual Peace Officer Training. Principles and techniques of deescalation will be emphasized during the regular four hours of use of force training.
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H. Guidance on Transfer Procedures. The Department shall augment and reinforce existing policies and procedures to ensure the continuity of case oversight for an inmate returning to general population from a SHU or Alternative Unit, as follows:
1. Advance Notice of Transfer. Inmates moving to general confinement in another facility will be submitted for transfer consideration by the assigned ORC within two (2) weeks prior to transfer. Programming completed while an inmate has been in a SHU-Alternative Program or confined in SHU, along with the inmate’s continuing program needs, will be included in the transfer referral by the ORC.
2. Electronic Scheduling of Initial Interview. Upon arrival at the general confinement facility, the inmate will be electronically scheduled for an out-of-cell interview with the assigned ORC in the general confinement facility within five business days of arrival. The assigned ORC at the receiving facility will review the entire guidance file, including information provided by the ORC at the transferring facility, and will prepare appropriate and necessary program referrals. Inmates returned to general confinement in the same facility where they served a SHU sanction or were in a SHUAlternative Program will have continuity of case oversight by the assigned ORC in that facility.
3. Memorandum. A policy memo issued by DOCCS Central Office to ORCs in all facilities will reinforce the above procedures.
I. Grant Opportunities. DOCCS will explore grant opportunities available through the Office of Justice Programs (“OJP”), United States Department of Justice, for resources, staff training or other technical assistance in furtherance of the goals of this Agreement.
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J. Training Materials. The parties’ designated experts will be afforded an opportunity, prior to the use of training materials and/or training bulletins required under this Agreement, to review and comment on all such training materials. DOCCS will give full consideration to all such comments received within 15 days after the proposed training materials are provided to the parties’ experts. The final version of all training materials shall be approved by DOCCS in its discretion and shall be shared with Plaintiffs’ counsel and the experts. XII. POST-SETTLEMENT ACTIVITIES
A. Designation and Role of Experts. Plaintiffs and Defendants will each designate an expert in prison operations. No designated expert will be a monitor, but will advise and consult with the parties as provided in this Agreement.
B. Periodic Tours and Assessments. Based on an agreed schedule of specified tours, each party’s expert will report to the retaining party concerning his or her assessment of Defendants’ compliance with the terms of this Agreement. In the first quarter of 2016, the experts will conduct a tour of CAR and the juvenile program, as provided under the Interim Settlement. In the Fall of 2016, the experts will be permitted to conduct an initial consecutive four-day tour at mutually agreed correctional facilities in which programs under this Agreement are located or to be located. The parties’ experts, according to a schedule to be determined, will be permitted to conduct further consecutive four-day tours at mutually agreed correctional facilities twice each calendar year thereafter. Tours will include SHU-Alternative Programs, the new separate Keeplock Units at Fishkill C.F. and Five Points C.F., and any other locations of concern to the experts in assessing compliance with this Agreement. During tours, the parties’ experts will be
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permitted to conduct both cell-side and confidential out-of-cell interviews of up to twelve (12) inmates per facility, per tour, and shall be afforded a reasonable opportunity to speak with the related Program Management Teams.
C. Access to Documents. 1. In Conjunction With Tours. The parties’ counsel will be provided
with the following documents reasonably related to the tours. In instances where the documents are to be provided in advance of a tour, they shall be delivered to the parties’ counsel no later than 14 days prior, assuming the parties have finalized the tour dates and locations at least 60 days in advance of the tours. In instances in which the documents are to be inspected by the experts on-site during the tour, the experts or parties’ counsel may request copies of those documents during the tour. Such copies shall be provided to experts or parties’ counsel within 30 days of a request, provided the request is not unduly burdensome, and also provided that in no case will such request be denied where it is agreed between the parties’ counsel that the documents are related to an issue of substantial breach under Section XIII. This section shall not preclude the experts from making requests to review specific additional documents as they deem necessary and relevant to a tour, and such requests shall not be unreasonably denied by DOCCS unless not relevant to the terms of this Agreement, unduly burdensome, or privileged.
(a) The most recent Operations Manual for that SHU or SHUAlternative Program, to the extent not previously provided to the expert;
(b) On-site inspection of the disciplinary files for up to 6 inmates pre-identified in advance of the tour by Plaintiffs’ expert, and up to 6 additional files as requested on-site by Plaintiffs’ expert;
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(c) For the most recent six-month period prior to the tour, records of any SHU double-celling reviews, and the outcomes;
(d) For the most recent six-month period prior to the tour, on site access to records of cases reviewed for time cuts, including who was considered for time cuts, how much time those considered were eligible to receive, how much they did receive and the reasons for the actions taken, to the extent that such records are created and maintained in the ordinary course of business;
(e) For the most recent six-month period prior to the tour, onsite access to records, such as logbooks, tracking phone access;
(f) For the most recent six-month period prior to the tour, onsite access to records/logbooks showing recreation access, including congregate recreation;
(g) For the most recent six-month period prior to the tour, onsite access to records, such as logbooks, showing whether mental health contacts occurred out-of-cell;
(h) In addition to the above, for the most recent six-month period prior to the tour of a SHU-Alternative Program, (a) the number of inmates admitted and inmates rejected for the program, including reasons for rejection; (b) the number of inmates who have completed the program (including length of time in the program) and the number of inmates who were discharged (including how long they were in the program and the reasons for discharge); (c) general outlines or lesson plans of classes and programs offered; (d) a snapshot of the number of inmates in the different program levels; and (e) the number of hours of out-of-cell time offered in the program and recreation by phase level (if not reflected in the Operations Manual), to the extent that records of the
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information referred to in (a) through (e) above are made and maintained in the ordinary course of business.
(i) With regard to a tour including a CPP, for the most recent six-month period prior to the tour, (a) samples of individual Confinement Program Plans and (b) summary notes of meetings of the CPP Program Management Team.
(j) During tours Plaintiffs' expert will be permitted to meet with the local grievance coordinator and, if DOCCS chooses, the Superintendent or their designee, for a discussion of grievance trends in the SHU unit(s). Plaintiffs' expert may receive copies of grievances filed by an individual inmate (the original grievance filed and the written reasoned response from each level of review) if the inmate filing the grievance consents. Central Office staff will accompany the experts on the tour and may attend all such discussions.
2. Annual Meeting. The parties will meet annually in either New York City or Albany to discuss implementation of this Agreement, any compliance issues hereunder, and the Agreement’s effect to date on reducing the use and duration of SHU. The parties’ experts may be available by telephone during the meetings. The initial annual meeting shall occur no later than one year after the effective date of this Agreement. Approximately 30 days before each such scheduled annual meeting, DOCCS will provide an annual report as to the construction progress relating to all programs to be established pursuant to this Agreement. In addition to information concerning construction progress, the annual report will include updates on the timeliness of implementation of the terms of this Agreement, such as the scheduling or completion of training components hereunder and the phasing in of programs and policies hereunder.
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3. Document Review by Experts. DOCCS will provide the parties’ experts, 30 days in advance of finalization, documents created to comply with provisions of this Agreement, including training materials and memoranda. DOCCS will give full consideration to comments, if any, provided by the experts within 15 days. The final version of all materials shall be approved by DOCCS in its discretion and shall be shared with Plaintiffs’ counsel.
4. Rule-Making. If DOCCS initiates a rule-making process to add or amend regulations affecting the terms of this Agreement, DOCCS will provide Plaintiffs’ counsel with the draft proposed non-emergency regulations no later than 15 days in advance of the initiation of rule-making and will give full consideration to any comments by Plaintiffs’ counsel, provided that the final determination as to the contents of any such proposed regulations shall be in the discretion of DOCCS. This Section shall not preclude DOCCS from undertaking emergency rulemaking, if required in DOCCS’ sole judgment, without notice to Plaintiffs’ counsel.
5. Quarterly Reporting. (a) The following reports and spreadsheets will be produced on the 15th of the month in January, April, July, and September (or the next business day if the 15th of the month falls on a weekend or holiday) and will cover the prior 3-month period.
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Topic Inmates in SHU Cells Demographics
Inmates in SHU Cells - Charges
Disciplinary Incidents
Inmates in Alternative Programs, including CAR
PIMS Level
Deprivation/Control Orders Special Management Meal Orders Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances

Description Demographic and Sanction Status Start and End Dates for inmates housed in SHU cells Disciplinary charges of the inmates housed in SHU cells serving SHU or Keeplock sanctions Inmate demographic information, disciplinary incident and hearing sanction information for all tier 2 and tier 3 incidents. Population Statistics, including the beginning population, the number of arrivals and releases, and the population at the end of the quarter. Counts of PIMS Levels at each facility Demographics, dates, reasons Demographics, dates, reasons
Juveniles in SHU Pregnant Inmates Tier Level Departures Guideline Departures Alternate Program Removals Alternate Program Denials

Type File
File
File
Report
Report Excel Spreadsheet Excel Spreadsheet Report Report Report Report Report Report

(b) The Excel spreadsheets for restricted diets and deprivation orders referred to in the table set forth in (a) above shall contain the same fields as the “Dep Report” and “Res Diet Report” spreadsheets produced to Plaintiffs on a monthly basis during the course of the stay period under the Interim Settlement.
(c) The “Exceptional Circumstances” reports referred to in the table set forth in (a) above shall contain at least the same level of detail as the “Monthly Exceptional Circumstances Reports” produced to Plaintiffs monthly since January 1, 2015.

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(d) The “Inmates in SHU Cells-Demographics” file referenced in (a) above shall contain the same data fields as the “SHUCELLS.DETAILS” dataset that has been produced monthly by the Department since April 3, 2014, and was most recently produced to Plaintiffs by email on November 3, 2015.
(e) The “Inmates in SHU Cells-Charges” file referenced in (a) above shall contain the same data fields as the “SHUCELLS.CHARGES” dataset that has been produced monthly by the Department since April 3, 2014, and was most recently produced to Plaintiffs by email on November 3, 2015.
(f) The “Disciplinary Incidents” file referenced in (a) above shall contain the same data fields as the “Disciplinary.Incidents” dataset that was produced by the Department on May 28, 2015 and September 1, 2015.
6. Annual Reporting. In addition to being provided quarterly as discussed above, the “Disciplinary Incidents” dataset will also be provided annually on April 15th containing data for the prior calendar year.
D. Confidentiality. Upon initial production, materials provided to Plaintiffs’ expert and counsel are automatically designated as confidential and for use only in conjunction with tasks specified in this Agreement and its enforcement, regardless of whether the material is marked “confidential” by Defendants’ counsel. If Plaintiffs’ counsel raise no objection to the confidentiality designation within sixty (60) days of receipt, the materials shall be deemed confidential. If Plaintiffs’ counsel raise such an objection, they shall send by email attachments the specific materials at issue and state the reasons the designation should be withdrawn in whole or in part. Defendants’ counsel shall respond in writing within thirty (30) days to substantiate the designation and state the
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reasons therefore, or to withdraw the designation. Defendants’ counsel shall withdraw the designation for material that would be obtainable under the Freedom of Information Law (“FOIL”).
E. Consideration of Experts’ Recommendations. The experts’ reports may include, in addition to an assessment of Defendants’ compliance with the terms of this Agreement, suggestions or proposals relating to implementation of the settlement as the experts deem appropriate. Although the Defendants will give full consideration to advice, suggestions and proposals offered by the experts, all decisions concerning the DOCCS correctional system will be made by Defendants, in accordance with DOCCS’ statutory responsibilities.
F. Public Reporting on DOCCS’ Website. DOCCS will add information to its existing quarterly Fact Sheet, posted on DOCCS’ website, reflecting information on the size and composition of inmates in segregated confinement and any changes since the prior quarter. During the first quarter of each calendar year, DOCCS will post on its website a brief annual update on the status of efforts completed under this Agreement.
G. Policy Structure Review. DOCCS will conduct a comprehensive review of its rules and regulations governing the disciplinary process and conditions of confinement in SHU and initiate any additional rule-making it may deem necessary to carry out the terms of this Agreement and will provide any additional guidance to staff through directives, memoranda, post orders, manuals, orientation materials and other similar guidance it may deem necessary to carry out the terms hereof.
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XIII. ENFORCEMENT POWERS A. Notice, Meet and Confer Obligations. In the event that Plaintiffs believe
that Defendants have committed a substantial breach of a material term of this Agreement, Plaintiffs’ counsel may provide Defendants with a written statement describing the alleged breach (“Notice of Substantial Breach”). Defendants shall provide a written statement responding to the Notice of Substantial Breach within thirty (30) calendar days from receipt of the Notice of Substantial Breach and, within thirty (30) calendar days of receipt of Defendants’ written response, counsel for the parties shall meet and confer in a good faith effort to resolve their dispute informally. In no instance shall the Plaintiffs be permitted to seek mediation or file an enforcement motion as permitted in §§ XIII(B) and XIII(C) without first having provided the defendants with a Notice of Substantial Breach.
B. Magistrate Judge Nonbinding Mediation. In the event that a Notice of Substantial Breach pursuant to § XIII(A) of this Agreement cannot be resolved informally, counsel for the parties may notify the District Court of the dispute, in which case the Court will appoint a Magistrate Judge to mediate the dispute. The parties agree to make a good faith effort to resolve any dispute in mediation.
C. Adjudication of Disputes Unresolved by Mediation. If the dispute has not been resolved through mediation in conformity with this Agreement within seventyfive (75) days of such appointment of a Magistrate Judge and the issue is a substantial breach of a material term of this Agreement, Plaintiffs may file a motion with the Court seeking specific enforcement of the terms of this Agreement, reinstatement of the claims for prospective relief in the lawsuit, or an extension of the duration of this Agreement by up to one additional year. It shall be Plaintiffs’ burden in making such a motion to
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demonstrate there has been a substantial breach of a material term. A substantial breach must be either (i) sufficiently frequent and widespread so as to be pervasive or (ii) a breach that deviates from a material provision in a way that denies an essential benefit of this Agreement to class members. Minimal or isolated failures, noncompliance with mere technicalities, failure to give “full consideration” to the experts’ or plaintiffs’ input, or temporary failure to comply during a period of otherwise sustained compliance will not constitute a substantial breach of a material term.
D. Substantial Noncompliance Proven. In the event the Court finds that Defendants have not substantially complied with a material term of this Agreement in accordance with the standards of C above, the Court shall have the power to order specific performance of the material terms in the Agreement, including ordering that the duration of this Agreement be extended for one additional year, provided that there may be no more than a single one-year extension of the term of this Agreement, or reinstatement of the claims for prospective relief in the lawsuit. In a remedial order directing specific performance, the Court shall not impose any additional or different terms from those set forth in this Agreement provided, however, that the Court may set new deadlines for specific performance consistent with the Agreement’s term under § XVII. Should the defendants fail to comply with an order of the Court directing specific performance, nothing in this Agreement shall prevent Plaintiffs’ counsel from making a motion seeking a finding of contempt, which motion may be granted or denied in accordance with controlling standards for such a finding. Any contempt finding shall be without prejudice to Defendants’ rights of appellate review of such a finding as a final order under 28 U.S.C. § 1291.
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E. Agreement as to 18 U.S.C. § 3626. Solely for the purposes of settlement, the parties agree and jointly request that the Court find that this Agreement satisfies the requirements of 18 U.S.C. § 3626(a)(1)(A).
F. No Waiver for Failure to Enforce: Failure by Plaintiffs to enforce this entire Agreement or any provision thereof with respect to any deadline or other provision herein shall not be construed as a waiver of Plaintiffs’ right to seek enforcement of any provisions of this Agreement. XIV. ATTORNEYS’ FEES; POST-SETTLEMENT ACTIVITIES
A. Defendants shall pay the sum of $1,100,000 for attorneys’ fees, costs and disbursements, including incentive payments, in full satisfaction of any and all claims in the lawsuit. Costs and disbursements shall be substantiated by documentation satisfactory to Defendants’ counsel. In the event that payment of the amounts referred to in § XIV(A) is not made within 120 days after the receipt by Defendants’ counsel of a copy of this fully executed Agreement, approved by the Court as provided on page 68 below, interest shall accrue on the outstanding balance at the rate set forth in 28 U.S.C. § 1961, beginning on the 121st day after receipt by Defendants’ counsel of a copy of this fully executed and court-approved Agreement.
B. During the term of this Agreement, as provided in § XVII, it is anticipated that Plaintiffs will incur certain legal fees, expert and other costs and disbursements with respect to §§ XII and XIII. Plaintiffs and Plaintiffs’ counsel agree to limit all such attorneys’ and experts’ fees, costs and disbursements to what is directly and reasonably necessary up to a combined total, which shall not exceed $100,000 per year, calculated on the basis of a 365 day year, beginning on the effective date of this Agreement under §
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XXVII and ending on the date this Agreement terminates pursuant to the provisions of § XVII. During the term of this Agreement, as the same may be extended, Plaintiffs’ counsel agree to submit vouchers to Defendants’ counsel on a semi-annual basis documenting any such attorneys’ fees, costs and disbursements and Defendants agree to reimburse Plaintiffs’ counsel within 90 days of receipt of such vouchers. If payment is delayed beyond 90 days, Defendants will also pay interest at the rate set forth in 28 U.S.C. § 1961, which shall accrue beginning on the 91st day. If Plaintiffs prevail on a motion asserting a substantial breach of a material term pursuant to §XIII, the cap provided in this Section for fees, costs and disbursements shall not apply to fees, costs and disbursements in connection with such motion.
C. Processing payment of each of the amounts referred to in § XIV is subject to the approval of all appropriate New York State officials in accordance with the provisions of § 17 of the New York Public Officers Law. In the event that payment of such fees and costs is delayed more than 60 days beyond the time for payment provided in § XIV (A) or (B), Plaintiffs’ counsel may, on 20 days’ written notice to Defendants’ counsel, make a motion for appropriate relief to the Court. If such a motion is made, Defendants may respond, including based on any failure by Plaintiffs’ counsel to submit documentation necessary to process such a payment under § 17 of the New York Public Officers Law, but will not contest that Plaintiffs are entitled to an award of fees and costs in accordance with § XIV. In the event of such motion practice relating to payments under § XIV, the remainder of the Agreement shall remain in full force and effect.
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XV. DISMISSAL OF COMPLAINT AND CLAIMS CASES, RESERVATION OF JURISDICTION
Upon approval of this Agreement by the Court, Plaintiffs shall execute, deliver and file a stipulation of dismissal with prejudice of the Complaint, substantially in the form attached hereto as Exhibit 1. Plaintiffs agree that they will not file any Notice of Intention to file a Claim based on SHU confinements identified in paragraphs 178 and 181 of the Complaint and further agree that if any such Notice of Intention has been filed, that they will not file a Claim based thereon. The parties agree that after the Court orders said Stipulation of Dismissal, the Court shall retain jurisdiction subject to the limitations of § XIII of this Agreement and the termination provisions of § XVII. XVI. MISCELLANEOUS PROVISIONS
This Agreement shall not constitute a consent decree or an adjudication on the merits. Neither this Agreement, nor any policies or procedures established thereunder, shall define any state or federal constitutional rights or be deemed an admission or a waiver of sovereign immunity or Eleventh Amendment protection. Moreover, none of the parties will contend that any of the provisions, policies, procedures, and goals stated herein define clearly established constitutional rights of inmates or create any private right of action against the State of New York, its agents, employees or representatives. This Agreement in no way waives or otherwise affects, limits or modifies the obligations of inmates to comply with the exhaustion requirements of the Prison Litigation Reform Act, DOCCS directives and regulations, or any current or future state or federal law governing the rights and obligations of incarcerated persons, except that the parties agree that exhaustion shall not be required for noncompliance actions arising under § XIII of this
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Agreement. Nothing in this Agreement shall be deemed to limit any existing authority of DOCCS to transfer inmates to other state or federal jurisdictions. Moreover, nothing in this Agreement shall be deemed to require or permit Defendants to violate the laws of the State of New York or the United States, or to violate any terms or conditions of any collective bargaining agreement to which DOCCS or the State of New York is a party, nor shall Defendants agree to any terms in a future collective bargaining agreement that would be in conflict with the terms of the Agreement. Defendants are not aware of any conflict between any of the provisions of this Agreement and any such law or collective bargaining agreement referred to in this Section. If at any future time a conflict becomes apparent, Defendants shall promptly notify Plaintiffs’ counsel. Defendants know of no reason why the payments referred to in § XIV may not be approved and processed in accordance with the provisions of § XIV of this Agreement and § 17 of the New York Public Officers Law and will use their best efforts to obtain such approvals. XVII. TERM
Without further action by the parties or the Court, this Agreement shall expire two years from the commencement of operation of the Southport SDP to be created under § I(A) of this Agreement. There may be a single one year extension of the term of this Agreement either by direction of the Court pursuant to § XIII or in the event that DOCCS shall have failed to achieve a sustained and significant reduction in the use and duration of SHU by the expiration of this Agreement under § XVII. The failure to achieve a significant reduction in SHU shall not, however, constitute a violation of this Agreement.
62

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 74 of 87
XVIII. BINDING EFFECT This Agreement is binding upon Plaintiffs and the class, the Defendants named in
this lawsuit in their individual and official capacities, and on Defendants’ successors in office, employees and agents. XIX. DEADLINES AND UNFORESEEN DELAY
The timeframes reflected in Exhibit 2 to this Agreement memorialize the projected timetable for implementation reflected throughout this Agreement. In the event an unforeseen circumstance occurs that causes DOCCS to fail to timely fulfill any material requirement of this Agreement, Defendants shall notify Plaintiffs’ counsel in writing within twenty (20) days after Defendants become aware of the unforeseen circumstance, its anticipated impact on Defendants’ ability to perform the material terms of this Agreement and the measures taken to prevent or minimize the failure, and, as appropriate, a proposed new timeline for completion. Requests by Defendants to amend deadlines due to unforeseen circumstances shall not be unreasonably withheld by Plaintiffs. XX. STIPULATION AS TO CLASS CERTIFICATION
The parties agree that this matter is appropriate for certification as a class action pursuant to Fed. R. Civ. P. 23(b)(2). The class is defined as all DOCCS inmates who are now serving or will in the future serve a disciplinary confinement sanction in a SHU or in one of the programs created under or referenced in this agreement. The parties agree that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, the claims of the named plaintiffs are typical of the claims of the class, and the plaintiffs and their counsel will fairly and adequately protect
63

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 75 of 87
the interests of the class. The parties agree that the confinement policies that are the subject of this action apply generally to the class, making relief appropriate for the class as a whole. The parties agree that, in the event that the Court denies Plaintiffs’ unopposed motion for class certification, filed separately with the Court, this Agreement shall be void. Defendants agree that they shall not move to decertify the class for the duration of this Agreement, and shall not unreasonably oppose the designation by Plaintiffs of new class representatives if necessary. XXI. COMMUNICATIONS WITH AND ACTIONS BY CLASS COUNSEL
Legal mail, legal visits and telephone calls by inmates shall be permitted with class counsel regarding any aspect of this Agreement or the litigation settled hereby without adverse consequences, subject to generally applicable DOCCS’ rules relating to legal visits, mail and the use of telephones. Any complaints or concerns by any member of the class relating to this Agreement shall be referred to class counsel, who shall determine whether action, if any, is permitted or warranted under § XIII. The enforcement provisions of § XIII are exclusive and only class counsel may seek enforcement of any of the terms and conditions of this Agreement. Except for motions by class counsel pursuant to § XIII, no person, including any member of the class, may serve or file any contempt motion for alleged non-compliance with a term of this Agreement or to bring any separate action or proceeding based upon this Agreement. XXII. FUNDING
A. Agreement Terms Contingent on Funding. Defendants will use their best efforts to seek approval of the funding necessary to implement activities described in §§ I(A)(3)(a), I(A)(4)(f), I(B)(6)(a), I(B)(11), I(C)(4)(a), I(C)(9), I(D)(2), I(D)(3), IV(B),
64

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 76 of 87
VI(A)(2), VI(B)(2), VI(B)(4)(a), VII, VIII(B), VIII(D), VIII(G), IX(E), XI(B), XI(C), XI(D), and XI(E) under this Agreement, including seeking sufficient appropriation authority in the Executive budget appropriation bill to be submitted to the Legislature for State fiscal year 2016-2017, and in each fiscal year for the term of the Agreement. Funding for activities described in the sections enumerated above are subject to approvals and budgetary processes and contingent upon legislative appropriations therefor. The failure of the Legislature to provide funding, notwithstanding Defendants' best efforts, for the activities enumerated in this section shall not be deemed a violation of a federal right by Defendants or a breach of the Agreement by Defendants.
B. Obligations if Funding Not Appropriated. If at any time Defendants believe that they cannot fully implement one or more of the material provisions of this Agreement in light of the Legislature's failure to provide adequate funding for one or more of the Sections enumerated above, Defendants shall promptly notify Plaintiffs in writing, and the parties shall meet and confer to discuss whether the affected terms can nevertheless be implemented with modifications agreed upon by the parties. If an agreement is reached, the parties shall modify this Agreement accordingly in writing. If agreement is not reached, the affected settlement term(s) shall become null and void and Defendants shall have no further obligations to fulfill the affected term(s) except as otherwise stated below. Defendants shall continue to fulfill all of their other obligations under this Agreement that are not impacted by the Legislature’s failure to provide adequate funding. Without limiting the foregoing, in the event the Legislature fails to provide adequate funding in a fiscal year, Defendants shall continue to use best efforts to retain the needed appropriation in all subsequent fiscal years under the Agreement Term.
65

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 77 of 87
If a previously denied appropriation is later made by the Legislature, the Defendants shall then be obligated to implement the Settlement term in accordance with timeframes in Exhibit 2, measured from the date the appropriation is made. XXIII. STAFFING
To the extent that specific sections of this Agreement reference a corresponding staffing number or specific title to be utilized, the parties recognize that this staffing number represents the number of positions or titles that are funded for the specific program, that positions may become vacant through staff attrition and may remain vacant through the recruitment process. Such vacancies shall not be deemed a breach of this Agreement. XXIV. NO ADMISSIONS OR PRECEDENTIAL EFFECT
Nothing in this Agreement shall be construed as an admission or acknowledgment of liability whatsoever by any of the Defendants or DOCCS regarding any of the allegations made by Plaintiffs in the Complaint. It is the parties’ intention that this Agreement shall have no precedential value or effect whatsoever and shall not be used by the parties as evidence or for any other purpose, except in an action or proceeding to enforce this Agreement. XXV. ENTIRE AGREEMENT
This Agreement embodies the entire agreement of the parties in this matter and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Agreement regarding the subject matter of the instant proceedings, shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein. Captions are included herein solely for convenience of reference, are not
66

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 78 of 87 part of this Agreement, and shall not be used to limit or otherwise interpret the terms hereof. XXVI. NOTICES
All notices under this Agreement shall be in writing and shall be sent by both U.S. Mail and electronic mail to the recipient or recipients at the address or addresses specified in the signature pages of this Agreement. Copies of any notice to a party shall also be mailed in the manner provided above to the below-listed counsel to the parties at the addresses specified for such counsel.
67

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 79 of 87

XXVIT. EXECOTJON AND f:FFF.CTTVE DATE

This Agreement may be executed in multiple countl'rparts, and faxed and/()r

l.'.fllailt'd signatun.:s will h.• rnlid am! enforceable, each (Jf which shalt be deemed an

original. and all of which shall cpnsritule one and the same document. This Agreement

shall be cftcctive upon the approval of this Settlement Agrixmcnt by the Court.

Dat1:J: New Yyk. New York
December _./.j_, 2015

NEW YORK CIVIL LIBF.RflES UNION

Attorneys for Plaintiffs

8 y_

---0 L::-------"

·- " U'aylor

/1.,J( "}'

/ ,.....,.,!,

'\

.: . fZ/L-. ,.,, ·

Al6xanckr A. Reinert !\ctomey for Plaintiffs

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Att ; . for D!:!fendants
Assislant Attorney General
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPF.RVISION

Kevin P. Bmen Deputy Commissioner and Cmmsd

So Ordered:

···-·-' 2015

Shin.-\ Schcindlin

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 80 of 87 EXHIBIT 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------- x

LEROY PEOPLES, et al.,

Plaintiffs,

: : STIPULATION OF DISMISSAL

-against-

: : Docket Number

BRIAN FISCHER, et al.,

: 11-CV-2694 (SAS)

Defendants. :

--------------------------------------------------------- x

IT IS HEREBY STIPULATED AND AGREED by and between the parties, by their

respective counsel, that, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, this

Action be and hereby is dismissed and discontinued with prejudice. The Court retains

jurisdiction to enforce the Settlement Agreement entered into on _________, as set forth in, and

subject to § XIII of the Agreement, until its termination as set forth in § XVII of the Agreement.

Dated: New York, New York December ____, 2015
NEW YORK CIVIL LIBERTIES UNION Counsel to Plaintiffs
By _____________________________ Taylor Pendergrass
_______________________________ Alexander A. Reinert Counsel to Plaintiffs
MORRISON & FOERSTER LLP Attorneys for Plaintiffs
By_______________________________ David Fioccola

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorneys for Defendants
By_________________________________ Richard W. Brewster Assistant Attorney General
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
By_________________________________ Kevin P. Bruen Deputy Commissioner and Counsel

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 81 of 87

EXHIBIT 2

Settlement Agreement Implementation Timetable

Action Item

Section

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

SHU ALTERNATIVE PROGRAMS

Southport Step-Down Program

I(A)(4)(f)

36 months

Mid-State Step-Down Unit

I(B)(11)

14 months

Lakeview Substance Abuse Program

I(C)(9)

33 months

Step-Down to the Community Programs

I(D)(9)

6 months

AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS

As applied to juvenile program and CAR

I(E) & (F)

6 months

As applied to all other SHU-Alternative Programs

II(A)-(L)

See above program

implementation dates

SEPARATE KEEPLOCK UNITS

Separate Keeplock Units

IV(B)

15 months

Reduction of Certain Keeplock Sanctions

IV(D)

3 months

UNIFORM “PIMS” PROGRAM FOR ALL SHUS

New PIMS implemented, excepting congregate recreation. V

6 months

See SHU conditions timeline for specific incentive

implementation.

CONFINEMENT PROGRAM PLAN

CPP Begins

VI

36 Months

UPSTATE ASAT EXPANSION

ASAT Program Expansion

VII

24 Months

SHU CONDITIONS

Phone calls

VIII(A)

6 months

Library services

VIII(C)

6 months

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 82 of 87

Action Item
Shower curtains Head phones/ Additional Phones installed in all SHUs Double-celling assignment policy – Issuance of Memo Double-celling assignment policy – Updating Facility Operations Manuals and Review with Staff Correspondence courses Tablet Pilot Program Issuance of RFI Tablet Pilot Program evaluation period
Mental Health Contact Policy – Issuance of Memo and template Mental Health Contact – Updating Facility Operations Manuals and Review with Staff DEPRIVATIONS Deprivation Order policies Special Management Meal Hire additional staff member SENTENCING PRACTICES Modification of guidelines Guidance for hearing officers Time Cuts Notice to SHMC of OMH Levels TRAINING Training Academy
SHU-Alternative Units one-week training
CPP staff training

Section
VIII(B) VIII(D) VIII(E) VIII(E)
VIII(F) VIII(G) VIII(G)
VIII(H)
VIII (H)

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

3 months

48 Months

3 months

6 months

3 months 2 months 6 months after tablets available 3 months

6 months

IX(A)-(C) IX(D) & X(B) IX(E)
X(A) X(C) X(D)(1)&(2) X(E)
XI(A)

3 months 3 months
12 months 2 months 12 months 6 months

XI(B) XI(C)
2

6 months
Starting with FY 2016/2017 Recruit Classes See above program implementation dates See above CPP

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 83 of 87

Action Item
SHU Staff one-day training SHU Staff refresher at OMH 1 and 2 facilities Issuance of training bulletin SHMC Training All staff training Peace officer training
GUIDANCE ON TRANSFER PROCEDURES Electronic Scheduling Issuance of memorandum

Section
XI(D)(1) XI(D)(2)(a) XI(D)(2)(b) XI(E) XI(F) XI(G)
XI(H)(2) XI(H)(3)

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

implementation date

12 months

12 months

12 months

12 months

First quarter 2017

Start with FY

2016/2017 annual

training

3 months 4 months

3

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 84 of 87
EXHIBIT B

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 85 of 87
IMPORTANT NOTICE TO DOCCS PRISONERS
ABOUT PROPOSED SETTLEMENT OF CLASS ACTION AFFECTING SPECIAL HOUSING UNIT POLICIES AND PROCEDURES
A proposed settlement has been reached in a federal civil-rights class-action lawsuit filed against the New York State Department of Corrections and Community Supervision (“DOCCS”) and other defendants, entitled Peoples, et al. v. Fischer, et al., Case No. 11-CV-2694. This lawsuit challenges the constitutionality of disciplinary confinement sanctions and conditions of Special Housing Units (“SHU”) in the New York State prison system.
DOCCS and the lawyers for the proposed class of inmates have reached a settlement agreement regarding SHU policies and procedures that they believe is fair to both sides. This case did not seek monetary damages on behalf of the class and no money damages will be awarded to class members. If you are an inmate who is now serving, or will in the future serve, a disciplinary confinement sanction in SHU or in one of the “SHU Alternative Units” described below, then you are a member of the class. This notice explains the proposed settlement agreement, how you can read it, and how you can tell the Court whether you think it is fair. The settlement agreement is lengthy and its terms are complex. Set forth below is only a brief summary of key provisions of the settlement agreement. A copy of the settlement agreement and relevant attachments is available in the law library. Inmates who cannot access the library can request a copy for review from their assigned Offender Rehabilitation Coordinator.
In brief summary, the key provisions of the settlement agreement require DOCCS to do the following over the next three years:
1. Implement policies ensuring SHU sanctions are imposed in a narrower range of circumstances, for shorter durations, and more consistently.
2. Implement policies ensuring incarcerated individuals can more consistently earn time cuts reducing their SHU sanctions for good behavior and program participation.
3. Modify the policies in SHU, with substantial changes for individuals expected to spend more than 180 days in SHU:
a. Provide access to telephone calls for prisoners in SHU; b. Permit prisoners in SHU to enroll in correspondence courses; c. Increase access to reading materials within SHU; d. Increase access to commissary and personal property within SHU; e. Raise the number of in-person visits permitted for prisoners in SHU; f. Install shower curtains in all double-celled SHU cells; g. Ensure all SHU cells have access to audio programming; h. For inmates expected to spend 180 days or more in a SHU and deemed appropriate by
DOCCS, provide access to congregate recreation and instructor-led cell-side rehabilitative programming; i. End use of the “loaf” and replace it with a sack lunch of regular food items; j. Implement policies limiting the issuance of “deprivation orders”; and k. Provide clear written notice upon admission to SHU of the prisoner’s ability to request an out-of-cell, confidential interview with mental health staff.

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 86 of 87
4. Create and continue “Alternative Units” providing rehabilitative programming for individuals deemed appropriate by DOCCS who would otherwise be serving long confinement sanctions in SHU and provide more congregate interaction, more out-of-cell time and more privileges as compared to SHU:
a. A “Step-Down” program to allow individuals with SHU sanctions of 9 months or longer the opportunity to earn their way back to general population by participating in congregate rehabilitative programming;
b. A substance abuse program to provide intensive drug treatment programming for substance dependent individuals who would otherwise be serving a long sanction for a drug-related infraction in SHU;
c. A “Step Down to the Community” program to provide re-entry programming to individuals who would otherwise be released directly from SHU to the community;
d. “Separate Keeplock Units” with less restrictive conditions of confinement as compared to SHU for a substantial number of the inmates who would otherwise be confined to SHU for Keeplock;
e. Continue the “Correctional Alternative Rehabilitation” program to provide programming for individuals with developmental disabilities and intellectual impairments in less restrictive conditions of confinement who would otherwise be in SHU;
f. Continue the juvenile unit to provide rehabilitative programming targeted to individuals aged 16 and 17 in less restrictive conditions of confinement than SHU.
5. The Department will conduct a system-wide training for all DOCCS’s staff, with a focus on staff working in SHU and Alternative Units. The training will support the above policies and alter daily interactions between staff and inmates in SHU.
6. The Agreement will allow plaintiffs’ class counsel to receive data and documents, and conduct up to 40 days of expert tours over the expected five-year term of the agreement, that will permit plaintiffs’ class counsel to review compliance with the Agreement.
7. The parties agree to a two-year review period following the completion of the largest construction project, the Southport Step-Down Program, which is expected to take 36 months. If that project is completed on schedule and there is no cause for extending the Settlement Term, the Agreement would terminate in 5 years.
The lawyers representing the class have spent thousands of hours working on the case and, because it is a civil rights case, the lawyers would be entitled to an award of legal fees if the case was won in court. In order to settle the case, DOCCS will pay $1,100,000 for attorneys’ fees, costs and disbursements, including incentive payments to the three named plaintiffs to compensate them for their role as class representatives in the lawsuit.
THIS CASE DID NOT SEEK ANY MONEY DAMAGES FOR THE CLASS, AND THE SETTLEMENT WILL NOT AFFECT THE RIGHT OF ANY INDIVIDUAL TO SEEK DAMAGES FOR SIMILAR CLAIMS. THE SETTLEMENT DOES NOT ADDRESS THE CASES OF ANY SPECIFIC INDIVIDUALS EXCEPT FOR THE THREE NAMED PLAINTIFFS, AND ATTORNEYS FOR THE CLASS CANNOT OFFER AN OPINION ABOUT YOUR ABILITY TO PURSUE A CLAIM FOR MONEY DAMAGES AGAINST DOCCS.
2

Case 1:11-cv-02694-SAS Document 144 Filed 12/23/15 Page 87 of 87 The Judge in this case will hold a hearing to determine whether the settlement agreement is fair and reasonable on ________________, at _____________ in Courtroom 15C, at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York. Inmates can write to the Court about the settlement’s fairness. Comments MUST include the name of this case, Peoples v. Fischer, and the docket number 11-CV-2694 (SAS), at the top of the first page. Please note that the Court can only approve or deny the settlement; it cannot change the terms of the settlement agreement. Comments must be postmarked no later than _____________. They can be sent to the following address:
Clerk of the Court Attn: Solitary Confinement Settlement, 11-CV-2694 (SAS) United States District Court, Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312 If you have any questions or want more information about the case, please write to the lawyers for the class at the following address: New York Civil Liberties Union Attn: Solitary Confinement Settlement 125 Broad Street, 19th Floor New York, NY 10004
3

 
 Case 1:11-cv-02694-SAS Document 329 Filed 03/31/16 Page 1 of 30

Case 1:11-cv-02694-SAS Document 329 Filed 03/31/16 Page 2 of 30
Dewayne Richardson, also appearing pro se, was joined with Peoples’ case. Similarly to Peoples, Richardson was sentenced to three years’ solitary confinement for maintaining documents in his cell that were designated as contraband and related conduct. Also in March, 2013, a pro se complaint previously filed by Tonja Fenton was joined with Peoples’ case.2 Fenton had sued DOCCS after being sentenced to two years’ solitary confinement for three infractions: (1) helping another inmate purchase personal hair care appliances and sneakers; (2) reporting a sexual assault that was later deemed unsubstantiated; and (3) sending a food sample to a court in support of a lawsuit she filed alleging that corrections officers had retaliated against her by tampering with her food.
Five years after Peoples filed his initial complaint, an historic settlement was reached on behalf of thousands of prisoners, in this class action lawsuit challenging solitary confinement practices across the New York State prison system.3 This settlement, which I approve today, will greatly reduce the frequency, duration, and severity of solitary confinement in New York State
2 Fenton, who was released from custody in March, 2014, attended the March 28, 2016 Fairness Hearing in this case.
3 See Proposed Settlement Agreement (“Settlement Agreement”), Ex. 1 to Plaintiffs’ Memorandum of Law in Support of Joint Motion for Preliminary Approval of Class-Action Settlement, Conditional Certification of the Settlement Class, Approval and Distribution of the Notice of Settlement, and Appointment of Plaintiffs’ Counsel as Class Counsel (“Pl. Preliminary Mem.”).
-2-

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Case 1:11-cv-02694-SAS Document 329 Filed 03/31/16 Page 13 of 30
enumerated offenses.27 Under this new scheme, for example, possession of certain documents prohibited by prison regulations — conduct that formed a basis of Peoples and Richardson’s original three-year SHU sentences — would be punishable by no more than thirty days of confinement to one’s own cell, not a SHU.28 For all of the incidents on which Fenton’s two-year SHU sentence was based, under the new scheme, she would have received no more than ninety days’ SHU and 150 days’ confinement to her own cell.29
Additionally, the Settlement Agreement provides for SHU-Alternative Programs designed to address the underlying causes of an inmate’s disciplinary issues, including programs for special needs inmates, juvenile inmates, and inmates
27 See Settlement Agreement at 42-43. See also 12/8/15 DOCCS Revised Guidelines (Bates Nos. S048164-S048180).
28 See 3/28/16 Tr. at 9:4-6; id. at 9:20-25 (“Prior to this litigation, [DOCCS] had no comprehensive [SHU] sentencing guidelines on an infraction-byinfraction basis; and, as a result of both the Interim Agreement and . . . [the final Settlement Agreement], a comprehensive set of sentencing guidelines for every infraction [is now in place].”) (Plaintiffs’ Counsel Taylor Pendergrass); 12/8/15 DOCCS Revised Guidelines at Bates Nos. S048168, S048175. Peoples’ three-year SHU sentence was also based on a violation of facility correspondence procedures. Under the new scheme, he would have received no more than ninety days’ SHU for this conduct. See 12/8/15 DOCCS Revised Guidelines at Bates Nos. S048179.
29 See 12/8/15 DOCCS Revised Guidelines at Bates Nos. S048166, S048168, S048172, S048178, S048179.
-13-

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 Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 1 of 80

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------.)(
LEROY PEOPLES, et al ., on behalf of themselves and all others similarly situated,
Plaintiffs,
-versus-

ST>CSDNY

11\

DOCU MENT

\

ELECTRONICALLY FILED \

1DOC#:

!

~ATE FILED: .Y\f\_{ i,D1 lf ~ \ _

~1 Civ. 2694 (SAS)

ANTHONY ANNUCCI,-Acting Commissioner of: the New York State Department of Corrections and Community Supervision, et al .,
Defendants.
-------------------------------------------------------------·)(
SED] ORDER GRANTING THE PARTIES' JOINT MOTION FOR FINAL APPROVAL OF CLASS-ACTION SETTLEMENT

The Court, having previously granted preliminary approval of the parties' Settlement Agreement, and having held a hearing on the fairness of the Settlement Agreement following a notice and comment period for all class members, and having considered the Third Amended Complaint, the Settlement Agreement, the memorandum and declarations submitted in support of the parties ' Joint Motion for Preliminary Approval of the Class-Action Settlement, the comments received from class members, and the memorandum and declarations submitted in support of the parties ' present Joint Motion for Final Approval of Class-Action Settlement:
FINDS AND ORDERS: 1. For the reasons contained in the Court' s written opinion of March 31 , 2016 (ECF No . 329), the Court grants final approval of the Settlement Agreement. 2. Accordingly, the Court "so orders" the Settlement Agreement and has attached the "so ordered" Settlement Agreement to this Order.

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 2 of 80
3. The parties shall execute the Stipulation of Dismissal, attached to the Settlement Agreement as Exhibit 1, and to file it with the Court forthwith. Upon filing the Court will endorse the Stipulation, dismissing the case with prejudice with the Court retaining jurisdiction to enforce the Settlement Agreement in accordance with Section XIII of the Settlement Agreement until its termination as set forth in Section XVII of the Agreement.

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 3 of 80

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------x

LEROY PEOPLES, TONJA FENTON and

:

DEWAYNE RICHARDSON, on behalf of

:

themselves and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

:

-against-

:

:

BRIAN FISCHER, et al.,

: :

Defendants. --------------------------------------------------------------x

Docket Number 11-CV-2694 (SAS)

SETTLEMENT AGREEMENT

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 4 of 80
TABLE OF CONTENTS
Page
I. SHU-ALTERNATIVE PROGRAMS...................................................................................... 4
A. Southport Step-Down Program ............................................................................... 4
1. Program Overview ...................................................................................... 4 2. Physical Layout. .......................................................................................... 5 3. Staffing........................................................................................................ 5 4. Program Modules ........................................................................................ 6
(a) Orientation ......................................................................................... 6 (b) Phase 1............................................................................................... 6
(i) Programming....................................................................... 6 (ii) Recreation ........................................................................... 6 (iii) Total Daily Out-of-Cell Time.............................................. 6 (iv) Restraints............................................................................. 7 (v) Time Cuts ............................................................................ 7 (c) Phase 2 ............................................................................................... 7 (i) Programming....................................................................... 7 (ii) Recreation ........................................................................... 7 (iii) Incentives ............................................................................ 7 (iv) Total Daily Out-of-Cell Time ............................................ 7 (v) Restraints............................................................................. 8 (vi) Time Cuts............................................................................ 8 (d) Phase 3 ............................................................................................ 8 (i) Programming....................................................................... 8 (ii) Recreation ........................................................................... 8 (iii) Incentives ............................................................................ 8 (iv) Total Daily Out-of-Cell Time ............................................ 8 (v) Restraints............................................................................. 9 (vi) Time Cuts............................................................................ 9 (e) Curriculum ...................................................................................... 9 (f) Projected Opening Date .................................................................. 9 B. Mid-State Step-Down and Substance-Abuse Programs ......................................... 9 1. Physical Layout...........................................................................................9 2. Initial Operation as an SDP....................................................................... 10 (a) Recreation ..................................................................................... 10 (b) Congregate Leisure Activities....................................................... 10 (c) Total Daily Out-of-Cell Time ....................................................... 10 3. Reassessment on Opening of Southport SDP ........................................... 11 4. Overview of Mid-State Substance Abuse Program .................................. 11 5. Drug-Free Environment ............................................................................ 12 6. Staffing...................................................................................................... 12 7. Orientation ................................................................................................ 13 8. Program Modules...................................................................................... 13 9. Curriculum ................................................................................................ 13
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10. Incentives .................................................................................................. 14

11. Projected Opening of Mid-State Unit ....................................................... 14

C. Lakeview Substance-Abuse Program ................................................................... 14

1. Program Overview .................................................................................... 15

2. Drug-Free Environment ............................................................................ 15

3. Physical Layout......................................................................................... 15

4. Staffing...................................................................................................... 16

5. Orientation ................................................................................................ 17

6. Programming............................................................................................. 17

7. Curriculum ................................................................................................ 17

8. Incentives .................................................................................................. 18

9. Projected Opening of Lakeview Substance Abuse Program .................... 18

D. Step-Down to the Community Programs .............................................................. 18

1. Program Overview .................................................................................... 19

2. Physical Layout......................................................................................... 19

3. Staffing...................................................................................................... 19

4. Program Modules...................................................................................... 19

5. Recreation ................................................................................................. 20

6. Incentives .................................................................................................. 20

7. Eligibility .................................................................................................. 20

8. Initial Program Cohort .............................................................................. 21

9. Projected Opening of Step-Down to the Community Programs............... 21

E. Programs for Juveniles.......................................................................................... 21

1. Continuation of Programs ......................................................................... 21

2. Limit On Time In Cell .............................................................................. 21

3. Separate Housing For Juveniles................................................................ 21

4. Shock Incarceration Program.................................................................... 22

5. Disciplinary Sanctions .............................................................................. 22

6. Relationship to Cookhorne ....................................................................... 22

7. Program Contingency ............................................................................... 22

F. SHU-Alternative Programs for Special Need Inmates ......................................... 23

1. Continuation of Programs ......................................................................... 23

2. Eligibility .................................................................................................. 23

3. Program Overview .................................................................................... 23

II. AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS .......... 24

A. Eligibility and Placement ...................................................................................... 24

B. Program Management Team................................................................................. 24

C. Continuation of Programming .............................................................................. 24

D. Restraints, Privileges, Incentives and Out-of-Cell Time ...................................... 25

E. Out-of-Cell Interviews .......................................................................................... 25

F. Discipline in SHU-Alternative Programs ............................................................. 26

G. Discharge Upon Completion of SHU-Alternative Program ................................. 27

H. Disciplinary Sanction Ends Prior to Program Completion ................................... 28

I

Early Discharge to SHU........................................................................................ 28

J. Full Utilization of Capacity……………………………………………………...29

K. Inmate Orientation Material.................................................................................. 29

L. Timeframes ........................................................................................................... 29

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III. IV.
V. VI.
VII. VIII.
IX. X.
XI.

PRESUMPTION AGAINST SHU FOR PREGNANT INMATES ................................. 30 SEPARATE KEEPLOCK UNITS.................................................................................... 30 A. Conditions in New Units....................................................................................... 30
1. Fishkill ...................................................................................................... 30 2. Five Points ................................................................................................ 31 B. Projected Opening of New Keeplock Units.......................................................... 31 C. Placement Priority................................................................................................. 31 D. Reduction of Certain Keeplock Sanctions ............................................................ 32 UNIFORM “PIMS” PROGRAM FOR ALL SHUs ......................................................... 32 CONFINEMENT PROGRAM PLAN (“CPP”) ............................................................... 32 A. Overview............................................................................................................... 33 1. Program Plan............................................................................................. 33 2. Program Management Team..................................................................... 33 3. Program Overview .................................................................................... 33 4. Progress Evaluation .................................................................................. 34 B. Programs Offered.................................................................................................. 34 1. Behavior Modification/Aggression........................................................... 34 2. ASAT Pre-Treatment Workbook .............................................................. 35 3. Educational Cell Study ............................................................................. 36 4. Incentives .................................................................................................. 36 5. Inmate Orientation Manual ....................................................................... 37 UPSTATE ASAT PROGRAM EXPANSION ................................................................. 37 SHU CONDITIONS ......................................................................................................... 38 A. Phone Calls ........................................................................................................... 38 B. Shower Curtains.................................................................................................... 39 C. Library Services .................................................................................................... 39 D. Head Phones.......................................................................................................... 39 E. Double-Celling Assignments ................................................................................ 39 F. Correspondence Courses....................................................................................... 40 G. Tablet Pilot Program ............................................................................................. 40 H. Mental Health Contacts......................................................................................... 41 I. Additional Changes in Conditions……………………………………………….41 DEPRIVATIONS ORDERS............................................................................................. 41 A. Deprivation Order Limitations.............................................................................. 41 B. Notification to OMH............................................................................................. 42 C. Review and Renewal............................................................................................. 42 D. Special Management Meal.................................................................................... 42 E. Record Keeping .................................................................................................... 42 SENTENCING PRACTICES ........................................................................................... 42 A. Modifications of Guidelines ................................................................................. 42 B. Special Management Meal.................................................................................... 43 C. Guidance for Hearing Officers.............................................................................. 43 D. Time Cuts.............................................................................................................. 44 1. SHU Sanctions less than 90 days.............................................................. 44 2. SHU Sanctions of 90 days or more........................................................... 44 E. SHMC Calendar.................................................................................................... 45 TRAINING ....................................................................................................................... 45

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A. Training Academy ................................................................................................ 45 B. SHU-Alternative Units.......................................................................................... 46 C. CPP Staff............................................................................................................... 46 D. SHU Staff.............................................................................................................. 46
1. Initial Training .......................................................................................... 46 2. Annual Refresher Course .......................................................................... 46 E. SHMC ................................................................................................................... 47 F. Entire DOCCS Staff.............................................................................................. 47 G. Annual Peace Officer Training ............................................................................. 47 H. Guidance on Transfer Procedures………………………………………………..48 1. Advance Notice of Transfer...................................................................... 48 2. Electronic Scheduling of Initial Interview ................................................ 48 3. Memorandum ............................................................................................ 48 I. Grant Opportunities……………………………………………………………...48 J. Training Materials................................................................................................. 49 XII. POST-SETTLEMENT ACTIVITIES............................................................................... 49 A. Designation and Role of Experts........................................................................... 49 B. Periodic Tours and Assessments ........................................................................... 49 C. Access to Documents ............................................................................................ 50 1. In Conjunction With Tours ....................................................................... 50 2. Annual Meeting ........................................................................................ 52 3. Document Review by Experts .................................................................. 53 4. Rule-Making ............................................................................................. 53 5. Quarterly Reporting .................................................................................. 53 6. Annual Reporting...................................................................................... 55 D. Confidentiality ......................................................................................................55 E. Consideration of Experts’ Recommendations ......................................................56 F. Public Reporting on DOCCS’ Website………………………………………….56 G. Policy Structure Review…………………………………………………………56 XIII. ENFORCEMENT POWERS............................................................................................57 A. Notice, Meet and Confer Obligations ...................................................................57 B. Magistrate Judge Nonbinding Mediation..............................................................57 C. Adjudication of Disputes Unresolved by Mediation ............................................57 D. Substantial Noncompliance Proven ......................................................................58 E. Agreement as to 18 U.S.C. § 3626 .......................................................................59 F. No Waiver for Failure to Enforce .........................................................................59 XIV. ATTORNEYS’ FEES; POST-SETTLEMENT ACTIVITIES .........................................59 XV. DISMISSAL OF COMPLAINT AND CLAIMS CASES, RESERVATON OF JURISDICTION……………….. ................................................................................................. 61 XVI. MISCELLANEOUS PROVISIONS ................................................................................. 61 XVII. TERM ............................................................................................................................... 62 XVIII. BINDING EFFECT .......................................................................................................... 63 XIX. DEADLINES AND UNFORESEEN DELAY ................................................................. 63 XX. STIPULATION AS TO CLASS CERTIFICATION ........................................................ 63 XXI. COMMUNICATION WITH AND ACTIONS BY CLASS COUNSEL.......................... 64 XXII. FUNDING......................................................................................................................... 64 A. Agreement Terms Contingent on Funding ...........................................................64
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Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 8 of 80 B. Obligations If Funding Not Appropriated.............................................................65 XXIII. STAFFING........................................................................................................................ 66 XXIV. NO ADMISSIONS OR PRECEDENTIAL EFFECT....................................................... 66 XXV. ENTIRE AGREEMENT .................................................................................................. 66 XXVI. NOTICES......................................................................................................................... 67 XXVII. EXECUTION AND EFFECTIVE DATE ....................................................................... 68 Exhibit 1 – Stipulation of Dismissal of Complaint Exhibit 2 – Projected Timetable for Implementation
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Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 9 of 80

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------x

:

LEROY PEOPLES, TONJA FENTON and :

DEWAYNE RICHARDSON, on behalf of :

themselves and all others similarly situated, :

:

Plaintiffs,

:

:

-against-

: :

:

BRIAN FISCHER, et al.,

: :

Defendants.

SETTLEMENT AGREEMENT
Docket Number 11-CV-2694 (SAS)

---------------------------------------------------------x

The parties hereto, by their attorneys, hereby stipulate and agree as follows:

WHEREAS, Plaintiffs Leroy Peoples, Dwayne Richardson and Tonja Fenton, inmates in custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at the time this Action was commenced, filed a Third Amended Class Action Complaint (herein, as amended and corrected, referred to as the “Complaint”) alleging that the use and length of confinement sanctions and conditions in DOCCS Special Housing Units (“SHU”) create an unconstitutional risk of harm, and seeking declaratory and injunctive relief on behalf of a putative class of similarly situated individuals and damages on behalf of the named Plaintiffs;
WHEREAS, DOCCS recognizes that a sound, progressive disciplinary system protects the health, safety and security of both inmates and correctional staff;
WHEREAS, DOCCS recognizes that disciplinary sanctions must never be arbitrary or capricious or overly severe and that a sound disciplinary system relies on certainty and promptness of action rather than severity;

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 10 of 80
WHEREAS, following the filing by Defendants of a motion to dismiss and before the filing of an answer to the Complaint or a class certification motion, a Stipulation and Order was entered on May 1, 2013, pursuant to which the Defendants’ motion to dismiss was withdrawn without prejudice and all scheduling of briefing and discovery in the lawsuit was suspended to permit the parties to conduct settlement negotiations to resolve all remaining claims in the lawsuit and further promote the goal of protecting the health, safety and security of all persons within DOCCS correctional facilities;
WHEREAS, on January 24, 2014, following extensions of the above-referenced stay, the parties entered into an interim settlement (the “Interim Settlement”), entitled “Stipulation for a Stay with Conditions”, so ordered by the Court on February 19, 2014, pursuant to which Defendants: (i) created programs providing alternatives to SHU sanctions for juveniles and special needs inmates; (ii) established a presumption against SHU sanctions for pregnant inmates; (iii) increased oversight by DOCCS’ Central Office of the disciplinary system throughout the State under a newly created Assistant Commissioner position; (iv) implemented comprehensive guidelines for all disciplinary confinement sanctions; and (v) took certain interim actions with regard to SHU conditions, specifically by increasing outdoor exercise and providing headphones and in-cell study packets to SHU inmates in specified circumstances and locations;
WHEREAS, since February 19, 2014, DOCCS has provided Plaintiffs’ counsel with extensive data and reports concerning the implementation and effects of the actions taken pursuant to the Interim Settlement, and the parties have engaged in extensive settlement negotiations, with the assistance of experts in prison operations and segregated housing retained
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by the parties to assist in achieving a comprehensive resolution of all claims for injunctive relief raised in the Complaint;
WHEREAS, the parties, without conceding any infirmity in their claims or defenses, have in good faith negotiated the terms of this settlement agreement in order to provide programs and progressive incentives in an effort to change the behaviors leading to disciplinary sanctions and SHU confinement and to address certain aspects of the conditions of SHU confinement, for the purpose of improving institutional safety and enabling inmates to earn time cuts and incentives by changing their behavior, ultimately returning to the general prison population and the community with a diminished likelihood of recidivism;
WHEREAS, the parties share the goal of significantly reducing the use and duration of SHU and reducing isolation and idleness in SHU, consistent with safety and security;
WHEREAS, Defendants have denied the allegations in the complaint that they have violated Plaintiffs’ constitutional or statutory rights;
WHEREAS, the parties represent and agree that this Agreement is fair, reasonable and adequate to protect the interests of all parties and the class, and that entering into this Agreement will improve institutional safety for all persons within the State’s correctional system;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the parties, as follows:
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I. SHU-ALTERNATIVE PROGRAMS A. Southport Step-Down Program DOCCS will create a Step-Down Program (“SDP”) in Housing Block C at
Southport Correctional Facility (“Southport”). The SDP will have a capacity of 252 inmates. The goal of the SDP is to offer behavioral modification programming to longterm SHU inmates with a violent behavioral history and the capacity to benefit from the SDP with the aim of returning inmates who successfully complete the program back to general population, consistent with achieving overall program success and the safety and security of participants and staff.
1. Program Overview. The SDP will be a three-phase progressive program for inmates serving a minimum of 9 months of SHU confinement (including consecutive sanctions that total at least 9 months) who would likely benefit from structured programming, including programming based on principles of cognitive behavioral therapy, to improve behavior and reduce future disciplinary infractions. Suitability and selection for the program will be determined in DOCCS’ discretion. Inmates will progress through the stages of the SDP, earning fewer restrictions and increased incentives, as they meet benchmarks and individual goals. Inmates will receive the incentives specified below for each phase of the Program, subject to the possibility of losing them for negative behavior. On successful program completion, inmates will be returned to general population, following a review for general population placement and programming to meet individually identified needs and behavioral plans by the Superintendent, who will forward his or her recommendations to the DOCCS Central Office for a final placement decision.
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2. Physical Layout. Participating inmates will be housed in 252 cells on three floors, each floor consisting of four 21-cell housing galleries and five classrooms. Orientation and program phases will be situated as follows:
(a) Orientation (63 beds): Housing Block C, 1st Floor (b) Phase 1 (21 beds): Housing Block C, 1st Floor (c) Phase 2 (84 beds): Housing Block C, 2nd Floor (d) Phase 3 (84 beds): Housing Block C, 3rd Floor
3. Staffing. (a) The unit will have a projected staff of 54 full-time
employees, which includes a Program Management Team consisting of security, counseling, substance abuse and teaching staff who will manage the SDP. The Program Management Team will conduct weekly case conferences, outside of scheduled program time, for staff to evaluate inmates’ progress. The Program Management Team will offer quarterly out-of-cell meetings with each participant to discuss progress and benchmarks with the inmate, and to make any adjustments in the inmate’s program plan. In addition, a DOCCS Offender Rehabilitation Coordinator (“ORC”) will offer a similar out-of-cell meeting with each participating inmate during orientation and conduct cell-side meetings with participants between Phases 1 and 2. Unless the Program Management Team requests a participating inmate’s presence during the weekly case conferences, such weekly conferences shall be conducted outside the presence of the inmates.
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(b) The Program Management Team will assess participating inmates’ achievement of benchmarks and readiness to move to higher phases of the SDP or regress to a lower phase, if necessary, and on completion of the program will provide appropriate discharge planning and make recommendations to the Superintendent of Southport regarding participating inmates’ discharge/placement.
4. Program Modules. (a) Orientation. The orientation phase will have a duration of
not more than 30 days to assess an inmate’s willingness to participate and determine individual program needs. Participants in the orientation phase will be housed in SHU cells in standard SHU conditions and will be in restraints when they are out of cell.
(b) Phase 1. This phase will have a duration of not less than 30 days and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week (excluding Fridays and holidays) including behavioral programming and orientation for Phases 2 and 3. The Program Management Team will conduct out-of-cell meetings with a sufficient number of inmates on Fridays (excluding holidays), so as to conduct a quarterly out-of-cell meeting with each participant in accordance with § I(A)(3)(a) above.
(ii) Recreation: Two hours of individual recreation, seven days per week.
(iii) Total Daily Out-of-Cell Time: Four hours total outof-cell time Monday through Thursday (except holidays where the total will be two hours) and two hours total out-of-cell time Friday, Saturday and Sunday.
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(iv) Restraints: Participants will move in restraints. During programming, restart chairs with leg restraints only will be used.
(v) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(c) Phase 2. This phase will have a duration of not less than 90 days and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week (excluding Fridays and holidays). The Program Management Team will conduct out-of-cell meetings with a sufficient number of inmates on Fridays (excluding holidays) so as to conduct a quarterly out-of-cell meeting with each participant as provided in § I(A)(3)(a) above.
(ii) Recreation: Two hours of congregate recreation will be offered to participants, 7 days per week, in congregate recreation pens.
(iii) Incentives: All participants will be offered increased access to personal property; at least one phone call every 60 days; extra showers, and commissary purchases. In addition, a participant has the ability to earn congregate TV/activity in restart chairs. A participant has the possibility of losing one or more of these incentives for negative behavior.
(iv) Total Daily Out-of-Cell Time: Minimum four hours out-of-cell time Monday through Thursday (except holidays where the total will be two hours); minimum two hours out-of-cell time Friday, Saturday and Sunday, with the ability to earn congregate leisure time, such as congregate TV/activity in restart chairs.
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Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 16 of 80
(v) Restraints: Participants will move in restraints, and during programming, will use restart chairs with leg restraints only.
(vi) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(d) Phase 3. This phase will continue until participants are discharged and will include the following:
(i) Programming: Two hours of out-of-cell programming, four days per week. The Program Management Team will conduct out-ofcell meetings with a sufficient number of inmates on Fridays (excluding holidays), so as to conduct a quarterly out-of-cell meeting with each participant in accordance with § I(A)(3)(a) above.
(ii) Recreation: Two hours of congregate recreation will be offered to participants in Phase 3, seven days per week, in a general confinement recreation yard.
(iii) Incentives: As incentives for positive behavior, all participants will be offered congregate TV and other congregate activities; increased access to personal property; the opportunity to access the phones in the general confinement recreation yard (extra calls may be earned); extra showers, and commissary purchases, subject to the possibility of losing one or more of these incentives for negative behavior.
(iv) Total Daily Out-of-Cell Time: Minimum four hours daily out-of-cell time Monday through Thursday (except holidays where the total will be
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Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 17 of 80
two hours); minimum two hours daily out-of-cell time Friday, Saturday, and Sunday, with the ability to earn congregate leisure time.
(v) Restraints: Participants will move without restraints, and there will be no restraints during programming.
(vi) Time Cuts: Recommendations for time cuts will be made in the discretion of the Program Management Team.
(e) Curriculum. As appropriate to each Phase, the curriculum will include aggression replacement training, anger management, emotional regulation techniques and social skills, with increasing focus in later Phases on applying these skills and techniques in the general population environment.
(f) Projected Opening Date. Southport SDP will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate that approximately three years will be required to complete construction needed for Southport SDP, DOCCS’ goal is to open Southport SDP with an initial group of inmates in the Orientation Phase within three years of the enactment of the Fiscal Year 2016-2017 Budget.
B. Mid-State Step-Down and Substance-Abuse Programs DOCCS will convert one-half of the S-Block located at Mid-State
Correctional Facility (“Mid-State”) into a SHU-alternative program for up to 75 inmates selected by DOCCS.
1. Physical Layout. (a) Program housing will be provided in 50 cells, consisting of
25 single cells and 25 double cells.
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Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 18 of 80
(b) Three classrooms, each with 8 restart chairs, will be constructed in the basement, and two classrooms, each with 10 restart chairs, will be constructed on the second floor.
(c) A semi-private area with separate seating will be provided for individual meetings with staff.
(d) One of the basement classrooms will be used for orientation and assessment of inmates newly admitted to the program. Upstairs classrooms will also be available for earned evening congregate leisure activities (e.g., movies, card games).
2. Initial Operation as an SDP. Until the opening of the Southport SDP, the Mid-State unit will provide a step-down program that will be operated as described above with respect to the Southport SDP, except that congregate recreation cannot be provided at Mid-State. Accordingly, the following program adjustments will be made:
(a) Recreation: Each participating inmate will be offered two hours of recreation at the rear of the cell, seven days per week. Program classrooms at Mid-State will be available in the evenings for earned congregate activities.
(b) Congregate Leisure Activities: Congregate leisure activities may be earned by inmates in Phase 2, and will be offered to inmates in Phase 3.
(c) Total Daily Out-of-Cell Time: The Program Management Team will make every effort to afford participants in the Mid-State SDP a minimum of two hours daily out-of-cell time in Phase 2 and Phase 3, spent in programming or congregate leisure activities.
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3. Reassessment on Opening of Southport SDP. On or before the opening of the Southport SDP, the parties will confer as to whether to continue the MidState unit as an SDP, or to convert the unit to a SHU-alternative program for inmates on the mental health caseload who are subject to confinement sanctions for non-violent substance abuse-related misbehavior. If the unit is converted to a substance abuse program, participating inmates will be housed in 25 double and 25 single cells. In determining whether to continue the Mid-State unit as an SDP or convert the unit to a substance abuse program, DOCCS will give full consideration to any recommendations by Plaintiffs’ counsel and the parties’ experts, but the decision as to the use of the Mid-State unit as either an SDP or substance abuse program will be made by DOCCS, consistent with the goals of this Agreement, the needs of the inmate population at the time of the decision, and its statutory responsibilities. In the event that the Mid-State unit is converted to a substance abuse SHU-alternative program following the opening of the Southport SDP, the provisions of §I(B)(4)-(10) et seq. shall apply.
4. Overview of Mid-State Substance Abuse Program. If opened, the Mid-State Substance Abuse SHU-Alternative Program will provide a six-month intensive alcohol and substance abuse treatment (“I-ASAT”) program for inmates at high risk for continued drug and alcohol abuse who have received individual or combined confinement sanctions of more than 120 days for substance abuse-related offenses and have an OMH service level of 1 or higher. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance dependency condition, as determined by a comprehensive substance dependency assessment conducted by qualified personnel, shall be eligible for the program. Inmates who have displayed
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Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 20 of 80
satisfactory program participation and have completed their confinement sanctions in the unit before completing the six-month I-ASAT program will receive expedited placement into ASAT at their next general confinement facility.
5. Drug-Free Environment. In order to maintain the drug-free environment essential to recovery, visits will be non-contact and participating inmates may not receive packages from outside the facility.
6. Staffing. (a) The unit will have a projected staff of 34 full-time
employees and which includes a multi-disciplinary Program Management Team, including an Area Sergeant, a Supervising Offender Rehabilitation Counselor, an Offender Rehabilitation Counselor, a Teacher, an Alcohol and Substance Abuse Treatment (“ASAT”) Program Assistant (“PA”) staff, and a Recreation Program Leader (“RPL”). The staffing may vary during the period of time that Mid-State is operating as a Step Down Unit as outlined in § I(B)(2).
(b) The Program Management Team will oversee the development of individual treatment plans for participating inmates, determine staff and classroom assignment for inmates during orientation and initial assessment, conduct case conferences twice per week to evaluate inmates’ progress in meeting treatment plan goals, modify the time required to meet goals, otherwise modify treatment plans as needed, approve earned incentives and, if necessary, make recommendations to the Superintendent at Mid-State for his or her determination regarding discharge of inmates from the program for refusal to participate and lack of progress in programming.
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(c) The Program Management Team will prepare a discharge plan with recommendations for continuing recovery and ongoing treatment for all inmates leaving the program, regardless of whether the reason for discharge is completion of the IASAT program, transfer to a general confinement ASAT for completion of the ASAT program, release to the community, or, upon the Superintendent’s determination, removal from the program due to misbehavior or refusal to participate.
7. Orientation. Participating inmates will have one week of orientation and assessment which will include classroom sessions for up to eight participants and individual meetings with inmates’ assigned I-ASAT staff in order to review program expectations (the “ASAT contract”), collaboratively develop an initial treatment plan with assigned staff, and identify strengths and problems requiring attention for the particular inmate (e.g., alcohol or substance abuse issues, history of trauma, compulsive behaviors, cognitive distortions, health or family issues).
8. Program Modules. (a) Participating inmates will engage in three hours of morning
or afternoon classroom programming per day, five days per week (exclusive of holidays). Programs will be conducted in three-hour AM and PM modules.
(b) Each participating inmate will be offered 2 hours of recreation at the rear of the cell, 7 days per week, with the ability to earn evening congregate leisure time in the upstairs classroom.
9. Curriculum. The program will be informed by principles of cognitive behavioral therapy, focusing on withdrawal and craving management, relapse prevention strategies, and developing skills to avoid substance abuse disciplinary
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infractions and promote positive engagement in general population programming. Educational cell study will be available during non-program hours depending on the inmate’s educational needs.
10. Incentives. As incentives for positive behavior, all participants will be offered increased access to personal property; at least one phone call in the first 60 days of the program and every 30 days thereafter (extra calls may be earned); additional showers, additional commissary purchases, and recommendation for time cuts. In addition, participants also have the ability to earn evening congregate leisure activities. Participants have the possibility of losing one or more of these incentives for negative behavior. The availability of these incentives will be based on inmate participation and progress throughout the program, as determined by the Program Management Team.
11. Projected Opening of Mid-State Unit. Mid-State SDP will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate of the time required to complete construction for the Mid-State unit, DOCCS’ goal is to open the Mid-State unit, as an SDP, with an initial group of inmates in the Orientation Phase within 1.2 years of the enactment of the Fiscal Year 2016-2017 Budget.
C. Lakeview Substance-Abuse Program DOCCS will convert the entire maximum security S-Block (100 double
cells) located at Lakeview Correctional Facility (“Lakeview”) into a single cell SHUalternative substance abuse program for 88 inmates selected by DOCCS who are serving confinement sanctions for non-violent substance abuse-related misbehavior.
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1. Program Overview. The Lakeview Substance Abuse SHUAlternative Program will provide a six-month intensive alcohol and substance abuse treatment (“I-ASAT”) program for inmates at high risk for continued drug and alcohol abuse who have received individual or combined confinement sanctions of more than 120 days related to substance abuse-related offenses. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance dependency condition as determined by a comprehensive substance dependency assessment conducted by qualified personnel shall be eligible for the program. Inmates who have displayed satisfactory program participation and have completed their confinement sanctions in the unit before completing the six-month I-ASAT program will receive expedited placement into ASAT at their next general confinement facility
2. Drug-Free Environment. In order to maintain the drug-free environment essential to recovery, visits will be non-contact and participating inmates may not receive packages from outside the facility.
3. Physical Layout. (a) Participating inmates will be housed in 88 single cells in
four galleries, with the remaining 12 cells of the former S-Block repurposed to provide three dedicated phone booths in each gallery.
(b) Three classrooms, each with 8 restart chairs, will be constructed in the facility basement, and two classrooms, each with 10 restart chairs, will be constructed on the second floor.
(c) A semi-private area will be provided with separate seating for individual meetings with staff.
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(d) One of the basement classrooms will be used for orientation and assessment of inmates newly admitted to the program.
(e) Upstairs classrooms will also be available for earned evening congregate leisure activities (movies, card games, etc.).
4. Staffing. (a) The unit will have a projected staff of 30 full-time
employees and include a multi-disciplinary Program Management Team including an Area Sergeant, a Supervising Offender Rehabilitation Counselor, an Offender Rehabilitation Counselor, a Teacher, an Alcohol and Substance Abuse Treatment Program Assistant, and a Recreation Program Leader.
(b) The Program Management Team will oversee the development of individual treatment plans for participating inmates, determine staff and classroom assignments for inmates during orientation and initial assessment, conduct case conferences twice per week to evaluate inmates’ progress in meeting treatment plan goals, modify the time required to meet goals, otherwise modify treatment plans as needed, approve earned incentives and, if necessary, make recommendations for determination by the Superintendent regarding discharge of inmates from the program for refusal to participate and lack of progress in programming.
(c) The Program Management Team will prepare a discharge plan with recommendations for continuing recovery and ongoing treatment for all inmates leaving the program, regardless of whether the reason for discharge is completion of the IASAT program, transfer to a general confinement ASAT for completion of the program, release to the community, or, upon the Superintendent’s determination, removal from the
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program due to misbehavior or refusal to participate consistent with the policies in Section II, infra.
5. Orientation. Inmates will have an initial week of orientation and assessment which will include classroom sessions in up to eight-person groups and individual meetings with inmates’ assigned I-ASAT staff in order to review program expectations (the “ASAT contract”), collaboratively develop an initial treatment plan with assigned staff and identify strengths and problems requiring attention for the particular inmate (e.g., alcohol or substance abuse issues, history of trauma, compulsive behaviors, cognitive distortions, health or family issues).
6. Programming (a) Each participating inmate will engage in three hours of
classroom programming each day, five days per week (excluding holidays). (b) Programs will be conducted in three-hour morning and
afternoon modules in all five classrooms, allowing the total classroom capacity (44) to provide programming for all 88 participants in either a morning or afternoon session.
(c) Each participating inmate will be offered two hours of recreation at the rear of the cell, seven days per week, with the ability to earn evening congregate leisure time in the upstairs classrooms.
7. Curriculum. The program will be informed by principles of cognitive behavioral therapy, focusing on withdrawal and craving management, relapse prevention strategies, and developing skills to avoid substance abuse disciplinary infractions and promote positive engagement with general population programming.
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Educational cell study will be available during non-program hours depending on the inmate’s educational needs.
8. Incentives. As incentives for positive behavior, all participants will be offered increased access to personal property; at least one phone call in the first 60 days of the program and every 30 days thereafter (extra calls may be earned); additional showers, additional commissary purchases, and recommendation for time cuts. In addition, evening congregate leisure activities may be earned. Participants are subject to the possibility of losing one or more of these incentives for negative behavior. The availability of these incentives will be based on inmate participation and progress throughout the program, as determined by the Program Management Team.
9. Projected Opening of Lakeview Substance Abuse Program. The Lakeview Substance Abuse Program will commence operations as soon as construction has been completed and trained staff are ready. Based on DOCCS’ estimate of the time required to complete construction relating to the Lakeview Substance Abuse Program, DOCCS anticipates opening the Program within 2.9 years of the enactment of the Fiscal Year 2016-2017 Budget.
D. Step-Down to the Community Programs SHU Step-down to the Community Programs will be established at Green
Haven Correctional Facility (“Green Haven”) and Wende Correctional Facility (“Wende”) to provide re-entry programming to inmates who have been in a SHU cell for 60 days or more serving a SHU or keeplock sanction and who have a minimum of 45 days and a maximum of 60 days to release.
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1. Program Overview. (a) A 60-day two-step program will be established at Wende
(17 beds) and Green Haven (12 beds) to provide re-entry programming for inmates being released to the community after SHU confinement in excess of 60 days.
(b) The program goal is to assist participants with the development of a comprehensive release plan, incorporating social skills practice, relapse prevention, family reintegration and employment readiness. Behavior modification and relapse prevention will be addressed by modalities such as identifying high-risk behaviors, emotional regulation exercises, social skills practice, discussing how to deal with fear and the feelings of others, and how to ask and respond to questions.
2. Physical Layout. At both Wende and Green Haven, programs will be provided in a classroom with 6 restart chairs.
3. Staffing. Combined, the unit will have a projected staff of 9.5 employees which includes a multi-disciplinary Program Management Team comprised of security and program staff, which will determine participants’ readiness to move from Step 1 to Step 2 and, if necessary, removal from the program.
4. Program Modules. (a) The program will provide all participants with a three-hour
module of programming five days per week (excluding holidays) and will seek to incorporate in-reach services by community-based organizations and Community Supervision staff through video-conferencing.
(b) Green Haven will operate 2 modules per day. Wende will operate 3 modules per day.
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(c) Step 1 programming will be provided to participants using restart chairs. Step 2 programming will be conducted without restraints.
5. Recreation. (a) Wende: Individual exercise for two hours per day, seven
days per week. (b) Green Haven: Congregate recreation for two hours per day,
seven days per week. 6. Incentives. In Step 2, participants will be eligible to receive, as
incentives, additional visits, additional phone calls, and increased commissary. 7. Eligibility. The Department shall design a system for identifying
each month inmates who are expected to qualify for this program. Placement in the program shall be in the discretion of DOCCS, employing these criteria:
(a) Prospective participants must have a minimum of 45 days and a maximum of 60 days to release.
(b) Priority shall be given to inmates who have been in SHU the longest.
(c) DOCCS will conduct an individualized eligibility review to screen out individuals who would presently pose a serious threat to safety or are likely to be so disruptive to the program that it would disrupt program operations. The parties agree that inmates with violent or disruptive histories may be in the greatest need of step-down programming prior to release and that a history of violence, by itself, will not preclude placement in the program.
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(d) Priority will be given to inmates being released to the community in the facility’s region.
8. Initial Program Cohort. At each of the two facilities involved, the initial program will be limited to six participants, until a cohort of inmates is identified by the multi-disciplinary team as ready to progress to Step 2, an anticipated minimum of two weeks after program start-up.
9. Projected Opening of Step-Down to the Community Programs. The Step Down to the Community Programs will commence operations as soon as the housing blocks and trained staff are available. DOCCS anticipates opening the Program within 6 months of the enactment of the Fiscal Year 2016-2017 Budget.
E. Programs for Juveniles 1. Continuation of Programs. The programs for juveniles, including
SHU-alternative programs, created pursuant to the parties’ January 24, 2014 Stipulation, filed February 19, 2014, are hereby continued and incorporated herein, as provided in the following paragraphs.
2. Limit On Time In Cell. DOCCS will ensure that even under the most restrictive form of disciplinary housing, 16 and 17 year-old inmates shall, 5 days per week (excluding holidays), be offered out-of-cell programming and outdoor exercise, limiting time in their cells to 19 hours a day, except in exceptional circumstances referred to Central Office.
3. Separate Housing For Juveniles. Medium security 16 and 17 year olds will be separately housed in a general population housing unit or units for juveniles at one or more medium security facilities. Maximum security 16 and 17 year-old inmates
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will be housed separately in a general population housing unit for juveniles at a maximum security facility.
4. Shock Incarceration Program. DOCCS may continue to admit qualifying 16 and 17 year-old inmates to its Shock Incarceration program.
5. Disciplinary Sanctions. Aged 16 and 17 year-old inmates with disciplinary confinement sanctions of less than 30 days will remain in the facility in which they are housed at the time the sanction is imposed. Aged 16 and 17 year-old inmates with SHU confinement sanctions in excess of 30 days will be placed in a separate housing unit, as an alternative to placement in SHU, absent extraordinary circumstances.
6. Relationship to Cookhorne. Nothing in this Agreement shall be deemed to be inconsistent with, or to diminish, DOCCS’ agreements and responsibilities under the settlement agreement in Cookhorne v. Fischer, 2012-1791. DOCCS shall promptly notify Plaintiffs in the event that any developments in Cookhorne are expected to impact the provisions of this Agreement.
7. Program Contingency. In the event that aged 16 and 17 year old inmates are removed from DOCCS adult facility or facilities and placed into dedicated juvenile facilities operated by DOCCS, paragraphs 2 and 5 of this section shall remain in full effect at the new facility(ies). In the event that aged 16 and 17 year olds are removed system-wide from DOCCS custody during the term of this Agreement, DOCCS will meet and confer with Plaintiffs regarding how it plans to reallocate the facility space and staff previously dedicated to the juvenile program.
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F. SHU-Alternative Program for Special Needs Inmates 1. Continuation of Program. The Correctional Alternative
Rehabilitation (“CAR”) program at Sullivan Correctional Facility (“Sullivan”) for special needs inmates, created pursuant to the parties’ January 24, 2014 Stipulation, filed February 19, 2014, is hereby continued and incorporated herein, as provided in the following paragraphs.
2. Eligibility. The CAR program shall, absent exceptional circumstances referred to the DOCCS’ Central Office, and to the extent that space is available in the program, provide an alternative to SHU for certain inmates who have a Beta Wechsler Adult Intelligence Scale (“BETA-WAIS”) of 70 or below or who DOCCS otherwise determines have significantly limited intellectual capabilities and/or adaptive functioning and coping skills and have received SHU confinement sanctions exceeding 30 days.
3. Program Overview. The CAR program will continue to have three phases: (i) assessment and orientation, (ii) treatment, and (iii) transition to nondisciplinary housing settings. Two hours per day of out-of-cell group programming will be offered in the orientation phase and four hours per day in the second and third phases, five days a week for each phase. In addition to programming, the CAR program will use a range of incentives to reward behavioral progress. The incentives will be offered on an individualized basis and will be treatment-plan driven.
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II. AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS
The following agreements shall apply to all SHU–Alternative Programs discussed in Section I, supra:
A. Eligibility and Placement. Suitability and selection for SHU-Alternative programs will be determined in DOCCS’ discretion in accordance with the criteria stated herein for each program, and will be subject to space availability.
B. Program Management Team. Each SHU-Alternative Program will be managed by a multi-disciplinary team (“Program Management Team”), as described in this Agreement with respect to each such Program.
C. Continuation of Programming. 1. Programming and/or recreation offered to an inmate in each SHU-
Alternative Program may be denied to an inmate only in exceptional circumstances where it is believed that the inmate presents an unacceptable risk to the safety of staff or other inmates or to the security of the facility, and shall not be denied as punishment. This limitation does not apply to the revocation of conditions enhancements that are described as “Incentives” for each of the SHU-Alternative Programs set forth herein.
2. All denials of programming based upon exceptional circumstances shall be reported to Central Office. A request for a determination that an inmate should be denied out-of-cell programming and/or recreation because it is believed he or she poses an unacceptable risk to the safety of staff, inmates or the security of the facility will be submitted for approval to the Deputy Superintendent for Security (or the equivalent) and the Superintendent of the facility, as soon as possible, but no later than the first business day following the suspension of an inmate’s out-of-cell programming and/or recreation. If
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the request is not approved, the inmate shall be restored to his or her regular out-of-cell programming and/or recreation immediately. If the request is approved, programming shall resume as soon as the Program Management Team determines the risk to safety or staff has abated.
D. Restraints, Privileges, Incentives and Out-of-Cell Time. Each SHUAlternative Program will have a program and operations manual detailing, inter alia, the use of restraints, access to privileges, incentives, and out-of-cell time applicable to the needs of the inmates in that program and consistent with this Agreement. With respect to restraints, the goal will be to progressively reduce the use of restraints that an inmate may be subject to at each level, consistent with the need to operate the SHU-Alternative Program in a safe, secure manner, allowing the inmate fewer restraints and a greater simulation of the general population environment prior to release from the SHUAlternative Program. Inmates will receive the specified incentives for each phase of a particular program as specified in the program and operations manual, subject to the possibility of losing them for negative behavior.
E. Out-of-Cell Interviews. In addition to the specific program commitments in each SHU-Alternative Program described herein, the Program Management Team in Alternative Units will be encouraged to make use of out-of-cell interviews with inmates entering into, and participating in, a SHU-Alternative Program to engage the inmate and review the inmate’s progress with program objectives. The decision to offer an out-of-cell interview, however, remains with the Program Management Team. Unless the Program Management Team requests a participating inmate’s presence during a case conference, such conferences shall be conducted outside the presence of the inmates.
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F. Discipline in SHU-Alternative Programs. 1. Informational Reports will be utilized in the SHU-Alternative
programs to convey information (whether positive or negative) to the Program Management Team to consider for program assessment and security decisions. The Program Management Team will use this information to determine if an increase or decrease in incentives is indicated or to determine other programmatic or security needs (e.g., need for individual session, program review).
2. The Informational Report will be used as a tool to implement progressive discipline short of the formal disciplinary process and will allow staff to document less serious inmate misconduct and bring it to the attention of the Program Management Team. The Program Management Team and facility administration will collaborate to determine which approach or action should be employed in specific instances.
3. De-escalation, intervention, Informational Reports and the withdrawal of incentives shall be the preferred methods of responding to less serious negative behavior in the SHU-Alternative programs.
4. Misbehavior reports can only be issued in circumstances where the inmate is accused of serious offenses, the alleged behavior demonstrates a threat to safety, and/or the inmate has engaged in repeated acts of disruptive misbehavior despite prior alternative interventions.
5. Hearing officers will be instructed by hearing officer guidance that they should avoid imposing additional SHU sanctions on persons in SHU Alternative Units and should instead consider non-confinement and/or progressive sanctions,
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consistent with the need to maintain safety and security. SHU sanctions may be appropriate, however, where the inmates have been found guilty of a serious offense, the misbehavior demonstrates a threat to safety, and/or the inmate has engaged in repeated acts of disruptive misbehavior despite prior alternative interventions.
6. Even when additional SHU sanctions are issued, in the discretion of the Program Management Team, additional SHU sanctions may result in extending the inmate’s time in the SHU Alternative Program, rather than result in removal from the Program.
7. Before a SHU or Keeplock confinement sanction imposed by a Hearing Officer on an inmate already in a SHU Alternative Unit is served by the inmate, the Superintendent shall review the sanction and either approve or disapprove it.
8. All SHU sanctions imposed on persons who are already in a SHU Alternative Unit shall be reported every quarter to Central Office.
G. Discharge Upon Completion of SHU-Alternative Program. Upon successful completion of a SHU-Alternative Program, an inmate will be moved into a general population environment. The remainder of the inmate’s SHU sanction, if any, will be suspended upon the inmate’s release from the SHU-Alternative Program. If the inmate does not engage in any sanctionable conduct during the duration of the suspended SHU confinement sanction, that disciplinary sanction will expire on the earlier of the sanction end-date or 6 months from the date of release to general confinement. Service of suspended SHU confinement penalties may be imposed as a sanction, based on an individualized assessment, only for serious misbehavior or for committing the same or similar violation as that leading to the suspended sanction.
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H. Disciplinary Sanction Ends Prior to Program Completion. In the event that an inmate’s disciplinary sanction expires prior to the completion of the SHUAlternative Program, such inmates will return to general confinement, where DOCCS will make efforts to continue programming and treatment. Nothing in this section precludes the continued selective use of Protective Custody or Administrative Segregation in accordance with established procedures.
I. Early Discharge to SHU. 1. An inmate serving a disciplinary sanction in a SHU-Alternative
Program will only be discharged to SHU under the following specific, limited circumstances:
(a) When it is determined by the Program Management Team that an inmate has been chronically failing to comply with the program objectives, the Program Management Team will first attempt to obtain program compliance. All efforts to obtain compliance will be fully documented by the Program Management Team. Absent compliance, a recommendation may be made for alternate program placement or discharge to SHU. The recommendation by the Program Management Team shall be forwarded to the Superintendent for determination. The Superintendent’s determination will be forwarded to Central Office for review, and if necessary, transfer action.
(b) When it is determined that an inmate poses an immediate or continuing unacceptable threat to the safety of staff or other inmates or to the security of the facility, the Deputy Superintendent for Security will consult with the Program Management Team and make a recommendation. The recommendation by the Deputy Superintendent for Security will be forwarded to the Superintendent for determination.
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The Superintendent’s determination will in turn be forwarded to Central Office for review, and if necessary, transfer action.
J. Full Utilization of Capacity. The parties agree on the goal of full utilization of the capacity of the SHU-Alternative Programs created under this Agreement. In the event that any SHU-Alternative Program, after being open for at least one year, shall be operating at less than 75% of capacity for two quarters in a row, DOCCS agrees to meet and confer with Plaintiffs’ counsel and the parties’ experts to discuss any such underuse of a SHU-Alternative Program, and to consider potential modification of eligibility criteria as well as whether a particular SHU-Alternative Program should be terminated, if the parties agree that there is no longer a need for the Program. This provision shall also apply to capacity questions regarding new Separate Keeplock Units and the Confined Program Plan, discussed infra.
K. Inmate Orientation Material. Upon admission to a SHU-Alternative program, inmates shall be provided with information, in the form of orientation materials and meetings with the Program Management Team, to make them aware of the program mission, phase levels and incentives, and expectations in order to assist them in successfully completing the program and earning release back to general population.
L. Timeframes. The agreements in this section will be implemented in conjunction with the opening of any new SHU-Alternative Unit. With regard to CAR and the juvenile program, these agreements will be implemented within 6 months of the Effective Date.
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III. PRESUMPTION AGAINST SHU FOR PREGNANT INMATES DOCCS will maintain a written policy in the form of a memorandum by the
Deputy Commissioner for Correctional Facilities continuing the presumption against placement of a pregnant inmate in SHU for disciplinary purposes, except in exceptional circumstances as determined by the DOCCS Central Office. IV. SEPARATE KEEPLOCK UNITS
DOCCS will create two new Keeplock Units with a combined capacity of 175 inmates at Fishkill Correctional Facility (“Fishkill”) (75 beds) and Five Points Correctional Facility (“Five Points”) (100 beds) intended for inmates serving Keeplock sanctions in excess of 45 days. The target population is 175 inmates statewide.
A. Conditions in New Units. DOCCS will remove inmates selected by DOCCS who are serving
Keeplock sanctions in excess of 45 days from more restrictive SHU cells and place them in new Keeplock Units with the following conditions of confinement:
1. Fishkill. 75 medium security cells in Housing Units O, P and Q. All Inmates in these units will have access to the following privileges, subject to the possible loss of one or more of these privileges for a specified time, consistent with the principles of progressive discipline:
(a) One hour of daily congregate recreation, seven days per week, including chin-up bars and basketball.
(b) Access to phone calls in yard during daily congregate recreation.
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(c) Access to the same personal property as available in general population.
(d) Visits as permitted in general population. 2. Five Points. 50 maximum security double cells as Keeplock cells with a total capacity of 100 inmates. Inmates in these units will have access to the following privileges, subject to the possible loss of one or more of these privileges for a specified time, consistent with the principles of progressive discipline:
(a) Two hours of congregate recreation twice weekly on alternate days, including chin-up bars and basketball.
(b) Access to phone calls in yard during twice a week congregate recreation.
(c) Access to the same personal property as in general population.
(d) In-cell showers 5 days per week. (e) Visits the same as those in general population. B. Projected Opening of New Keeplock Units. The parties agree that the Keeplock Units will be opened as soon as construction has been completed. Based on DOCCS’ estimate of the time required to complete construction relating to the Keeplock Units, DOCCS’ goal is to open the Keeplock Units during the fiscal year of April 1, 2016 to March 31, 2017. C. Placement Priority. DOCCS will give priority to inmates with longer Keeplock sanctions for placement in the new Keeplock Units.
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D. Reduction of Certain Keeplock Sanctions. When a Keeplock sanction is imposed and is served in a SHU cell, service
of the sanction will be credited at the rate of three days for every two days served in the SHU cell. V. UNIFORM “PIMS” PROGRAM FOR ALL SHUs
A uniform behavioral incentive program – Progressive Inmate Movement System (“PIMS”) – shall be established for all SHUs with progressive increases in privileges in accordance with the PIMS level table provided to Plaintiffs’ counsel (document Bates stamped S048163).1 Upon admission to SHU, all inmates will begin at PIMS I, and their time in PIMS I shall be calculated as of the date their SHU sanction begins. Hearing officers will be instructed to give credit for pre-hearing confinement in a SHU cell when assigning the SHU sanction start date. The new PIMS system, except for congregate recreation, will be implemented within 6 months of the Effective Date. The Department shall implement the new PIMS system in a way that maintains or improves the conditions of confinement for SHU inmates (e.g., an inmate at PIMS II under the old PIMS system will be maintained at PIMS II or higher upon implementation of the new PIMS system). VI. CONFINEMENT PROGRAM PLAN (“CPP”)
A total of 84 single cell beds at Southport Correctional Facility and 150 double cells at Upstate Correctional Facility, for up to 84 inmates and 300 inmates, respectively, will be used to house inmates selected by DOCCS who are confined to SHU with a sanction or combined sanctions in excess of 6 months and who do not qualify for one of
1 Documents referenced in this Agreement by Bates number, until disclosed to DOCCS’ staff and the inmate population, shall be and remain subject to the parties’ May 15, 2013 confidentiality agreement, which is incorporated herein by reference (the “2013 Confidentiality Agreement”).
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the SHU-Alternative Programs. These inmates, upon reaching PIMS Level IV, will be eligible for additional time cuts and other privileges as a result of continued good behavior and positive programming.
A. Overview. 1. Program Plan. The assigned ORC will develop an individualized
Confinement Program Plan (“CPP”) for inmates in this program during an out-of-cell initial interview. The CPP will provide each inmate with a plan through which positive behavior and programming participation can lead to additional reductions of disciplinary sanctions. The plan will be individualized to the inmate, and appropriate and achievable for that inmate taking into account any limitations, such as a low literacy level.
2. Program Management Team. The program will be supervised by a Program Management Team that will include a Teacher, an ORC, an ASAT ORC, and a SHU Sergeant.
3. Program Overview. The program will incorporate cell study for inmates identified with an educational need or desire to continue with post-secondary education, such as correspondence courses. Inmates at PIMS Level II or higher will also be eligible for workbook programs to address errors in thinking, aggression and substance abuse, where applicable. Once an inmate begins CPP programming, programming may be denied only (1) in exceptional circumstances consistent with Section II(C), or; (2) where an inmate regresses from a higher PIMS level to PIMS I and adequate CPP program staff are not available to continue programming at PIMS I, programming may be temporarily interrupted provided that such programming shall resume as soon as CPP staff become available. An inmate may be removed from CPP for chronic failure to comply
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with program objectives in accordance with the policies in Section II(I)(1)(a), except that the recommendation to remove an inmate will be made by the ORC instead of the Program Management Team.
4. Progress Evaluation. CPP updates and evaluations of progress will be reviewed with each inmate quarterly out-of-cell, except that in PIMS IV, evaluation of progress will be reviewed with each inmate monthly out-of-cell. One of these reviews may be conducted with the Program Management Team and/or the ORC in conjunction with the inmate’s regularly scheduled case plan review.
B. Programs Offered. 1. Behavior Modification/Aggression. (a) Inmates at PIMS Level II or higher who have an identified
aggression management need will be enrolled in a workbook program conducted by an ASAT ORC/ORC. Program workbooks will be provided at no cost to the inmate.
(b) The program will assist inmates in identifying personal behaviors that may have led to acts of aggression and/or violence.
(c) The program length will be approximately 180 days (six months) in duration. During this time, the inmate will be seen by the ASAT ORC or ORC cell-side a minimum of twice per week in order to provide direct cell-side instruction, give assignments, correct all inmate work, provide feedback, and review the inmate’s status within the program.
(d) Inmates who participate in cell-side ART in CPP for the full program length of 180 days shall receive full credit for completing two out of six ART modules, shall not be required to retake those two modules upon enrollment in ART in
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general population, and shall be considered for expedited placement into general population ART upon release from SHU. Participation in cell-side ART programming shall be duly considered by the Time Allowance Committee.
2. ASAT Pre-Treatment Workbook. (a) Inmates at PIMS Level II or higher, and with an identified
substance abuse problem will be enrolled in a workbook program conducted by an ASAT ORC.
(b) The ASAT Pre-Treatment Workbook is designed to provide inmates with a substance abuse disorder an opportunity to examine the effects of alcohol and substance abuse on their lives and to increase the probability of a positive treatment outcome when the inmate is released from SHU confinement and is able to participate in DOCCS substance abuse treatment. Program workbooks will be provided at no cost to the inmate.
(c) Participating inmates will be seen by the program’s coordinator cell-side a minimum of twice per week in order to provide direct cell-side instruction, give assignments, correct all inmate work, provide feedback, and review the inmate’s status within the program. Satisfactory completion will generally occur within 6 months.
(d) Inmates who participate in cell-side ASAT in CPP shall receive credit for at least 25% program completion and up to 50% program completion, based upon the instructor’s assessment, and shall be considered for expedited placement into general population ASAT upon release from SHU. Participation in cell-side ASAT programming shall be duly considered by the Time Allowance Committee.
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3. Educational Cell Study. (a) The Educational Cell Study program will be conducted by a
teacher. (b) Each Cell Study Teacher will evaluate each inmate’s needs
and write an academic plan for each inmate enrolled in Cell Study. The teacher will be responsible for determining each inmate’s academic level and developing an academic plan. The teacher will obtain each inmate’s previous standardized test scores. The teacher will be expected to provide direct cell-side instruction, give assignments, correct all inmate work and provide feedback.
(c) Each participating inmate will be seen by the teacher cellside at least once a week.
(d) Any inmate who participates in Cell Study at Adult Basic Education, Pre-High School Equivalency, High School Equivalency, or Bilingual/English as a Second Language levels will be eligible to take standardized academic tests. All inmates enrolled in Cell Study will receive standardized testing on a schedule that coincides with the general population. Testing available will include the English oral proficiency test known as BEST Plus, and TABE, TABE Español, SABE, the Readiness Exam, and the TASC™.
4. Incentives. (a) Two hours of congregate recreation will be offered at PIMS
Level III, one day per week on a rotating basis, and at PIMS Level IV, three days per week. Congregate recreation shall be made available as soon as construction has been
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completed. Based on DOCCS’ estimate that approximately three years will be required to complete construction needed for congregate recreation at Upstate and Southport Correctional Facilities, DOCCS’ goal is to make congregate recreation available within three years of the enactment of the Fiscal Year 2016-2017 Budget.
(b) Once the inmate reaches PIMS Level IV, an inmate’s record of participation in CPP programming will weigh in favor of granting time cuts and other privileges. As long as an inmate demonstrates positive participation in programming, the inmate’s lack of progress in the programming shall be irrelevant in determining if the inmate is to receive time cuts and other privileges.
5. Inmate Orientation Manual. Upon admission to a CPP program, inmates shall be provided with information, in the form of orientation materials and meetings with the ORC, to make them aware of the program mission, PIMS levels, and expectations in order to earn Time Cuts. VII. UPSTATE ASAT PROGRAM EXPANSION
The ASAT program currently operated by Upstate Correctional Facility two days a week, with two modules a day, with up to six inmates in each module, for a total of up to 12 inmates per week, will be expanded so that the program will operate four days per week, with two modules a day, with up to six inmates in each module, for a total of up to 24 inmates per week. Suitability for placement in the program will be determined in DOCCS’ discretion, however, only inmates who have a substance abuse disorder will be placed into the program, as determined by an admission and comprehensive evaluation procedure to be conducted by DOCCS substance abuse personnel. In order to support the Upstate ASAT program expansion, there will be a projected staff increase of six full-time
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employees. The program expansion will commence operations after the enactment of the budget in Fiscal Year 2018 -2019. VIII. SHU CONDITIONS
Without limiting the agreements set forth herein with respect to conditions in particular programs, the parties agree to the following with respect to SHU conditions:
A. Phone Calls. Absent a court order or exceptional circumstances where there is a threat to the safety and security of staff, inmates, the public or state property, DOCCS will offer at least the following:
1. For the purposes of this Agreement, a “phone call” in SHU, a SHU Alternative Unit or the Separate Keeplock Unit means at least 15 minutes of phone use time, exclusive of the time needed to escort the inmate to or from the phone and without limitation to the number of calls an inmate may make within that 15 minutes. Such phone access will be presumed during such times as an inmate is offered access to a yard containing operating inmate telephones;
2. One phone call while the inmate is in PIMS Level II; 3. One phone call every 30 days to every inmate in PIMS Level III and Level IV; 4. Conduct a pilot program in the Mid-State Step-Down/Drug Treatment unit using a rolling phone cart to provide access to telephone calls. The pilot will begin when the unit opens, and within 3 months of initiating the pilot the parties will meet to discuss whether rolling carts are a feasible method of increasing phone access in SHUs and, if not, other possible alternatives that could be considered.
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5. Greater access to phones may be provided in particular programs or at particular facilities, as provided in this Agreement.
B. Shower Curtains. Shower curtains will be provided in all SHU 200s, and at Upstate Correctional Facility.
C. Library Services. 1. An inmate is currently allowed to have two books and one
magazine at a time in his or her SHU cell, and to make new selections of reading materials one time per week. DOCCS agrees that inmates who have finished with their books and/or magazine in less than a week may request two new books and a new magazine on an exchange basis;
2. DOCCS will increase library cart re-stocking and rotation from every 60 to every 30 days.
D. Head Phones. A wall jack for headphones will be provided in all SHU cells that are not currently equipped.
E. Double-Celling Assignments. 1. A policy similar to the double-celling criteria currently in place in
the Fishkill facility, Bates-stamped S048181-S048186, will be implemented in all double occupancy SHU units;
2. Double-cell assignments will be immediately reassessed following a fight between cellmates reported to or observed by DOCCS staff;
3. The final decision on any double-cell assignment will be made by the Deputy Superintendent for Security.
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4. DOCCS will ensure that all inmates are advised in the SHU orientation manual that they may request an OMH review of a double cell assignment on mental health grounds and instructed on how to make such a request; provided, however, that it is in OMH’s sole discretion to decide whether or not to conduct such a review and to what extent.
F. Correspondence Courses. All SHU inmates will be permitted to enroll in approved correspondence courses at their own expense. DOCCS will give full consideration to requests to approve correspondence courses offered by accredited institutions of higher education that seek to provide SHU inmates with no-cost or low-cost post-secondary correspondence courses.
G. Tablet Pilot Program. DOCCS will establish a pilot program deploying 30 tablet style computers (without internet access) to inmates in traditional SHU units and is considering three potential sites for the pilot. The tablets will have educational and recreational software pre-loaded and otherwise will be configured in such a way as to satisfy security concerns and ease of use by the inmate. DOCCS will issue an RFI for a pilot of at least 30 such tablets within two months after the Effective Date of this Agreement. After the tablets have been in use for six months, DOCCS will share the results of the pilot program with the Plaintiffs’ counsel and will discuss with Plaintiffs’ counsel the feasibility of expanding and making the pilot program permanent, giving consideration to any recommendations made by the experts. The pilot program outcome will be measured by the tablets’ durability, utility, user feedback and security considerations.
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H. Mental Health Contacts. DOCCS shall ensure that meetings between inmates and mental health professionals occur out-of-cell in a confidential setting whenever approved by OMH. The following advisement shall be prominently displayed in orientation materials provided to all inmates upon admission to SHUs located in facilities that are OMH Level 1-4:
In this Special Housing Unit, OMH will offer a confidential meeting with a mental health professional within ___ days of admission to SHU and every ____ days thereafter. You may submit a confidential request for a private consultation with an OMH mental health clinician at any time as follows: ____.
The following advisement shall be prominently displayed in orientation materials provided to all inmates upon admission to SHUs located in non-OMH facilities:
In this Special Housing Unit you may submit a confidential request for a private consultation with an OMH mental health clinician as follows: ______________.
I. Additional Changes in Conditions. The parties agree that the changes in SHU conditions set forth in this §VIII are the minimum to be achieved and that DOCCS may make further changes, if deemed practicable, to improve conditions. DOCCS’ efforts to make changes exceeding the minimum requirements under this Agreement shall not create enforceable obligations on the part of DOCCS and any such additional changes shall be in DOCCS’ sole discretion, consistent with the goals of this Agreement and DOCCS’ statutory responsibilities. IX. DEPRIVATION ORDERS
A. Deprivation Order Limitations. Deprivation orders will not be imposed as punishment, but only where there is a threat to the safety and security of staff, inmates or state property. Deprivation orders will be terminated when threat has abated, as determined by security staff.
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B. Notification to OMH. DOCCS will notify OMH of the issuance, renewal and termination of all deprivation orders issued to inmates on the OMH caseload.
C. Review and Renewal. After 7 days, deprivation orders will be reviewed, and can be renewed, by the Superintendent.
D. Special Management Meal. DOCCS will replace the Loaf within three months of the Effective Date of this Agreement with a nutritious, calorie-sufficient, and palatable alternative meal composed of regular food items that can be safely delivered to and eaten by inmates. For example, a sack lunch consisting of fruit, cheese, cold cuts, sandwich bread, and coleslaw would meet the requirements of this subsection.
E. Record Keeping. DOCCS will hire an additional staff member to support the Assistant Commissioner for Special Housing/Inmate Disciplinary Programs in order to establish a system of electronic record keeping and reporting of deprivation orders, and any such other tasks deemed appropriate by the Assistant Commissioner. X. SENTENCING PRACTICES
A. Modifications of Guidelines. DOCCS will implement revised guidelines (the “Revised Guidelines”) for disciplinary confinement sanctions (document Batesstamped S048164 to S048180), in certain respects modifying the guidelines implemented pursuant to the terms of the Interim Settlement (Bates-stamped S3682 to S3705). As shown in the Revised Guidelines, sanction ranges for certain charges are broken down based upon different levels of seriousness (“disaggregated”) in order to promote progressive discipline. Disaggregation will not result in additional numbered charges under DOCCS disciplinary rules, and previous offenses relating to the same numbered charge, regardless of disaggregation, will be considered “prior charges” for the purpose of
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determining whether a particular violation is a “first,” “second,” or “third” offense. Staff and inmates shall be notified of the revised guidelines by means of a memorandum issued by the Deputy Commissioner for Correctional Facilities.
B. Special Management Meal 1. Effective within three months after the signing of this Agreement,
DOCCS will, by a memorandum to all Superintendents, cease and desist from using the Special Management Meal as a disciplinary sanction for acts of inmate misbehavior.
2. The imposition of the Special Management Meal shall comply with all the policies in § IX above. In addition, a Special Management Meal may only be ordered by the Superintendent or his or her designee (the OD or higher ranking authority) in connection with one of the following behaviors:
(a) Throwing food while assigned to the SHU; (b) Committing unhygienic acts in the SHU, such as spitting at staff or other inmates or throwing feces or urine; (c) Refusing to obey a direct order at the time of meal distribution or refusing to obey a direct order to return a food container or utensil at the conclusion of a meal while assigned to SHU. C. Guidance for Hearing Officers. Hearing officers will receive a memorandum (document Bates stamped S048157 to S148162) providing guidance regarding the proper exercise of their discretion with regard to the issuance of inmate sanctions. After issuance of the memorandum the Department will review data to assess general adherence by hearing officers with the guidance provided, and provide additional counseling and/or training to hearing officers as necessary.
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D. Time Cuts. 1. SHU Sanctions less than 90 days. Inmates serving individual sanctions of less than 90 days for infractions which do not involve certain infractions related to escape, violent conduct, or unhygienic acts2 will, in the absence of a subsequently issued Tier II or III misbehavior report, earn a time-cut of 7 days from the original sanction after serving 30 days of the sanction and a further 7 day time cut after serving 60 days. The time cuts provided herein will be computed electronically and automatically reported to the inmate’s facility. 2. SHU Sanctions of 90 days or more. Inmates who are serving individual sanctions of 90 days or more will receive time cuts reducing the original sanction in accordance with the following procedures:
(a) If the inmate exhibits good behavior, has positive interactions with staff, and shows progress and achievement in cell study (where applicable), the inmate will be presumptively awarded a time cut of 25% of the original sanction by the Special Housing Management Committee (“SHMC”) after the inmate has served one-half of his or her SHU confinement sanction. The SHMC may exceed the presumptive 25% time cut, which is not a cap, up to and including release from SHU. If the SHMC finds that the inmate should receive less than the presumptive 25% time cut, the SHMC will articulate a specific reason why the inmate should get less time based on his or her behavior during service of the sanction. Issuance of additional Tier 2 or Tier 3 misbehavior reports while the inmate is serving a sanction may justify the denial of a time cut, but is not an automatic bar precluding the SHMC from granting time cuts if the
2 Disciplinary infractions numbered 108.10, 108.13, 100.10, 100.11, 100.12, 101.11, 113.10, 100.13, 104.10, 117.10, 118.10, 118.22, 101.10 and 104.11.
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inmate has otherwise demonstrated progress. Half-way through the inmate’s initial sanction, the computer will electronically add the respective inmate to the queue of inmates to be reviewed at the next SHMC meeting. The SHMC will promptly report the results of its deliberations in writing to the Superintendent. The Superintendent will have responsibility for review and decision.
(b) Any inmate serving a sanction of 90 days or more for infractions which do not involve the referenced infractions involving escape or violent conduct or unhygienic acts who does not earn a time cut through the above-described SHMC process will receive an automatic time-cut of 10% of the original sanction, provided he or she has not been issued a Tier 2 or Tier 3 misbehavior report.
3. Nothing regarding time-cuts provided in this Agreement shall be construed to create a liberty or due process interest on the part of inmates in the issuance of time-cuts.
E. SHMC Calendar. The calendar for SHMC meetings shall include the OMH Level of all inmates in SHU. In determining whether a time cut is warranted, the SHMC shall consider whether an inmate’s OMH level weighs in favor of granting a time cut, for example, whether a time cut above the presumptive 25% should be granted to an OMH caseload inmate to permit that inmate an earlier return to a general population environment. XI. TRAINING
In order to carry out the goals of this Agreement, DOCCS will provide training as follows:
A. Training Academy. The training program for recruits will include:
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1. Incorporating principles of motivational interviewing into existing interpersonal communication training;
2. Incorporating principles of de-escalation into existing three-day training relating to mental health issues; and
3. Incorporating principles of de-escalation into existing use of force training.
B. SHU-Alternative Units. At the SHU-Alternative Units at Southport, MidState, Lakeview, Wende and Green Haven Correctional Facilities, a one-week training will be provided to the staff of those units regarding the context of this Agreement, the SHU environment and principles of de-escalation.
C. CPP Staff. For all staff assigned to Southport and Upstate CPP programming, a one-day training program will be provided as to the context of this Agreement, the SHU environment and principles of de-escalation. For all teachers and ORCs assigned to these CPP programs, a second day of training will be provided including active case management principles and practices.
D. SHU Staff. For all security staff and ORCs assigned to SHU blocks: 1. Initial Training. A one-day training program will be provided with
respect to the context of this Agreement, the SHU environment and principles of deescalation.
2. Annual Refresher Course. (a) At OMH Level 1 and 2 facilities, principles of de-escalation
will be emphasized during the next annual 4-hour mental health refresher course;
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(b) At all facilities other than OMH Level 1 and 2 facilities, a refresher course will be provided by supervisory staff through training bulletins discussed in informal meetings with staff concerning the following progressive alternatives to misbehavior reports for less serious incidents of misbehavior by inmates already housed in SHU:
(c) De-escalation and intervention as the preferred method of responding to negative behavior in SHU.
(d) If de-escalation and intervention do not achieve the desired effect, PIMS regression should be utilized prior to the issuance of a misbehavior report for less serious offenses.
(e) Misbehavior reports may be issued for serious offenses, or if the above alternatives do not attain the desired effect.
E. SHMC. In the course of its annual audits of SHU facilities the Office of Special Housing and Inmate Discipline will carry out training for SHMCs on new SHMC protocols and guidelines under this Agreement.
F. Entire DOCCS Staff. DOCCS Commissioner will ensure the delivery of a four-hour mandatory training program to the entire DOCCS staff during the first quarter of 2017, including the context of this Agreement, the SHU environment, and de-escalation principles and techniques.
G. Annual Peace Officer Training. Principles and techniques of deescalation will be emphasized during the regular four hours of use of force training.
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H. Guidance on Transfer Procedures. The Department shall augment and reinforce existing policies and procedures to ensure the continuity of case oversight for an inmate returning to general population from a SHU or Alternative Unit, as follows:
1. Advance Notice of Transfer. Inmates moving to general confinement in another facility will be submitted for transfer consideration by the assigned ORC within two (2) weeks prior to transfer. Programming completed while an inmate has been in a SHU-Alternative Program or confined in SHU, along with the inmate’s continuing program needs, will be included in the transfer referral by the ORC.
2. Electronic Scheduling of Initial Interview. Upon arrival at the general confinement facility, the inmate will be electronically scheduled for an out-of-cell interview with the assigned ORC in the general confinement facility within five business days of arrival. The assigned ORC at the receiving facility will review the entire guidance file, including information provided by the ORC at the transferring facility, and will prepare appropriate and necessary program referrals. Inmates returned to general confinement in the same facility where they served a SHU sanction or were in a SHUAlternative Program will have continuity of case oversight by the assigned ORC in that facility.
3. Memorandum. A policy memo issued by DOCCS Central Office to ORCs in all facilities will reinforce the above procedures.
I. Grant Opportunities. DOCCS will explore grant opportunities available through the Office of Justice Programs (“OJP”), United States Department of Justice, for resources, staff training or other technical assistance in furtherance of the goals of this Agreement.
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J. Training Materials. The parties’ designated experts will be afforded an opportunity, prior to the use of training materials and/or training bulletins required under this Agreement, to review and comment on all such training materials. DOCCS will give full consideration to all such comments received within 15 days after the proposed training materials are provided to the parties’ experts. The final version of all training materials shall be approved by DOCCS in its discretion and shall be shared with Plaintiffs’ counsel and the experts. XII. POST-SETTLEMENT ACTIVITIES
A. Designation and Role of Experts. Plaintiffs and Defendants will each designate an expert in prison operations. No designated expert will be a monitor, but will advise and consult with the parties as provided in this Agreement.
B. Periodic Tours and Assessments. Based on an agreed schedule of specified tours, each party’s expert will report to the retaining party concerning his or her assessment of Defendants’ compliance with the terms of this Agreement. In the first quarter of 2016, the experts will conduct a tour of CAR and the juvenile program, as provided under the Interim Settlement. In the Fall of 2016, the experts will be permitted to conduct an initial consecutive four-day tour at mutually agreed correctional facilities in which programs under this Agreement are located or to be located. The parties’ experts, according to a schedule to be determined, will be permitted to conduct further consecutive four-day tours at mutually agreed correctional facilities twice each calendar year thereafter. Tours will include SHU-Alternative Programs, the new separate Keeplock Units at Fishkill C.F. and Five Points C.F., and any other locations of concern to the experts in assessing compliance with this Agreement. During tours, the parties’ experts will be
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permitted to conduct both cell-side and confidential out-of-cell interviews of up to twelve (12) inmates per facility, per tour, and shall be afforded a reasonable opportunity to speak with the related Program Management Teams.
C. Access to Documents. 1. In Conjunction With Tours. The parties’ counsel will be provided
with the following documents reasonably related to the tours. In instances where the documents are to be provided in advance of a tour, they shall be delivered to the parties’ counsel no later than 14 days prior, assuming the parties have finalized the tour dates and locations at least 60 days in advance of the tours. In instances in which the documents are to be inspected by the experts on-site during the tour, the experts or parties’ counsel may request copies of those documents during the tour. Such copies shall be provided to experts or parties’ counsel within 30 days of a request, provided the request is not unduly burdensome, and also provided that in no case will such request be denied where it is agreed between the parties’ counsel that the documents are related to an issue of substantial breach under Section XIII. This section shall not preclude the experts from making requests to review specific additional documents as they deem necessary and relevant to a tour, and such requests shall not be unreasonably denied by DOCCS unless not relevant to the terms of this Agreement, unduly burdensome, or privileged.
(a) The most recent Operations Manual for that SHU or SHUAlternative Program, to the extent not previously provided to the expert;
(b) On-site inspection of the disciplinary files for up to 6 inmates pre-identified in advance of the tour by Plaintiffs’ expert, and up to 6 additional files as requested on-site by Plaintiffs’ expert;
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(c) For the most recent six-month period prior to the tour, records of any SHU double-celling reviews, and the outcomes;
(d) For the most recent six-month period prior to the tour, on site access to records of cases reviewed for time cuts, including who was considered for time cuts, how much time those considered were eligible to receive, how much they did receive and the reasons for the actions taken, to the extent that such records are created and maintained in the ordinary course of business;
(e) For the most recent six-month period prior to the tour, onsite access to records, such as logbooks, tracking phone access;
(f) For the most recent six-month period prior to the tour, onsite access to records/logbooks showing recreation access, including congregate recreation;
(g) For the most recent six-month period prior to the tour, onsite access to records, such as logbooks, showing whether mental health contacts occurred out-of-cell;
(h) In addition to the above, for the most recent six-month period prior to the tour of a SHU-Alternative Program, (a) the number of inmates admitted and inmates rejected for the program, including reasons for rejection; (b) the number of inmates who have completed the program (including length of time in the program) and the number of inmates who were discharged (including how long they were in the program and the reasons for discharge); (c) general outlines or lesson plans of classes and programs offered; (d) a snapshot of the number of inmates in the different program levels; and (e) the number of hours of out-of-cell time offered in the program and recreation by phase level (if not reflected in the Operations Manual), to the extent that records of the
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information referred to in (a) through (e) above are made and maintained in the ordinary course of business.
(i) With regard to a tour including a CPP, for the most recent six-month period prior to the tour, (a) samples of individual Confinement Program Plans and (b) summary notes of meetings of the CPP Program Management Team.
(j) During tours Plaintiffs' expert will be permitted to meet with the local grievance coordinator and, if DOCCS chooses, the Superintendent or their designee, for a discussion of grievance trends in the SHU unit(s). Plaintiffs' expert may receive copies of grievances filed by an individual inmate (the original grievance filed and the written reasoned response from each level of review) if the inmate filing the grievance consents. Central Office staff will accompany the experts on the tour and may attend all such discussions.
2. Annual Meeting. The parties will meet annually in either New York City or Albany to discuss implementation of this Agreement, any compliance issues hereunder, and the Agreement’s effect to date on reducing the use and duration of SHU. The parties’ experts may be available by telephone during the meetings. The initial annual meeting shall occur no later than one year after the effective date of this Agreement. Approximately 30 days before each such scheduled annual meeting, DOCCS will provide an annual report as to the construction progress relating to all programs to be established pursuant to this Agreement. In addition to information concerning construction progress, the annual report will include updates on the timeliness of implementation of the terms of this Agreement, such as the scheduling or completion of training components hereunder and the phasing in of programs and policies hereunder.
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3. Document Review by Experts. DOCCS will provide the parties’ experts, 30 days in advance of finalization, documents created to comply with provisions of this Agreement, including training materials and memoranda. DOCCS will give full consideration to comments, if any, provided by the experts within 15 days. The final version of all materials shall be approved by DOCCS in its discretion and shall be shared with Plaintiffs’ counsel.
4. Rule-Making. If DOCCS initiates a rule-making process to add or amend regulations affecting the terms of this Agreement, DOCCS will provide Plaintiffs’ counsel with the draft proposed non-emergency regulations no later than 15 days in advance of the initiation of rule-making and will give full consideration to any comments by Plaintiffs’ counsel, provided that the final determination as to the contents of any such proposed regulations shall be in the discretion of DOCCS. This Section shall not preclude DOCCS from undertaking emergency rulemaking, if required in DOCCS’ sole judgment, without notice to Plaintiffs’ counsel.
5. Quarterly Reporting. (a) The following reports and spreadsheets will be produced on the 15th of the month in January, April, July, and September (or the next business day if the 15th of the month falls on a weekend or holiday) and will cover the prior 3-month period.
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Topic Inmates in SHU Cells Demographics
Inmates in SHU Cells - Charges
Disciplinary Incidents
Inmates in Alternative Programs, including CAR
PIMS Level
Deprivation/Control Orders Special Management Meal Orders Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances Exceptional Circumstances

Description Demographic and Sanction Status Start and End Dates for inmates housed in SHU cells Disciplinary charges of the inmates housed in SHU cells serving SHU or Keeplock sanctions Inmate demographic information, disciplinary incident and hearing sanction information for all tier 2 and tier 3 incidents. Population Statistics, including the beginning population, the number of arrivals and releases, and the population at the end of the quarter. Counts of PIMS Levels at each facility Demographics, dates, reasons Demographics, dates, reasons
Juveniles in SHU Pregnant Inmates Tier Level Departures Guideline Departures Alternate Program Removals Alternate Program Denials

Type File
File
File
Report
Report Excel Spreadsheet Excel Spreadsheet Report Report Report Report Report Report

(b) The Excel spreadsheets for restricted diets and deprivation orders referred to in the table set forth in (a) above shall contain the same fields as the “Dep Report” and “Res Diet Report” spreadsheets produced to Plaintiffs on a monthly basis during the course of the stay period under the Interim Settlement.
(c) The “Exceptional Circumstances” reports referred to in the table set forth in (a) above shall contain at least the same level of detail as the “Monthly Exceptional Circumstances Reports” produced to Plaintiffs monthly since January 1, 2015.

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(d) The “Inmates in SHU Cells-Demographics” file referenced in (a) above shall contain the same data fields as the “SHUCELLS.DETAILS” dataset that has been produced monthly by the Department since April 3, 2014, and was most recently produced to Plaintiffs by email on November 3, 2015.
(e) The “Inmates in SHU Cells-Charges” file referenced in (a) above shall contain the same data fields as the “SHUCELLS.CHARGES” dataset that has been produced monthly by the Department since April 3, 2014, and was most recently produced to Plaintiffs by email on November 3, 2015.
(f) The “Disciplinary Incidents” file referenced in (a) above shall contain the same data fields as the “Disciplinary.Incidents” dataset that was produced by the Department on May 28, 2015 and September 1, 2015.
6. Annual Reporting. In addition to being provided quarterly as discussed above, the “Disciplinary Incidents” dataset will also be provided annually on April 15th containing data for the prior calendar year.
D. Confidentiality. Upon initial production, materials provided to Plaintiffs’ expert and counsel are automatically designated as confidential and for use only in conjunction with tasks specified in this Agreement and its enforcement, regardless of whether the material is marked “confidential” by Defendants’ counsel. If Plaintiffs’ counsel raise no objection to the confidentiality designation within sixty (60) days of receipt, the materials shall be deemed confidential. If Plaintiffs’ counsel raise such an objection, they shall send by email attachments the specific materials at issue and state the reasons the designation should be withdrawn in whole or in part. Defendants’ counsel shall respond in writing within thirty (30) days to substantiate the designation and state the
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reasons therefore, or to withdraw the designation. Defendants’ counsel shall withdraw the designation for material that would be obtainable under the Freedom of Information Law (“FOIL”).
E. Consideration of Experts’ Recommendations. The experts’ reports may include, in addition to an assessment of Defendants’ compliance with the terms of this Agreement, suggestions or proposals relating to implementation of the settlement as the experts deem appropriate. Although the Defendants will give full consideration to advice, suggestions and proposals offered by the experts, all decisions concerning the DOCCS correctional system will be made by Defendants, in accordance with DOCCS’ statutory responsibilities.
F. Public Reporting on DOCCS’ Website. DOCCS will add information to its existing quarterly Fact Sheet, posted on DOCCS’ website, reflecting information on the size and composition of inmates in segregated confinement and any changes since the prior quarter. During the first quarter of each calendar year, DOCCS will post on its website a brief annual update on the status of efforts completed under this Agreement.
G. Policy Structure Review. DOCCS will conduct a comprehensive review of its rules and regulations governing the disciplinary process and conditions of confinement in SHU and initiate any additional rule-making it may deem necessary to carry out the terms of this Agreement and will provide any additional guidance to staff through directives, memoranda, post orders, manuals, orientation materials and other similar guidance it may deem necessary to carry out the terms hereof.
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XIII. ENFORCEMENT POWERS A. Notice, Meet and Confer Obligations. In the event that Plaintiffs believe
that Defendants have committed a substantial breach of a material term of this Agreement, Plaintiffs’ counsel may provide Defendants with a written statement describing the alleged breach (“Notice of Substantial Breach”). Defendants shall provide a written statement responding to the Notice of Substantial Breach within thirty (30) calendar days from receipt of the Notice of Substantial Breach and, within thirty (30) calendar days of receipt of Defendants’ written response, counsel for the parties shall meet and confer in a good faith effort to resolve their dispute informally. In no instance shall the Plaintiffs be permitted to seek mediation or file an enforcement motion as permitted in §§ XIII(B) and XIII(C) without first having provided the defendants with a Notice of Substantial Breach.
B. Magistrate Judge Nonbinding Mediation. In the event that a Notice of Substantial Breach pursuant to § XIII(A) of this Agreement cannot be resolved informally, counsel for the parties may notify the District Court of the dispute, in which case the Court will appoint a Magistrate Judge to mediate the dispute. The parties agree to make a good faith effort to resolve any dispute in mediation.
C. Adjudication of Disputes Unresolved by Mediation. If the dispute has not been resolved through mediation in conformity with this Agreement within seventyfive (75) days of such appointment of a Magistrate Judge and the issue is a substantial breach of a material term of this Agreement, Plaintiffs may file a motion with the Court seeking specific enforcement of the terms of this Agreement, reinstatement of the claims for prospective relief in the lawsuit, or an extension of the duration of this Agreement by up to one additional year. It shall be Plaintiffs’ burden in making such a motion to
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demonstrate there has been a substantial breach of a material term. A substantial breach must be either (i) sufficiently frequent and widespread so as to be pervasive or (ii) a breach that deviates from a material provision in a way that denies an essential benefit of this Agreement to class members. Minimal or isolated failures, noncompliance with mere technicalities, failure to give “full consideration” to the experts’ or plaintiffs’ input, or temporary failure to comply during a period of otherwise sustained compliance will not constitute a substantial breach of a material term.
D. Substantial Noncompliance Proven. In the event the Court finds that Defendants have not substantially complied with a material term of this Agreement in accordance with the standards of C above, the Court shall have the power to order specific performance of the material terms in the Agreement, including ordering that the duration of this Agreement be extended for one additional year, provided that there may be no more than a single one-year extension of the term of this Agreement, or reinstatement of the claims for prospective relief in the lawsuit. In a remedial order directing specific performance, the Court shall not impose any additional or different terms from those set forth in this Agreement provided, however, that the Court may set new deadlines for specific performance consistent with the Agreement’s term under § XVII. Should the defendants fail to comply with an order of the Court directing specific performance, nothing in this Agreement shall prevent Plaintiffs’ counsel from making a motion seeking a finding of contempt, which motion may be granted or denied in accordance with controlling standards for such a finding. Any contempt finding shall be without prejudice to Defendants’ rights of appellate review of such a finding as a final order under 28 U.S.C. § 1291.
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E. Agreement as to 18 U.S.C. § 3626. Solely for the purposes of settlement, the parties agree and jointly request that the Court find that this Agreement satisfies the requirements of 18 U.S.C. § 3626(a)(1)(A).
F. No Waiver for Failure to Enforce: Failure by Plaintiffs to enforce this entire Agreement or any provision thereof with respect to any deadline or other provision herein shall not be construed as a waiver of Plaintiffs’ right to seek enforcement of any provisions of this Agreement. XIV. ATTORNEYS’ FEES; POST-SETTLEMENT ACTIVITIES
A. Defendants shall pay the sum of $1,100,000 for attorneys’ fees, costs and disbursements, including incentive payments, in full satisfaction of any and all claims in the lawsuit. Costs and disbursements shall be substantiated by documentation satisfactory to Defendants’ counsel. In the event that payment of the amounts referred to in § XIV(A) is not made within 120 days after the receipt by Defendants’ counsel of a copy of this fully executed Agreement, approved by the Court as provided on page 68 below, interest shall accrue on the outstanding balance at the rate set forth in 28 U.S.C. § 1961, beginning on the 121st day after receipt by Defendants’ counsel of a copy of this fully executed and court-approved Agreement.
B. During the term of this Agreement, as provided in § XVII, it is anticipated that Plaintiffs will incur certain legal fees, expert and other costs and disbursements with respect to §§ XII and XIII. Plaintiffs and Plaintiffs’ counsel agree to limit all such attorneys’ and experts’ fees, costs and disbursements to what is directly and reasonably necessary up to a combined total, which shall not exceed $100,000 per year, calculated on the basis of a 365 day year, beginning on the effective date of this Agreement under §
59

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 68 of 80
XXVII and ending on the date this Agreement terminates pursuant to the provisions of § XVII. During the term of this Agreement, as the same may be extended, Plaintiffs’ counsel agree to submit vouchers to Defendants’ counsel on a semi-annual basis documenting any such attorneys’ fees, costs and disbursements and Defendants agree to reimburse Plaintiffs’ counsel within 90 days of receipt of such vouchers. If payment is delayed beyond 90 days, Defendants will also pay interest at the rate set forth in 28 U.S.C. § 1961, which shall accrue beginning on the 91st day. If Plaintiffs prevail on a motion asserting a substantial breach of a material term pursuant to §XIII, the cap provided in this Section for fees, costs and disbursements shall not apply to fees, costs and disbursements in connection with such motion.
C. Processing payment of each of the amounts referred to in § XIV is subject to the approval of all appropriate New York State officials in accordance with the provisions of § 17 of the New York Public Officers Law. In the event that payment of such fees and costs is delayed more than 60 days beyond the time for payment provided in § XIV (A) or (B), Plaintiffs’ counsel may, on 20 days’ written notice to Defendants’ counsel, make a motion for appropriate relief to the Court. If such a motion is made, Defendants may respond, including based on any failure by Plaintiffs’ counsel to submit documentation necessary to process such a payment under § 17 of the New York Public Officers Law, but will not contest that Plaintiffs are entitled to an award of fees and costs in accordance with § XIV. In the event of such motion practice relating to payments under § XIV, the remainder of the Agreement shall remain in full force and effect.
60

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 69 of 80
XV. DISMISSAL OF COMPLAINT AND CLAIMS CASES, RESERVATION OF JURISDICTION
Upon approval of this Agreement by the Court, Plaintiffs shall execute, deliver and file a stipulation of dismissal with prejudice of the Complaint, substantially in the form attached hereto as Exhibit 1. Plaintiffs agree that they will not file any Notice of Intention to file a Claim based on SHU confinements identified in paragraphs 178 and 181 of the Complaint and further agree that if any such Notice of Intention has been filed, that they will not file a Claim based thereon. The parties agree that after the Court orders said Stipulation of Dismissal, the Court shall retain jurisdiction subject to the limitations of § XIII of this Agreement and the termination provisions of § XVII. XVI. MISCELLANEOUS PROVISIONS
This Agreement shall not constitute a consent decree or an adjudication on the merits. Neither this Agreement, nor any policies or procedures established thereunder, shall define any state or federal constitutional rights or be deemed an admission or a waiver of sovereign immunity or Eleventh Amendment protection. Moreover, none of the parties will contend that any of the provisions, policies, procedures, and goals stated herein define clearly established constitutional rights of inmates or create any private right of action against the State of New York, its agents, employees or representatives. This Agreement in no way waives or otherwise affects, limits or modifies the obligations of inmates to comply with the exhaustion requirements of the Prison Litigation Reform Act, DOCCS directives and regulations, or any current or future state or federal law governing the rights and obligations of incarcerated persons, except that the parties agree that exhaustion shall not be required for noncompliance actions arising under § XIII of this
61

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 70 of 80
Agreement. Nothing in this Agreement shall be deemed to limit any existing authority of DOCCS to transfer inmates to other state or federal jurisdictions. Moreover, nothing in this Agreement shall be deemed to require or permit Defendants to violate the laws of the State of New York or the United States, or to violate any terms or conditions of any collective bargaining agreement to which DOCCS or the State of New York is a party, nor shall Defendants agree to any terms in a future collective bargaining agreement that would be in conflict with the terms of the Agreement. Defendants are not aware of any conflict between any of the provisions of this Agreement and any such law or collective bargaining agreement referred to in this Section. If at any future time a conflict becomes apparent, Defendants shall promptly notify Plaintiffs’ counsel. Defendants know of no reason why the payments referred to in § XIV may not be approved and processed in accordance with the provisions of § XIV of this Agreement and § 17 of the New York Public Officers Law and will use their best efforts to obtain such approvals. XVII. TERM
Without further action by the parties or the Court, this Agreement shall expire two years from the commencement of operation of the Southport SDP to be created under § I(A) of this Agreement. There may be a single one year extension of the term of this Agreement either by direction of the Court pursuant to § XIII or in the event that DOCCS shall have failed to achieve a sustained and significant reduction in the use and duration of SHU by the expiration of this Agreement under § XVII. The failure to achieve a significant reduction in SHU shall not, however, constitute a violation of this Agreement.
62

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 71 of 80
XVIII. BINDING EFFECT This Agreement is binding upon Plaintiffs and the class, the Defendants named in
this lawsuit in their individual and official capacities, and on Defendants’ successors in office, employees and agents. XIX. DEADLINES AND UNFORESEEN DELAY
The timeframes reflected in Exhibit 2 to this Agreement memorialize the projected timetable for implementation reflected throughout this Agreement. In the event an unforeseen circumstance occurs that causes DOCCS to fail to timely fulfill any material requirement of this Agreement, Defendants shall notify Plaintiffs’ counsel in writing within twenty (20) days after Defendants become aware of the unforeseen circumstance, its anticipated impact on Defendants’ ability to perform the material terms of this Agreement and the measures taken to prevent or minimize the failure, and, as appropriate, a proposed new timeline for completion. Requests by Defendants to amend deadlines due to unforeseen circumstances shall not be unreasonably withheld by Plaintiffs. XX. STIPULATION AS TO CLASS CERTIFICATION
The parties agree that this matter is appropriate for certification as a class action pursuant to Fed. R. Civ. P. 23(b)(2). The class is defined as all DOCCS inmates who are now serving or will in the future serve a disciplinary confinement sanction in a SHU or in one of the programs created under or referenced in this agreement. The parties agree that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, the claims of the named plaintiffs are typical of the claims of the class, and the plaintiffs and their counsel will fairly and adequately protect
63

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 72 of 80
the interests of the class. The parties agree that the confinement policies that are the subject of this action apply generally to the class, making relief appropriate for the class as a whole. The parties agree that, in the event that the Court denies Plaintiffs’ unopposed motion for class certification, filed separately with the Court, this Agreement shall be void. Defendants agree that they shall not move to decertify the class for the duration of this Agreement, and shall not unreasonably oppose the designation by Plaintiffs of new class representatives if necessary. XXI. COMMUNICATIONS WITH AND ACTIONS BY CLASS COUNSEL
Legal mail, legal visits and telephone calls by inmates shall be permitted with class counsel regarding any aspect of this Agreement or the litigation settled hereby without adverse consequences, subject to generally applicable DOCCS’ rules relating to legal visits, mail and the use of telephones. Any complaints or concerns by any member of the class relating to this Agreement shall be referred to class counsel, who shall determine whether action, if any, is permitted or warranted under § XIII. The enforcement provisions of § XIII are exclusive and only class counsel may seek enforcement of any of the terms and conditions of this Agreement. Except for motions by class counsel pursuant to § XIII, no person, including any member of the class, may serve or file any contempt motion for alleged non-compliance with a term of this Agreement or to bring any separate action or proceeding based upon this Agreement. XXII. FUNDING
A. Agreement Terms Contingent on Funding. Defendants will use their best efforts to seek approval of the funding necessary to implement activities described in §§ I(A)(3)(a), I(A)(4)(f), I(B)(6)(a), I(B)(11), I(C)(4)(a), I(C)(9), I(D)(2), I(D)(3), IV(B),
64

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 73 of 80
VI(A)(2), VI(B)(2), VI(B)(4)(a), VII, VIII(B), VIII(D), VIII(G), IX(E), XI(B), XI(C), XI(D), and XI(E) under this Agreement, including seeking sufficient appropriation authority in the Executive budget appropriation bill to be submitted to the Legislature for State fiscal year 2016-2017, and in each fiscal year for the term of the Agreement. Funding for activities described in the sections enumerated above are subject to approvals and budgetary processes and contingent upon legislative appropriations therefor. The failure of the Legislature to provide funding, notwithstanding Defendants' best efforts, for the activities enumerated in this section shall not be deemed a violation of a federal right by Defendants or a breach of the Agreement by Defendants.
B. Obligations if Funding Not Appropriated. If at any time Defendants believe that they cannot fully implement one or more of the material provisions of this Agreement in light of the Legislature's failure to provide adequate funding for one or more of the Sections enumerated above, Defendants shall promptly notify Plaintiffs in writing, and the parties shall meet and confer to discuss whether the affected terms can nevertheless be implemented with modifications agreed upon by the parties. If an agreement is reached, the parties shall modify this Agreement accordingly in writing. If agreement is not reached, the affected settlement term(s) shall become null and void and Defendants shall have no further obligations to fulfill the affected term(s) except as otherwise stated below. Defendants shall continue to fulfill all of their other obligations under this Agreement that are not impacted by the Legislature’s failure to provide adequate funding. Without limiting the foregoing, in the event the Legislature fails to provide adequate funding in a fiscal year, Defendants shall continue to use best efforts to retain the needed appropriation in all subsequent fiscal years under the Agreement Term.
65

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 74 of 80
If a previously denied appropriation is later made by the Legislature, the Defendants shall then be obligated to implement the Settlement term in accordance with timeframes in Exhibit 2, measured from the date the appropriation is made. XXIII. STAFFING
To the extent that specific sections of this Agreement reference a corresponding staffing number or specific title to be utilized, the parties recognize that this staffing number represents the number of positions or titles that are funded for the specific program, that positions may become vacant through staff attrition and may remain vacant through the recruitment process. Such vacancies shall not be deemed a breach of this Agreement. XXIV. NO ADMISSIONS OR PRECEDENTIAL EFFECT
Nothing in this Agreement shall be construed as an admission or acknowledgment of liability whatsoever by any of the Defendants or DOCCS regarding any of the allegations made by Plaintiffs in the Complaint. It is the parties’ intention that this Agreement shall have no precedential value or effect whatsoever and shall not be used by the parties as evidence or for any other purpose, except in an action or proceeding to enforce this Agreement. XXV. ENTIRE AGREEMENT
This Agreement embodies the entire agreement of the parties in this matter and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Agreement regarding the subject matter of the instant proceedings, shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein. Captions are included herein solely for convenience of reference, are not
66

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 75 of 80 part of this Agreement, and shall not be used to limit or otherwise interpret the terms hereof. XXVI. NOTICES
All notices under this Agreement shall be in writing and shall be sent by both U.S. Mail and electronic mail to the recipient or recipients at the address or addresses specified in the signature pages of this Agreement. Copies of any notice to a party shall also be mailed in the manner provided above to the below-listed counsel to the parties at the addresses specified for such counsel.
67

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 76 of 80

XXVIJ. F.XECtJTJON AND f:FFF.CTT\'E DATF. Th is .-\grecrnenr mny be e~ccu t ed in mt1ltiplc counterparts, and fa"cd und!or

1.: nwikd sig11;1tur\!S will be.· rn lid ani..I enfori;eablc.:, eac:h \)r which shal l be di:.t:rrn:d an

original , and al l of which shall cp ns1itu1e one and rhe snrn e document. This Agreement

shat I h.: cftcctivc upon the approval of this Sertlcmcnt Agrcl·mcnt by the Court.

Dntc:d : New Yj.rk. New York DecemberJ.5.• 2015
NEW YORK CIVIL LIBERTIES UNION
- -u t\tlorneys Cor Plaintiffs
u>'- <..·~ .- " -~\~fa-y':l_:o_;L~~-e-=n-~deLr(_ r--d;-;s-- -"

trnIC T. SCHNEIDERMAN Attorney Gene ml of the State of Nc\v York Att · . for D1:fendanl$
;\ssistant Attorney General

i\~6xanckr A. Reinert 1\norney for Plaintiffs

NEW YORK STATE DEPARTMENT

OF CORRECTIONS AND

COi\·IMUNTTY SllPF.RVJSION

By M

~. -!j

.J ~7
:J;:,/1

L

c

C

L

-

Kevin P. Bruen Deputy Commissioner anti Cliunsd

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 77 of 80 EXHIBIT 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------- x

LEROY PEOPLES, et al.,

Plaintiffs,

: : STIPULATION OF DISMISSAL

-against-

: : Docket Number

BRIAN FISCHER, et al.,

: 11-CV-2694 (SAS) Defendants. :

--------------------------------------------------------- x

IT IS HEREBY STIPULATED AND AGREED by and between the parties, by their

respective counsel, that, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, this

Action be and hereby is dismissed and discontinued with prejudice. The Court retains

jurisdiction to enforce the Settlement Agreement entered into on _________, as set forth in, and

subject to § XIII of the Agreement, until its termination as set forth in § XVII of the Agreement.

Dated: New York, New York December ____, 2015
NEW YORK CIVIL LIBERTIES UNION Counsel to Plaintiffs
By _____________________________ Taylor Pendergrass
_______________________________ Alexander A. Reinert Counsel to Plaintiffs
MORRISON & FOERSTER LLP Attorneys for Plaintiffs
By_______________________________ David Fioccola

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorneys for Defendants
By_________________________________ Richard W. Brewster Assistant Attorney General
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
By_________________________________ Kevin P. Bruen Deputy Commissioner and Counsel

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 78 of 80

EXHIBIT 2

Settlement Agreement Implementation Timetable

Action Item

Section

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

SHU ALTERNATIVE PROGRAMS

Southport Step-Down Program

I(A)(4)(f)

36 months

Mid-State Step-Down Unit

I(B)(11)

14 months

Lakeview Substance Abuse Program

I(C)(9)

33 months

Step-Down to the Community Programs

I(D)(9)

6 months

AGREEMENTS APPLICABLE TO ALL SHU-ALTERNATIVE PROGRAMS

As applied to juvenile program and CAR

I(E) & (F)

6 months

As applied to all other SHU-Alternative Programs

II(A)-(L)

See above program

implementation dates

SEPARATE KEEPLOCK UNITS

Separate Keeplock Units

IV(B)

15 months

Reduction of Certain Keeplock Sanctions

IV(D)

3 months

UNIFORM “PIMS” PROGRAM FOR ALL SHUS

New PIMS implemented, excepting congregate recreation. V

6 months

See SHU conditions timeline for specific incentive

implementation.

CONFINEMENT PROGRAM PLAN

CPP Begins

VI

36 Months

UPSTATE ASAT EXPANSION

ASAT Program Expansion

VII

24 Months

SHU CONDITIONS

Phone calls

VIII(A)

6 months

Library services

VIII(C)

6 months

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 79 of 80

Action Item
Shower curtains Head phones/ Additional Phones installed in all SHUs Double-celling assignment policy – Issuance of Memo Double-celling assignment policy – Updating Facility Operations Manuals and Review with Staff Correspondence courses Tablet Pilot Program Issuance of RFI Tablet Pilot Program evaluation period
Mental Health Contact Policy – Issuance of Memo and template Mental Health Contact – Updating Facility Operations Manuals and Review with Staff DEPRIVATIONS Deprivation Order policies Special Management Meal Hire additional staff member SENTENCING PRACTICES Modification of guidelines Guidance for hearing officers Time Cuts Notice to SHMC of OMH Levels TRAINING Training Academy
SHU-Alternative Units one-week training
CPP staff training

Section
VIII(B) VIII(D) VIII(E) VIII(E)
VIII(F) VIII(G) VIII(G)
VIII(H)
VIII (H)

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

3 months

48 Months

3 months

6 months

3 months 2 months 6 months after tablets available 3 months

6 months

IX(A)-(C) IX(D) & X(B) IX(E)
X(A) X(C) X(D)(1)&(2) X(E)
XI(A)

3 months 3 months
12 months 2 months 12 months 6 months

XI(B) XI(C)
2

6 months
Starting with FY 2016/2017 Recruit Classes See above program implementation dates See above CPP

Case 1:11-cv-02694-ALC Document 331 Filed 04/01/16 Page 80 of 80

Action Item
SHU Staff one-day training SHU Staff refresher at OMH 1 and 2 facilities Issuance of training bulletin SHMC Training All staff training Peace officer training
GUIDANCE ON TRANSFER PROCEDURES Electronic Scheduling Issuance of memorandum

Section
XI(D)(1) XI(D)(2)(a) XI(D)(2)(b) XI(E) XI(F) XI(G)
XI(H)(2) XI(H)(3)

Implementation Date

as measured from:

Agreement

FY 2016-17 Budget

Effective Date

Enactment

implementation date

12 months

12 months

12 months

12 months

First quarter 2017

Start with FY

2016/2017 annual

training

3 months 4 months

3

 
 claiming that his designation to solitary confinement for a three-year term for improperly maintaining certain legal documents in his cell and related conduct was unconstitutional. Two years later, in March, 2013, an action previously filed by Dewayne Richardson, also appearing pro se, was joined with Peoples’ case. Similarly to Peoples, Richardson was sentenced to three years’ solitary confinement for maintaining documents in his cell that were designated as contraband and related conduct. Also in March, 2013, a pro se complaint previously filed by Tonja Fenton was joined with Peoples’ case.3 Fenton had sued DOCCS after being sentenced to two years’ solitary confinement for three infractions: (1) helping another inmate purchase personal hair care appliances and sneakers; (2) reporting a sexual assault that was later deemed unsubstantiated; and (3) sending a food sample to a court in support of a lawsuit she filed alleging that corrections officers had retaliated against her by tampering with her food.
Five years after Peoples filed his initial complaint, an historic settlement was reached on behalf of thousands of prisoners, in this class action lawsuit challenging solitary confinement practices across the New York State
3 Fenton, who was released from custody in March, 2014, attended the March 28, 2016 Fairness Hearing in this case.
-2-

prison system.4 This settlement, which I approve today, will greatly reduce the
frequency, duration, and severity of solitary confinement in New York State
prisons. While there is undoubtedly more work to be done, both with respect to
solitary confinement and with the conditions of prisons in general, this settlement
should end the use and conditions of solitary confinement in New York as they
have existed for decades. It is also my hope that the contours of this Settlement
Agreement, and the collaborative process by which it was reached, will serve as a
model for other states that are addressing issues of prison reform. The path to reaching this settlement bears special mention.5 Pro bono
counsel agreed to represent Peoples as of August, 2012. After filing a Second
Amended Complaint on his behalf, counsel consolidated Peoples’ case with those
of Richardson and Fenton, and filed a Third Amended Class Action Complaint
(“TAC”) — now the operative Complaint — on March 6, 2013. The TAC
4 See Proposed Settlement Agreement (“Settlement Agreement”), Ex. 1 to Plaintiffs’ Memorandum of Law in Support of Joint Motion for Preliminary Approval of Class-Action Settlement, Conditional Certification of the Settlement Class, Approval and Distribution of the Notice of Settlement, and Appointment of Plaintiffs’ Counsel as Class Counsel (“Pl. Preliminary Mem.”).
5 I wish to publicly express my deep gratitude to all of the attorneys who have been involved in this case. These attorneys, and their offices, have worked with great devotion to craft a settlement that will significantly reduce the use of solitary confinement in New York State prisons and improve the conditions of such confinement.
-3-

challenged New York State’s solitary confinement practices under the Eighth and Fourteenth Amendments.
The parties entered into an Interim Stipulation in February, 2014, prior to any dispositive rulings by the Court. After two years of further armslength discovery and negotiation — which incorporated, inter alia, expert analysis and input from class members — a global Settlement Agreement providing for systemic relief over a five-year period was reached.
This Court preliminarily approved the Settlement Agreement in December, 2015, conditionally certifying — under Rule 23(b)(2) of the Federal Rules of Civil Procedure — a class of all inmates in DOCCS custody who are currently serving, or will in the future serve, a disciplinary confinement sanction in a special housing unit (“SHU”), New York State’s term for solitary confinement, or one of the alternative programs referenced in the Settlement Agreement (the “Class”).
As of February, 2016, approximately 3,700 individuals were incarcerated in disciplinary SHUs across New York State.6,7 Solitary confinement
6 See 3/28/16 Transcript of Fairness Hearing (“3/28/16 Tr.”) at 13:4-5. See also 3/21/16 Declaration of Plaintiffs’ Counsel Taylor Pendergrass ¶ 6.
7 Disciplinary solitary confinement is a punitive designation imposed in response to inmate behavior. By contrast, administrative solitary confinement or “Administrative Segregation” — which is not addressed in this case — is imposed
-4-

is a drastic and punitive designation, one that should be used only as a last resort and for the shortest possible time to serve the penal purposes for which it is designed. It is well known that such confinement causes deterioration of the mental and physical condition of inmates. This Settlement Agreement is a critical step in addressing the problems caused by the excessive use of solitary confinement and the conditions of that confinement. Now that this Settlement Agreement has been finalized and is about to be implemented, enforced, and monitored, the conditions of those currently assigned to solitary confinement — and of those who will be so assigned in the future — will be more humane and more just. II. BACKGROUND ON SOLITARY CONFINEMENT
A. Use of Solitary Confinement in the United States Solitary confinement, generally speaking, is the practice of socially
isolating a prisoner from the general inmate population and depriving him or her of most environmental stimuli. In 2013, the Department of Justice defined the
to protect vulnerable inmates from other prisoners. Although individuals in Administrative Segregation are not class members in this suit, they will benefit from at least some of the reforms achieved by the Settlement Agreement. See 3/28/16 Tr. at 21:15-24 (Assistant Attorney General (“AAG”) Richard Brewster). However, because Administrative Segregation is not a punitive designation, other reforms in this Settlement Agreement would not apply to Administrative Segregation inmates. See id.
-5-

practice as “the state of being confined to one’s cell for approximately 22 hours per
day or more, alone or with other prisoners, . . . [with] limit[ed] contact with others.”8 Prisoners live in concrete cells measuring between sixty and eighty
square feet that contain a bunk, toilet, and sink, and have extremely limited
window visibility. Prisoners spend virtually all of their time in these cells, where
they “sleep, eat, and defecate . . . in spaces that are no more than a few feet apart from one another.”9 Limited exercise time — in an enclosed pen, as opposed to a recreation yard — may also be provided.10
While a national census of prisoners in solitary confinement is
difficult due to the fluctuating nature of inmate populations, the American Civil
Liberties Union estimates that on any given day, up to 80,000 prisoners across state and federal corrections systems are held in isolated confinement conditions.11 The
8 United States Department of Justice, Letter to the Honorable Tom Corbett, Re: Investigation of the State Correctional Institution at Cresson and Notice of Expanded Investigation, May 31, 2013, at 5 (emphasis in original), http://justice.gov/crt/about/spl/documents/cresson_findings_5-31-13.pdf.
9 Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on the Constitution, Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th Cong. 75 (2012).
10 Id. at 77. 11 See American Civil Liberties Union, The Dangerous Overuse of Solitary Confinement in the United States (2014) at 2.
-6-

practice has also been on the rise: once a relatively rare component of the American prison experience, forty-four states and the federal system now employ some form of segregated or isolated housing.12 It is estimated that between 1995 and 2005, the number of inmates consigned to solitary confinement in the United States increased by approximately forty-two percent.13
B. Effects of Solitary Confinement This widespread use of solitary confinement is especially troubling
given that the deletrious effects of isolated housing on inmates — especially to those assigned to long-term solitary confinement — are well-known and amply documented. Indeed, the literature “is virtually unanimous in its conclusion: prolonged supermax solitary confinement can and does lead to significant psychological harm.”14 This harm takes myriad forms. After even relatively brief periods of solitary confinement, inmates have exhibited symptoms such as hypersensitivity to stimuli, perceptual distortions and hallucinations, increased
12 See id. 13 See Alison Shames, et al., Vera Institute of Justice, Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives (2015) at 6. 14 Thomas L. Hafemeister & Jeff George, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, 90 Denv. U. L. Rev. 1, 35 (2012).
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anxiety, lack of impulse control, severe and chronic depression, appetite and weight loss, heart palpitations, sleep problems, and depressed brain functioning.15 As one expert in the field noted, “[t]he restriction of environmental stimulation and social isolation associated with confinement in solitary are strikingly toxic to mental functioning” — even causing “confusional psychosis” in some inmates.16
A 2014 study of the New York State prison population found that inmates in solitary confinement were approximately seven times more likely to harm themselves than prisoners in the general population.17 The consequences of long-term solitary confinement are so well-known that numerous medical associations, including the American Psychiatric Association, the American Public Health Association, the National Alliance on Mental Illness, the Society of Correctional Physicians, and Mental Health America, have all issued formal policy statements opposing the practice — especially with regard to mentally ill inmates,
15 See The Dangerous Overuse of Solitary Confinement in the United States at 4 (collecting research).
16 Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol’y 325, 354 (2006).
17 See Homer Venters, et al., Solitary Confinement and Risk of Self–Harm Among Jail Inmates, 104 Am. J. Pub. Health 442 (Mar. 2014).
-8-

on whom the effects of solitary confinement are particularly pronounced.18
The global community also has recognized the threat that solitary
confinement poses to the health of inmates — and taken decisive measures to
curtail its use. In fact, in September, 2015, the United Nations General Assembly
revised its Standard Minimum Rules for the Treatment of Prisoners to state that
“[s]olitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review.”19 The practice of
solitary confinement has already been largely eliminated in Europe. In Germany,
for example, solitary confinement is rarely imposed and generally does not exceed a few days — four weeks, in extreme cases.20 There are more prisoners in solitary confinement in the state of Maine than there are in the entire United Kingdom.21
18 See, e.g., American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012); American Public Health Association, Solitary Confinement as a Public Health Issue, Policy No. 201310 (2013); National Alliance on Mental Illness, Public Policy Platform Section 9.8;Society of Correctional Physicians, Position Statement, Restricted Housing of Mentally Ill Inmates (2013); Mental Health America, Seclusion and Restraints, Policy Position Statement 24 (2011).
19 Economic and Social Council Res. 2015/20, at 19 (Sept. 29, 2015), www.un.org/ga/search/view_doc.asp?symbol=A/C.3/70/L.3.
20 See Nicholas Turner & Jeremy Travis, Op. Ed., What We Learned From German Prisons, N.Y. Times (Aug. 6, 2015).
21 See Atul Gawande, Hellhole, The New Yorker (Mar. 30, 2009). -9-

The understanding that solitary confinement harms prisoners is not new. More than 125 years ago, the Supreme Court observed that:
[Prisoners subjected to solitary confinement] fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.22 Supreme Court Justice Anthony Kennedy recently revisited this precise concern in Davis v. Ayala, commenting that “despite scholarly discussion and some commentary from other sources” on the effects of solitary confinement, “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.”23 Justice Kennedy noted, however, that “[t]here are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular.”24 III. OVERVIEW OF THE SETTLEMENT AGREEMENT A. Notice When the Court preliminarily approved the Settlement Agreement in
22 In re Medley, 134 U.S. 160, 168 (1890). 23 135 S. Ct. 2187, 2209-10 (2015) (Kennedy, J., concurring). 24 Id.
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December, 2015, it also approved a plan for providing notice to the Class. By
January 15, 2016, the Settlement Agreement Notice (the “Notice”) was posted in
both English and Spanish within all of DOCCS’ general population housing units,
and hand-delivered to all inmates in SHU, the Correctional Alternative
Rehabilitation program, and the Juvenile Program. The Notice was also distributed
to all inmates who were newly admitted to these programs during the Notice period
(January 15, 2016 through March 14, 2016), and was posted online.
The Notice apprised the Class of the key settlement terms, the manner
in which class members could review the full Settlement Agreement (which was
made available in law libraries and through Assigned Rehabilitation Officers), the
date and location of the Fairness Hearing, and the contact information for
plaintiffs’ counsel (from whom additional information about the settlement could
be requested). The Notice also explained the process for submitting class member
objections, which were due to the Court by March 14, 2016.25
25 Two class members submitted letters stating that they had been unable to review the Notice at the Sing Sing and Upstate Correctional Facilities. See 3/11/16 Letter from Kirkland Smith (Dkt. No. 312); 3/18/16 Letter from John Smolen (Dkt. No. 294). However, as set forth in an affidavit by an Associate Counsel for DOCCS, both facilities were in compliance with the Notice Plan. See 3/23/16 Affidavit of Thomas Goetz ¶¶ 4-10. In both facilities, the Notice had been posted, distribution to inmates had been effectuated, and settlement documents were placed in facility libraries. See id. Additionally, prison administrators confirmed that both inmates requested, and received, a copy of the settlement documents for their review. See id. ¶¶ 9-11.
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B. Key Provisions
As described in plaintiffs’ March 21, 2016 Memorandum of Law in
Support of Joint Motion for Final Approval:
[A]t the core of the [TAC’s] claims were allegations that disciplinary segregation was used too frequently, for time periods that were too long, and with conditions of confinement that were unnecessarily severe. The Settlement Agreement provides substantial relief for all class members in each of these areas. The Department will implement new policies to ensure that SHU sanctions are imposed in a narrower range of circumstances, for shorter durations, and more consistently.26
In other words, the Settlement Agreement provides for three broad
categories of reform: (1) reduction in the frequency and duration of SHU
sentences; (2) improvements to the conditions of SHU incarceration; and (3)
mechanisms for implementation and enforcement of the agreed-upon measures.
To achieve these reforms, the Settlement Agreement details a
comprehensive overhaul of SHU sentencing and incarceration — spanning
seventy-eight pages as well as exhibits and other supporting documents. Although
it is impossible to summarize the entire agreement here, this Opinion highlights
certain key provisions.27
26 Plaintiffs’ Memorandum of Law in Support of Joint Motion for Final Approval of Class Action Settlement (“Pl. Final Mem.”) at 2.
27 I note, however, that some of the measures memorialized in the Settlement Agreement simply continue policies and procedures that were
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1. Provisions Reducing the Frequency and Duration of SHU Sentences
The Settlement Agreement contains a number of reforms to limit the
frequency and duration of solitary confinement altogether. Significantly, the
parties have agreed to a detailed modification of DOCCS’ guidelines for SHU
sentencing which, among other guidance, caps the length of SHU sentences for
enumerated offenses.28 Under this new scheme, for example, possession of certain
documents prohibited by prison regulations — conduct that formed a basis of
Peoples and Richardson’s original three-year SHU sentences — would be
punishable by no more than thirty days of confinement to one’s own cell, not a
SHU.29 For all of the incidents on which Fenton’s two-year SHU sentence was
based, under the new scheme, she would have received no more than ninety days’
implemented by DOCCS pursuant to the Interim Agreement. 28 See Settlement Agreement at 42-43. See also 12/8/15 DOCCS
Revised Guidelines (Bates Nos. S048164-S048180). 29 See 3/28/16 Tr. at 9:4-6; id. at 9:20-25 (“Prior to this litigation,
[DOCCS] had no comprehensive [SHU] sentencing guidelines on an infraction-byinfraction basis; and, as a result of both the Interim Agreement and . . . [the final Settlement Agreement], a comprehensive set of sentencing guidelines for every infraction [is now in place].”) (Plaintiffs’ Counsel Taylor Pendergrass); 12/8/15 DOCCS Revised Guidelines at Bates Nos. S048168, S048175. Peoples’ three-year SHU sentence was also based on a violation of facility correspondence procedures. Under the new scheme, he would have received no more than ninety days’ SHU for this conduct. See 12/8/15 DOCCS Revised Guidelines at Bates Nos. S048179.
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SHU and 150 days’ confinement to her own cell.30 Additionally, the Settlement Agreement provides for SHU-Alternative
Programs designed to address the underlying causes of an inmate’s disciplinary issues, including programs for special needs inmates, juvenile inmates, and inmates in need of substance abuse treatment.31 Other key provisions include a continued presumption against SHU for pregnant inmates32 and increased opportunities for SHU inmates to earn a sentence reduction and lesser SHU sanctions.33
2. Provisions Improving the Conditions of SHU Incarceration The Settlement Agreement also mandates a number of improvements to the conditions of confinement in SHU. Among these reforms is a stipulation that within three months of the Settlement Agreement’s effective date, DOCCS will abolish its use of the “Loaf” — an unpalatable form of food — as a punishment and will instead provide a “nutritious, calorie-sufficient, and palatable alternative meal composed of regular food items.”34
30 See 12/8/15 DOCCS Revised Guidelines at Bates Nos. S048166, S048168, S048172, S048178, S048179.
31 See 3/28/16 Tr. at 8:16-21. See also Settlement Agreement at 4-29. 32 See Settlement Agreement at 30. 33 See 3/28/16 Tr. at 10:19-25. See also Settlement Agreement at 44-45. 34 Settlement Agreement at 42.
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Further, SHU inmates will be eligible for the Progressive Inmate Movement System, which permits increased movement privileges based on good behavior.35 SHU inmates also will benefit from other reforms such as:
• Ability to place telephone calls to family and friends on a regular basis;
• Provision of shower curtains; • Improved library services; • Installation of headphone jacks in cells; • Modifications to the double-celling assignment policy; • Access to correspondence courses and radio programming; • Roll-out of the “Tablet Computer Pilot Program”; and • Increased access to mental health consultations and treatment.36
3. Provisions for Ensuring Implementation and Enforcement of the Settlement Agreement
Further, the Settlement Agreement creates a detailed framework for implementing and enforcing its terms over the next five years.37 This framework includes a timetable for implementing the various Settlement Agreement
35 See id. at 32-33. 36 See id. at 39-41. 37 See id. at 49-59.
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provisions, designation of experts for each side, periodic prison tours, regular data production and analysis, an annual progress meeting between the parties, and notice and meet and confer obligations if a dispute arises.38 In the event that the dispute cannot be resolved informally, the Settlement Agreement also provides for mediation and, if necessary, judicial review.39 The Settlement Agreement also mandates initial and annual refresher training for DOCCS staff, which will emphasize methods for de-escalating disciplinary concerns without resorting to SHU sanctions.40
C. Attorneys’ Fees and Costs and Incentive Awards to Representative Plaintiffs The Settlement Agreement also addresses attorneys’ fees and costs, as
well as incentive awards to representative plaintiffs. Importantly, these monetary payments cannot reduce the value of the settlement as this Class is certified for injunctive relief only, and not for monetary damages.
Defendants have agreed to a one-time payment of $1.1 million, in full satisfaction of the fees and costs incurred by plaintiffs’ counsel during the course
38 See id. at 57. 39 See id. 40 See id. at 45-47; 3/28/16 Tr. at 12:1-8.
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of the litigation.41 Defendants have further agreed to pay plaintiffs’ counsel up to $100,000 per year over the course of the five-year settlement term for fees and costs incurred in monitoring compliance with the Settlement Agreement.42
The $1.1 million will also be used to pay the incentive awards to the three representative plaintiffs in this lawsuit.43 The representative plaintiffs assisted in the litigation and risked retaliation for serving as the faces of this action. Accordingly, plaintiffs’ counsel has determined that the representative plaintiffs should receive the following incentive awards: (1) $80,000 for Dewayne Richardson; (2) $40,000 for Tonja Fenton; and (3) $9,900 for Leroy Peoples.44 Plaintiffs’ counsel explains that Fenton was released from custody in March, 2014, and that Peoples and Richardson — who are both still incarcerated — would be entitled to similar incentive awards for their participation in the litigation, but that Peoples voluntarily requested a smaller award.45 Defendants played no role in negotiating or determining the individual or aggregate amounts of these incentive
41 See Settlement Agreement at 59. 42 See id. 43 See Pl. Final Mem. at 18. 44 See Pl. Preliminary Mem. at 17. 45 See id.
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awards.
The Court received only one potential objection to these proposed awards.46 This objection argued that plaintiffs’ counsel should have sought money
damages or incentive payments for other (non-representative) class members.
However, as noted, the Settlement Agreement does not provide for money damages.47
IV. CLASS MEMBER CORRESPONDENCE
The Notice was likely seen by thousands of inmates in DOCCS
custody, including those in the SHU who were hand-delivered a copy of the Notice.48 As of March 28, 2016, two weeks beyond the close of the Notice Period, the Court had received a total of 164 letters from class members.49
Although most of the comments were supportive of the Settlement
Agreement, I will discuss both favorable and unfavorable comments, as this
46 See 3/18/16 Letter from John Smolen (Dkt. No. 294). 47 Named plaintiff Leroy Peoples also submitted a letter requesting “renegotiation” of his incentive award, but later withdrew that request after consultation with plaintiffs’ counsel. See 3/14/16 Declaration of Leroy Peoples. 48 See Pl. Final Mem. at 9. 49 There may be some overlap between letters that are and are not considered objections, as some letters both expressed support for the Settlement Agreement yet also identified shortcomings in its terms. Additionally, some class members submitted multiple letters.
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correspondence offers significant insight into the immediate benefits of this
settlement as well as the areas in which further reforms might be considered.
A. Letters in Support
As noted, the majority of class member correspondence expressed
support for the Settlement Agreement and a belief that the Settlement Agreement
will substantially improve the conditions of SHU confinement.
According to plaintiffs’ March 21, 2016 submission,
[a]pproximately 52% of the . . . substantive comments submitted to the Court clearly approved of the Settlement Agreement. Many of the comments in support . . . were forceful, speaking of the dire or long overdue need for the provisions of the Settlement Agreement and the momentous change these provisions would bring, and commenting in detail on how specific provisions would benefit the class.50
I include here some of those comments.
• “I feel that if the Judge does approve the settlement it will be a success not only because it will help those like myself in extreme isolation but it will be great for society . . . it will help rehabilitate those of us who will be returning back to the outside world.”51
• “I do believe for the most part the new agreement is fair. I only wish it could [have] been implemented years ago. . . . So to read now that things God Willing will be changing for the better for us unfortunate
50 Pl. Final Mem. at 9-10 (quotation marks omitted) (citing Dkt. Nos. 149, 150, 153, 156, 163, 164, 175, 184, 186, 187, 189, 192, 195, 205, 214, 217, 225, 241, 244, 256, 267, 269, 272, 291, 295, 296, 303, 305, 313).
51 1/26/16 Letter from Ellier Acevedo at 1 (Dkt. No. 244).
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inmates, truly gladdens my heart. I thank you for all your time and consideration to make the changes needed to better inmates[’] unfortunate confinement time while in the SHUs through[ou]t New York State.”52
• “I feel these new terms will reduce the mental stress sustained while in the course of completing SHU time. . . . Allowing inmates to contact their family/friends via phone will give them something to look forward to, as a short-term goal. The reading material will occupy the person leaving less time to do any other conduct to warrant more SHU time. Allowing people to participate in rehabilitative programs will keep people in a positive and responsible mind set preparing them for general population/community.”53
• “[T]his is the first time I’ve ever written a letter like this but I feel it inside my heart that if one letter could possibly get the attention of some much needed help, I ask you to please help grant this settlement.”54
• “I believe it[’]s very fair for what the people are fighting for[.] I believe inmates will be very gr[ate]ful i[f] this falls through for us[.] I just wanna say thank you for fighting for us[,] it[’]s good to know someone cares about us[] and you[’re] trying to help.”55
• “I would like to praise the individuals for taking the initiative.”56
• “I can honestly say it is my opinion that it is a fair and long awaited change in the SHU confinement procedures, in all honesty I didn’t think it would ever happen. . . . From what I see this settlement
52 1/11/16 Letter from Craig Brown at 1-2 (Dkt. No. 149).
53 1/11/16 Letter from Jerry Knight at 1 (Dkt. No. 156).
54 1/13/16 Letter from Chad Penn at 1 (Dkt. No. 165).
55 1/12/16 Letter from Devan Miller at 1 (Dkt. No. 169).
56 1/11/16 Letter from Louis Gomez at 1 (Dkt. No. 185).
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agreement will improve things greatly for prisoners in SHU, especially for those with long term SHU confinement.”57 • “I am gr[ate]ful and thankful for the settlements proposal and strongly feel it[’s] time for us as the people to finally be treated with fairness and equality.”58 Further, during the March 28, 2016 Fairness Hearing, the Court heard from a mother who stated that her son has been in the SHU for fifteen years.59 She voiced her appreciation for some of the reforms secured by the Settlement Agreement, including those improving her son’s access to telephone calls, reading material, and other programming.60 B. Objections However, the Court also received a number of letters that could be classified as partial or total objections to the Settlement Agreement. As calculated by plaintiffs’ counsel in their March 21, 2016 submission, “even taking the most conservative approach [for counting objections], the[] 57 [objections received to date] account for only 1.54% of the current number of class members in SHU and .
57 1/17/16 Letter from Mark Carballo at 1 (Dkt. No. 202). 58 1/12/16 Letter from Michael Watkins at 1 (Dkt. No. 212). 59 See 3/28/16 Tr. at 26:15-29:16. 60 See id.
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. . 0.11% . . . of the more than 50,000 individuals in [DOCCS] custody.”61, 62 These comments fall into three categories: (1) those requesting
money damages; (2) those requesting additional information about the settlement terms and process; and (3) those expressing their disappointment that the settlement did not cover certain additional subjects. In addition, many comments — whether or not viewed as objections — expressed apprehension about DOCCS’ ability to implement the settlement and urged the importance of ensuring DOCCS’ compliance with the settlement’s terms. I briefly address each of these concerns.
1. Requests for Money Damages As the Class has been conditionally certified under Rule 23(b)(2), the Settlement Agreement provides injunctive relief only and does not provide any money damages to individual class members. The Notice explained that this case did not seek any money damages, and that it would not affect the right of any individual class member to seek damages. Accordingly, class members’ requests
61 Pl. Final Mem at 11. At the March 28, 2016 Fairness Hearing, plaintiffs’ counsel explained that a handful of additional class member letters were filed after their March 21, 2016 submission, but that these letters were of the same nature as those addressed in their brief. See 3/28/16 Tr. at 14:7-9.
62 Plaintiffs’ counsel also explained that although several attorney-client privileged letters were sent directly to their office, none of these letters expressed concerns about the Settlement Agreement other than those raised by the letters sent directly to the Court. See 3/28/16 Tr. at 14:14-17.
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for money damages are not true objections to the Settlement Agreement. I reiterate, however, that the Settlement Agreement does not foreclose any claims for money damages that individuals may have.
2. Requests for Additional Information As explained, the Settlement Agreement Notice was posted in English and Spanish within all general population housing units and delivered to all inmates in SHU, the Correctional Alternative Rehabilitation program, and the Juvenile Program.63 Plaintiffs’ counsel also responded directly to class members who requested further information.64 Accordingly, although a small fraction of inmates have reported difficulty reviewing or understanding the Settlement Agreement, I find that substantial and appropriate measures were taken to ensure that class members had the broadest possible access to the Notice, full Settlement Agreement, and information about the settlement. However, I urge plaintiffs’ counsel to continue to respond to inmates’ requests for additional information throughout the implementation process. 3. Subjects Not Covered by the Settlement Agreement
63 This Opinion has already described the contents of the Notice, supra at Section III(A).
64 See 3/28/16 Tr. at 19:17-21. -23-

Class members also raised a number of subjects that they wish were either included in, or more comprehensively addressed by, the Settlement Agreement. The most common requests were for the following reforms:
• Additional cameras in SHU areas; • Enhanced mental health diagnoses and treatment; • Placement of date and time stamps to record receipt of incoming
inmate mail; • Improved food quality and portions; • Improvements to Administrative Segregation conditions; • Greater access to religious services and accommodations; • Warmer clothing and cells; and • Reforms to protect inmates from physical and sexual abuse, including
reforms of the disciplinary techniques that are used against inmates. Although this list of additional areas for reform does not diminish the importance of the Settlement Agreement that has been reached, it is my hope that class members’ efforts to bring these and other issues to light will not go unnoticed. In fact, the parties have stated that their lines of communication remain open, such that they will attempt to implement additional requested reforms, where
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feasible.65 4. Monitoring Compliance Finally, class members have also voiced concerns about the
enforceability of the Settlement Agreement terms. Like any settlement which calls for the implementation of a number of measures, compliance with the Settlement Agreement will require significant and continuing effort by DOCCS and careful monitoring by plaintiffs’ counsel.
However, the Settlement Agreement sets forth a detailed monitoring and compliance framework, which I have discussed in Section III(B)(3). Although enacting the agreed-upon reforms will take time and commitment, the parties have engaged in substantial negotiations over the years, and I am confident that plaintiffs’ counsel will continue to vigorously represent the interests of the Class.66 V. APPROVING THE SETTLEMENT
A. Legal Standard Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, a
65 See 3/28/16 Tr. at 16:14-22 (Plaintiffs’ Counsel Pendergrass); id. at 23:1-11 (AAG Brewster).
66 Indeed, as explained during the March 28, 2016 Fairness Hearing, DOCCS has previously implemented reforms in the context of at least one other solitary confinement action. See 3/28/16 Tr. at 23:5-11 (AAG Brewster) (discussing Disability Advocates, Inc. v. New York State Office of Mental Health, et al., No. 02 Civ. 4002 (S.D.N.Y.) (GEL)).
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court may approve a class action settlement where it finds the settlement to be
“fair, reasonable, and adequate.” The evaluation of a proposed settlement requires
an assessment of both the procedural and substantive fairness of the settlement.67
A court must consider both “the terms of the settlement and the
negotiation process leading up to it.”68 Regarding the negotiation process, a class
action settlement enjoys a presumption of fairness where it is the product of
arm’s-length negotiations between experienced and capable counsel.69 With
respect to the substantive terms of a settlement, courts in the Second Circuit
consider the following factors (known as the “Grinnell factors”) when determining
whether to approve a class action settlement:
(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action 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; [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant

67 McReynolds v. Richards-Cantave, 588 F.3d 790, 804 (2d Cir. 2009).

68
2008).

In re Telik, Inc. Sec. Litig., 576 F. Supp. 2d 570, 575 (S.D.N.Y.

69 In re Advanced Battery Techs., Inc. Secs. Litig., 298 F.R.D. 171, 175 (S.D.N.Y. 2014) (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (further citation omitted).

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risks of litigation.70 Although the decision to grant or deny approval of a settlement lies within the broad discretion of the trial court, “[t]he law favors settlement, particularly in class actions and other complex cases where substantial resources can be conserved by avoiding the time, cost, and rigor of prolonged litigation.”71 “Due to the presumption in favor of settlement, ‘[a]bsent fraud or collusion, courts should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement.’”72 Finally, “a favorable reaction of the overwhelming majority of class members to the Settlement is perhaps the most significant factor in our . . . inquiry.”73 B. The Settlement is Fair, Reasonable, and Adequate Pursuant to Rule 23(e) and the Grinnell factors, I find that the proposed settlement is fair, reasonable, and adequate. This action was very complex, involving the circumstances and conditions of incarceration for prisoners

70
2005).

Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 117 (2d Cir.

71 Advanced Battery, 298 F.R.D. at 174.

72 Id. (alteration in original) (quoting In re EVCI Career Colls. Holding Corp. Secs. Litig., No. 05 Civ. 10240, 2007 WL 2230177, at *4 (S.D.N.Y. July 27, 2007)).

73 Wal-Mart Stores, Inc., 396 F.3d at 119.

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assigned to solitary confinement throughout the vast number of New York State prisons. Litigating such a case would have been expensive and taken years to reach a final judgment. The attorneys engaged in extensive discovery and arm’slength settlement negotiations. A settlement is vastly superior to a litigated outcome, which would have been a non-consensual process not likely to result in an improved attitude or atmosphere within the prisons. Additionally, the favorable reaction of the Class — particularly the large number of letters in support which were submitted to the Court — indicates that this Settlement Agreement achieves welcome reforms. The remainder of the Grinnell factors do not apply in this case as they address monetary damages.74 VI. CONCLUSION
This Settlement Agreement represents a significant step toward improving the conditions of solitary confinement throughout New York State. Nonetheless, it could not and did not address every problem experienced by prisoners in general or in solitary confinement in particular. Further reforms are likely to follow, especially when the Governor, Attorney General, and Commissioner of DOCCS, representing the people of New York, have all
74 See, e.g., Jermyn v. Best Buy, No. 08 Civ. 214, 2012 WL 2505644, at *7 (S.D.N.Y. June 27, 2012) (“Moreover, the Court need not address the Grinnell factors pertaining to damages, because the settlement only offers injunctive relief.”).
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- Appearances -
For Plaintiffs:
Taylor S. Pendergrass, Esq. Christopher T. Dunn, Esq. Aimee K. Stewart, Esq. Philip L. Desgranges, Esq. New York Civil Liberties Union 125 Broad Street, 17th Floor New York, NY 10004 (212) 607-3344
David J. Fioccola, Esq. Jennifer K. Brown, Esq. Kayvan B. Sadeghi, Esq. Adam J. Hunt, Esq. Morrison & Foerster LLP 250 West 55th Street New York, NY 10019 (212) 468-8000
Alexander A. Reinert, Esq. 55 Fifth Avenue, Room 1005 New York, NY 10003 (212) 406-3095
For Defendants:
Richard W. Brewster Jeb Harben Assistant Attorneys General Office of the Attorney General, New York State 120 Broadway New York, NY 10271 (212) 416-6185
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 Case 1:11-cv-02694-ALC Document 416 Filed 06/05/17 Page 1 of 2

ERIC T. SCHNEIDERMAN ATTORNEY GENERAL

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL

DIVISION OF STATE COUNSEL LITIGATION BUREAU

June 5, 2017

Honorable Andrew L. Carter, Jr. United States District Judge Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007
Re: Peoples v. Annucci (11 Civ. 2694) Annual Joint Report to Court
Dear Judge Carter:
Pursuant to the Settlement Agreement (“Agreement”) which went into effect on April 1, 2016, the parties met in New York City on May 16, 2017, and May 17, 2017, to discuss the first year of implementation. The meeting was positive and productive and the parties mutually agreed that meaningful changes have already begun.
The Department of Corrections and Community Supervision (“DOCCS”) has implemented the first-year changes laid out in the Agreement including, without limitation, the construction of capital improvements, the installation of rolling phone carts in all SHU cells, a tablet pilot program and, perhaps most importantly, the implementation of the Progressive Inmate Movement System (“PIMS”), a behavioral incentive program that provides inmates in special housing units with greater benefits and privileges that reduce isolation and improves SHU conditions. These firstyear changes were implemented without delay, except for a few instances that, when brought to the attention of DOCCS, were resolved to the satisfaction of all parties.
In addition, DOCCS has provided training to all of its employees (including civilian staff) regarding the SHU environment, perceptions of SHU, implicit bias, and de-escalation techniques (which is provided on a recurring basis to security personnel). DOCCS has also revised its guidelines for disciplinary sanctions and has provided guidance to hearing officers that stresses the need to be fair and consistent when imposing sanctions and to consider lesser, non-SHU sanctions, especially for offenses that do not pose immediate or serious safety or security threats.

120 Broadway, New York, New York 10271-0332 ● Tel.: (212) 416-8610 ● Fax: (212) 416-6075 (Not For Service of Papers) www.ag.ny.gov

Case 1:11-cv-02694-ALC Document 416 Filed 06/05/17 Page 2 of 2
2
Though the first year of implementation generally focused on improving the conditions of SHU, current data reflects that there are fewer inmates being assigned to a SHU cell and, on average, they are staying in a SHU cell for shorter periods of time. It is the parties’ mutual desire for this trend to continue and to work together to achieve this goal.
Given the parties’ success in working together, the parties do not believe the Court’s intervention is necessary at this time. Thank you for your time and consideration.

cc: Taylor Pendergrass Christopher Dunn Phil Desgranges NEW YORK CIVIL LIBERTIES UNION
Jennifer Brown Adam Hunt David Fioccola MORRISON & FOERSTER
Alexander Reinert Attorneys for Plaintiff Class

Respectfully submitted,
/s Rebecca Ann Durden REBECCA ANN DURDEN Assistant Attorney General

120 Broadway, New York, New York 10271-0332 ● Tel.: (212) 416-8610 ● Fax: (212) 416-6075 (Not For Service of Papers) www.ag.ny.gov

 
 Case 1:11-cv-02694-ALC Document 471 Filed 06/05/18 Page 1 of 3

BARBARA D. UNDERWOOD ATTORNEY GENERAL

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL

DIVISION OF STATE COUNSEL LITIGATION BUREAU

June 5, 2018
Honorable Andrew L. Carter, Jr. Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007
Re: Peoples v. Annucci, et al. (11 Civ. 2694) Annual Joint Report to Court
Dear Judge Carter:
Pursuant to the Settlement Agreement (“Agreement”) which took effect on April 1, 2016, the parties met in New York City on May 21, 2018, to discuss the second year of implementation. The parties discussed the comprehensive changes implemented by the Department of Corrections and Community Supervision (“DOCCS”) in Year 2, the objective impact of those changes on the SHU environment, as well as the tentative findings of NYCLU’s expert resulting from his recent tour of several facilities. The meeting and discussions were both positive and productive and are indicative of the parties’ joint efforts and ongoing commitment to advancing the Agreement’s objectives.
Some of the notable changes in Year 2 include the creation and commencement of several SHU-alternative programs which remove incarcerated individuals from SHU cells to less restrictive environments and provide them with programming, recreational and other activities intended to improve behavior, reduce future disciplinary infractions and prepare them for the transition back to the general population. In order to accommodate these programs, and reduce the number of individuals assigned to SHU cells, DOCCS has consolidated or converted more than 1,100 SHU cells for alternate use and expects to convert additional cells in the upcoming year.
Other notable changes include DOCCS’ adoption of new disciplinary policies which modified the sentencing guidelines and disaggregated certain charges to reduce the amount of time given for a confinement penalty for incidents occurring on or after April 1, 2017. The Department also provided guidance and instruction to review officers to charge incidents at the lowest
28 LIBERTY ST., NEW YORK, NY 10005 • PHONE (212) 416-8610 • FAX (212) 416-6075 *NOT FOR SERVICE OF PAPERS HTTP://WWW.AG.NY.GOV

Case 1:11-cv-02694-ALC Document 471 Filed 06/05/18 Page 2 of 3 Page 2
appropriate tier level and, although not required by the Agreement, DOCCS implemented an expedited appeal review for those individuals whose confinement sanctions are 60 days or less.
As a result of these, and other changes, DOCCS has reduced the number of incarcerated individuals serving a SHU sanction in a SHU cell by nearly 30% since April 2016. DOCCS has also achieved, in part, a:
(1) 31% reduction in the number of incarcerated individuals serving a Keeplock sanction in a SHU cell;
(2) 47% reduction in the number of incarcerated individuals age 21 and younger housed in a SHU cell;
(3) 31% reduction in the average length of stay in a SHU cell; and
(4) 72% reduction in the number of incarcerated individuals serving over 365 days in a SHU cell.1
The parties expect the positive trend to continue in Year 3 with the implementation of additional programs including the institution of the Lakeview Substance-Abuse Program.
As Your Honor may recall, the Settlement Agreement called for a pilot program to provide electronic tablets to people who are in SHU, giving them access to educational, recreational and entertainment materials including books and games. After seeing the positive impact of these tablets on the SHU environment, DOCCS now plans to provide tablets to all incarcerated individuals in SHU cells who are at or above Level 2 in the Progressive Inmate Management System (PIMS).2 When fully implemented, these tablets will also offer people held in SHU the ability to make phone calls, resulting in greater access to the support that the parties agree is of particular importance to incarcerated individuals held in solitary confinement.
Based upon the foregoing, the parties agree that the Settlement Agreement continues to result in meaningful improvements in the experience of people held in SHU, and that the Agreement has to date resulted in a reduction in the use and duration of time spent in SHU. It is
1 The specific reductions reported in points 3 and 4 are DOCCS’ calculations. The parties differ as to how to analyze data regarding length of stay in a SHU cell. The Plaintiffs’ analysis suggests a lesser reduction than DOCCS’ – specifically, Plaintiffs conclude that there has been a 20% reduction in the average length of stay in a SHU cell and a 52% reduction in the number of incarcerated individuals serving over a year in a SHU cell. Both parties agree, however, that there has been a meaningful reduction in the average lengths of stay since the final settlement agreement was implemented.
2 PIMS is a behavioral incentive program that provides incarcerated individuals in special housing units with greater benefits and privileges that reduce isolation and improves SHU conditions.
120 BROADWAY, NEW YORK N.Y. 10271-0332 • PHONE (212) 416-8610 • FAX (212) 416-6075 *NOT FOR SERVICE OF PAPERS HTTP://WWW.AG.NY.GOV

Case 1:11-cv-02694-ALC Document 471 Filed 06/05/18 Page 3 of 3 Page 3 the parties’ mutual desire for this trend to continue and to work together to sustain and build on these results. Given the parties’ success in working together, the parties do not believe the Court’s intervention is necessary at this time. Thank you for your time and consideration.
Respectfully submitted,
/s Rebecca Ann Durden
REBECCA ANN DURDEN Assistant Attorney General
cc: Phil Desgranges, Esq. Christopher Dunn, Esq. NEW YORK CIVIL LIBERTIES UNION Jennifer Brown, Esq. Adam Hunt, Esq. David Fioccola, Esq. MORRISON & FOERSTER Alexander Reinert, Esq. Attorneys for Plaintiff Class
120 BROADWAY, NEW YORK N.Y. 10271-0332 • PHONE (212) 416-8610 • FAX (212) 416-6075 *NOT FOR SERVICE OF PAPERS HTTP://WWW.AG.NY.GOV

 
 U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11-cv-02694-ALC

Peoples v. Annucci et al Assigned to: Judge Andrew L. Carter, Jr Referred to: Magistrate Judge Kevin Nathaniel Fox (Settlement) Related Cases: 1:16-cv-06915-ALC
1:18-cv-10985-ALC-KNF Cause: 42:1983 Civil Rights Act

Date Filed: 04/18/2011 Date Terminated: 12/15/2014 Jury Demand: Plaintiff Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question

Plaintiff
Leroy Peoples DIN# 05-A-2620 Attica Correctional Facility P.O. Box 149 Attica, NY 14011

represented by Taylor Scott Pendergrass New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212)-607-3344 Fax: (212)-607-3300 Email: tpendergrass@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam James Hunt Morrison & Foerster LLP (NYC) 250 West 55th Street New York, NY 10019 (212) 468-8000 Fax: (212) 468-7900 Email: adamhunt@mofo.com ATTORNEY TO BE NOTICED

Aimee Krause Stewart Sanford Heisler Sharp, LLP 700 Pennsylvania Ave SE Suite 300 Washington, DC 20003 202-499-5208 Email: akrause@nyclu.org TERMINATED: 10/14/2016

Alexander A Reinert

Koob & Magoolaghan 225 Devoe Avenue Yonkers, NY 10705 212-406-3095 Fax: 212-349-4658 Email: areinert@yu.edu ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10024 212-607-3320 Email: agemmell@nyclu.org ATTORNEY TO BE NOTICED
Christopher Thomas Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344-3005 Fax: (212) 344-3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED
Daniel Matza-Brown Morrison & Foerster LLP (NYC) 250 West 55th Street New York, NY 10019 (212) 336-4297 Fax: (212) 468-7900 Email: dmatzabrown@mofo.com TERMINATED: 03/04/2016
Daniel Erik Mullkoff New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212)-607-3385 Fax: (212)-607-3318 Email: dmullkoff@nyclu.org TERMINATED: 02/04/2014
David John Fioccola Morrison & Foerster LLP (NYC) 250 West 55th Street

Plaintiff

New York, NY 10019 212-468-8000 Fax: 212-468-7900 Email: dfioccola@mofo.com ATTORNEY TO BE NOTICED
Jennifer Kay Brown Morrison & Foerster LLP (NYC) 250 West 55th Street New York, NY 10019 212-468-8000 Fax: 212-468-7900 Email: jbrown@mofo.com ATTORNEY TO BE NOTICED
Kayvan Betteridge Sadeghi Schiff Hardin LLP 1185 Avenue of the Americas Suite 3000 New York, NY 10036 212-753-5000 Fax: 212-468-7900 Email: ksadeghi@schiffhardin.com TERMINATED: 02/05/2019
Leda A Moloff Morrison & Foerster LLP (NYC) 250 West 55th Street New York, NY 10019 (212) 336-8000 Fax: (212) 468-7900 Email: lmoloff@mofo.com TERMINATED: 01/13/2016
Philip Louis Desgranges Goodwin Procter, LLP(NYC) The New York Times Building, 620 Eighth Avenue New York, NY 10018-1405 (212)-459-7077 Fax: (212)-355-3333 Email: PDesgranges@legal-aid.org ATTORNEY TO BE NOTICED

Dewayne Richardson

represented by Taylor Scott Pendergrass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam James Hunt (See above for address) ATTORNEY TO BE NOTICED
Aimee Krause Stewart (See above for address) TERMINATED: 10/14/2016
Alexander A Reinert (See above for address) ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell (See above for address) ATTORNEY TO BE NOTICED
Daniel Matza-Brown (See above for address) TERMINATED: 03/04/2016
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/04/2014
David John Fioccola (See above for address) ATTORNEY TO BE NOTICED
Jennifer Kay Brown (See above for address) ATTORNEY TO BE NOTICED
Kayvan Betteridge Sadeghi (See above for address) TERMINATED: 02/05/2019
Leda A Moloff (See above for address) TERMINATED: 01/13/2016
Philip Louis Desgranges

Plaintiff Tonja Fenton

(See above for address) ATTORNEY TO BE NOTICED
represented by Taylor Scott Pendergrass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam James Hunt (See above for address) ATTORNEY TO BE NOTICED
Aimee Krause Stewart (See above for address) TERMINATED: 10/14/2016
Alexander A Reinert (See above for address) ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell (See above for address) ATTORNEY TO BE NOTICED
Christopher Thomas Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Matza-Brown (See above for address) TERMINATED: 03/04/2016
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/04/2014
David John Fioccola (See above for address) ATTORNEY TO BE NOTICED
Jennifer Kay Brown (See above for address) ATTORNEY TO BE NOTICED
Kayvan Betteridge Sadeghi

(See above for address) TERMINATED: 02/05/2019
Leda A Moloff (See above for address) TERMINATED: 01/13/2016
Philip Louis Desgranges (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Brian Fischer Commissioner of the New York State Department of Corrections and Community Services TERMINATED: 02/19/2016
Defendant Lucien J. LeClaire, Jr. (Dep. DOC COMM.)Individuallya and Official Capacity TERMINATED: 03/06/2013
Defendant Office of Counsel (DOCS Counsel) TERMINATED: 03/06/2013
Defendant William Lee former Superintendent of Green Haven Correctional Facility

represented by Jeb Harben Office of the Attorney General, New York State 120 Broadway New York, NY 10271 (212) 416-6185 Fax: (212) 416-6075 Email: Jeb.Harben@ag.ny.gov LEAD ATTORNEY
represented by Jeb Harben (See above for address) LEAD ATTORNEY
represented by Jeb Harben (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Ann Durden New York State Department of Law Litigation

Defendant Peter A. Crusco (Exec. A.D.A.) TERMINATED: 12/01/2011
Defendant Eric C. Rosenbaum (A.D.A.) TERMINATED: 12/01/2011
Defendant Richard A. Brown (Dist. Att.) TERMINATED: 12/01/2011
Defendant LJard (Lieutenant) TERMINATED: 03/06/2013 Defendant K O' Connor (Sergeant) TERMINATED: 03/06/2013
Defendant

120 Broadway, 24th Floor New York, NY 10271 (212) 416-8610 Fax: (212) 416-6075 Email: Rebecca.Durden@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ryan Glenn Shaffer New York City Law Department 100 Church Street New York, NY 10007 (212)-788-1041 Fax: (212)-788-9776 Email: rshaffer@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ryan Glenn Shaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ryan Glenn Shaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeb Harben (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Malare (Correction Officer) TERMINATED: 03/06/2013 Defendant Curtis Drown Commissioner's Hearing Officer at Green Haven Correctional Facility, by his Estate Defendant Norman Bezio former Director of Special Housing and Inmate Discipline
Defendant David Rock Superintendent of Upstate Correctional Facility
Defendant Karen Bellamy (Dir. of I.G.P.C.O.R.C.) TERMINATED: 03/06/2013
Defendant Lt. Ward TERMINATED: 03/06/2013
Defendant

represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeb Harben (See above for address) LEAD ATTORNEY
Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeb Harben (See above for address) LEAD ATTORNEY
Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeb Harben (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeb Harben (See above for address) LEAD ATTORNEY

Albert Prack Director of Special Housing and Inmate Discipline
Defendant William Powers Superintendent of Albion Correctional Facility
Defendant Sabina Kaplan Superintendent of Bedford Hills Correctional Facility
Defendant L. Collins corrections officer at Albion Correctional Facility
Defendant Diane Catalfu Deputy Superintendent at Albion Correctional Facility

represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Ada Perez Superintendent of Downstate Correctional
Defendant Patrick Griffin Superintendent of Southport Correctional Facility
Defendant James Cavaleri Captain at Downstate Correctional Facility
Defendant Anthony Annucci Acting Commissioner of : the New York State Department of Corrections and Community Supervision Defendant

Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeb Harben (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Ann Durden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Isaac Solomon

represented by Isaac Solomon 91-A-6699 Clinton Correctional Facility P.O. Box 2000 Dannemora, NY 12929 PRO SE

Date Filed 04/18/2011 04/18/2011
04/18/2011 04/29/2011 04/29/2011 05/03/2011 05/03/2011 05/04/2011 05/04/2011

# Docket Text
1 DECLARATION IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS. Document filed by Leroy Peoples.(rdz) (Entered: 04/26/2011)
2 COMPLAINT against Karen Bellamy, Norman Bezio, Richard A. Brown, Peter A. Crusco, Drown, Brian Fischer, LJard, Lucien J. LeClaire, Jr, William Lee, Malare, K O' Connor, Office of Counsel, D. Rock, Eric C. Rosenbaum. Document filed by Leroy Peoples.(rdz) (Entered: 04/26/2011)
Case Designated ECF. (rdz) (Entered: 04/26/2011)
Request for Copies/Transcripts/Docket Sheet Received: Request for Status of petition from Leroy Peoples received on 4/25/11. (kj) (Entered: 04/29/2011)
Docket Sheet Mailed: Request from Leroy Peoples mailed on 4/29/11. (kj) (Entered: 04/29/2011)
Request for Copies/Transcripts/Docket Sheet Received: Request for Requesting Acknowledgment of receipt of 42U.S.C. 1983,1985 from LeRoy Peoples received on 4/29/11. (kj) (Entered: 05/03/2011)
Request for Requesting Acknowledgment of receipt of 42 U.S.C. 1983,1985 from LeRoy Peoples: Docket Sheet mailed on 5/3/11. (kj) (Entered: 05/03/2011)
Pro Se Acknowledgment Letter Mailed: Pro Se acknowledgment letter mailed to the plaintiff via USPS to the address noted on the Complaint on 5/4/2011. (kj) (Entered: 05/04/2011)
Request for Copies/Transcripts/Docket Sheet Received: Request for Letter dated April 28, 2011, Requesting the Court to Acknowledge receipt of my 42 U.S.C. 1983 from LeRoy Peoples received on 5/2/2011. (kj) (Entered: 05/04/2011)

05/04/2011 05/06/2011 05/06/2011 05/10/2011 05/10/2011 05/11/2011 05/11/2011
05/12/2011
05/18/2011 05/18/2011

Request for Copies/Transcripts/Docket Sheet Mailed: Request for Docket Sheet from LeRoy Peoples mailed on 5/4/2011. (kj) (Entered: 05/04/2011)
Case Designated Local Rule 33.2. (jjg) (Entered: 05/06/2011)
3 ORDER GRANTING IFP APPLICATION: Leave to proceed in this Court without of fees is authorized. 28 U.S.C. 1915. (Signed by Judge Loretta A. Preska on 5/6/2011) (mbe) (Entered: 05/06/2011)
4 NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. Judge Unassigned is no longer assigned to the case. (sjo) (Entered: 05/11/2011)
Magistrate Judge Debra C. Freeman is so designated. (sjo) (Entered: 05/11/2011)
Mailed notice re: 4 Notice of Case Assignment/Reassignment to the attorney(s) of record. (sjo) (Entered: 05/11/2011)
6 ORDER: The plaintiff is directed to have the Summons and Complaint promptly served on the defendants by filling out and forwarding to the United States Marshals Service the forms to be provided to plaintiff by the Pro Se Office. If service is not made upon the defendants by September 23, 2011, and plaintiff fails to show good cause why such service has not been effected, the Court will dismiss this action. The Pro Se Office at the United States Courthouse, 500 Pearl Street, New York, New York 10007, telephone number (212) 805-0175, may be of assistance in connection with court procedures but cannot give legal advice. (Signed by Judge Shira A. Scheindlin on 5/11/2011) (jpo) (Entered: 05/11/2011)
Request for Pro Se Manual: Request for manual received from Leroy Peoples on 5/9/11. The Pro Se Office will distribute one free copy of the Pro Se Manual to each pro se litigant who has been granted in forma pauperis status pursuant to 28 U.S.C. Section 1915 to bring a civil action after July 1, 2007. (kj) (Entered: 05/12/2011)
SUMMONS ISSUED as to Karen Bellamy, Norman Bezio, Richard A. Brown, Peter A. Crusco, Drown, Brian Fischer, LJard, Lucien J. LeClaire, Jr, William Lee, Malare, K O' Connor, Office of Counsel, D. Rock, Eric C. Rosenbaum. (jcs) (Entered: 05/18/2011)
Authorization Deduction Letter Mailed to Upstate Correctional Facility on 05/18/2011. (jcs) (Entered: 05/18/2011)

05/18/2011
05/23/2011 06/06/2011 07/12/2011
07/12/2011 08/08/2011 08/09/2011

FRCP 4 (Service Package Mailed) to plaintiff at the address noted on the complaint/court's docket on 05/18/2011 via Federal Express AIRBILL # 874803529269. The service package included: an original summons, copies of the summons, a certified In Forma Pauperis Application (IFP), copies of the IFP, complaint, United States Marshal (U.S.M.-285) forms, a pro se handbook, change of address postcards, Judge's individual rules, instructions on how to file a motion and opposition, instructions on filing an amended complaint, application for counsel, a consent to proceed before a Magistrate Judge, and affirmation of service forms. (jcs) (Entered: 05/18/2011)
Docket Sheet, and Federal Express receipt confirmation of delivery of Rule 4 service package mailed to Leroy Peoples on 5/23/11. (kj) (Entered: 05/23/2011)
Prisoner Trust Fund Account Statement by Leroy Peoples received on 6/6/2011.(mt) (Entered: 06/20/2011)
9 ORDER. Defendants have indicated to the Court their intent to file a Motion to Dismiss. Defendants are ordered to file their motion by August 15, 2011. If plaintiff wishes to oppose defendants' motion, he must submit opposition papers. As plaintiff is proceeding pro se, it is hereby ORDERED that plaintiff file opposition papers, if any, to defendants' motion by September 15, 2011. All papers must be sent to the Court's Pro Se Office at 500 Pearl Street, Room 230, New York, New York 10007, and must be served upon defendants' counsel. If plaintiff submits opposition papers, defendants' reply will be due by September 29, 2011. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, this Court will decide the motion on the papers submitted by defendants.(Responses due by 9/15/2011, Replies due by 9/29/2011.) (Signed by Judge Shira A. Scheindlin on 7/12/11) (djc) (Entered: 07/13/2011)
Set Deadlines/Hearings: Motions due by 8/15/2011. (djc) (Entered: 07/13/2011)
11 Request for Copies/Transcripts/Docket Sheet Received: Request for Docket Sheet from LeRoy Peoples received on August 3, 2011. Request for Copies/Transcripts/Docket Sheet Mailed: Request for Docket Sheet from LeRoy Peoples mailed on August 8, 2011. (vn) (Entered: 08/08/2011)
12 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Ward served on 7/26/2011, answer due 8/16/2011. Service was accepted by Wiliam Gonzalez. Document filed by Leroy Peoples. (cd) (Entered: 08/10/2011)

08/09/2011 08/09/2011 08/09/2011 08/09/2011 08/09/2011 08/09/2011 08/09/2011 08/09/2011

13 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Lucien J. LeClaire, Jr served on 7/13/2011, answer due 8/3/2011. Service was accepted by Wiliam Gonzalez. Document filed by Leroy Peoples. (cd) (Entered: 08/10/2011)
14 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Norman Bezio served on 6/28/2011, answer due 7/19/2011. Service was accepted by personal service. Document filed by Leroy Peoples. (cd) (Entered: 08/10/2011)
15 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. D. Rock served on 6/22/2011, answer due 7/13/2011. Service was accepted by personal service. Document filed by Leroy Peoples. (cd) (Entered: 08/11/2011)
16 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Drown served on 6/23/2011, answer due 7/14/2011. Service was accepted by Wiliam Gonzalez. Document filed by Leroy Peoples. (cd) (Entered: 08/11/2011)
17 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Brian Fischer served on 6/20/2011, answer due 7/11/2011. Service was accepted by Wiliam Gonzalez. Document filed by Leroy Peoples. (cd) (Entered: 08/11/2011)
18 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Eric C. Rosenbaum served on 6/20/2011, answer due 7/11/2011. Service was accepted by personal service. Document filed by Leroy Peoples. (cd) (Entered: 08/11/2011)
19 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Richard A. Brown served on 6/20/2011, answer due 7/11/2011. Service was accepted by Lois Raff. Document filed by Leroy Peoples. (cd) (Entered: 08/11/2011)
20 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Peter A. Crusco served on 6/20/2011, answer due 7/11/2011. Service was accepted by personal service. Document filed by Leroy Peoples. (cd) (Entered: 08/11/2011)

08/15/2011 08/15/2011 08/15/2011 08/15/2011 08/18/2011 08/25/2011 09/22/2011 09/23/2011 09/26/2011

21 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Document filed by Richard A. Brown, Peter A. Crusco, Eric C. Rosenbaum. Responses due by 9/15/2011(Shaffer, Ryan) (Entered: 08/15/2011)
22 MEMORANDUM OF LAW in Support re: 21 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).. Document filed by Richard A. Brown, Peter A. Crusco, Eric C. Rosenbaum. (Attachments: # 1 Appendix Lexis Nexis Cases, # 2 Appendix Lexis Nexis Cases)(Shaffer, Ryan) (Entered: 08/15/2011)
23 DECLARATION of Ryan G. Shaffer in Support re: 21 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).. Document filed by Richard A. Brown, Peter A. Crusco, Eric C. Rosenbaum. (Attachments: # 1 Exhibit Complaint Pt 1, # 2 Exhibit Complaint Pt 1)(Shaffer, Ryan) (Entered: 08/15/2011)
24 NOTICE of pursuant to Local Civil Rule 12.1 re: 21 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).. Document filed by Richard A. Brown, Peter A. Crusco, Eric C. Rosenbaum. (Shaffer, Ryan) (Entered: 08/15/2011)
25 Request for Copies/Transcripts/Docket Sheet Received: Request for Docket Sheet from Leroy People received on August 10, 2011. Request for Copies/Transcripts/Docket Sheet Mailed: Request for Docket Sheet from Leroy People mailed on August 18, 2011. (Attachments: # 1 Docket Sheet) (vn) (Entered: 08/18/2011)
26 ORDER: The time for defendants Brian Fischer, Lucien LeClaire, Curtis Drown, Norman Bezio, David Rock, and Richard Ward to answer, move or otherwise respond to the Complaint is hereby extended until October 7, 2011. (Signed by Judge Shira A. Scheindlin on 8/25/2011) (laq) (Entered: 08/25/2011)
Request for Copies/Transcripts/Docket Sheet Mailed: Request for Docket Sheet from Mr. Peoples mailed on 09/22/2011. (ad) (Entered: 09/22/2011)
27 NOTICE OF APPEARANCE by Jeb Harben on behalf of Norman Bezio, Brian Fischer, Lucien J. LeClaire, Jr, D. Rock, Ward (Harben, Jeb) (Entered: 09/23/2011)
28 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jeb Harben dated 9/22/2011 re: Counsel of defendants request that all DOCS defendants that have been served by October 23 be allowed to respond to the Complaint on or before December 2,2011. ENDORSEMENT: Request granted in part and denied in part. DOC defendants served by October 23 have until November 23 to respond to

09/27/2011
09/28/2011 09/28/2011 11/21/2011

the complaint. No further extensions will be granted. So Ordered. Norman Bezio answer due 11/23/2011; Richard A. Brown answer due 11/23/2011; Peter A. Crusco answer due 11/23/2011; Drown answer due 11/23/2011; Brian Fischer answer due 11/23/2011; LJard answer due 11/23/2011; Lucien J. LeClaire, Jr answer due 11/23/2011; Office of Counsel answer due 11/23/2011; D. Rock answer due 11/23/2011; Eric C. Rosenbaum answer due 11/23/2011; Ward answer due 11/23/2011. (Signed by Judge Shira A. Scheindlin on 9/26/2011) (jfe) (Entered: 09/26/2011)
29 ORDER: The Clerk of the Court is directed to scan and docket the attached Affirmation in Opposition to Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and provide a hyperlink on the docket. The U.S. Marshals are directed to effect service of process on defendants Karen Bellamy, Malare, K O'Connor, William Lee, and Office of DOCS Counsel as expeditiously as possible. (copy forwarded to the Pro Se Office) (Signed by Judge Shira A. Scheindlin on 9/27/2011) (cd) (Entered: 09/27/2011)
30 REPLY MEMORANDUM OF LAW in Support re: 21 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).. Document filed by Richard A. Brown, Peter A. Crusco, Eric C. Rosenbaum. (Attachments: # 1 Appendix Lexis Nexis Cases)(Shaffer, Ryan) (Entered: 09/28/2011)
31 AFFIDAVIT OF SERVICE of Reply Memorandum of Law in Support of Motion to Dismiss served on Leroy Peoples on September 28, 2011. Service was made by MAIL. Document filed by Richard A. Brown, Peter A. Crusco, Eric C. Rosenbaum. (Shaffer, Ryan) (Entered: 09/28/2011)
32 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jeb Harben dated 11/21/2011 re: Your Honor previously granted an extension of time to November 23, 2011 for the defendants served by October 23 to respond to the Complaint. Given that I have just completed a week-long trial before Judge Preska that I had hoped would be shorter and less pre-trial intensive, I must respectfully request more time to respond. ENDORSEMENT: Request granted. DOC defendants' time to respond to the Complaint is extended to November 30, 2011. No further extensions will be granted. Norman Bezio answer due 11/30/2011; Richard A. Brown answer due 11/30/2011; Peter A. Crusco answer due 11/30/2011; Drown answer due 11/30/2011; Brian Fischer answer due 11/30/2011; LJard answer due 11/30/2011; Lucien J. LeClaire, Jr answer due 11/30/2011; Office of Counsel answer due 11/30/2011; D. Rock answer due 11/30/2011; Eric C. Rosenbaum answer due 11/30/2011; Ward answer due 11/30/2011. (Signed by Judge Shira A. Scheindlin on 11/21/2011) (lmb) (Entered: 11/22/2011)

11/29/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 12/01/2011
12/12/2011 01/11/2012 01/18/2012

Request for Copies/Transcripts/Docket Sheet Received: Request for Docket Sheet from Lerory Peoples received on November 18, 2011. Request for Copies/Transcripts/Docket Sheet Mailed: Request for Docket Sheet from Lerory Peoples mailed on November 29, 2011. (vn) (Entered: 11/29/2011)
33 MOTION to Dismiss. Document filed by Karen Bellamy, Norman Bezio, Brian Fischer, Lucien J. LeClaire, Jr, William Lee, K O' Connor, D. Rock, Ward. Responses due by 1/2/2012 Return Date set for 1/16/2012 at 09:00 AM.(Harben, Jeb) (Entered: 11/30/2011)
34 NOTICE of Local Rule 56.2 Notice re: 33 MOTION to Dismiss.. Document filed by Karen Bellamy, Norman Bezio, Brian Fischer, Lucien J. LeClaire, Jr, William Lee, K O' Connor, D. Rock, Ward. (Harben, Jeb) (Entered: 11/30/2011)
35 MEMORANDUM OF LAW in Support re: 33 MOTION to Dismiss.. Document filed by Karen Bellamy, Norman Bezio, Brian Fischer, Lucien J. LeClaire, Jr, William Lee, K O' Connor, D. Rock, Ward. (Harben, Jeb) (Entered: 11/30/2011)
36 DECLARATION of Jeb Harben in Support re: 33 MOTION to Dismiss.. Document filed by Karen Bellamy, Norman Bezio, Brian Fischer, Lucien J. LeClaire, Jr, William Lee, K O' Connor, D. Rock, Ward. (Attachments: # 1 Exhibit A, # 2 Exhibit B - I, # 3 Exhibit J)(Harben, Jeb) (Entered: 11/30/2011)
37 OPINION AND ORDER re:#101093 21 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed by Peter A. Crusco, Richard A. Brown, Eric C. Rosenbaum. For the foregoing reasons, the Prosecutor Defendants' motion is granted as to all claims and they are hereby dismissed from this lawsuit. The Clerk of the Court is directed to close this motion (Docket No. 21). (Signed by Judge Shira A. Scheindlin on 12/1/2011) (lmb) Modified on 12/7/2011 (jab). (Entered: 12/01/2011)
38 PRO SE MEMORANDUM dated 12/12/2011 re: CHANGE OF ADDRESS for Leroy Peoples. New Address: DIN# 05-A-2620, Attica Correctional Facility, P.O. Box 149, Attica, NY, 14011. (msa) (Entered: 12/16/2011)
39 RESPONSE in Opposition to 33 MOTION to Dismiss. Document filed by Leroy Peoples. (ft) (Entered: 01/11/2012)
41 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jeb Harben dated 1/17/2012 re: Counsel respectfully request until 1/27/12 to respond plaintiff's opposition. ENDORSEMENT: The

01/18/2012 01/27/2012 02/06/2012 02/06/2012 02/06/2012 02/16/2012 02/16/2012 05/03/2012

defendants' reply brief must be filed by January 27, 2012. (Signed by Judge Shira A. Scheindlin on 1/17/2012) (jfe) (Entered: 01/18/2012)
Set/Reset Deadlines as to 33 MOTION to Dismiss.. Replies due by 1/27/2012. (jfe) (Entered: 01/18/2012)
42 REPLY MEMORANDUM OF LAW in Support re: 33 MOTION to Dismiss.. Document filed by Karen Bellamy, Norman Bezio, Brian Fischer, LJard, Lucien J. LeClaire, Jr, William Lee, K O' Connor, Leroy Peoples. (Harben, Jeb) (Entered: 01/28/2012)
43 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE UNEXECUTED as to Malare. Attempted Service of Summons and Complaint,. Service was attempted on 9/18/11. Document filed by Leroy Peoples. (pl) (Entered: 02/08/2012)
44 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. William Lee served on 9/15/2011, answer due 10/6/2011. Service was accepted by Michelle Coiodice- IRC II. Document filed by Leroy Peoples. (ab) (Entered: 02/08/2012)
45 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. K O' Connor served on 9/15/2011, answer due 10/6/2011. Service was accepted by Michelle Coiodice- IRC II. Document filed by Leroy Peoples. (ab) (Entered: 02/08/2012)
46 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Karen Bellamy served on 9/9/2011, answer due 9/30/2011. Service was accepted by Jeffrey A. Hale Asst. Director. Document filed by Leroy Peoples. (tro) (Entered: 03/02/2012)
47 MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE EXECUTED Summons and Complaint, served. Office of Counsel served on 9/9/2011, answer due 11/30/2011. Service was accepted by A. Edel Groski (title Asst counsel). Document filed by Leroy Peoples. (tro) (Entered: 03/02/2012)
49 OPINION AND ORDER #101761 re: 33 MOTION to Dismiss. filed by D. Rock, Lucien J. LeClaire, Jr., William Lee, Norman Bezio, Karen Bellamy, Brian Fischer, K O' Connor, Ward. For the foregoing reasons, defendants' motion to dismiss is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 33]. A status conference has been scheduled for June 12, 2012, at 4:30 p.m. in

05/03/2012 05/14/2012 05/17/2012 05/17/2012 06/01/2012 06/13/2012 06/26/2012
06/26/2012 06/27/2012

Courtroom 15C. (Signed by Judge Shira A. Scheindlin on 5/2/2012) (jfe) Modified on 5/7/2012 (ft). (Entered: 05/03/2012)
Set/Reset Hearings: Status Conference set for 6/12/2012 at 04:30 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin. (jfe) (Entered: 05/03/2012)
Request for Copies/Transcripts/Docket Sheet Received: Request for Docket Sheet from Leroy Peoples received on May 4, 2012. Request for Copies/Transcripts/Docket Sheet Mailed: Request for Docket Sheet from Leroy Peoples mailed on May 14, 2012. (vn) (Entered: 05/14/2012)
50 MOTION for Reconsideration re; 49 Memorandum & Opinion,, (Notice of). Document filed by Norman Bezio, D. Rock, Ward.(Harben, Jeb) (Entered: 05/17/2012)
51 MEMORANDUM OF LAW in Support re: 50 MOTION for Reconsideration re; 49 Memorandum & Opinion,, (Notice of).. Document filed by Norman Bezio, D. Rock, Ward. (Attachments: # 1 Exhibit 1)(Harben, Jeb) (Entered: 05/17/2012)
52 DECLARATION of Lereoy Peoples in Opposition re: 50 MOTION for Reconsideration re; 49 Memorandum & Opinion,, (Notice of). Document filed by Leroy Peoples. (cd) (Entered: 06/06/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 6/13/2012. (Landers, Rigoberto) (Entered: 07/13/2012)
53 OPINION AND ORDER # 101992: For the foregoing reasons, defendants' motion for reconsideration is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 50]. Additionally, Peoples attached an Amended Complaint to his opposition papers, which this Court now accepts for filing. A status conference has been scheduled for July 23, 2012, at 4:30 p.m., in Courtroom l5C. (Signed by Judge Shira A. Scheindlin on 6/26/2012) (djc) (Main Document 53 replaced on 6/26/2012) (laq). Modified on 6/27/2012 (ft). (Entered: 06/26/2012)
Set/Reset Hearings: Status Conference set for 7/23/2012 at 04:30 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin. (djc) (Entered: 06/26/2012)
54 ORDER: The July 23, 2012 status conference has been adjourned and rescheduled to July 31, 2012 at 4:30 p.m. in Courtroom 15C of the United States Courthouse, 500 Pearl Street, New York, New York. The

07/10/2012 07/10/2012 07/10/2012 07/10/2012 07/13/2012
07/20/2012 08/14/2012 08/15/2012

conference will cover the current status of the case. With the exception of pro se prisoners, you, or an attorney if an attorney is representing you, are directed to appear at that date and time. If any party, except a pro se prisoner, fails to appear at the conference or send an attorney, his or her action may be dismissed., ( Status Conference set for 7/31/2012 at 04:30 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 6/27/2012) (lmb) (Entered: 06/27/2012)
55 MOTION to Dismiss Amended Complaint. Document filed by Norman Bezio, D. Rock, Ward.(Harben, Jeb) (Entered: 07/10/2012)
56 NOTICE of Notice to Pro Se Litigant Local Rule 56.1 re: 55 MOTION to Dismiss Amended Complaint.. Document filed by Norman Bezio, D. Rock, Ward. (Harben, Jeb) (Entered: 07/10/2012)
57 MEMORANDUM OF LAW in Support re: 55 MOTION to Dismiss Amended Complaint.. Document filed by Norman Bezio, D. Rock, Ward. (Harben, Jeb) (Entered: 07/10/2012)
58 DECLARATION of Jeb Harben in Support re: 55 MOTION to Dismiss Amended Complaint.. Document filed by Norman Bezio, D. Rock, Ward. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Harben, Jeb) (Entered: 07/10/2012)
59 ORDER: On July 10, defendants filed a renewed motion to dismiss and a motion to transfer venue. The pro se office has informed me that counsel are interested in representing Leroy Peoples in this action and are currently in the process of communicating with him Peoples and/or any counsel whom he retains may have until August 20. Defendants' reply is due August 30. The status conference currently schedule for July 31 is adjourned until September 11 at 4:30 p.m. No stay of discovery is in place and I expect the parties to move forward with discovery over the coming months.Replies due by 8/30/2012. Status Conference set for 9/11/2012 at 04:30 PM before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 7/13/2012) (ft) (Entered: 07/13/2012)
60 REQUEST for Entry of Default. Document filed by Leroy Peoples.(lmb) (Entered: 08/07/2012)
61 SUGGESTION OF DEATH upon the record as to Curtis Drown on 3/29/11. Document filed by Norman Bezio, D. Rock(Harben, Jeb) (Entered: 08/14/2012)
62 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Taylor Pendergrass dated 8/15/2012 re: Counsel respectfully request

08/22/2012 08/23/2012 08/23/2012
09/10/2012 09/10/2012
09/20/2012

that the current response date be adjourned to permit time for counsel to confirm whether they will be representing Mr. Peoples and, if so, to then prepare papers in response to the Defendants' pending motion. Counsel would request the response date be adjourned to September 10, with Defendants' reply on September 20. ENDORSEMENT: Request granted. Peoples' opposition is due September 10 and defendant's reply is due September 20. Set Deadlines/Hearing as to 55 MOTION to Dismiss Amended Complaint. :( Responses due by 9/10/2012, Replies due by 9/20/2012.) (Signed by Judge Shira A. Scheindlin on 8/15/2012) (jfe) (Entered: 08/15/2012)
64 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Taylor Scott Pendergrass on behalf of Leroy Peoples (Pendergrass, Taylor) (Entered: 08/22/2012)
65 NOTICE OF APPEARANCE by Christopher T Dunn on behalf of Leroy Peoples (Dunn, Christopher) (Entered: 08/23/2012)
66 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jeb Harben dated 8/10/2012 re: counsel for defendant writes that for the reasons that are set forth in this letter, the motion requesting a default judgment against Mr. Drown should be denied. ENDORSEMENT: Plaintiffs' motion for default judgment against Curtis Drown is denied, as he died three months prior to the alleged service on his agent. The Clerk is directed to close this motion [Docket No. 60]. (Signed by Judge Shira A. Scheindlin on 8/23/2012) (pl) (Entered: 08/23/2012)
67 MEMORANDUM OF LAW in Opposition re: 55 MOTION to Dismiss Amended Complaint.. Document filed by Leroy Peoples. (Pendergrass, Taylor) (Entered: 09/10/2012)
68 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Taylor Pendergrass, dated 9/10/2012, re: confirming the date for the next status conference in the above matter. See ECF Doc. 62. Plaintiff's opposition to the motion to dismiss is now due on September 10, 2012, and the Defendants' reply will be due on September 20. Plaintiff's counsel would be available to appear anytime the week of September 24 or thereafter. ENDORSEMENT: The September 11, 2012 status conference is adjourned and rescheduled to Friday, September 28, 2012 at 12:30 p.m. SO ORDERED. ( Status Conference set for 9/28/2012 at 12:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 9/10/2012) (ja) (Entered: 09/11/2012)
69 REPLY AFFIRMATION of Jeb Harben in Support re: 55 MOTION to Dismiss Amended Complaint.. Document filed by Norman Bezio, D. Rock. (Harben, Jeb) (Entered: 09/20/2012)

09/20/2012 09/27/2012
10/05/2012 10/12/2012 10/18/2012
10/23/2012 10/24/2012

70 REPLY MEMORANDUM OF LAW in Support re: 55 MOTION to Dismiss Amended Complaint.. Document filed by Norman Bezio, D. Rock. (Harben, Jeb) (Entered: 09/20/2012)
71 ENDORSED LETTER addressed to Judge Shira A. Sheindlin from Christopher Dunn dated 9/27/12 re: Counsel writes on behalf of former pro se plaintiff to request an adjournment of the status conference scheduled for tomorrow at 12:30. ENDORSEMENT: Request to adjourn the status conference is granted and rescheduled to October 12, 2012 at 5:00 p.m. So ordered. ( Status Conference set for 10/12/2012 at 05:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 9/27/2012) (mro) (Entered: 09/27/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Pre-Motion Conference held on 10/5/2012. (ft) (Entered: 11/15/2012)
72 REPLY MEMORANDUM OF LAW in Opposition re: 55 MOTION to Dismiss Amended Complaint. Plaintiff's Sur-Reply Brief in Opposition to Defendants' Motion to Transfer Venue. Document filed by Leroy Peoples. (Pendergrass, Taylor) (Entered: 10/12/2012)
73 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Jeb Harben, dated 10/18/2012, re: Today plaintiff's counsel requested that my office facilitate an unmonitored telephone call between counsel and plaintiff at Attica Correctional Facility beginning at 1:00 p.m. on October 22, 2012 and ending no later than 3:00 p.m. that day. We request that you endorse this letter and So Order this legal conference call accordingly so that I may forward the endorsed letter to Attica and the call can be scheduled as soon as possible. ENDORSEMENT: The Attorney General is directed to facilitate an unmonitored call between Leroy Peoples and his counsel on October 22, 2012 between 1 p.m. and 3 p.m. So Ordered. (Signed by Judge Shira A. Scheindlin on 10/18/2012) (ja) (Entered: 10/19/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 10/23/2012. (ft) (Entered: 11/15/2012)
74 ORDER granting 55 Motion to Dismiss. To permit defendants an opportunity to move against the operative complaint, defendants' current motion to dismiss is hereby withdrawn, without prejudice, subject to reinstatement by December 3,2012. Plaintiff shall respond by December 17, 2012, and defendants' reply is due by December 31,2012. The Clerk of the Court is directed to close defendants' motion to dismiss (Docket Entry # 55). SO ORDERED.(Signed by Judge Shira A. Scheindlin on 10/23/2012) (ama) (Entered: 10/24/2012)

10/24/2012 10/24/2012 10/24/2012 10/24/2012 10/24/2012 11/19/2012

Set/Reset Deadlines: ( Responses due by 12/17/2012, Replies due by 12/31/2012.), Set/Reset Hearings: (ama) (Entered: 10/24/2012)
75 MEMO ENDORSEMENT on LAW STUDENT INTERN APPEARANCE FORM: Consent of Judge I authorize this student: William Swearinger (a) to appear in court or other proceedings on behalf of the above client, and (b)to prepare documents on behalf of the above client. (Signed by Judge Shira A. Scheindlin on 10/23/2012) (ama) Modified on 10/24/2012 (ama). (Entered: 10/24/2012)
76 MEMO ENDORSEMENT on LAW STUDENT INTERN APPEARANCE FORM Consent of Judge I authorize this student: Kyle Valenti (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge Shira A. Scheindlin on 10/23/2012) (ama) (Entered: 10/24/2012)
77 ORDER OF REFERENCE TO A MAGISTRATE JUDGE: Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Debra C. Freeman. December would be best. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 10/23/2012) (ama) (Entered: 10/24/2012)
78 SCHEDULING ORDER: Amended Pleadings due by 11/19/2012. Motions to Dismiss 12/3, 12/17, 12/31/2012. Discovery due by 4/19/2013. Final Pretrial Conference set for 4/15/2013 at 04:30 PM before Judge Shira A. Scheindlin. Pretrial Order due by 5/17/2013. Jury Trial. Parties anticipate that the trial will last 3 days. (Signed by Judge Shira A. Scheindlin on 10/23/2012) (lb) (Entered: 11/01/2012)
79 ORDER: Because of delays caused by Hurricane Sandy, I hereby grant plaintiff's request, on consent, for the deadline extensions listed in plaintiff s letter of November 14, 2012. Specifically, the briefing deadlines will now be as follows: 12/6/12 for the Second Amended Complaint; 12/20/12 for the Renewed Motion to Dismiss; 1/11/2013 for the Response to the Renewed Motion to Dismiss; and 1/25/13 for the Reply to the Renewed Motion to Dismiss. The discovery and pretrial deadlines will now be as follows: 12/21/12 for document requests; 11/21/13 for document responses; 3/18/13 for the deposition deadline; 4/15/13 for plaintiffs expert report; 5/16/13 for defendants' expert report; 6/3/13 for expert depositions; 6/3/13 for the discovery cut-off; 6/14/13 for the pretrial order to defendants; and 7/1/13 for the pretrial order to the Court. Finally, the previously scheduled pretrial conference will now be held June 11, 2013 at 4:30 p.m.( Amended Pleadings due by 12/6/2012. Deposition due by 6/3/2013. Discovery due by 6/3/2013, Motions due by 12/20/2012. Pretrial Order due by 7/1/2013. Responses

11/28/2012 12/06/2012 12/07/2012 12/11/2012
12/12/2012

due by 1/11/2013, Replies due by 1/25/2013.) ( Pretrial Conference set for 6/11/2013 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 11/18/2012) (djc) (Entered: 11/19/2012)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 11/28/2012. Telephone Conference set for 1/30/2013 at 10:30 AM before Magistrate Judge Debra C. Freeman. (rjm) (Entered: 11/29/2012)
84 SECOND AMENDED COMPLAINT amending 2 Complaint, against Norman Bezio, Drown, Brian Fischer, William Lee, D. Rock, Albert Prack.Document filed by Leroy Peoples. Related document: 2 Complaint, filed by Leroy Peoples.(pl) (Entered: 12/18/2012)
80 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student, Gabriel Hopkins: (a) to appear in court or at other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge Shira A. Scheindlin on 12/7/2012) (lmb) (Entered: 12/07/2012)
81 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Taylor Pendergrass dated 12/11/2012 re: Counsel for plaintiff writes that the Second Amended Complaint seeks declaratory and injunctive relief against Commissioner Brian Fischer and current Director of SHU/Inmate Disciplinary Program Albert Prack, who plaintiff alleges were and are personally involved in continuing these policies and practices. ENDORSEMENT: A conference is scheudled for January 3, 2013 at 4:30 pm., ( Status Conference set for 1/3/2013 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 12/11/2012) (pl) (Entered: 12/11/2012)
82 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jeb Harben dated 12/11/2012 re: Counsel for Defendant writes that it is anticipated that defendants' motion to dismiss the Second Amended Complaint win be far more extensive than defendants' prior motion, which did not address these new legal issues and additional factual allegations. With the written consent of plaintiff's counsel, we respectfully request the following modification to the Court's November 19 scheduling order. These proposed deadlines should not delay document or deposition discovery. ENDORSEMENT: The Amended Schedule is hereby "So Ordered." The moving brief and response may not exceed thirty (30) pages. The reply brief may not exceed twelve (12) pages. So Ordered., ( Deposition due by 4/15/2013., Discovery due by 6/28/2013., Motions due by 2/8/2013., Pretrial Order

12/14/2012
01/09/2013 01/30/2013
01/30/2013 02/04/2013
02/04/2013 02/04/2013 02/06/2013

due by 7/26/2013., Responses due by 3/8/2013, Replies due by 3/29/2013.) (Signed by Judge Shira A. Scheindlin on 12/12/2012) (pl) (Entered: 12/12/2012)
83 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Christopher Dunn dated 12/12/2012 re: Request to adjourn the 1/3/2013 conference. ENDORSEMENT: Request granted. Conference adjourned to 1/9 at 4 pm. ( Status Conference reset for 1/9/2013 at 04:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 12/13/2012) (cd) (Entered: 12/14/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/9/2013. (ja) (Entered: 02/06/2013)
85 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jeb Harben dated 1/30/2013 re: We write to confirm that any such stay and/or extension provided to the previously served defendants is also afforded to Mr. Prack as well and that he is not required to respond to the Second Amended Complaint at this time. ENDORSEMENT: The stay and/or extension to respond to Plaintiff's second amended complaint applies to Mr. Prack. So Ordered. (Signed by Judge Shira A. Scheindlin on 1/30/2013) (ft) (Entered: 01/31/2013)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held on 1/30/2013, ( Telephone Conference set for 4/3/2013 at 10:30 AM before Magistrate Judge Debra C. Freeman.). (js) (Entered: 01/31/2013)
86 FILING ERROR - DEFICIENT DOCKET ENTRY (SEE DOCUMENT #88) - AFFIDAVIT OF SERVICE of Summons and Amended Complaint. Drown served on 1/15/2013, answer due 2/5/2013. Service was accepted by Andre Lacombe. Document filed by Leroy Peoples. (Pendergrass, Taylor) Modified on 2/8/2013 (ldi). (Entered: 02/04/2013)
87 AFFIDAVIT OF SERVICE. Albert Prack served on 1/9/2013, answer due 1/30/2013. Service was accepted by David VanWormer. Document filed by Leroy Peoples. (Pendergrass, Taylor) (Entered: 02/04/2013)
88 AFFIDAVIT OF SERVICE. Drown served on 1/19/2013, answer due 2/11/2013. Service was accepted by Andre Lacombe. Document filed by Leroy Peoples. (Pendergrass, Taylor) (Entered: 02/04/2013)
89 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/9/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Tara Jones, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before

02/06/2013
02/07/2013 02/20/2013 02/26/2013 03/04/2013 03/06/2013
03/19/2013

the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/4/2013. Redacted Transcript Deadline set for 3/14/2013. Release of Transcript Restriction set for 5/10/2013.(Rodriguez, Somari) (Entered: 02/06/2013)
90 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/9/13 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 02/06/2013)
91 Letter addressed to Judge Shira A. Scheindlin from Taylor Pendergrass dated 2/5/13 re: Counsel writes on behalf of the plaintiffs to request a conference to discuss this proposal and to set a filing and briefing schedule moving forward. (mro) (Entered: 02/07/2013)
Request for Pro Se Manual: Request for manual received from Leroy Peoples on 2/11/2013. The Pro Se Office will distribute one free copy of the Pro Se Manual to each pro se litigant who has been granted in forma pauperis status pursuant to 28 U.S.C. Section 1915 to bring a civil action after July 1, 2007. Mailed the Manual out on 2/15/2013. (vn) (Entered: 02/20/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Pre-Motion Conference held on 2/26/2013. (ja) (Entered: 03/04/2013)
92 ORDER: Plaintiff's request seeking leave to file a Third Amended Complaint is hereby GRANTED. Plaintiff shall file his Third Amended Complaint on or before March 12, 2013. ( Amended Pleadings due by 3/12/2013.) (Signed by Judge Shira A. Scheindlin on 3/1/2013) (ja) (Entered: 03/04/2013)
93 THIRD AMENDED COMPLAINT amending 84 Amended Complaint against Norman Bezio, Curtis Drown, Brian Fischer, William Lee, Albert Prack, David Rock, William Powers, Sabina Kaplan, L. Collins, Diane Catalfu, Ada Perez, Patrick Griffin, James Cavaleri.Document filed by Leroy Peoples, Dewayne Richardson, Tonja Fenton. Related document: 84 Amended Complaint filed by Leroy Peoples.(lmb) Modified on 3/11/2013 (lmb). (tro). (Entered: 03/11/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 3/19/2013. (js) (Entered: 03/27/2013)

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03/22/2013 03/25/2013 03/25/2013 03/29/2013 04/05/2013

94 ORDER re: 93 Third Amended Complaint, filed by Dewayne Richardson, Tonja Fenton, Leroy Peoples. Plaintiffs are hereby ordered to withdraw their Third Amended Complaint (ECF Docket No. 93), filed on March 6, 2013, and to re-file a new Third Amended Complaint that does not assert any First Amendment retaliation claims on behalf of plaintiff Tonja Fenton. Upon plaintiffs' filing of a new Third Amended Complaint with the Clerk of the Court that complies with this Order, the Clerk of the Court shall remove the previously filed Third Amended Complaint, and shall replace it with the newly filed Third Amended Complaint. (Signed by Judge Shira A. Scheindlin on 3/21/2013) (ja) (Entered: 03/22/2013)
95 NOTICE OF APPEARANCE by Daniel Erik Mullkoff on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson (Mullkoff, Daniel) (Entered: 03/22/2013)
96 TRANSCRIPT of Proceedings re: CONFERENCE held on 2/26/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Carol Ganley, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/18/2013. Redacted Transcript Deadline set for 4/29/2013. Release of Transcript Restriction set for 6/27/2013.(Rodriguez, Somari) (Entered: 03/25/2013)
97 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 2/26/13 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 03/25/2013)
98 NOTICE OF CHANGE OF ADDRESS by Alexander A Reinert on behalf of All Plaintiffs. New Address: c/o Benjamin N. Cardozo School of Law, 55 Fifth Avenue, New York, NY, 10003, 212-790-0403. (Attachments: # 1 Certificate of Service)(Reinert, Alexander) (Entered: 03/29/2013)
99 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/19/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Karen Gorlaski, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may

be obtained through PACER. Redaction Request due 4/29/2013. Redacted Transcript Deadline set for 5/9/2013. Release of Transcript Restriction set for 7/11/2013.(Rodriguez, Somari) (Entered: 04/05/2013)

04/05/2013

100 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/19/13 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 04/05/2013)

04/09/2013

101 MOTION to Dismiss CORRECTED THIRD AMENED COMPLAINT ON BASIS OF QUALIFIED IMMUNITY. Document filed by Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, William Powers, Albert Prack, David Rock.(Harben, Jeb) Modified on 4/24/2013 (ja). Modified on 4/24/2013 (ja). (Entered: 04/09/2013)

04/09/2013

102 MEMORANDUM OF LAW in Support re: 101 MOTION to Dismiss CORRECTED THIRD AMENED COMPLAINT ON BASIS OF QUALIFIED IMMUNITY.. Document filed by Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, William Powers, Albert Prack, David Rock. (Harben, Jeb) (Entered: 04/09/2013)

04/11/2013

103 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Jeb Harben, dated 4/9/2013, re: Defendants withdraw their request for an extension of the briefing schedule regarding their motion to dismiss on the basis of qualified immunity. We will file and serve the motion via ECF later today. We reiterate our request that the Court approve a briefing schedule with respect to other issues that defendants wish to raise on a FRCP 12 motion, providing defendants until April 23 to move to dismiss with respect to any other issues (aside from qualified immunity) that may ordinarily be raised in a motion to dismiss. Defendants also request that they be allowed a 35 page memorandum of law with respect to the motion to be filed April 23. ENDORSEMENT: Defendants' request as to the scheduling order proposed below is granted. Defendants' moving papers for all issues other than Qualified Immunity will be due April 23. Request for 35 pages is also granted. Opposition paper will be due May 21 and reply will be due June 11. So Ordered. ( Motions due by 4/23/2013, Responses due by 5/21/2013, Replies due by 6/11/2013.) (Signed by Judge Shira A. Scheindlin on 4/10/2013) (ja) Modified on 4/15/2013 (ja). (Entered: 04/11/2013)

04/17/2013

104 SCHEDULING ORDER: The parties hereby submit the following information, as required by the Court Order, and superseding the prior Scheduling Order and all subsequent amendments to that Order: The Rule 16 conference in this action was held on October 23, 2012. The parties anticipate 15 trial days. Defendants request a trial by jury, and do not waive any objection they may have to venue The defendants will file all motions seeking to dismiss monetary damages claim on the basis of qualified immunity by April 9, 2013; plaintiffs shall file their opposition by April 30, 2013; defendants shall file their reply by May 21, 2013. The defendants will file any other pre-answer motions under Fed. R. Civ. P. 12 by April 23, 2013; plaintiffs shall file their oppositions by May 21, 2013; defendants shall file their reply by June 11, 2013. All depositions, other than those of experts, shall be completed by October 7, 2013. The parties will serve a second round of document requests related to the three named plaintiffs and to class discovery by April 22, 2013. Depositions of experts shall be concluded by February 24, 2014. The depositions of non-experts and other fact discovery will be completed by October 7, 2013. The date by which the parties will submit a pre-trial order in a form conforming with the Court's instructions together with trial briefs and either (1) proposed findings of fact and conclusions of law for a non-jury trial, or (2) proposed voir dire questions and proposed jury instructions, for a jury trial; and April 24, 2014. The date shall be adjourned until 60 days after summary judgment motions, if any, are decided. Final pretrial conference pursuant to FRCP set for October 18, 2013 at 4:30 p.m. Plaintiffs will file their motion seeking to certify the class by February 24, 2014; defendants shall file their opposition by March 24, 2014; and plaintiffs shall file their reply by April 15, 2014. Any party intending to file a motion for summary judgment under FRCP 56 shall submit a letter requesting for a pre-motion conference, in accordance with the Court's rules, by February 17, 2014. A Summary of Discovery Deadlines contained in this Order follows. (See Order). Motions due by 2/24/2014. Responses due by 3/24/2014 Replies due by 4/15/2014. Deposition due by 2/24/2014. Fact Discovery due by 10/7/2013. Discovery due by 2/24/2014. Final Pretrial Conference set for 10/18/2013 at 04:30 PM before Judge Shira A. Scheindlin. Pretrial Order due by 4/24/2014. (Signed by Judge Shira A. Scheindlin on 4/16/2013) (ja) Modified on 4/19/2013 (ja). Modified on 4/19/2013 (ja). (Entered: 04/17/2013)

04/24/2013

105 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Taylor Pendergrass and Jeb Harben, dated 4/23/2013, re: request to be granted a one-week adjournment of all motion to dismiss briefing deadlines to facilitate settlement discussions. The parties will write the Court again on or before Monday, April, 29, 2013, to inform the Court of the outcome. ENDORSEMENT: The parties' joint request for a one-

week adjournment of all motion to dismiss briefing deadlines is granted. (Signed by Judge Shira A. Scheindlin on 4/23/2013) (ja) (Entered: 04/24/2013)

04/24/2013

106 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Shira A. Scheindlin on 4/24/2013) (ja) (Entered: 04/24/2013)

04/24/2013

Payment of Fee Received: Check received on 4/24/2013 in the amount of $350.00 for a filing fee. (vn) (Entered: 04/24/2013)

04/26/2013

Pro Se Payment of Fee Processed: Check processed by the Finance Department on 04/25/2013, Receipt Number 1065892. (vn) (Entered: 04/26/2013)

04/29/2013

107 NOTICE OF APPEARANCE by Leda A Moloff on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson (Moloff, Leda) (Entered: 04/29/2013)

04/29/2013

108 NOTICE OF CHANGE OF ADDRESS by Kayvan Betteridge Sadeghi on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson. New Address: Morrison & Foerster LLP, 1290 Avenue of the Americas, New York, New York, U.S.A. 10104, 212-468-8000. (Sadeghi, Kayvan) (Entered: 04/29/2013)

04/29/2013

109 SUMMONS RETURNED EXECUTED Summons and Amended Complaint, served. Diane Catalfu served on 4/1/2013, answer due 4/22/2013. Service was accepted by G. Houseman, Corrections Officer. Document filed by Dewayne Richardson; Leroy Peoples; Tonja Fenton. (Matza-Brown, Daniel) (Entered: 04/29/2013)

04/29/2013

110 SUMMONS RETURNED EXECUTED Summons and Amended Complaint, served. James Cavaleri served on 3/29/2013, answer due 4/19/2013. Service was accepted by Stacey Fredenburgh. Document filed by Dewayne Richardson; Leroy Peoples; Tonja Fenton. (MatzaBrown, Daniel) (Entered: 04/29/2013)

04/29/2013

111 SUMMONS RETURNED EXECUTED Summons and Amended Complaint, served. L. Collins served on 4/1/2013, answer due 4/22/2013. Service was accepted by G. Houseman, Corrections Officer. Document filed by Dewayne Richardson; Leroy Peoples; Tonja Fenton. (Matza-Brown, Daniel) (Entered: 04/29/2013)

04/29/2013 112 SUMMONS RETURNED EXECUTED Summons and Amended Complaint, served. Patrick Griffin served on 3/29/2013, answer due 4/19/2013. Service was accepted by Maureen Spencer, Corrections

Officer. Document filed by Dewayne Richardson; Leroy Peoples; Tonja Fenton. (Matza-Brown, Daniel) (Entered: 04/29/2013)

04/29/2013

113 SUMMONS RETURNED EXECUTED Summons and Amended Complaint, served. Sabina Kaplan served on 4/1/2013, answer due 4/22/2013. Service was accepted by Shantilet Johnson. Document filed by Dewayne Richardson; Leroy Peoples; Tonja Fenton. (Matza-Brown, Daniel) (Entered: 04/29/2013)

04/29/2013

114 SUMMONS RETURNED EXECUTED Summons and Amended Complaint, served. Ada Perez served on 3/29/2013, answer due 4/19/2013. Service was accepted by Stacey Fredenburgh. Document filed by Dewayne Richardson; Leroy Peoples; Tonja Fenton. (MatzaBrown, Daniel) (Entered: 04/29/2013)

04/29/2013

115 SUMMONS RETURNED EXECUTED Summons and Amended Complaint, served. William Powers served on 4/1/2013, answer due 4/22/2013. Service was accepted by G. Houseman, Corrections Officer. Document filed by Dewayne Richardson; Leroy Peoples; Tonja Fenton. (Matza-Brown, Daniel) (Entered: 04/29/2013)

04/29/2013

116 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,. Curtis Drown served on 3/26/2013, answer due 4/16/2013; Albert Prack answer due 4/16/2013. Service was made by MAIL. Document filed by Dewayne Richardson; Leroy Peoples; Tonja Fenton. (Matza-Brown, Daniel) (Entered: 04/29/2013)

04/30/2013

***DELETED DOCUMENT as per instructions from Chambers on 4/30/2013. Deleted document number 117 Endorsed Letter. The document was incorrectly filed in this case. (tro) (Entered: 04/30/2013)

05/01/2013

117 STIPULATION AND ORDER: the Plaintiffs and Defendants have agreed to a 90-day adjournment to conduct settlement negotiations pursuant to the attached April 29, 2013, letter agreement between the parties; and withdrawing 101 Motion to Dismiss Plaintiffs' Corrected Third Amended Complaint on the Basis of Qualified Immunity (ECF No. 101) without prejudice, and the Pre-Trial Scheduling Order (ECF No. 104) is hereby suspended. (Signed by Judge Shira A. Scheindlin on 5/1/2013) (ja) (Entered: 05/01/2013)

07/29/2013

118 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Richard W. Brewster, dated 7/26/2013, re: joint request that the current stay of the proceeding be extended for another 60 days, through September 30, 2013, to allow the parties to continue their settlement discussions. ENDORSEMENT: Parties' joint request to extend the stay of the proceeding through September 30, 2013 is hereby granted.

(Signed by Judge Shira A. Scheindlin on 7/26/2013) (ja) (Entered: 07/29/2013)

10/01/2013

119 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Taylor Pendergrass dated 9/30/2013 re: Given that the steps under discussion and participation by experts will require a number of months to complete, the parties respectfully request that the stay of the litigation be extended through December 20, 2013. ENDORSEMENT: The Status Conference is rescheduled to December 23, 2013 at 4:30 p.m. The Current Stay of this case is extended to and including December 20, 2013. SO ORDERED. ( Status Conference set for 12/23/2013 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 10/01/2013) (ama) Modified on 10/9/2013 (ama). (Entered: 10/01/2013)

12/19/2013

120 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Taylor Pendergrass and Richard W. Brewster dated 12/18/2013 re: Request for an additional stay until 1/30/2014 and to adjourn the 12/23/2013 conference. ENDORSEMENT: The parties' joint request is hereby granted. The Court grants an additional stay of litigation through 1/30/2014. The 12/23/2013 is rescheduled for 2/4/2014 at 4:30 pm. ( Status Conference reset for 2/4/2014 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 12/18/2013) (cd) (Entered: 12/19/2013)

12/20/2013

121 MOTION for Daniel Mullkoff to Withdraw as Attorney. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Mullkoff, Daniel) (Entered: 12/20/2013)

01/28/2014

122 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Richard W. Brewster dated 1/28/2014 re: Request that the Court grant an additional stay of the litigation until March 11, 2014. and adjourn the Court conference now set for February 4, 2014. ENDORSEMENT: The parties' joint request is hereby granted. The Court grants an additional stay of litigation through 3/11/2014. The 2/4/2014 conference is rescheduled to 3/17/2014 at 4:30 pm. (Conference reset for 3/17/2014 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 1/28/2014) (cd) (Entered: 01/29/2014)

01/30/2014

NOTICE OF REDESIGNATION TO ANOTHER MAGISTRATE JUDGE. The above entitled action has been redesignated to Magistrate Judge Kevin Nathaniel Fox. Please note that this is a reassignment of the designation only. (pgu) (Entered: 01/30/2014)

01/30/2014

NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Kevin Nathaniel Fox, for

Settlement. Magistrate Judge Debra C. Freeman no longer referred to the case. (pgu) (Entered: 01/30/2014)

02/04/2014

123 MEMO ENDORSED granting 121 Motion to Withdraw as Attorney. ENDORSEMENT: Motion granted. The Clerk is directed to close this motion. Attorney Daniel Erik Mullkoff terminated. (Signed by Judge Shira A. Scheindlin on 2/3/2014) (cd) (Entered: 02/04/2014)

02/19/2014

124 STIPULATION FOR A STAY WITH CONDITIONS: A. This action shall be stayed for a period (the "Stay Period") of twenty-four (24) months from the Effective Date under Section 8 of this Stipulation or until the Stipulation is vacated and/or the Stay lifted pursuant to Section 5 and, subject to the Court's approval, shall be placed on the Court's Suspense Calendar. During the Stay Period none of the parties may seek judicial relief in this action, except to vacate the Stipulation and/or lift the Stay and proceed with the litigation in accordance with the terms, conditions and procedures set forth in Section 5 of this Stipulation as further set forth in this order. (Signed by Judge Shira A. Scheindlin on 2/19/2014) (lmb) (Entered: 02/19/2014)

02/23/2014

125 NOTICE OF APPEARANCE by Michael J. Keane on behalf of Karen Bellamy, Norman Bezio, Richard A. Brown, Diane Catalfu, James Cavaleri, L. Collins, Peter A. Crusco, Curtis Drown, Brian Fischer, Patrick Griffin, Sabina Kaplan, LJard, Lucien J. LeClaire, Jr, William Lee, Malare, K O' Connor, Office of Counsel, Ada Perez. (Keane, Michael) (Entered: 02/23/2014)

04/22/2014

126 NOTICE OF CHANGE OF ADDRESS by Jennifer Kay Brown on behalf of All Plaintiffs. New Address: Morrison & Foerster LLP, 250 West 55th Street, New York, New York, U.S.A. 10019, 212-468-8000. (Brown, Jennifer) (Entered: 04/22/2014)

04/22/2014

127 NOTICE OF CHANGE OF ADDRESS by David John Fioccola on behalf of All Plaintiffs. New Address: Morrison & Foerster LLP, 250 West 55th Street, New York, New York, U.S.A. 10019, 212-468-8000. (Fioccola, David) (Entered: 04/22/2014)

04/28/2014

128 NOTICE OF CHANGE OF ADDRESS by Adam James Hunt on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson. New Address: Morrison & Foerster LLP, 250 West 55th Street, New York, New York, U.S.A. 10019-9601, 212-468-8000. (Hunt, Adam) (Entered: 04/28/2014)

05/07/2014

129 NOTICE OF CHANGE OF ADDRESS by Daniel Matza-Brown on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson. New Address: Morrison & Foerster LLP, 250 West 55th Street, New York, NY, 10019,. (Matza-Brown, Daniel) (Entered: 05/07/2014)

05/07/2014

130 NOTICE OF CHANGE OF ADDRESS by Leda A Moloff on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson. New Address: Morrison & Foerster LLP, 250 West 55th Street, New York, NY, 10019,. (Moloff, Leda) (Entered: 05/07/2014)

05/09/2014

131 NOTICE OF CHANGE OF ADDRESS by Kayvan Betteridge Sadeghi on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson. New Address: Morrison & Foerster LLP, 250 West 55th Street, New York, NY, 10019,. (Sadeghi, Kayvan) (Entered: 05/09/2014)

07/14/2014 132 NOTICE OF APPEARANCE by Philip Louis Desgranges on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Desgranges, Philip) (Entered: 07/14/2014)

11/12/2014

133 LETTER addressed to Judge Shira A. Scheindlin from John H. White, DIN#08A3366, dated 11/10/14 re: Non-party John H. White submits this letter with enclosed communications to the NYS DOCS and other supervisory personnel concerning the ongoing unconstitutional and unrelenting harms dated 10/6/14; and that he requests that the Court take into consideration that he has been in Upstate Correctional Facility for over five years. (sc) (Entered: 11/17/2014)

12/02/2014 134 NOTICE; re: AMICUS CURIAE/ PROPOSITIONS FOR SETTLEMENT & NEW SERVICES. (sc) (Entered: 12/08/2014)

12/15/2014

135 MINUTE ORDER PURSUANT TO MEMORANDUM FROM THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS, DATED JUNE 15TH, 1973....Case Closed administratively pursuant to Memorandum from the Administrative Office of the United States Courts dated June 15th, 1973.... (Signed by Judge Loretta A. Preska on 12/15/2014) (mro) (Entered: 12/16/2014)

12/15/2014

Terminate Transcript Deadlines (mro) (Entered: 12/16/2014)

12/16/2015

136 SETTLEMENT AGREEMENT Notice. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 12/16/2015)

12/16/2015

137 MOTION to Certify Class ., MOTION for Settlement . Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Attachments: # 1 Exhibit Proposed Settlement Agreement)(Desgranges, Philip) (Entered: 12/16/2015)

12/16/2015

138 MEMORANDUM OF LAW in Support re: 137 MOTION to Certify Class . MOTION for Settlement . . Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Desgranges, Philip) (Entered: 12/16/2015)

12/16/2015

139 DECLARATION of Taylor Pendergrass in Support re: 137 MOTION to Certify Class . MOTION for Settlement .. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Attachments: # 1 Exhibit Pendergrass Resume, # 2 Exhibit Reinert Resume, # 3 Exhibit Dunn Resume, # 4 Exhibit Brown Resume, # 5 Exhibit Class Notice, # 6 Exhibit Vail Resume)(Desgranges, Philip) (Entered: 12/16/2015)

12/16/2015

140 DECLARATION of LeRoy Peoples in Support re: 137 MOTION to Certify Class . MOTION for Settlement .. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Desgranges, Philip) (Entered: 12/16/2015)

12/16/2015

141 DECLARATION of Tonja Fenton in Support re: 137 MOTION to Certify Class . MOTION for Settlement .. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Desgranges, Philip) (Entered: 12/16/2015)

12/16/2015

142 DECLARATION of Dewayne Richardson in Support re: 137 MOTION to Certify Class . MOTION for Settlement .. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Desgranges, Philip) (Entered: 12/16/2015)

12/22/2015

143 CERTIFICATE OF SERVICE of Notice of Proposed Class Action Settlement served on Loretta Lynch on December 22, 2015. Service was made by Mail. Document filed by Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Curtis Drown, Brian Fischer, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, Albert Prack, David Rock. (Attachments: # 1 Exhibit Complaint, # 2 Exhibit Proposed Notice, # 3 Exhibit Settlement Agreement)(Brewster, Richard) (Entered: 12/22/2015)

12/23/2015

144 ORDER GRANTING THE PARTIES' JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS-ACTION SETTLEMENT granting 137 Motion to Certify Class; granting 137 Motion for Settlement. FINDS AND ORDERS: 1. The Court finds for purposes of settlement only that the prerequisites for a class action under Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure have been satisfied in that (a) the Class is so numerous that joinder of all members is impracticable; (b) there are questions of law or fact common to the Class; (c) the plaintiffs' claims are typical of those of the Class; (d) the plaintiffs will fairly and adequately protect the interests of the Class; and (e) the defendants acted or refused to act on grounds that apply generally to the Class so that final relief is appropriate for the Class as a whole. 2. Accordingly, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure the following settlement class ("Class") is

certified: All DOCCS inmates who are now serving, or will in the future serve, a disciplinary confinement sanction in a SHU or in one of the programs created under or referenced in the Agreement. 3. The Court finds the New York Civil Liberties Union, Morrison & Foerster LLP, and Alexander A Reinert have extensive expertise in prosecuting class action cases, and appoints them as Class Counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. 4. The Court grants preliminarily approval to the Settlement Agreement, attached to this order as Exhibit A, as being fair, reasonable and adequate to the Class, subject to further consideration at the Fairness Hearing. Any Class member shall have the right to submit a written objection to the Court during the Notice Period in advance of the Fairness Hearing, in the manner specified in the Notice. The Notice Period will begin on Jan. 13, 2016 and end on March 14, 2016. A Fairness Hearing will be held before this Court on Mar. 28, at 4 p. in Courtroom 15C, at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York, at which time objections and comments on the proposed Settlement Agreement will be considered by the Court and the Court will determine whether the Settlement Agreement should be finally approved as fair, reasonable, and adequate, and whether it shall be entered as the Final Judgment in this action. (As further set forth in this Order) (Signed by Judge Shira A. Scheindlin on 12/23/2015) (kl) Modified on 12/23/2015 (kl). (Main Document 144 replaced on 12/23/2015) (kl). Modified on 12/23/2015 (kl). (Main Document 144 replaced on 12/23/2015) (kl). (Entered: 12/23/2015)

12/23/2015

Set/Reset Hearings: Fairness Hearing set for 3/28/2016 at 04:00 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin. (kl) (Entered: 12/23/2015)

01/06/2016

145 ORDER AMENDING COMMENCEMENT OF NOTICE PERIOD: Upon the Defendants' application and with the consent of Plaintiffs, the Court hereby extends the beginning of the Notice Period under the Court's December 23, 2015 Order herein (the "Order"), from January 13, 2016 to January 15, 2016, in order to permit the translation into Spanish and circulation to facility libraries of all Settlement Documents (in English and Spanish) pursuant to paragraph 7 of the Order; provided, however, that Defendants shall proceed with distribution of the Notice in English and Spanish under paragraph 6 of the Order by January 13, 2016. All other dates set by the Order shall remain as scheduled therein. The availability of the Settlement Documents in all facility law libraries, commencing on January 15, 2016, shall be noted in the Notice to be distributed pursuant to paragraph 6 of the Order, as shown in the revised Notice, attached hereto as Exhibit A. (Signed by Judge Shira A. Scheindlin on 1/6/2016) (kl) (Entered: 01/06/2016)

01/13/2016

146 MOTION for Leda A. Moloff to Withdraw as Attorney . Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Attachments: # 1 Text of Proposed Order)(Brown, Jennifer) (Entered: 01/13/2016)

01/13/2016

147 DECLARATION of Jennifer K. Brown in Support re: 146 MOTION for Leda A. Moloff to Withdraw as Attorney .. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Brown, Jennifer) (Entered: 01/13/2016)

01/13/2016

148 ORDER OF WITHDRAWAL OF LEDA A. MOLOFF, ESQ. granting 146 Motion to Withdraw as Attorney. Upon consideration of the motion to withdraw the appearance of Leda A. Moloff, Esq., this Court orders that Leda A. Moloff, Esq. be withdrawn from this case, and further orders that Ms. Moloff be removed from the Court's electronic service list. Attorney Leda A Moloff terminated. (Signed by Judge Shira A. Scheindlin on 1/13/2016) (kl) (Entered: 01/13/2016)

01/15/2016

149 LETTER from Craig Brown, Din#94A7393, dated 1/11/16 re: Nonparty Craig Brown writes this letter to the Court concerning the above case and whether what he believes what is written is fair or not; and that he thanks the Court for making the changes need to better the inmates' unfortunate confinement while in the S.H.U. throughout New York State. (sc) (Entered: 01/15/2016)

01/15/2016

150 LETTER from Alexander Melendez dated 1/11/16 re: Non-party Alexander Melendez informs the Court that he agrees with the settlement which has taken place at the Court, because the people who are doing more than 180 days in SHU are not able to contact their family while they are in the SHU; and that is why some people lose family. (sc) (Entered: 01/18/2016)

01/15/2016

151 LETTER from Bryant Ceballos, DIN#10R3605, dated 1/11/16 re: Nonparty Bryant Ceballos informs the Court that, in regard to the settlement agreement concerning SHU policies and procedures, he agrees with most of the policies, and he thinks that they are more than welcome to the New York State Prison System etc. (sc) (Entered: 01/19/2016)

01/15/2016

152 LETTER from Derrel Austin, DIN#96B0336, dated 1/11/16 re: Nonparty Derrel Austin informs the Court that he objects to the Solitary Confinement Settlement; and he requests that the Court reject it, because the current settlement fails to address some important matters; and that the attorneys have never allowed people such as himself to have input in the terms of the settlement. (sc) (Entered: 01/19/2016)

01/15/2016

153 LETTER from Dustin Smith, DIN#14B0043; re: Non-party Dustin Smith informs the Court that, in this agreement, non-violent inmates get a chance for altenative units instead of being treated like murderers and sometimes doing more S.H.U. time than the extremely violent ones etc. (sc) (Entered: 01/19/2016)

01/15/2016

154 LETTER from Ryan Shufelt, DIN#13A0364, dated 1/11/16 re: Nonparty Ryan Shufelt informs the Court that he thinks the settlement is fair and should be implemented by the DOCC; that he feels that the goals set forth in this settlement are fair and reasonable; and that congregated recreation should be permitted through good behavior and program participation only. (sc) (Entered: 01/19/2016)

01/15/2016

155 LETTER from Akida Laobon; re: Non-party Akida Laobon informs the Court that his inside the S.H.U. ; and that he is writing about the claim for money damages against the DOCC. (sc) (Entered: 01/19/2016)

01/15/2016

156 LETTER from Jerry Knight, DIN#12A4884, dated 1/11/16 re: Nonparty Jerry Knight informs the Court that he thinks that these new terms of the settlement will reduce the mental stress sustained while in the course of completing S.H.U. time; and that allowing inmates to contact their family/friends via phone will give them something to look forward to, as a short-term goal etc. (sc) (Entered: 01/19/2016)

01/15/2016

157 LETTER from Donald Switzer, DIN#11B1655, re: Non-party Donald Switzer informs the Court that, as a current S.H.U. inmate, he thinks that these changes to their confinement are very good because, as of now, the S.H.U. puts major strain on a person's mental health. (sc) (Entered: 01/19/2016)

01/19/2016 159 LETTER from Kaimar Cox dated 1/12/16 re: Non-party Kaimar Cox informs the Court that he agrees with the Proposed Settlement Agreement. (sc) (Entered: 01/20/2016)

01/20/2016

158 NOTICE of compliance by Defendants with paragraphs 7 and 8 of the Court's December 23, 2015 Order, as amended; Notice by Declaration of Richard W. Brewster. Document filed by Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Curtis Drown, Brian Fischer, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, William Powers, Albert Prack, David Rock. (Brewster, Richard) (Entered: 01/20/2016)

01/20/2016 160 LETTER from J. Shicobra Young dated 1/8/16 re: Non-party J. Shicobra Young informs the Court that he writes against CO. and B32Block for lawsuits of $2,800 dollars. (sc) (Entered: 01/21/2016)

01/20/2016

161 LETTER addressed to Clerk of Court from Al Augugliaro dated 1/13/2016 re: non-party Al Augugliaro likes the decision but a lot of it is already implemented to some degree. He believes snacks should be able to be purchased with commissary money. The food served is not nutritious and the quantity is very small. He also agrees with the phone access and being able to enroll in correspondence courses. (cdo) (Entered: 01/21/2016)

01/20/2016

162 LETTER from Troy McRae dated 1/11/16 re: Non-party Troy McRae informs the Court that he believes that the settlement is unfair because, as an SHU inmate for non-violent tickets, he has lost personal properties and, if had been given keep lock time, he would not have lost his property. (sc) Modified on 1/21/2016 (sc). (Entered: 01/21/2016)

01/20/2016

163 LETTER from Tony Marcuso dated 1/11/16 re: Non-party Tony Marcuso informs the Court that he has read the suit in its entirety, and he finds the terms fair. (sc) (Entered: 01/21/2016)

01/20/2016

164 LETTER addressed to Courts from Calvin Clanton dated 1/11/2016 re: non-party. Calvin Clanton, informs the Court that the settlement was more than just fair. He has had experienced tremendous stress and anxiety after being given 270 days to serve in the "SHU"; his belongings have been thrown away and mail has yet to be delivered. (cdo) (Entered: 01/21/2016)

01/20/2016 165 LETTER from Chad Penn dated 1/13/16 re: Non-party Chad Penn requests that the Court please grant this settlement agreement, so that they can receive the much needed help. (sc) (Entered: 01/21/2016)

01/20/2016

166 LETTER addressed to Solitary Confinement Settlement 11-cv-2694 from Carlos Melendez re: non-party Carlos Melendez informs the Court that this case is all right for every inmate in the NYDOCCS; the SHU is not a good place. (cdo) (Entered: 01/21/2016)

01/20/2016

167 LETTER from Luis Ramirez dated 1/12/16 re: Non-party Luis Ramirez informs the Court that he agrees on the fairness factor of the settlement in favor of the inmate; and that he thinks these changes are definitely a benefit to the inmates' mental health. (sc) (Entered: 01/21/2016)

01/20/2016

168 LETTER addressed to To Whom It May Concern: from Dominique Scaggs re: non-party Dominique Scaggs informs the Court that access to telephones are essential due to the incentive and support it encourages. Constant confinement does not promote growth, it stagnates an individual instead of helping that inmate recognize their flaws & error in decision making. (cdo) (Entered: 01/21/2016)

01/20/2016

169 LETTER from Devan Miller dated 1/12/16 re: non-party Devan Miller informs the Court of the lifestyle the inmates are living in New York State SHU-200's. The inmates are treated very poorly; they are treated like caged animals. (cdo) (Entered: 01/21/2016)

01/20/2016 170 LETTER from Allah Ali; re: Non-party Allah Ali informs the Court that as a resident of the R.M.H.U. community, he supports the class action settlement, to go through with it. (sc) (Entered: 01/21/2016)

01/20/2016

171 LETTER from Diondre Corbert dated 1/12/16 re: Non-party Diondre Corbert informs the Court that he agrees and likes this proposed settlement, but it needs a little revision; and that all college material should be deemed cell study. (sc) (Entered: 01/21/2016)

01/20/2016

172 LETTER from Edwin Fuentes re: non-party, Edwin Fuentes, informs the Court of the housing units policies and procedures: 5 minutes for showering and shaving (not enough time), saving food for later when we're hungry, too long in between exchanging clothing, no bleach to disinfect cell toilet area, menu for regular food. (cdo) (Entered: 01/21/2016)

01/20/2016

173 LETTER from Patrick Drago dated 1/13/16 re: Non-party Patrick Drago informs the Court that, if these incentives in the SHU(as indicated) were put in motion, the inmates would do their time a bit easier and a lot easier for the officers who have to work everyday. (sc) (Entered: 01/21/2016)

01/20/2016

174 LETTER from Vameshia Jones dated 1/13/16 re: Non-party Vameshia Jones informs the Court that he hopes that the Courts approve the settlement etc. (sc) (Entered: 01/21/2016)

01/20/2016

175 LETTER from Victor Sarnelli dated 1/13/16 re: Non-party Victor Sarnelli informs the Court that he is currently in the SHU, and he thinks that the Settlement Agreement is more than fair and would help New York State inmates with long periods of confinement time. (sc) (Entered: 01/21/2016)

01/20/2016

176 LETTER from Anthony Burk dated 1/11/16 re: non-party, Anthony Burk, informs the Court that the proposed settlement is a reachable and attainable goal for us all. We are still human in here but we are treated like animals; most of the time have to act like animals to get what we need and that's what we are entitled too. Mental health is another issue. You don't get the help you need unless you say the "magic words". No one should have to do that. (cdo) (Entered: 01/21/2016)

01/20/2016 177 LETTER from Dequan Robinson dated 1/12/16 re: Non-party DeQuan Robinson informs the Court that, for the most part, he agrees with the

settlement; that it should be made to go into effect as soon as possible; and that inmates should definitely have access to phones in the S.H.U. once they turn level 3 etc. (sc) (Entered: 01/21/2016)

01/20/2016

178 LETTER addressed to Clerk of the Court from Equan White re: nonparty, Equan White, informs the Court that the settlement should be approved. The only thing that is unfair about the settlement is we get no money. (cdo) (Entered: 01/21/2016)

01/20/2016

179 LETTER from Joseph Berdecia dated 1/12/16 re: Non-party Joseph Berdecia requests that the Court send the settlement documents to him at the S.H.U.; and that the Court inform him as to what terms in the settlement agreement cannot be changed. (sc) (Entered: 01/21/2016)

01/20/2016

180 LETTER addressed to Clerk of the Court from Johnny Santana dated 1/12/2016 re: non-party, Johnny Santana, informs the Court that he's in agreement with the brief would like to insist on a little more: 1) increase access to commissary add some food items, 2) regarding the shower, we who are in solitary confinement can not adjust the hot and cold water, so we are forced to take a shower in scolding hot water or we wash up in the sink. (cdo) (Entered: 01/21/2016)

01/20/2016

181 LETTER from Richard Cruz dated 1/11/16 re: non-party, Richard Cruz, informs the Court that he is writing in regard's of being part of this lawsuit against the State. He is currently in the S.H.U. and does not think it's fair to be put in a cell with someone that is ill. (cdo) (Entered: 01/21/2016)

01/20/2016

182 LETTER addressed to Clerk of the Court from Matthew Cotton dated 1/12/16 re: non-party, Matthew Cotton, informs the Court that he is in favor and agrees to the settlement reached in People v. Fischer. (cdo) (Entered: 01/21/2016)

01/20/2016

183 LETTER addressed to Clerk of the Court from Jerry Carrasquillo re: non-party, Jerry Carrasquillo, informs the Court that this settlement will be fair for the inmates. A big problem is the amount of food in the mess hall trays. They have just enough food to keep inmates alive. The best part about the settlement so far are the new in-house programs to get us out of SHU faster. (cdo) (Entered: 01/21/2016)

01/20/2016

184 LETTER from Ryan English re: non-party, Ryan English, informs the Court that, as an inmate housed in a disciplinary unit should be allowed to have more programs and privileges. Sometimes the conditions in SHU can seem unlawful and inhumane; implementing the policies of water deprivation and restricted diets. (cdo) (Entered: 01/21/2016)

01/20/2016

185 LETTER from Louis Gomez dated 1/11/2016 re: non-party, Louis Gomez, informs the Court that currently SHU's are conducting "DOCCS" environments like an asylum housing degenerates; various inhumane and unfair policies. Futhermore, would like to praise the individuals for taking the initiative. (cdo) (Entered: 01/21/2016)

01/20/2016

186 LETTER addressed to To Whom It May Concern: from Lovelle G. Jones dated 1/11/2016 re: non-party, Lovelle G. Jones, informs the Court of the fairness I believe this settlement upholds. I agree that this new agreement is indeed fair and just. This agreement serves as a better rehabilitative effort for SHU inmates rather than deprivation (sensory) and cruel/extensive punishment. (cdo) (Entered: 01/21/2016)

01/20/2016

187 LETTER addressed to Clerk of the Court from Rolando Leon re: nonparty, Rolando Leon, informs the Court that the punishments and excessive time in S.H.U. given to many inmates/offenders are overly severe and I believe to innovate the living conditions will propagate the ideal of getting back what we've lost and encourage commendable behavior amongst the majority. I am in agreement to these new conditions. More work needs to be done but thus far, it's of excellence.. (cdo) (Entered: 01/21/2016)

01/20/2016

188 LETTER addressed to Clerk of the Court from Marlo Carter re: nonparty, Marlo Carter, informs the Court in writing to agree to the settlement's fairness. This will help several inmates who are in SHU. There are alot of pluses to this settlement and I hope these changes are respected by the CO's and Sgt's that work the SHU; it's very hard adjusting to this SHU. (cdo) (Entered: 01/21/2016)

01/20/2016

189 LETTER addressed to Clerk of the Court from Leonard Vasquez dated 1/12/2016 re: non-party, Leonard Vasquez, informs the Court that his settlement agreement is fair and welcome as is long overdue for this to be a reality. (cdo) (Entered: 01/21/2016)

01/20/2016

190 LETTER addressed to Judge Shira A. Scheindlin from Lisa Boston re: non-party, Lisa Boston, informs the Court that while in SHU a lot of the women are extremely depressed and have suicidal thoughts; maybe having the ability to call a family member can save an inmate's existence. (cdo) (Entered: 01/21/2016)

01/20/2016 191 LETTER from Edward Byrd dated 1/12/2016 re: non-party, Edward Byrd, informs that Court that he is seeking assistance in obtaining information concerning this matter. (cdo) (Entered: 01/21/2016)

01/20/2016

193 LETTER from Michael Outler dated 1/12/2016 re: non-party, Michael Outler, informs the Court that this agreement is fair to all. They do need to install shower curtains in a two man cell, increase commissary

purchase. Shu is not disciplinary it's cruelty!. (cdo) (Entered: 01/21/2016)

01/20/2016

194 LETTER from Danny Gonzalez dated 1/8/16 re: Non-party Danny Gonzalez informs the Court that he disagreed with this class-action lawsuit due to the injustice and the cruel and unusual punishment inflicted and the imposed illegal sanctions by the D.O.C.C.S. and D.O.C.S. in retaliations and harassments; but he is only in agreement to implement (A),(B), (C), (D), (E), (G), (H), (I), (J), and (K). (sc) (Entered: 01/21/2016)

01/20/2016

195 LETTER addressed to To Whom It May Concern: from Lafayel Wright dated 1/12/16 re: non-party, Lafayel Wright, informs the Court the settlement is fair and reasonable. I have a child that is 4 years old and writing a letter just doesn't cut it. I need a phone call to maintain family ties. If rehabilitation is truly a goal reading and writing activities are a necessity to growth and change in the right direction. (cdo) (Entered: 01/21/2016)

01/20/2016

196 LETTER addressed to Clerk of the Court from John Paul Maxwell dated 1/12/16 re: non-party, John Paul Maxwell, informs the Court that he thinks the settlement agreement reached in People v. Fischer is fair. I would like to add my name to the list of people in favor of the terms in the agreement. (cdo) (Entered: 01/21/2016)

01/20/2016

197 LETTER from Emmanuel T. Johnson dated 1/14/16 re: Non-party Emmanuel G. Johnson informs the Court that, in order for these policies to work(from the settlement), you have to sift through D.O.C.C.S. system of "Directives, Policies, and Procedures" and implement a "police system" to police these people to do their jobs the way which they agreed to do etc. (sc) (Entered: 01/21/2016)

01/20/2016

199 LETTER from David Wiley dated 1/11/16 re: Non-party David Wiley informs the Court that he agrees to all of the policies reached in the Federal civil rights class-action lawsuit filed against the New York State Department of Corrections & Community Supervision. (sc) (Entered: 01/22/2016)

01/20/2016 242 LETTER from Miguel Burgos re: SOLITARY CONFINEMENT SETTLEMENT, 11-CV-2694(SAS). (sc) (Entered: 02/01/2016)

01/21/2016

192 LETTER from Joseph Machado dated 1/12/16 re: non-party, Joseph Machado, informs the Court that we can productively have a chance to address some serious issues on how prisoners are being treated.. (cdo) (Entered: 01/21/2016)

01/21/2016

198 LETTER from Donneer Legree dated 1/11/16 re: Non-party Donneer Legree informs the Court that he feels that this class-action is really a call against DOCCS; that he thought that the S.H.U. was a rehabilitation program, but instead of learning for our behavior, they get broken down. (sc) (Entered: 01/21/2016)

01/22/2016

200 LETTER from Lisa Boston dated, 1/14/16 re: Non-party Lisa Boston requests that the Court allows every inmate to use his/her time wisely and have a second chance of getting at least a G.E.D. because it is a start, instead of staring at a wall for 24 hours a day. (sc) (Entered: 01/22/2016)

01/25/2016

201 LETTER addressed to Clerk of the Court from Isaiah Henderson dated 1/19/2016 re: non-party, Isaiah Henderson, informs the Court that he understands that there are provisions of the agreement that may take time to implement but what becomes of the provisions that can be implemented immediately? The agreement terms are vague and can be misinterpreted as well as manipulated by DOCCS Staff. (cdo) (Entered: 01/25/2016)

01/25/2016

202 LETTER addressed to Sir/Madam from Mark A. Carballo dated 1/17/16 re: non-party, Mark A. Carballo, informs the Court that he has not been able to obtain the entire settlement agreement but with what he has been able to read determines that it is a fair and long awaited change in the SHU confinement. From what is seen this settlement agreement will improve things greatly for prisoners in SHU, especially for those with long term SHU confinement. (cdo) (Entered: 01/25/2016)

01/25/2016

203 LETTER addressed to Clerk of the Court from Theodore Haynes dated 1/16/16 re: non-party, Theodore Haynes, informs the Court that he feels strongly that the settlement is fair and very much needed in DOCCS. (cdo) (Entered: 01/25/2016)

01/25/2016

204 LETTER addressed to Clerk of the Court from Dior Creighton dated 1/18/16 re: non-party, Dior Creighton, informs the Court that he thinks the settlement agreement is every much fair to both sides. He hopes this agreement can be made. (cdo) (Entered: 01/25/2016)

01/25/2016

205 LETTER addressed to Clerk of the Court from Jamal Roberts re: nonparty, Jamal Roberts, informs the Court that the proposed Settlement of Class Action affection Special Housing Unit policies and procedures is a reasonable action from the Courts. Access to a telephone for SHU prisoners can help the prisoner change his misconduct with the help of family and loved ones. The installation of shower curtains in double celled SHU cells is well needed. With 2 men in a cell, a shower in the cell with no shower curtain is just a uncomfortable situation. This

causes a problem. There are plenty of other problems that the Class Action covers and this is a good decision. (cdo) (Entered: 01/25/2016)

01/25/2016

206 LETTER addressed to Clerk of the Court from Velal Bonhomme dated 1/18/2016 re: non-party, Velal Bonhomme, informs the Court that he is glad that people in the street are finally taking notice to the affect of extreme isolation is having on people. He feels that the things that were mentioned inside of the notice is a great start to truly help people change their behaviors. It will also help people work on difference short comings they may have and keep a positive connection with their loved ones. (cdo) (Entered: 01/25/2016)

01/25/2016

207 LETTER addressed to Clerk of the Court from Bryam Rodriguez dated 1/13/16 re: non-party, Bryam Rodriguez, informs the Court that he would like to be added to the case and be sent information on this case. (cdo) (Entered: 01/25/2016)

01/25/2016

208 LETTER addressed to Clerk of the Court from Patrick Proctor re: nonparty, Patrick Proctor, informs the Court that he is housed within SHU for over 21 years. For more than the last 12 years, his status has been Administrative Segregation. Even though he is not serving any disciplinary sanctions, he is housed under the same harsh rules, regulations and property restrictions that are applied to disciplinary. Since the settlement does not address Ad Seg status at all, DOCCS will continue their barbaric treatment and claim that he does not fall under the settlement agreement. He is asking that the Judge and attorney's address the Ad Seg issues that would allow him to buy a T.V. and food commissary and allow him to be eligible for all incentive/program opportunities. (cdo) (Entered: 01/25/2016)

01/25/2016 209 LETTER addressed to Clerk of the Court. from John Zebrowski dated 1/12/2016 re: non-party, John Zebrowski, would like to be added to the Class Action. (cdo) (Entered: 01/25/2016)

01/25/2016

210 LETTER from Giquan Duley dated 1/11/2016 re: non-party, Giquan Duley, informs the Court that he would like to DOCCS implement changes and modify current policy to better help me. He further agrees to all policies reached in the federal civil rights class-action lawsuit filed against the New York State Department of Corrections and Community Supervision. (cdo) (Entered: 01/25/2016)

01/25/2016

211 LETTER addressed to Clerk of the Court from Terrell Zeigler dated 1/11/2016 re: non-party, Terrell Zeigler, informs the Court that he would like to be apart of the above case and would like to know he may seek money damages in the above settlement.. (cdo) (Entered: 01/25/2016)

01/25/2016

212 LETTER addressed to Clerk of the Court from Michael Watkins dated 1/12/16 re: non-party, Michael Watkins, informs the Court that he is grateful and thankful for the settlement proposal and strongly feels its time for us as the people to finally be treated with fairness and equality and not as 3/5 of a man.. (cdo) (Entered: 01/25/2016)

01/25/2016

213 LETTER from Ali Mohammad re: non-party, Ali Mohammad, informs the Court that he feels the settlement is fair and reasonable because people came to SHU or keeplock and got treated like animals and it must stop. He feels like this is definitely a start and it will cause more respect to be shown on both sides.. (cdo) (Entered: 01/25/2016)

01/25/2016

214 LETTER addressed to Court Clerk from Tumai Waters dated 1/11/16 re: non-party, Tumai Waters, informs the Court that he feels that the new proposals for the special housing unit is more than fair. People in prison need help, that's why we are here! (cdo) (Entered: 01/25/2016)

01/25/2016

216 LETTER addressed to To Whom It May Concern: from Dierdra Watson dated 1/12/2016 re: non-party, Dierdre Watson, informs the Court that C.O.'s or Captain's use SHU as a way to get even with individuals. (cdo) (Entered: 01/25/2016)

01/25/2016

217 LETTER addressed to Honorable Shira A. Scheindlin from Jose Rodriguez dated 1/14/2016 re: non-party, Jose Rodriguez, informs the Court that he is not looking for a decision at such determination during a Supt's hearing completed on January 13, 2016. His statement is a "Substantial Support" over such continued use of loaf like punishment when it shows improper methods in it application. (cdo) (Entered: 01/25/2016)

01/25/2016

218 LETTER addressed to To Whom It May Concern: from Anthony Jones dated 1/14/16 re: non-party, Anthony Jones, informs the Court that most of our loved ones worry about our well being, which can also be unhealthy on our spouse, siblings, parents, etc. Our 5-minue call once per month is awful because what can really anyone actually converse to/with their loved ones about in a 5-minute time period. (cdo) (Entered: 01/25/2016)

01/25/2016

219 LETTER from Kenneth Ortiz dated 1/11/16 re: non-party, Dierdre Watson, informs the Court that he has been sanctioned four times to the SHU for a dirty urine. He's been on a 1 on 1 watch because his mental health is out of control. (cdo) (Entered: 01/25/2016)

01/25/2016 220 LETTER addressed to Clerk of Court from Magdy Atiyeh dated 1/16/16 re: non-party, Magdy Atiyeh, informs the Court that he wants to be involved in this class action law suit. He is doing 120 days in

SHU and the solitary confinement is affecting his mental state of mind. (cdo) (Entered: 01/25/2016)

01/25/2016

221 LETTER addressed to Clerk of the Court from Gregory Miles re: nonparty, Gregory Miles, informs the Court that if the curtain in a double bunking bed is see through, it is as the same as having no curtain. Should the shower curtain be only see through from the "chest area" of males, then this item would promote manhood and respect amongst prisoners. (cdo) (Entered: 01/25/2016)

01/25/2016

222 LETTER addressed to Clerk from Ricky Dilley dated 1/19/2016 re: non-party, Ricky Dilley, informs the Court that he agrees with the class action law suit. The medical and the medical staff here at Lakeview needs to be addressed cause there's a lot of neglect, oppression, illconduct and deprivation going on a Lakeview. (cdo) (Entered: 01/25/2016)

01/25/2016

223 LETTER addressed to Clerk of the Court from Alex Valverde dated 1/14/2016 re: non-party, Alex Valverde, informs the Court that he would like more information about this case. (cdo) (Entered: 01/25/2016)

01/25/2016

224 LETTER addressed to Clerk of the Court from Brian Santiago re: nonparty, Brian Santiago, informs the Court that this settlement is a big step in the righ direction. He believes the settlement should be more specific in its provisions because he believes DOCCS facility staff and administration will find some way to deprive them of the things set forth in this settlement. (cdo) (Entered: 01/25/2016)

01/25/2016

225 LETTER addressed to To Whom It May Concern: from Edward Valle dated 1/18/2016 re: non-party, Edward Valle, informs the Court that this will be beneficial to offenders serving a lengthy sentence in SHU. I think everything listed is more than fair and he really hopes it passes. (cdo) (Entered: 01/25/2016)

01/25/2016

226 LETTER addressed to To Whom It May Concern: from Anthony Gonzalez dated 1/15/2016 re: non-party, Anthony Gonzalez, informs the Court that he has been a victim of solitary confinement since February 26, 2015 until present day. He is either placed in Involuntary Protective Custody or Administrative Segregation when he has been a non-violent or a disciplinary inmate. He requests more information regarding this settlement. (cdo) (Entered: 01/26/2016)

01/25/2016 227 LETTER addressed to Clerk of the Court from Anthony Buchanan re: non-party, Anthony Buchanan, informs the Court that he agrees somewhat with the settlement provisions of the settlement agreement.

He is glad that something began to happen because you can end up in SHU for things that are out of your control. (cdo) (Entered: 01/26/2016)

01/25/2016 254 LETTER from Non-Party Carlos Torres, 14-A-2675, dated 1/19/2016. (man) (Entered: 02/11/2016)

01/26/2016

228 LETTER addressed to Judge Shira A. Scheindlin from Reginald McFadden dated 1/13/16 re: non-party, Reginald McFadden informs the Court that he has a number of objections to the settlement. (cdo) (Entered: 01/26/2016)

01/26/2016

229 LETTER addressed to Clerk of the Court from Imhotep H'shaka dated 1/13/2016 re: non-party, Imhotep H'shaka informs the Court that he wishes to express his gratitude to Judge Scheindlin for acknowledging that there exists a problem in the way that DOCCS is utilizing solitary confinement and for taking action to quell said problem. (cdo) (Entered: 01/26/2016)

01/26/2016

230 LETTER from Idell Williams dated 1/19/2016 re: non-party, Idell Williams, informs the Court that he agrees with this entire matter. Some facilities don't impose policy that entitles all inmate's on a SHU sanction the proper time cuts or shorter durations in the SHU. (cdo) (Entered: 01/26/2016)

01/26/2016 231 LETTER addressed to Clerk of Court from Douglas G. Payne III re: non-party, Douglas G. Payne III, informs the Court that he is requesting more inforamtion regarding the settlement. (cdo) (Entered: 01/26/2016)

01/26/2016

232 LETTER addressed to Clerk of the Court from Muhsin Fared dated 1/13/16 re: non-party, Muhsin Fared, informs the Court that he has read the information regarding the settlement but can not make out what benefits he will receive.. (cdo) (Entered: 01/26/2016)

01/26/2016

233 LETTER addressed to Clerk of the Court from Marquis Corley re: nonparty, Marquis Corley, informs the Court that he has written Superintendent C. Miller regarding the abuse he has received from C.O.'s at Great Meadow Correctional Facility and has not found any relief. (cdo) (Entered: 01/26/2016)

01/26/2016 234 MEMO ENDORSEMENT on re: 215 FRCP Rule 5d Memo - Sent to Chambers. ENDORSEMENT: ACCEPT FOR FILING. (Signed by Judge Shira A. Scheindlin on 1/26/2016) (kl) (Entered: 01/26/2016)

01/27/2016

239 LETTER from Colon Lion, re: Non-party Colon Lion submits this letter with attached copy of Notice to DOCCS Prisoners about Proposed Settlement of Class Action Affecting Special Housing Unit Policies & Procedures. (sc) (Entered: 01/28/2016)

01/28/2016

235 LETTER addressed to To Whom It May Concern: from Debra Shaughnessy dated 1/20/2016 re: non-party, Debra Shaughnessy, informs the Court that her grandson is being held in SHU at an upstate facility in Malone, New York. Ms. Shaughnessy feels her grandson should be in a prison where he can receive help his mental illness. (cdo) (Entered: 01/28/2016)

01/28/2016

236 LETTER addressed to Clerk of the Court from Saleh Ahmed dated 1/18/2016 re: non-party, Saleh Ahmed, informs the Court that the settlement is a good arrangement. Shu has been used and abused for small infraction between inmate and staff for a long time. Shu should be used against those who breach or disregard safety of facility in a grave matter. (cdo) (Entered: 01/28/2016)

01/28/2016

237 LETTER addressed to Sir/Madam: from Roy Tarbell dated 1/21/2016 re: non-party, Roy Tarbell, informs the Court that he urges the Court to be as precise as possible in its wording in its settlement agreement. (cdo) (Entered: 01/28/2016)

01/28/2016

238 LETTER from Andre Jon-Hope dated 1/16/2016 re: non-party, Andre Jon-Hope, informs the Court that he wishes the Court to approve the settlement. (cdo) (Entered: 01/28/2016)

01/28/2016

240 LETTER addressed to NYC Liberties Union from Stephen Alexander re: non-party, Stephen Alexander, informs the Court that he wishes the SHU conditions to be fixed once and for all. (cdo) (Entered: 01/28/2016)

01/29/2016

241 LETTER addressed to To Whom It May Concern: from Tyrone Ford dated 1/24/2016 re: non-party, Tyrone Ford, informs the Court that he is writing to express his appreciation for the proposed settlement regarding solitary confinement in SHU. Prison Officials have abused solitary confinement, treating prisoners like dogs. While he understands the necessity of order within the system, most of the time, the charges that land an offender in SHU are not that serious to warrant isolation. (cdo) (Entered: 01/29/2016)

02/02/2016

243 LETTER from Brian White, DIN#08B0704, dated 1/26/16 re: Nonparty Brian White informs the Court that he agrees and approves of the conditions set forth in the lawsuit and hopes that the Court could help find a solution to the mistreatment and poor conditions of the SHU. (sc) (Entered: 02/03/2016)

02/02/2016

244 LETTER from Ellier Acevedo dated 1/26/16 re: Non-party Ellier Acevedo informs the Court that, if the Judge does approve the settlement, then it will be a success not only because it will help those like himself in extreme isolation, but it will be great for society as well

because it will help to rehabilitate those who will be returning to the outside world. (sc) (Entered: 02/03/2016)

02/03/2016

248 LETTER addressed to Judge Shira A. Scheindlin from John White dated 1/27/16 re: Non-party John White submits this letter to the Court for denial of OMH treatment. (sc) (Entered: 02/05/2016)

02/04/2016

245 LETTER addressed to Clerk of the Court from Jacob Reyes dated 1/30/2016 re: non-party, Jacob Reyes, informs the Court that being a victim of the present circumstances in SHU he believes that the settlement is far, or much better than what our present situation is that is so against human rights. (cdo) (Entered: 02/04/2016)

02/04/2016

246 LETTER addressed to To Whom It May Concern: from Joseph Curry dated 1/30/2016 re: non-party, Joseph Curry, informs the Court that he has been in SHU since 1/18/12 for a non-violent offense and he would like to see some changes with the SHU conditions. (cdo) (Entered: 02/04/2016)

02/04/2016

247 LETTER addressed to To Whom It May Concern: from Marianne Streeter dated 1/29/2016 re: non-party, Marianne Streeter, informs the Court that the programs are very good and the staff that runs it does it very well. I came with an open mind and am working on some issues I want taken care of before she go home in September. She believes these changes will help more men and women who are incarcerated by giving them a change to turn their lives around even in SHU. (cdo) (Entered: 02/04/2016)

02/05/2016

250 LETTER from Troy Hendrix re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Troy Henrix submits this letter to make clear that he does not agree with the aforementioned settlement; and that DOCCS has made clear that this settlement does not apply to "ADSEG" inmates etc. (sc) (Entered: 02/08/2016)

02/08/2016

249 LETTER from Sacha Jean-Louis dated 2/2/16 re: Non-party Sacha Jean-Louis writes to the Court to find out if there is any possibility of collecting lawsuit money for an incident which happened on 11/2/11 at Great Meadow Correctional Facility. (sc) (Entered: 02/08/2016)

02/08/2016

251 LETTER from Jeffrey Hopper re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Jeffrey Hopper informs the Court that he sees nothing about the violation of human rights and laws which take place in the small S.H.U.'s where there are no cameras. (sc) (Entered: 02/09/2016)

02/10/2016 252 LETTER from Jose Rodriguez dated 1/4/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Plaintiff informs the Court that he

is being held in the custody of the DOCCS past his release date, because he cannot find an address for transitional housing in the five boroughs of New York City. (sc) (Entered: 02/11/2016)

02/10/2016 253 LETTER from Richard Thomas, DIN#10A0200, dated 1/25/16 re: Non-party Richard Thomas informs the Court that he thinks that this settlement is fair to both sides. (sc) (Entered: 02/11/2016)

02/11/2016

255 LETTER from Domencio Baez dated 2/11/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Domencio Baez writes to the Court to request about the fairness of the settlement in the case. (sc) (Entered: 02/15/2016)

02/11/2016

256 LETTER from Dwayne Hudson dated 1/12/16 re: Non-party Dwayne Hudson submits this letter in support of the new proposed settlement of class action that affects Special Housing Unit Policies and Procedures. (sc) (Entered: 02/16/2016)

02/11/2016

258 LETTER from Scott Young dated 2/2/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Scott Young informs the Court that he writes the Court in order to obtain the legal assistance that he presently seeks and needs at this time. (sc) (Entered: 02/18/2016)

02/16/2016

257 LETTER from Trevor Porter dated 2/9/16 re: (Solitary Confinement Settlement) Non-party Trevor Porter informs the Court that his area of concern is the appeals process of disciplainary proceedings; and that all appeals should be reviewed outside of the facility and expedited.. (sc) (Entered: 02/17/2016)

02/17/2016

260 LETTER from Eric D. Hawkins re: (SOLITARY CONFINEMENT SETTLEMENT) -Non-Party Eric D. Hawkins informs the Court that the terms which are being asked for should be minimal standards because of the pain and torture they endure on a daily basis while in SHU. (sc) (Entered: 02/22/2016)

02/18/2016

261 LETTER from Danny Gonzalez dated 2/3/16 re: Non-party Danny Gonzalez informs the Court that he disagrees with the S.H.U. Settlement Agreement, because it gives the D.O.C.C.S. authority to impose unconstitutional retaliation against the prisoners etc. (sc) (Entered: 02/22/2016)

02/18/2016 262 LETTER from David Wiley re: SOLITARY CONFINEMENT SETTLEMENT - (PAYING A DEBT TO SOCIETY...WHY THE ADDED HARDSHIPS?). (sc) (Entered: 02/22/2016)

02/18/2016

263 LETTER from Joseph Kaminski re: Plaintiff informs the Court that he feels that this settlement agreement is fair and reasonable; and that it would make the S.H.U. more productive and fair. (sc) (Entered: 02/22/2016)

02/18/2016

264 LETTER from Darius Ashley dated 2/12/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Darius Ashley informs the Court that he is one of several inmates who have been sanctioned to an overly harsh and excessive S.H.U. confinement duration. (sc) (Entered: 02/22/2016)

02/18/2016

265 LETTER from Robby Jenkins dated 2/9/16 re: Non-Party Robby Jenkins informs the Court that he would like for the Clerk of the Court and the Judge in this case to acknowledge that he requests that this settlement agreement to be denied due to the fact that he has been dealing with many issues dealing with this matters. (sc) (Entered: 02/22/2016)

02/18/2016

266 LETTER from Keon Hart dated 2/2/16 re: Non-party Keon Hart submits this letter from the NYCLU which encloses a fact sheet that describes the process of filing a grievance and a disciplinary appeal, and which Mr. Hart has apparently filled out. (sc) (Entered: 02/22/2016)

02/19/2016

259 ORDER GRANTING THE PARTIES' JOINT REQUEST TO CHANGE THE CASE CAPTION: The Court, having considered the parties' joint letter requesting a change in the case caption, hereby orders that the case caption be amended to remove defendant Brian Fischer, former Commissioner of the New York State Department of Corrections and Community Supervision, and replace him with defendant Anthony Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision. The amended case caption should be identical to the caption in Exhibit B to the parties' February 18 letter request. Brian Fischer (Commissioner of the New York State Department of Corrections and Community Services) terminated. Anthony Annucci added. (Signed by Judge Shira A. Scheindlin on 2/19/2016) (kl) Modified on 2/19/2016 (kl). Modified on 2/19/2016 (kl). (Entered: 02/19/2016)

02/19/2016

267 LETTER from Dr. K.(last name illegible - DIN#08B1832) dated 2/10/16 re: Non-party Dr. K.(last name illegible) informs the Court that the settlement should be approved due to the fact that he is at Upstate Correctional Facility ( S.H.U.), and this S.H.U./Solitary Confinement is taking a toll on people for real etc.. (sc) (Entered: 02/22/2016)

02/19/2016 268 LETTER from Domencio Baez dated 1/23/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Demencio Baez writes

to request to the Court about the fairness of the settlement in the case, Peoples v. Fischer. (sc) (Entered: 02/22/2016)

02/19/2016

269 LETTER from Saul Sabino re: (SOLITARY CONFINEMENT SETTLEMENT) -Non-party Saul Sabino informs the Court that he concedes with the settlement's fairness. (sc) (Entered: 02/22/2016)

02/19/2016

270 LETTER addressed to Judge Shira A. Scheindlin from Donnell Jefferson, dated 2/8/16 re: Non-party Donnell Jefferson informs the Court that he disagrees with the Proposed Settlement Agreement in this matter, because the proposed agreement says nothing about the prisoners who are routinely placed in the defendant's Boxes a.k.a. SHU's in prisons which are not listed in the agreement. (sc) (Entered: 02/22/2016)

02/19/2016

271 LETTER from Brunce Smith dated 2/14/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Brunce Smith informs the Court that he is disappointed in the recent settlement, because in the settlement all of the other prisoners were not included in receiving any money etc. (sc) (Entered: 02/23/2016)

02/23/2016

272 LETTER from Darrin Guerrero re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Darrin Guerrero informs the Court that he believes that the Settlement Agreement is fair and reasonable; and he hopes that this settlement is approved, because the D.O.C. needs order. (sc) (Entered: 02/24/2016)

02/23/2016

273 LETTER from Darius Ashley dated 2/17/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Darius Ashley informs the Court that his only concern is how these policies are to be monitored; that very rarely do the State and its employees welcome change. (sc) (Entered: 02/25/2016)

02/23/2016

274 LETTER from Keith Woolridge dated 2/15/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Plaintiff informs the Court that programs do work when done with a zero balance, iron-clad, fist imported with as much empathy as allowed; and he supports this attempt etc. (sc) (Entered: 02/26/2016)

02/25/2016

275 LETTER from Johnathan Johnson, dated 2/22/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Plaintiff informs the Court that the gravemen of this letter is to insert his comment and express the fairness and reasonable of the DOCCS issuing of Ear-buds instead of headphones(Directive 1933, Section 303.2[b ] etc. (sc) (Entered: 02/26/2016)

02/26/2016

277 LETTER from Marcus Telesford dated 2/21/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Macus Telesford informs the Court that he is in total disagreement with this lawsuit, because not one of the attorneys for the New York Civil Liberties Union has made an effort to contact him nor a substantial number of class members.(sc) (Entered: 02/29/2016)

02/29/2016

276 LETTER from Hector Matos dated 2/23/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Hector Matos notifies the Court that D.O.C.C.S. Staff, especially mental health staff, are not around solitary confinement prisoners enough to professionally diagnose the mentally ill. (sc) (Entered: 02/29/2016)

03/01/2016

278 LETTER from Marcus J. Barber Jr. dated 2/21/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Plaintiff notifies the Court of his agreement regarding the Settlement Agreement regarding S.H.U. policies and procedures. (sc) (Entered: 03/01/2016)

03/01/2016

279 LETTER from Justin Hosey dated 2/22/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Justin Hosey informs the Court that there is nothing bad to be said about the Settlement; that it will help people stay in contact with their family by being able to use the phone which is good. (sc) (Entered: 03/01/2016)

03/03/2016

280 LETTER addressed to Judge Shira A. Scheindlin from Leroy Peoples, dated 2/24/16 re: (SOLITARY CONFINEMENT SETTLEMENT) REQUESTING ADJOURNMENT OF 2/28/16 HEARING TO RENEGOTIATE MY INCENTIVE PAYMENT. (sc) (Entered: 03/03/2016)

03/03/2016

281 LETTER from Horace Harris dated 2/25/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Horace Harris requests under the Freedom of Information Act that the Court send him all of the pages of the Settlement of this case hearing on the disciplinary/ confinement sanctions and conditions of segregated housing units etc. (sc) (Entered: 03/03/2016)

03/03/2016

282 LETTER from Tamaj Fields re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Tamaj Field informs the Court that he does not know whom to be scared of, the correction officers or the inmates; and that he is just happy that the Court can please help him in any way it can, and that he is thankful. Document filed by Leroy Peoples.(sc) (Entered: 03/03/2016)

03/03/2016

283 LETTER from Eddie Cordero dated 2/15/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Eddie W. Cordero Sr. requests that the DOCCS stop double-celling prisoners, including

himself in the SHU; and that they do not even have rules and a regulations booklet with a schedule of the daily routines. (sc) (Entered: 03/03/2016)

03/03/2016

286 LETTER addressed to Judge Shira A. Scheindlin from Shawn Green dated 2/23/16 re: (SOLITARY CONFINEMENT SETTLEMENT) Non-party Shawn Green informs the Court that prisoners should be allowed winter underwear and wool socks as in-cell property on all levels, considered that DOCCS is required to provide adequate clothing for prisoners during inclement weather, but does not. (sc) (Entered: 03/04/2016)

03/04/2016

284 MOTION for Daniel Matza-Brown to Withdraw as Attorney . Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Attachments: # 1 Text of Proposed Order)(Matza-Brown, Daniel) (Entered: 03/04/2016)

03/04/2016

285 DECLARATION of Daniel Matza-Brown in Support re: 284 MOTION for Daniel Matza-Brown to Withdraw as Attorney .. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Matza-Brown, Daniel) (Entered: 03/04/2016)

03/04/2016

288 LETTER from Joe Smith dated 2/9/16 re: Non-party Joe Smith informs the Court that he is in strong support of the settlement agreement and that the settlement, if implemented, would be a step in the right direction. (sc) (Entered: 03/07/2016)

03/04/2016

289 ORDER OF WITHDRAWAL OF DANIEL MATZA-BROWN, ESQ granting 284 Motion to Withdraw as Attorney. Upon consideration of the motion to withdraw the appearance of Daniel Matza-Brown, Esq., this Court orders that Daniel Matza-Brown, Esq. be withdrawn from this case, and further orders that Mr. Matza-Brown be removed from the Court's electronic service list. Attorney Daniel Matza-Brown terminated (Signed by Judge Shira A. Scheindlin on 3/4/2016) (cf) (Entered: 03/07/2016)

03/07/2016 287 NOTICE OF APPEARANCE by Aimee Krause on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Krause, Aimee) (Entered: 03/07/2016)

03/08/2016

290 LETTER from Eric Campbell dated 2/26/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Eric Campbell informs the Court that the D.O.C.C.S. continues to violate the federal constitutional rights of prisoners; and that there is still widespread abuse being committed by the D.O.C.C.S. correction officers and consitutional violations. (sc) (Entered: 03/08/2016)

03/09/2016

291 LETTER from Ray Shawn Moreno re: Non-party Ray Shawn Moreno informs the Court that he along with others agree that this settlement will help minimize the very harsh conditions which they are living under. (sc) (Entered: 03/09/2016)

03/09/2016

292 LETTER from John Vailes dated 3/1/16 re: (SOLITARY CONFINEMENT SETTLEMENT)-Non-party John Vailes informs the Court that he agrees with the fairness of the settlement. (sc) (Entered: 03/09/2016)

03/10/2016 293 LETTER from Darryl Dent re: (SOLITARY CONFINEMENT SETTLEMENT). (sc) (Entered: 03/10/2016)

03/11/2016

294 LETTER addressed to Judge Shira A. Scheindlin from Samuel John Smolen, Jr. dated 3/8/16 re:(Solitary Confinement Settlement) - Nonparty Samuel J. Smolen, Jr. requests that the Court extend the "Notice to Inmates" Time Period for another six months for just cause for failure of the defendants to post and provide a copy of the proposed settlement. (sc) (Entered: 03/14/2016)

03/14/2016

295 LETTER from Kenneth Griffin dated 3/6/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Kenneth Griffin informs the Court that there are too many prisoners in the SHU for way too long, and it can have a serious affect on the mind. (sc) (Entered: 03/14/2016)

03/14/2016

296 LETTER from Carlos Giorritz dated 2/29/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Carlos Giorritz informs the Court that he along with others agreed that this settlement will help minimize the very harsh conditions which they are currently living under. (sc) (Entered: 03/14/2016)

03/14/2016 297 LETTER from William Brooks, re: (SOLITARY CONFINEMENT SETTLEMENT) (THE REHABILITATION PROGRAM). (sc) (Entered: 03/14/2016)

03/14/2016

298 LETTER from Wilson Bruzzo dated 2/23/16 re: (SOLITARY CONFINEMENT SETTLEMENT) Non-party Wilson Bruzzo informs the Court that Paragraph 4(b) drug related sanctions should be investigated with more diligence especially if the prisoner is taking medications on a regular basis. (sc) (Entered: 03/14/2016)

03/14/2016

299 LETTER from Donald M. Dove dated 3/8/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Donald M. Dove informs the Court that he thinks that the settlement should include more inmates who have or are involved in the same situation instead of only three named plaintiffs. (sc) (Entered: 03/15/2016)

03/14/2016

300 LETTER from Alberto Gonzalez dated 3/7/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Albert Gonzalez informs the Court that he is very pleased with the settlement agreement, but there is room for a few issues to tackle, like having an outside agency to monitor the process of said agreements. (sc) (Entered: 03/15/2016)

03/14/2016

301 LETTER addressed to Judge Shira A. Scheindlin from Vernon Mingo dated 3/14/16 re: (SOLITARY CONFINEMENT SETTLEMENT) Non-party Vernon Mingo informs the Court that this agreement will be a very big step forward for the DOCCS in the right direction; that the analysis by the NYCLU shows that the extreme isolation affected everyone involved with DOCCS etc. (sc) (Entered: 03/15/2016)

03/15/2016 302 DECLARATION/AFFIRMATION OF PARTY TO CLASS ACTION. Document filed by John H. White. (sc) (Entered: 03/16/2016)

03/15/2016

309 LETTER from Javon Gonzalez, dated 2/28/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Javon Gonzalez informs the Court that his situation is evidence that the D.O.C.C.S. has not taken the stipulation seriously nor have they attempted to rectify the many ongoing issues and problems which had led to the lawsuit in the first place. (sc) (Entered: 03/17/2016)

03/15/2016

310 LETTER from Edmir Gega dated 3/9/16 re: SOLITARY CONFINEMENT SETTLEMENT) - Plaintiff informs the Court that he strongly agrees with the changes under this Settlement Agreement which restore a little human dignity, but the Court should consider finding a form of reimbursement to the ones who have suffered under the previous humiliating conditions. (sc) (Entered: 03/17/2016)

03/15/2016

311 LETTER from Carolyn Simon dated 3/8/16 re: Non-party Carolyn Simon informs the Court that she has been in Albion Correctional Facility for 2 1/2 months; and that she has been put into observation in SHU-2A and moved to 4A during the first fifteen days in observation. (sc) (Entered: 03/17/2016)

03/15/2016

312 LETTER from Kirkland Smith, dated 3/11/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Kirkland E. Smith informs the Court that there is a class action entitled 2016 SHU Settlement Agreement which this facility will not allow him the opportunity to see after five(5) attempts. (sc) (Entered: 03/18/2016)

03/16/2016 303 LETTER from Nyjee Boyd re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Nyjee Boyd informs the Court that the stipulations are fair and reasonable; and that they are rehabilitative to

prisoners who have mental illness and to those who have a lot of time in the SHU as well etc. (sc) (Entered: 03/17/2016)

03/16/2016

304 LETTER from Vernon Mingo, re:(SOLITARY CONFINEMENT SETTLEMENT) FREE START PROGRAM. (sc) (Entered: 03/17/2016)

03/16/2016

305 LETTER from Jathniel E. Mendez dated 3/10/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Jathniel Mendez informs the Court that the settlement is a step in the right direction to humanize some cruel conditions of the S.H.U. etc. (sc) (Entered: 03/17/2016)

03/16/2016

306 LETTER from Brandon Griffith, re: Non-party Brandon Griffith informs the Court that he hopes this settlement is not accepted; and that he sees the D.O.C.C.S. just pulling a smoke screen and not making any real concrete changes. (sc) (Entered: 03/17/2016)

03/16/2016

307 LETTER from Armando Colon dated 3/6/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Armando Colon informs the Court that The Peoples v. Fischer Solitary Confinement Settlement should have a clause permitting legally blind prisoners greater access to telephone calls while in solitary confinement. (sc) (Entered: 03/17/2016)

03/16/2016

308 LETTER from Alicia Garrett dated 3/8/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Alicia Garrett informs the Court that she agrees with the settlement, but wishes that other issues could be added. (sc) (Entered: 03/17/2016)

03/17/2016

313 LETTER from Uvaldo Gonzalez, dated 3/12/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Uvaldo Gonzalez notifies the Court that he agrees with the settlement, and that it is a step into a better future for inmates who are housed in the SHU. (sc) (Entered: 03/18/2016)

03/21/2016

314 LETTER from Tracy Cooper re: (SOLITARY CONFINEMENT SETTLEMENT) -Non-party Tracy Cooper informs the Court that the Court should keep prisoners from going to the box SHU period; and that sanctions period should not be above thirty days. (sc) (Entered: 03/21/2016)

03/21/2016 315 FINAL MOTION for Settlement Approval. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. Return Date set for 3/28/2016 at 04:00 PM.(Stewart, Aimee) (Entered: 03/21/2016)

03/21/2016 316 MEMORANDUM OF LAW in Support re: 315 FINAL MOTION for Settlement Approval. . Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Stewart, Aimee) (Entered: 03/21/2016)

03/21/2016

317 DECLARATION of Taylor Pendergrass in Support re: 315 FINAL MOTION for Settlement Approval.. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Attachments: # 1 Exhibit Plaintiffs' Categorization of Comments Filed with Court)(Stewart, Aimee) (Entered: 03/21/2016)

03/21/2016

318 DECLARATION of Aimee Stewart in Support re: 315 FINAL MOTION for Settlement Approval.. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Stewart, Aimee) (Entered: 03/21/2016)

03/21/2016

319 DECLARATION of LeRoy Peoples in Support re: 315 FINAL MOTION for Settlement Approval.. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Stewart, Aimee) (Entered: 03/21/2016)

03/22/2016

320 LETTER from Roderick Lancaster re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-partry Roderick Lancaster informs the Court that the Free Start Program Petition is asking United States District Judge Shira A. Scheindlin to use the power of the Court in the interest of justice to apply the Fee Start Program, and to allow every inmate in DOCCS custody to participate in this Agreement equally, as a whole etc. (sc) (Entered: 03/22/2016)

03/22/2016

321 LETTER addressed to Judge Shira A. Scheindlin from William F. Bonez dated 2/19/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - NONCOMPLIANCE WITH KEY PROVISIONS OF THE INTERIM AGREEMENT BY SUPERINTENDNT OF THE UPSTATE PRISON IN PEOPLES V. FISCHER, 11-CV-2694. (sc) (Entered: 03/23/2016)

03/22/2016

322 LETTER from Luis Gilberto Diaz, Jr. re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Luis Gilberto Diaz informs the Court that he would like to join this case with other SHU prisoners throughout New York State etc. (sc) (Entered: 03/23/2016)

03/23/2016

323 DECLARATION of Thomas Goetz in Support re: 315 FINAL MOTION for Settlement Approval.. Document filed by Anthony Annucci, Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Curtis Drown, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, William Powers, Albert Prack, David Rock. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Brewster, Richard) (Entered: 03/23/2016)

03/25/2016

324 LETTER from Todd Branham, dated 3/14/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Todd Branham informs the Court that it shall be fair and reasonable for any inmate who has been placed in the SHU confinement and speaks up in this lawsuit challenging the constitutionality of disciplinary confinement sanctions and conditions of Special Housing Units in the New York State Prison System. (sc) (Entered: 03/25/2016)

03/25/2016

325 LETTER from Marcus Telesford, dated 3/20/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Marcus Telesford informs the Court that ninety-eight percent of the class members in this class action were not informed of this settlement agreement nor do they consent to the terms of this settlement. (sc) (Entered: 03/25/2016)

03/25/2016

326 LETTER from Carolyn Simon dated 3/17/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Carolyn Simon informs the Court that it is not right what she is going through etc. (sc) (Entered: 03/25/2016)

03/25/2016

327 VERIFIED AMICUS BRIEF OF SCOTT MYERS, INMATE 14A1568. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(sc) (Entered: 03/28/2016)

03/28/2016

328 LETTER from Darryl Moore re: ( SOLITARY CONFINEMENT SETTLEMENT) - Non-party Darryl Moore informs the Court that he wants to know about the Settlement and how it can help his situation, in that he has been in the SHU for close to eighteen(18) months. (sc) (Entered: 03/29/2016)

03/28/2016

Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 3/28/2016. (Entered: 03/29/2016)

03/31/2016

329 OPINION AND ORDER #106383 re: 315 FINAL MOTION for Settlement Approval. filed by Dewayne Richardson, Tonja Fenton, Leroy Peoples. This Settlement Agreement represents a significant step toward improving the conditions of solitary confinement throughout New York State. Nonetheless, it could not and did not address every problem experienced by prisoners in general or in solitary confinement in particular. Further reforms are likely to follow, especially when the Attorney General, representing the people of New York, has demonstrated his strong commitment to improving the conditions of confinement for prisoners within the State's custody. This litigation, and the way it has been handled by all of the attorneys, is the best example of the power of impact litigation to redress conditions that affect the most vulnerable members of our society. Another benefit of the successful resolution of this case is that it will undoubtedly inspire

other members of the legal community to accept representation of individuals like Mr. Peoples, Mr. Richardson, and Ms. Fenton - who, with the help of outstanding counsel, were able to bring about the system-wide result that the Court approves today. For the foregoing reasons, the Joint Motion for Final Approval of Settlement is GRANTED. The Clerk of the Court is directed to close this motion (Dkt. No. 315). (As further set forth in this Order.) (Signed by Judge Shira A. Scheindlin on 3/31/2016) (kgo) Modified on 4/14/2016 (ca). (Entered: 03/31/2016)

03/31/2016 336 INTERNET CITATION NOTE: Material from decision with Internet citation re: 329 Memorandum & Opinion. (Attachments: # 1 Internet Citation) (vf) (Entered: 04/13/2016)

04/01/2016

330 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Taylor Pendergrass dated 4/1/16 re: Counsel writes to request that the Court publicly file the following previously confidential attachments to the Settlement Agreement, submitted to the Court by Mr. Brewster by email on January 19, 2016, and attached to this letter (1) DOCCS Modified Guidelines, (2) Guidance to Hearing Officers, (3) PIMS Chart, and (4) Fishkill Inmate Double Cell Criteria. The parties agree that these attachments are important substantive pieces of the Settlement Agreement, and there is no longer any need for confidentiality. ENDORSEMENT: SO ORDERED. (Signed by Judge Shira A. Scheindlin on 4/1/2016) (mro) (Entered: 04/04/2016)

04/01/2016

331 ORDER GRANTING THE PARTIES' JOINT MOTION FOR FINAL APPROVAL OF CLASS-ACTION SETTLEMENT: The Court, having previously granted preliminary approval of the parties' Settlement Agreement, and having held a hearing on the fairness of the Settlement Agreement following a notice and comment period for all class members, and having considered the Third Amended Complaint, the Settlement Agreement, the memorandum and declarations submitted in support of the parties' Joint Motion for Preliminary Approval of the Class-Action Settlement, the comments received from class members, and the memorandum and declarations submitted in support of the parties' present Joint Motion for Final Approval of Class-Action Settlement: FINDS AND ORDERS: 1. For the reasons contained in the Court's written opinion of March 31, 2016 (ECF No. 329), the Court grants final approval of the Settlement Agreement. 2. Accordingly, the Court "so orders" the Settlement Agreement and has attached the "so ordered" Settlement Agreement to this Order. 3. The parties shall execute the Stipulation of Dismissal, attached to the Settlement Agreement as Exhibit 1, and to file it with the Court forthwith. Upon filing the Court will endorse the Stipulation, dismissing the case with prejudice with the Court retaining jurisdiction to enforce the Settlement

Agreement in accordance with Section XIII of the Settlement Agreement until its termination as set forth in Section XVII of the Agreement. (Signed by Judge Shira A. Scheindlin on 4/1/2016) (mro) (Entered: 04/04/2016)

04/04/2016

332 STIPULATION OF DISMISSAL: IT IS HEREBY STIPULATED AND AGREED by and between the parties, by their respective counsel, that pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, this Action be and hereby is dismissed and discontinued with prejudice. The Court retains jurisdiction to enforce the Settlement Agreement entered into on December 15, 2015, as set forth in, and subject to § XIII of the Agreement, until its termination as set forth in § XVII of the Agreement. So Ordered. (Signed by Judge Shira A. Scheindlin on 4/4/2016) (kl) (Entered: 04/05/2016)

04/06/2016

333 LETTER from Russell Hanson, dated 3/30/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Russell Hanson requests that the Court inform him as to the hearing which took place on 3/28/16 in regard to the above subject(as indicated). (sc) (Entered: 04/06/2016)

04/06/2016 334 LETTER from Ricardo Maisonet, a non-party, dated 3/28/16 re: (SOLITARY CONFINEMENT SETTLEMENT) -OUTCOME OF THIS CONFINEMENT. (sc) (Entered: 04/07/2016)

04/07/2016 335 LETTER from Jose M. Hiralta dated 4/3/16 re: SOLITARY CONFINEMENT SETTLEMENT) -Plaintiff seeks Court assistance in restoring his good time to him. (sc) (Entered: 04/08/2016)

04/13/2016

337 TRANSCRIPT of Proceedings re: HEARING held on 3/28/2016 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Kristen Carannante, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/9/2016. Redacted Transcript Deadline set for 5/19/2016. Release of Transcript Restriction set for 7/15/2016.(McGuirk, Kelly) (Entered: 04/13/2016)

04/13/2016

338 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 3/28/16 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 04/13/2016)

04/14/2016

339 OPINION AND ORDER #106417: The Opinion and Order issued March 31, 2016 is hereby withdrawn and replaced with this Amended Opinion and Order, issued April 14, 2016. This Amended Opinion contains edits - which do not alter any of the rulings herein - on pages 28 and 29 only. (As further set forth in this Opinion) (Signed by Judge Shira A. Scheindlin on 4/14/2016) (kl) Modified on 5/3/2016 (ca). (Entered: 04/14/2016)

04/14/2016

340 INTERNET CITATION NOTE: Material from decision with Internet citation re: 339 Memorandum & Opinion. (Attachments: # 1 Internet Citation) (vf) (Entered: 04/21/2016)

04/15/2016

NOTICE OF CASE REASSIGNMENT to Judge Andrew L. Carter, Jr. Judge Shira A. Scheindlin is no longer assigned to the case. (wb) (Entered: 04/15/2016)

05/05/2016

341 TRANSCRIPT of Proceedings re: hearing held on 3/28/2016 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Kristen Carannante, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/31/2016. Redacted Transcript Deadline set for 6/9/2016. Release of Transcript Restriction set for 8/8/2016.(McGuirk, Kelly) (Entered: 05/05/2016)

05/05/2016

342 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a hearing proceeding held on 3/28/16 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/05/2016)

05/16/2016 343 LETTER addressed to Judge Shira A. Scheindlin from John White, dated 5/4/16 re: DECLARATION OF JOHN WHITE(Non-party) DATED (3/4/16). (sc) (Entered: 05/16/2016)

05/16/2016

Request for Copy of the updated Docket Sheet Received: Re 343 Letter. Request for Docket Report, from John White received on 5/16/16. Transmission to Pro Se Assistants for processing. (sc) (Entered: 05/16/2016)

05/18/2016

Form Request Mailed: Request for Docket Sheet from JOHN WHITE(Non-party)mailed on 5/18/2016. (sbr). (Entered: 05/18/2016)

05/18/2016

344 NOTICE OF APPEARANCE by Rebecca Ann Durden on behalf of Anthony Annucci, Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Curtis Drown, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, William Powers, Albert Prack, David Rock. (Durden, Rebecca) (Entered: 05/18/2016)

05/24/2016 345 LETTER from Abdul-Ali Karim-Rashid dated 5/19/16 re: SOLITARY CONFINEMENT SETTLEMENT. (sc) (Entered: 05/25/2016)

06/07/2016

346 LETTER from Alberto Rodrguez dated 6/2/16 re: (SOLITARY CONFINEMENT SETTLEMENT) - Non-party Alberto Rodriguez requests that the Court send him a copy of this matter. (sc) Modified on 6/8/2016 (sc). (Entered: 06/08/2016)

06/07/2016

Request for Copy of updated Docket Sheet Received: Re 346 Letter. Request for Docket Report, from Alberto Rodriguez received on 6/7/16. Transmission to Pro Se Assistants for processing. (sc) (Entered: 06/09/2016)

06/10/2016

Form Request Mailed: Request for Docket Sheet from Leroy Peoples mailed on 6/10/2016. (sbr) (Entered: 06/10/2016)

06/14/2016 347 DECLARATION/AFFIRMATION of John H. White OF PARTY TO CLASS ACTION. (sc) (Entered: 06/15/2016)

06/21/2016 348 LETTER from Andrew Hernandez dated 6/14/16 re: SOLITARY CONFINEMENT SETTLEMENT. (sc) (Entered: 06/22/2016)

06/24/2016

349 JOINT LETTER addressed to Judge Andrew L. Carter, Jr. from Taylor Pendergrass and Rebecca Durden dated June 24, 2016 re: Introduction to the Court and availability for a conference. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Stewart, Aimee) (Entered: 06/24/2016)

06/27/2016

350 ORDER. The Court is in receipt of the parties' letter, dated June 24, 2016. (ECF No. 349.) The Court will hold a status conference in this matter, addressing periodic update requirements among other matters, on July 19, 2016, at 3:30 p.m. The parties (and/or counsel) should appear in person in Courtroom 1306 at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY, on the date and time specified above. SO ORDERED. (Status Conference set for 7/19/2016 at 03:30 PM in Courtroom 1306, 40 Centre Street, New York, NY 10007 before Judge Andrew L. Carter Jr.) (Signed by Judge Andrew L. Carter, Jr on 6/27/2016) (rjm) (Entered: 06/28/2016)

07/05/2016 351 LETTER from Robert Fleming, dated 6/26/16 re: SOLITARY CONFINEMENT SETTLEMENT. (sc) (Entered: 07/06/2016)

07/14/2016

352 LETTER from Robert Henderson, dated 7/8/16 re: (SOLITARY CONFINEMENT SETTLEMENT)- Non-party Robert Henderson would like to receive information concerning proposed settlement class action affecting SHU policies etc. (sc) (Entered: 07/18/2016)

07/19/2016

Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Status Conference held on 7/19/2016. Jennifer K. Brown, Adam Hunt, Christopher Dunn, Philip Desgranges, Aimee K. Stewart and Alexander A. Reinert for Plaintiff(s). Rebecca Ann Durden for Defendant(s). See Docket No. 353 for complete details. (tdh) (Entered: 08/03/2016)

07/21/2016

353 ORDER: As stated at the status conference held July 19, 2016, over the course of the settlement agreement, the parties are to submit an annual joint status report describing the progress of implementation of the settlement agreement. The joint status report shall be submitted each spring, by a date to be set by the Court. The parties shall indicate in the status report whether they believe an in-person status conference would be useful. The first status report shall be submitted to the Court by May 4, 2017. In addition, as the Court noted, each letter received from a classmember or a putative classmember to date has been added to the case's electronic docket so that the parties can view it and respond accordingly. The Court will continue to docket such letters moving forward. (Signed by Judge Andrew L. Carter, Jr on 7/21/2016) (kgo) (Entered: 07/21/2016)

08/02/2016 354 LETTER from Robert Davis, non-party, dated 7/27/16 re: SEEKING COPY OF SETTLEMENT PROPOSAL. (sc) (Entered: 08/03/2016)

08/11/2016

355 LETTER addressed to Judge Shira A. Scheindlin from Kirkland E. Smith dated 7/24/2016 re: Regarding a Memorandum from Supt. Mr. G. Jones, at Livingston Correctional Facility. (kko) (Entered: 08/11/2016)

09/20/2016

Magistrate Judge Debra C. Freeman is so designated. (ad) (Entered: 09/20/2016)

09/27/2016 356 LETTER addressed to Judge Shira A. Scheindlin from Davon Powell dated 8/19/2016 re: Prison not following guidelines. (kgo) (Entered: 09/27/2016)

09/27/2016

357 LETTER addressed to Judge Andrew L. Carter, Jr. from Michael Hurley dated 8/23/2016 re: Informing Court that he is being denied writing paper. (kgo) (Entered: 09/27/2016)

10/04/2016 358 LETTER addressed to Judge Shira A. Scheindlin from John White dated 9/20/2016 re: I submit this declaration on behalf of my experiences endured. (kgo) (Entered: 10/04/2016)

10/13/2016

359 MOTION for Aimee Krause Stewart to Withdraw as Attorney . Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw as Counsel For Plaintiffs)(Stewart, Aimee) (Entered: 10/13/2016)

10/14/2016

360 ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFFS granting 359 Motion to Withdraw as Attorney. Aimee Krause Stewart seeks leave to withdraw as counsel for Plaintiffs in this matter. As attorneys from the New York Civil Liberties Union, Morrison & Foerster LLP, and Alexander Reinert will continue to represent Plaintiffs in this matter, this Court concludes that the motion shall be granted. Attorney Aimee Krause Stewart terminated. (Signed by Judge Andrew L. Carter, Jr on 10/14/2016) (kgo) (Entered: 10/14/2016)

10/17/2016

361 LETTER addressed to Judge Shira A. Scheindlin from Mitchell Kalwasinski dated 10/9/2016 re: the manner in which the defendants are implementing the "progressive inmate movement system" at the Five Points and Upstate Correctional Facilities. (tn) (Entered: 10/17/2016)

10/17/2016 362 LETTER from Omar Triplett dated 10/13/16 re: SOLITARY CONFINEMENT SETTLEMENT. (sc) (Entered: 10/20/2016)

11/21/2016 363 LETTER from Isaac Solomon dated 11/17/2016 re: Deprivation of Pin Level 3. Document filed by Isaac Solomon.(sac) (Entered: 12/08/2016)

12/13/2016

364 LETTER from William McKethan dated 12/8/16 re: Non-party William McKethan informs the Court that he would like to purchase a copy of the final Settlement Agreement or the most recent Stipulation for a Stay of Litigation Agreement in this action; and he requests that the Court notify him as to the cost of photocopying, and he will remi a check in that amount. (sc) (Entered: 12/14/2016)

12/13/2016

Request for Copy of Document Received: Re 364 Letter,. Request for a copy of the final Settlement Agreement or recent Stipulation for Stay from William McKethan received on 12/13/16. Transmission to Records Management for processing. (sc) (Entered: 12/14/2016)

12/28/2016 365 LETTER from Eric DeLeon dated 12/21/16 re: JUD. LAW SECT. 255 REQUEST. (sc) (Entered: 12/29/2016)

12/28/2016

Request for Copy of updated Docket Sheet Received: Re 365 Letter. Request for Docket Report, from Eric DeLeon received on 12/28/16. Transmission to Pro Se Assistants for processing. **Nonparty Eric

Deleon(DIN#96A6822) resides at Upstate Correctional Facility, P.O. Box 2001, Malone, N.Y. 12953 (sc) (Entered: 12/29/2016)

12/28/2016

368 LETTER from Dawn Carpenter, dated 4/19/16 re: Non-Party Dawn Carpenter informs the Court that Albany has not been auditing Keeplock time for the full amount of days which inmates serve when confined in a SHU cell, even when the hearing officers have included the time. Document filed by Leroy Peoples.(sc) (Entered: 01/05/2017)

12/29/2016

366 LETTER from Lamont Kirk, re: Non-party Lamont Kirk submits this letter to the Court with attached Sentence & Commitment papers from the State of New York, County of Erie; and he informs the Court that he was given a wrong jail time calculation when he arrived at Wyoming Correctional Facility with a release date of 2/28/17 etc. (sc) Modified on 12/29/2016 (sc). (Entered: 12/29/2016)

12/30/2016

367 LETTER from Eric Deleon dated 12/26/16 re: REQUEST COPY OF A SETTLEMENT AGREEMENT, PEOPLES V. FISHCHER ET AL(SAS). Document filed by Eric Deleon, non-party. (sc) (Entered: 01/03/2017)

01/26/2017

369 LETTER addressed to Judge Shira A. Scheindlin from William Ambrose dated 10/5/2016 re: I am writing to you to inform you that here at Clinton, we have yet receive any directive or anything pertaining to the new pin system. Can you please look into this matter. Document filed by William Ambrose.(sac) (Entered: 01/26/2017)

01/26/2017

370 LETTER addressed to Judge Shira A. Scheindlin from Amin Booker dated 10/10/2016 re: D.O.C.C.S. Failure to comply with Settlement Agreement.(sac) (Entered: 01/26/2017)

01/26/2017 371 LETTER addressed to Judge Shira A. Scheindlin from Amin Booker dated 10/5/2016 re: Clarification of Settlement Intent. Document filed by Amin Booker. (sac) (Entered: 01/26/2017)

01/26/2017

372 LETTER addressed to Judge Shira A. Scheindlin from Dante Goines dated 11/23/2016 re: I'm writing this letter in reference to my disciplinary appeal being denied. Document filed by Dante Goines.(sac) (Entered: 01/26/2017)

01/26/2017

373 LETTER from Charles Harris dated 12/17/2016 re: I have never sent anything out of state on 12/18/2016 and 12/27/2016. I sent letter and till this day I have not heard from anyone. Document filed by Charles Harris.(sac) (Entered: 01/26/2017)

01/26/2017 374 LETTER from Charles Harris dated 12/15/2016 re: I am writing to you on a big help on issue I have on as to check on Harris. Need Box Syrup. Document filed by Charles Harris. (sac) (Entered: 01/26/2017)

01/26/2017 375 LETTER from Charles Harris dated 12/12/2016 re: I am writing to you on a big help on issue I have. Document filed by Charles Harris. (sac) (Entered: 01/26/2017)

01/26/2017

376 LETTER addressed to Judge Shira A. Scheindlin from IMHOTEP S. HSHAKA dated 10/3/2016 re: I write to you will all due respect with the hopes that you can assist me. I have been in solitary confinement. Document filed by IMHOTEP S. HSHAKA.(sac) (Entered: 01/26/2017)

01/26/2017

377 LETTER addressed to Judge Andrew L. Carter, Jr. from LeRoy Peoples dated 12/1/2016 re: Requesting Bill of Costs under 28 U.S.C. 1924. Document filed by LeRoy Peoples.(sac) (Entered: 01/26/2017)

01/26/2017 378 LETTER addressed to Judge Andrew L. Carter, Jr. from LeRoy Peoples dated 8/17/2016 re: Requesting Costs from Counsel under 42 USC 1988. Document filed by Leroy Peoples.(sac) (Entered: 01/26/2017)

01/26/2017

379 LETTER addressed to Judge Shira A. Scheindlin from Davon Powell dated 10/8/2016 re: I'm writing in regard of being deprived from recreations and phones by Southport Correctional Facility. Document filed by Davon Powell.(sac) (Entered: 01/26/2017)

01/26/2017

380 LETTER addressed to Judge Shira A. Scheindlin from Davon Powell dated 10/18/2016 re: I'm writing in regards of our Phone Privileges for PIMS Level two inmate of Southport Correctional Facility. Document filed by Davon Powell.(sac) (Entered: 01/26/2017)

01/26/2017 381 LETTER addressed to Judge Shira A. Scheindlin from John White dated 11/21/2016 re: Violation of Court Order 3/31/16. Document filed by John White.(sac) (Entered: 01/26/2017)

01/26/2017

382 LETTER addressed to Judge Shira A. Scheindlin from Nicholas Zimmerman dated 10/10/2016 re: Enclosed please find a complaint that I filed with the Grievance Committee in Clinton C.F. Document filed by Nicholas Zimmerman.(sac) (Entered: 01/26/2017)

01/26/2017 383 LETTER from Charles Harris dated 12/12/2016 re: Issue on my SSI. Document filed by Charles Harris.(anc) (Entered: 02/02/2017)

02/07/2017 384 ORDER: The Court has received a letter from Plaintiff LeRoy Peoples, dated August 17, 2016, detailing a dispute with Plaintiffs' counsel regarding litigation costs. ECF No. 378. Plaintiffs' counsel is directed to

respond to this letter on or before February 21, 2017. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 2/7/2017) Copies Mailed By Chambers. (anc) (Entered: 02/07/2017)

02/10/2017 385 STATUS REPORT. Document filed by Anthony Annucci.(Durden, Rebecca) (Entered: 02/10/2017)

02/14/2017 386 LETTER addressed to Judge Shira A. Scheindlin from Sha'Quann Humphrey dated 1/8/17 re: S.H.U Settlement. (mro) (Entered: 02/14/2017)

02/14/2017

387 LETTER addressed to Your Honor from Tristan Foster dated 2/1/17 re: I am writing to inform you that attaining Pims Level 4 is no longer possible due to its discontinuance by Upstate SHU Administration. (mro) (Entered: 02/14/2017)

02/14/2017

388 LETTER addressed to Your Honor from Antonio Jones dated 2/1/17 re: I am writing to inform you that the staff at UCF is not conforming and/or abiding by the present case and prisoners are being denied privileges. (mro) (Entered: 02/14/2017)

02/14/2017

389 LETTER addressed to Judge Shira A. Scheindlin from Douglas Dunlar dated 1/3/16 re: The S.H.U settlement is in effect but Great Meadow has yet to give me a phone call and no shower curtains. (mro) (Entered: 02/14/2017)

02/14/2017 390 LETTER addressed to NYCLU from Robert Richter dated 1/22/17 re: I was forced to meet with two FBI agents and two OSI investigators without an attorney present. (mro) (Entered: 02/14/2017)

02/14/2017 391 LETTER from Mrs. Dawn Carpenter dated 12/13/16 re: I am writing in regards to Disciplinary SHU. (mro) (Entered: 02/14/2017)

02/16/2017

392 LETTER MOTION for Extension of Time to File Response/Reply as to 384 Order, addressed to Judge Andrew L. Carter, Jr. from Philip Desgranges dated February 16, 2017. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 02/16/2017)

02/17/2017

393 ORDER granting 392 Letter Motion for Extension of Time to File Response/Reply. SO ORDERED. (Responses due by 2/24/2017). (Signed by Judge Andrew L. Carter, Jr on 2/17/2017) (cla) (Entered: 02/17/2017)

02/24/2017 394 LETTER MOTION for Extension of Time to File Response/Reply as to 384 Order, addressed to Judge Andrew L. Carter, Jr. from Philip Desgranges dated February 24, 2017. Document filed by Tonja Fenton,

Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 02/24/2017)

02/24/2017

395 ORDER granting 394 Letter Motion for Extension of Time to File Response/Reply. (Because there have been unanticipated developments this week regarding the issues raised by Mr. Peoples's letter, I respectfully request an additional one-week continuance. With the Court's permission, Plaintiffs' counsel will respond to the Court on or before March 3, 2017.) SO ORDERED.(Signed by Judge Andrew L. Carter, Jr on 2/24/2017) (ama) (Entered: 02/24/2017)

02/28/2017 396 LETTER addressed to Judge Andrew L. Carter, Jr. from LeRoy Peoples dated 2/20/2017 re: Requesting intervention pursuant to Rule 23 of FRCP. Document filed by Leroy Peoples.(cla) (Entered: 03/01/2017)

03/03/2017

397 LETTER addressed to Judge Andrew L. Carter, Jr. from Taylor Pendergrass dated March 3, 2017 re: Class Counsel's Response to the Court's Order (ECF No. 384) and Letter Requests from Plaintiff LeRoy Peoples (ECF Nos. 378 and 396). Document filed by Tonja Fenton, Dewayne Richardson.(Pendergrass, Taylor) (Entered: 03/03/2017)

03/03/2017

398 LETTER addressed to Judge Shira A. Scheindlin from Paul Thompson, dated 2/28/17 re: Non-party Paul Thompson requests that the Court provide him with a copy of the original complaint and a copy of the settlement. (sc) (Entered: 03/06/2017)

03/06/2017

Request for Copy of Documents Received: Re 398 Letter. Request for copy of the Complaint and a copy of the Settlement from Paul Thompson received on 3/3/17. Transmission to Records Management for processing. (sc) (Entered: 03/06/2017)

03/08/2017

399 ORDER re: 396 Letter filed by Leroy Peoples, 378 Letter filed by Leroy Peoples, 397 Letter, filed by Dewayne Richardson, Tonja Fenton. For the following reasons, Mr. Peoples' requests are denied. Accordingly, the Court sees no reason to remove the NYCLU as Class Counsel. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 3/8/2017) Copies Mailed By Chambers. (anc) (Entered: 03/08/2017)

03/13/2017

400 LETTER MOTION for Extension of Time to File Joint Status Report addressed to Judge Andrew L. Carter, Jr. from Philip Desgranges dated March 13, 2017. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 03/13/2017)

03/16/2017 401 ORDER granting 400 Letter Motion for Extension of Time to File Joint Status Update. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 3/16/2017) (anc) (Entered: 03/16/2017)

03/17/2017

402 LETTER addressed to Your Honor from L. Peoples dated 3/9/2017 re: Here is one last piece of information the Court should be aware of before it makes its ruling on my request for intervention under Fed. R. Civ. Proc., Rule 23. Document filed by Leroy Peoples.(anc) (Entered: 03/17/2017)

04/17/2017 403 PLAINTIFF'S NOTICE OF MOTION FOR ENFORCING JUDGMENT AND HOLDING IN CONTEMPT. Document filed by Amin Booker.(mro) (Entered: 04/18/2017)

04/17/2017

404 DECLARATION IN SUPPORT re: 403 PLAINTIFF'S NOTICE OF MOTION FOR ENFORCING JUDGMENT AND HOLDING IN CONTEMPT. Document filed by Amin Booker. (mro) (Entered: 04/18/2017)

04/17/2017

405 MEMORANDUM OF LAW re: 403 PLAINTIFF'S NOTICE OF MOTION FOR ENFORCING JUDGMENT AND HOLDING IN CONTEMPT. Document filed by Amin Booker. (mro) (Entered: 04/18/2017)

04/24/2017

406 ORDER with respect to 403 Motion to Enforce Judgment. The Court has received class member Amin Booker's motion pursuant to Federal Rule of Civil Procedure 70. ECF Nos. 403-05. Plaintiffs' counsel is directed to state their position regarding Booker's motion on or before May 8, 2017. SO ORDERD. (Signed by Judge Andrew L. Carter, Jr on 4/24/2017) (anc) (Entered: 04/24/2017)

05/03/2017

407 LETTER from Steven Rodriguez, dated 5/1/17 re: Non-party Steven Rodriguez requests that the Court send him a copy of the solitary confinement case, Peoples v. Fischer as well as the Court Rules of the Southern District of New York. (sc) (Entered: 05/04/2017)

05/03/2017

doc Request for Copies of Documents Received: Re 407 Letter. Request for (see letter, ECF #407 for description)from Steven Rodriguez received on 5/3/17. Transmission to Records Management for processing. (sc) Modified on 5/4/2017 (sc). (Entered: 05/04/2017)

05/08/2017

408 LETTER RESPONSE to Motion addressed to Judge Andrew L. Carter, Jr. from Taylor Pendergrass dated May 8, 2017 re: 403 MOTION to Enforce Judgment. . Document filed by Leroy Peoples. (Pendergrass, Taylor) (Entered: 05/08/2017)

05/09/2017

409 MEMO ENDORSEMENT on re: 408 Response to Motion filed by Leroy Peoples. ENDORSEMENT: The parties' application is granted. Defendants must file their status update by May 10, 2017. Plaintiffs should file their response on or before May 19, 2017. ( Responses due

by 5/19/2017) (Signed by Judge Andrew L. Carter, Jr on 5/9/2017) (mro) (Entered: 05/09/2017)

05/09/2017

410 RESPONSE to Motion re: 403 MOTION to Enforce Judgment. . Document filed by Anthony Annucci, Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Curtis Drown, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, William Powers, Albert Prack, David Rock, Isaac Solomon. (Attachments: # 1 Exhibit Memo, # 2 Exhibit Directive)(Durden, Rebecca) (Entered: 05/09/2017)

05/12/2017

411 LETTER addressed to Judge Shira A. Scheindlin from Dontie S. Mitchell,dated 5/9/17 re: Plaintiff informs the Court that a big problem with all of these SHUs are staff who purposely antagonize, provoke, intimidate, disregard or ignore prisoners in view of cameras; and he requests that the Court forward this letter to counsel and direct them to address these issues. (sc) (Entered: 05/12/2017)

05/17/2017

412 LETTER addressed to Judge Shira A. Scheindlin from Dontie S. Mitchell, dated 5/14/17 re: Non-party Donti S. Mitchell informs the Court that a big problem which he sees with the full implementation of the SHU Settlement is the inability of he and his fellow prisoners to submit grievances to complain about specific problems without being retaliated against. (sc) (Entered: 05/17/2017)

05/19/2017

413 LETTER RESPONSE to Motion addressed to Judge Andrew L. Carter, Jr. from Taylor Pendergrass dated May 19, 2017 re: 403 MOTION to Enforce Judgment. . Document filed by Leroy Peoples. (Pendergrass, Taylor) (Entered: 05/19/2017)

05/22/2017

414 LETTER addressed to Judge Andrew L. Carter, Jr. from Rebecca Ann Durden dated May 22, 2017 re: Response to plaintiff's 5/19/17 letter. Document filed by Anthony Annucci, Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Curtis Drown, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, William Powers, Albert Prack, David Rock, Isaac Solomon.(Durden, Rebecca) (Entered: 05/22/2017)

05/24/2017

415 ORDER denying 403 Motion to Enforce Judgment. Mr. Booker is not a member of the class as certified, and accordingly, he has no basis to enforce the terms of the settlement agreement. In any event, Defendants advise the Court that many, if not all, of Mr. Booker's concerns regarding the disparity between administrative segregation and disciplinary confinement inmates have been or will soon be addressed by a recent amendment to DOCCS Directive No. 4933. Id. The Clerk of the Court is respectfully requested to close Docket Entry Number 403. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 5/24/2017) (anc) Modified on 5/25/2017 (anc). (Entered: 05/24/2017)

06/05/2017

416 STATUS REPORT. Document filed by Anthony Annucci, Norman Bezio, Diane Catalfu, James Cavaleri, L. Collins, Curtis Drown, Patrick Griffin, Sabina Kaplan, William Lee, Ada Perez, William Powers, Albert Prack, David Rock, Isaac Solomon.(Durden, Rebecca) (Entered: 06/05/2017)

06/06/2017

417 ORDER: The Court has received the parties' joint status report regarding progress made during the first year of implementation of the Settlement Agreement. The parties are directed to submit another joint status report on or before June 5, 2018. So Ordered.( Status Report due by 6/5/2018.) (Signed by Judge Andrew L. Carter, Jr on 6/5/2017) (js) (Entered: 06/06/2017)

06/06/2017 420 LETTER: addressed to [Not Address to Anyone], from Amin Booker, dated May 23, 2017, re: Peoples v. Annucci. (ap) (Entered: 06/08/2017)

06/07/2017

418 LETTER addressed to Judge Shira A. Scheindlin from Jimmie Lee Allen, dated 6/1/17 re: Non-party Jimmie Lee Allen requests that the Court inform him that, if he was placed under SHU status on 3/31/17 until 5/25/17, how much time on deduction of the ninety(90) days was he due, and would 33 days remain of the ninety(90) days. (sc) (Entered: 06/07/2017)

06/08/2017 419 LETTER: addressed to Judge Andrew L. Carter, Jr., from Amin Booker, dated May 25, 2017, re: Peoples v. Annucci. (ap) (Entered: 06/08/2017)

06/08/2017

421 LETTER addressed to Judge Andrew L. Carter, Jr. from Leroy Peoples dated 5/22/2017 re: Further reforms discussions pursuant to Opinion & Order of 3/31/16, and conditions of confinement. Document filed by Leroy Peoples.(anc) (Entered: 06/08/2017)

06/08/2017 422 LETTER addressed to Judge Andrew L. Carter, Jr. from Jimmie Lee Allen dated 5/22/2017 re: Your honor is asked respectfully to intervene, and provide the assistance requested. (anc) (Entered: 06/09/2017)

06/14/2017

423 LETTER addressed to Pro Se from Amin Booker dated 6/6/2017 re: Amin Booker of the Inmate Greivance Committee writes to request that the Phone call policy be terminated and that he be given his phone call immediately. Mr. Booker also requests that inmates be given their call upon reaching P.I.M.S. level II. (js) (Entered: 06/14/2017)

06/19/2017

424 LETTER from Malila Mohammed dated 6/13/17 re: (SOLITARY CONFINEMENT SETTLEMENT) Non-Party Malila Mohammed informs the Court that the precepts of the Solitary Confinement Settlement are not being followed by prison officials; and that prisoners

at Five Points Correctional Facility, prisoners are being subject to endure solitary confinement etc. (sc) (Entered: 06/20/2017)

06/20/2017

425 LETTER addressed to Judge Andrew L. Carter, Jr. from Leroy Peoples dated 6/4/2017 re: I am writing the Court, through my wife, to inform you that I am being harassed by Correction Officers and Correction Sergeants, due to my role as plaintiff in the NYS DOCCS Solitary Confinement Settlement. I ask the Court to please inform class-counsel, to notify NYS DOCCS Central Office. Document filed by Leroy Peoples.(anc) (Entered: 06/20/2017)

07/07/2017 426 LETTER: addressed to Judge Shira A. Scheindlin, from Anthony D. Amaker, dated May 30, 2017, re: Copy of Rules. (ap) (Entered: 07/07/2017)

07/07/2017

427 LETTER: addressed to Judge Andrew L. Carter, Jr., from Latasha Ripley, dated June 26, 2017, re: Settlement Decree. (ap) (Entered: 07/07/2017)

07/13/2017 428 DECLARATION of Jacques Dorcinvil OF CLASS-PARTY MEMBER AS PROOF OF DOCCS VIOLATION OF COURT-ENTERED SETTLEMENT. (sc) (Entered: 07/14/2017)

07/19/2017

429 LETTER addressed to Judge Shira A. Scheindlin from Anthony D. Amaker, dated 7/15/17 re: Non-party Anthony Amaker requests Court assistance in gaining absolute compliance with the Settlement Agreement in this case; and that he has written to the Court in the past concerning the standard to be used in de-escalating disciplinary concerns without resorting to SHU Sanctions. (sc) (Entered: 07/20/2017)

07/21/2017 430 LETTER addressed to Judge Shira A. Scheindlin from Sherman Gibbs dated 2/16/2017 re: SHU Time table Calculation. (ama) (Entered: 07/21/2017)

07/21/2017

431 LETTER addressed to Hon. Judge Shira A. Scheindlin from Nicholas Zimmerman re: After 14 yrs in Solitary Confinement D.O.C.C.S. Refuses to follow Settlement. (ama) (Entered: 07/21/2017)

07/21/2017 432 LETTER addressed to Judge Shira A. Scheindlin from Lawrence Michael re: Re Settlement. (ama) (Entered: 07/21/2017)

08/03/2017

433 LETTER addressed to Judge Andrew L. Carter, Jr. from Micheal Aziz Zarif Shabazz, AKA Michael Bunley dated 7/19/2017 re: an Order to Show Cause for a temporary restraining order and subsequent preliminary injunction. (jwh) (Entered: 08/03/2017)

08/03/2017 434 LETTER addressed to Judge Shira A. Scheindlin from Michael Washington dated 7/2017 re: Non-complaince of the Upstate Correctional Administration. (mml) (Entered: 08/03/2017)

08/04/2017

435 LETTER addressed to Judge Shira A. Scheindlin from Victor Catala, dated 7/30/17 re: Non-party Victor Catala informs the Court of the abuse and the cruel, unusual, malicious, and intentional pain and torture treatment carried out by Security Staff Members of Administration, Executive Team members of the Superintendant, John Calvin, Department of Security etc. (sc) (Entered: 08/04/2017)

08/08/2017

436 LETTER addressed to Judge Shira A. Scheindlin from Ernest Iverson dated 7/18/2017 re: I'm being discriminated and retaliated against because of my pending lawsuit against correctional officers 13-cv633(RA). (rj) (Entered: 08/08/2017)

08/10/2017

437 LETTER from Richard Isasi, DIN #98A1899, dated 8/7/17 re: Nonparty Richard Isasi requests that the Court send him a copy of the Solitary Confinement Settlement dated 3/16/16 in this case. (sc) (Entered: 08/11/2017)

08/10/2017

Request for Copy of Document Received: Re 437 Letter. Request for a copy of Doc. No. 329 ECFfrom Richard Isasi received on 8/09/17. Transmission to Pro Se Assistants for processing. (sc) (Entered: 08/11/2017)

08/15/2017

438 LETTER from Ernest Iverson, dated 8/9/17 re: Non-party E. Iverson requests that the Court inform him as to whether it received his legal mail, because the staff at Southport has been "playing games" with "People" mail. (sc) (Entered: 08/16/2017)

08/15/2017

Request for Copy of the updated Docket Sheet Received: Re 438 Letter. Request for Docket Report, from E. Iverson received on 8/15/17. Transmission to Pro Se Assistants for processing. (sc) (Entered: 08/16/2017)

08/16/2017

Form Request Mailed: Request for Docket sheet from Ernest Iverson mailed on 8/16/2017. (sbr) (Entered: 08/16/2017)

08/22/2017 439 LETTER from Richard Isasi, dated 8/17/17 re: Plaintiff again requests that the Court send him a copy of the Solitary Confinement Settlement, dated 3/16/16. (sc) (Entered: 08/23/2017)

08/22/2017

Request for Copy of Document Received: Re 439 Letter. Request for copy of Solitary Confinement Settlement(ECF #144)from Richard Isasi received on 8/22/17. Transmission to Records Management for processing. (sc) (Entered: 08/23/2017)

08/23/2017

Request for Copies/Transcripts/Docket Sheet Processed: Mailed letter to Richard Isasi-Din: 98-A-1899 at Green Haven Correctional Facility, PO Box 4000, Stormville, NY 12582-4000 advising that copy/copies of the Settlement Agreement requested will be furnished upon receipt of the statutory fee of $15.00 in the form of a company check, certified check or money order payable to the Clerk of the Court, SDNY. (jri) (Entered: 08/23/2017)

08/23/2017

440 LETTER addressed to Judge Shira A. Scheindlin from Donti Mitchell, dated 8/16/17 re: Non-party Donti S. Mitchell informs the Court that it does not seem that Class Counsel is "vigorously representing the interest of the class"; that Class Counsel has been largely unresponsive; and he requests that the Court intervene in this matter.(sc) (Entered: 08/23/2017)

08/29/2017

441 LETTER from Ernest Iverson dated 8/22/17 re: Non-party Ernest Iverson requests that the Court inform him as to when it received his letter dated 7/18/17 and when it was logged into the Court's computer system. (sc) (Entered: 08/29/2017)

09/13/2017

442 LETTER addressed to Judge Shira A. Scheindlin from Dontie S. Mitchell dated 8/20/2017 re: I have written several letter to class counsel to report substantial breaches of the Settlement Agreement, but class counsel is not responding. (rj) (Entered: 09/14/2017)

09/15/2017 443 LETTER from Michael Castaldo re: Non-party Michael Castaldo requests that the Court provide him with the address of the law firm of Morrison & Foerster LLP. (sc) (Entered: 09/18/2017)

09/18/2017

444 LETTER from E. Iverson dated 9/14/17 re: Non-party E. Iverson requests that that the Court inform him that it received his Disciplinary Appeal and a Reconsideration Appeal in reference to numbers 436-438. (sc) (Entered: 09/19/2017)

10/06/2017

445 LETTER from Darius Ashley dated 5/12/17 re: (SOLITARY CONFINEMENT SETTLEMENT)- Plaintiff writes that as one may gather from the documents he has enclosed(as indicated), he has at every plausible way tried to get his concerns addressed at said facility by staff and administrative executives alike where it pertains to People v. Fischer to which the Settlement Agreement implies that the inmates in S.H.U. confinement meet certain obligations and are allowed certain privileges etc. (Attachments: # 1 Exhibit)(sc) (Entered: 10/10/2017)

10/16/2017

446 LETTER from Ernest Iverson dated 10/10/17 re: Plaintiff informs the Court that his lawyer is sending a copy of Doc. #125(Misbehavior Report); and that if he needs it from the Court, then he will send the money. Document filed by Ernest Iverson.(sc) (Entered: 10/17/2017)

10/17/2017 447 LETTER addressed to Judge Andrew L. Carter, Jr. from Thomas Roland dated 10/9/2017 re: Special Needs Unit. (ras) (Entered: 10/17/2017)

10/19/2017

448 ORDER:The Court received a letter from Plaintiff Thomas Roland dated October 9, 2017. ECF No. 447. Counsel for Plaintiffs should file a status report by November 7, 2017 confirming that they received Plaintiff Roland's letter and that they are in communication with Plaintiff Roland. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 10/18/2017) (rj) (Entered: 10/19/2017)

10/27/2017 449 LETTER addressed to Judge Andrew L. Carter, Jr. from Thomas M. Roland, III dated 10/23/17 re: SPECIAL NEED UNIT (SNU). (sc) (Entered: 10/31/2017)

11/02/2017

450 ORDER: On October 19, 2017 this Court issued an order requiring counsel for Plaintiffs to file a status report by November 7, 2017 confirming that they received Plaintiff Thomas Roland's letter dated October 9, 2017 (ECF No. 447). ECF No. 448. On October 27, 2017, this Court received another letter from Plaintiff Roland, dated October 23, 2017. ECF No. 449. Counsel for Plaintiffs should include confirmation that they received ECF No. 449 in their status report due November 7, 2017. (Signed by Judge Andrew L. Carter, Jr on 11/2/2017) (cf) Modified on 12/1/2017 (cf). (Entered: 11/02/2017)

11/07/2017 451 STATUS REPORT. regarding class member Thomas Roland's letters to the Court Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 11/07/2017)

11/22/2017

452 LETTER addressed to Judge Shira A. Scheindlin from Mr. Nakwon Foxworth, dated 11/13/17 re: Non-party Nakwon Foxworth informs the Court that, in contravention to principles set forth in Peoples v. Annucci et al. and People v. Fischer, D.O.C.C.S./Southport has issued a memorandum dated 10/27/17 stating that in sum and substance that, effective 4/1/18, Southport SHU inmates will see a change in their commissary buy limit for snack items, from $75.00 to a mere $5.00. (sc) (Entered: 11/22/2017)

11/29/2017

453 LETTER from Barney Rivera, dated 11/19/17 re: Non-party Barney Rivera informs the Court that, in contravention to the principles set forth in People v. Annuncci and People v. Fischer, the D.O.C.C.S./Southport has issued a memorandum dated 10/27/17, stating in sum and substance that effective 4/1/18 Southport SHU inmates will see a change in their commissary buy limit for snack items etc. (sc) (Entered: 11/29/2017)

12/07/2017

454 LETTER from Anthony LaRussa, re: Non-party Anthony LaRussa informs the Court that the facility has continuously made reference to the cases, Peoples v. Annucci and People v. Fischer, for its oppressive decisions; and that D.O.C.C.S./ Southport has also refused to comply with the settlement agreements of affording Southport SHU inmates two hours of recreation etc. (sc) (Entered: 12/07/2017)

01/05/2018 455 EMERGENCY REQUESTED RELIEF. Michael Aziz Zarif Shabazz (rdz) (Entered: 01/10/2018)

01/11/2018

456 ORDER: The Court has received class member Michael Aziz Zarif Shabazz's emergency motion pursuant to Federal Rule of Civil Procedure 65. ECF No. 455. Plaintiffs' counsel is directed to state their position regarding Shabazz's motion on or before January 18, 2018. (Signed by Judge Andrew L. Carter, Jr on 1/11/2018) (ap) (Entered: 01/11/2018)

01/18/2018

457 LETTER addressed to Judge Andrew L. Carter, Jr. from Philip Desgranges dated January 18, 2018 re: Response to Court's Directive Ordering Plaintiffs' Counsel to State Their Position Regarding Mr. Shabazz's Motion. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 01/18/2018)

01/29/2018 458 LETTER: addressed to Judge Andrew L. Carter, Jr., from Michael Aziz Zarif Shabazz a/k/a Michael Hurley, dated January 18, 2018, re: Conference call. (ap) (Entered: 01/29/2018)

02/15/2018

459 LETTER: addressed to Judge Colleen McMahon, from Michael Aziz Zarif Shabazz a/k/a Michael Hurley, dated February 4, 2018, re: Rule 60 Motion. (ap) (Entered: 02/15/2018)

03/28/2018

460 LETTER addressed to Judge Shira A. Scheindlin from Gaetano D'Atore, dated 3/25/18 re: Non-party Gaetano D'Attore informs the Court of the failure and non-compliance of the Court's direct order(s) for full compliance with all stipulations agreed upon by the defendants and plaintiffs in Civil Claim No. 11-cv-2694. (sc) (Entered: 03/28/2018)

04/04/2018

461 ORDER: The Court has received letters from plaintiff Michael Aziz Zarif and from non-party Gaetano D'Attore. (ECF Nos. 458-60.) Plaintiffs' counsel is directed to respond stating their position on these letters by April 18, 2018. (Signed by Judge Andrew L. Carter, Jr on 4/4/2018) (ap) (Entered: 04/04/2018)

04/17/2018 462 LETTER addressed to Judge Andrew L. Carter, Jr. from Lovelle G. Jones dated 4/11/2018 re: Request for enforcement of settlement. (kgo) (Entered: 04/17/2018)

04/18/2018

463 LETTER addressed to Judge Andrew L. Carter, Jr. from Philip Desgranges dated April 18, 2018 re: Response to Court's Directive (ECF No. 461). Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 04/18/2018)

04/20/2018 465 LETTER from non-party, Darius Ashley, dated 4/13/18 re: SOLITARY CONFINEMENT SETTLEMENT(SHU)/ UNHEALTHY COMMISSARY CHOICE. (sc) (Entered: 04/24/2018)

04/23/2018

464 ORDER: The Court is in receipt of a letter from Lovelle G. Jones dated April 11, 2018 requesting enforcement of the settlement in this matter. (ECF No. 462.) Plaintiffs' counsel is directed to respond to this letter on or before May 4, 2018. (Signed by Judge Andrew L. Carter, Jr on 4/20/2018) (ap) (Entered: 04/23/2018)

04/24/2018 466 LETTER addressed to Judge Andrew L. Carter, Jr. from Kha Sun Allah dated 4/17/2018 re: SHU sentence. (ras) (Entered: 04/24/2018)

04/30/2018

467 ORDER: The Court is in receipt of a letter from Khu Sun Allah dated April 17, 2018. (ECF No. 466.) Plaintiffs' counsel is additionally directed to respond to this letter on or before May 4, 2018. (See ECF No. 464.) SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 4/30/2018) (rj) (Entered: 04/30/2018)

05/04/2018

468 LETTER addressed to Judge Andrew L. Carter, Jr. from Philip Desgranges dated May 4th, 2018 re: Response to Court's Directives (ECF Nos. 464, 467). Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 05/04/2018)

05/23/2018 469 AFFIDAVIT of Michael Joshua Henderson; re: in support of the plaintiffs' class action settlement. (sc) (Entered: 05/24/2018)

05/30/2018

470 ORDER: The Court is in receipt of a letter from Michael Joshua Henderson dated May 20, 2018. ECF No. 469. Counsel for Plaintiffs should file a status report by June 12, 2018 confirming that they received Henderson's letter. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 5/29/2018) (ama) (Entered: 05/30/2018)

06/05/2018 471 STATUS REPORT. Document filed by Anthony Annucci.(Durden, Rebecca) (Entered: 06/05/2018)

06/12/2018

472 STATUS REPORT. Confirming Receipt of Mr. Henderson's Letter (ECF No. 469) Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 06/12/2018)

06/14/2018 473 ORDER: The Court is in receipt of the parties' joint status report dated June 5, 2018. ECF No. 471. The parties shall submit a joint status

report on December 14, 2018. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 6/14/2018) (rj) (Entered: 06/15/2018)

08/16/2018

474 LETTER addressed to Judge Andrew L. Carter, Jr. from Dante Newman dated 8/10/2018 re: The pre-confinement time is not properly credited. (kgo) (Entered: 08/16/2018)

08/16/2018 475 LETTER addressed to Judge Andrew L. Carter, Jr. from Leroy Peoples dated 8/9/2018 re: Request for court intervention. Document filed by Leroy Peoples.(kgo) (Entered: 08/16/2018)

08/29/2018

476 ORDER: The Court is in receipt of letters from Dante Newman and Leroy Peoples (ECF Nos. 474, 475). Counsel for Plaintiffs should file a status report by September 12, 2018 confirming that they received the letters and stating their position. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 8/29/2018) (anc) (Entered: 08/29/2018)

09/12/2018

477 STATUS REPORT. Confirming Receipt of and Responding to Mr. Peoples' Letter (ECF No. 475) and Mr. Newman's Letter (ECF No. 474) Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 09/12/2018)

09/12/2018

480 LETTER addressed to Judge Andrew L. Carter, Jr. from Carl Evans dated 9/11/2018 re: Mr. Evans writes he was deprived of his rights of what he has earned and is concerned that his incentives will be taken away and he will be unable to contact his family via phone as well as his allowance of food purchases and personal property. (js) (Entered: 09/13/2018)

09/13/2018 478 LETTER addressed to To Whom It May Concern from Carl Evans re: Motion to enforce judgment. (cf) (Entered: 09/13/2018)

09/13/2018

479 LETTER addressed to Judge Andrew L. Carter, Jr. from Terrence Sapp dated 9/11/2018 re: Mr. Sapp requests that Your Honor intervene in this matter to have this MBR in question dismissed and to have Elmira S.H.U Staff comply with the settlement order. (js) (Entered: 09/13/2018)

09/14/2018 481 LETTER addressed to Judge Andrew L. Carter, Jr. from Dante Newman dated 9/10/2018 re: Request that this misbehavior report be dismissed. (rj) (Entered: 09/14/2018)

09/17/2018 483 LETTER addressed to Judge Andrew L. Carter, Jr. from Thomas M. Roland dated 7/09/2018 re: Complaint. (ama) (Entered: 09/20/2018)

09/19/2018 482 LETTER addressed to Judge Andrew L. Carter, Jr. from Gaetano D'Attore dated 9/10/2018 re: I am writing to you to let you know that I was assaulted and battered. (rj) (Entered: 09/19/2018)

10/01/2018

484 ORDER: The Court is in receipt of letters from Carl Evans (ECF Nos. 478, 480); Terrence Sapp (ECF No. 479); Dante Newman (ECF No. 481); Thomas M. Roland (ECF No. 483); and Gateano D'Attore (ECF No. 482). Counsel for Plaintiffs should file a status report by October 29, 2018 confirming that they received the letters and stating their position. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 10/1/2018) (rj) (Entered: 10/01/2018)

10/02/2018

485 LETTER addressed to Judge Andrew L. Carter, Jr. from Carl Evans re: Enclosed please find; note inmate grievance committee requesting my grievance be submitted, grievance decision and appeal. (ne) (Entered: 10/02/2018)

10/10/2018

486 LETTER addressed to Judge Andrew L. Carter, Jr. from Amin Booker dated 9/28/18 re: This complaint is to redress Elmira Facilities staff refusal to comply with the settlement order. (mro) (Entered: 10/10/2018)

10/15/2018

487 LETTER addressed to Judge Andrew L. Carter, Jr. from Tonja Fenton dated 10/6/2018 re: I write to you because I have tried to get help from every outlet in DOCCS to no avail. I've even written the Governor, who has directed DOCCS' Commissioner to investigate and resolve my issue. Yet I've been penalized more, and I'm seeking help from this Court, If for nothing but my safety, to intervene. Document filed by Tonja Fenton.(anc) (Entered: 10/15/2018)

10/29/2018

488 STATUS REPORT. Confirming Receipt of and Stating Position Regarding Recent Class-Member Letters (ECF No's 478483) Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 10/29/2018)

12/07/2018

489 LETTER addressed to Judge Andrew L. Carter, Jr. from Philip Desgranges dated December 7, 2018 re: Response to Court's Order (ECF No. 473) and Request for Extension of Deadline to File Joint Status Report. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 12/07/2018)

12/07/2018 496 LETTER from Emmanuel T. Johnson dated 12/1/2018 re: Solitary Confinement Settlement. Document filed by Emmanuel T. Johnson. (Attachments: # 1 Order (18-cv-11541))(sac) (Entered: 01/30/2019)

12/10/2018 490 MEMO ENDORSEMENT on re: 489 Letter, filed by Dewayne Richardson, Tonja Fenton, Leroy Peoples. Deadline to file Joint Status

Report is extended to June 28, 2019. ENDORSEMENT: SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 12/10/2018) (kv) (Entered: 12/10/2018)

12/18/2018 491 LETTER addressed to Judge Andrew L. Carter, Jr. from Tonja Fenton dated 11/23/2018 re: Plaintiff seeks intervention from the Court. Document filed by Tonja Fenton.(rj) (Entered: 12/18/2018)

01/17/2019

492 LETTER addressed to Judge Andrew L. Carter, Jr. from Tonja Fenton dated 1/4/2019 re: Request to preserve original claim. Document filed by Tonja Fenton.(rj) (Entered: 01/17/2019)

01/17/2019

493 ORDER: The Court is in receipt of Plaintiff Tonja Fenton's November 23, 2018 letter seeking Court intervention as well as her subsequent letter requesting to preservation of her original claim. ECF Nos. 491, 492. The Court will hold a status conference in this matter on January 23, 2019 at 10a.m. to discuss Fenton's letters. Counsel should appear in person in Courtroom 1306 at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY, on the date and time specified above. Counsel should also make sure Tonja Fenton is available by telephone. SO ORDERED. Status Conference set for 1/23/2019 at 10:00 AM in Courtroom 1306, 40 Foley Square, New York, NY 10007 before Judge Andrew L. Carter Jr. (Signed by Judge Andrew L. Carter, Jr on 1/17/2019) (rj) (Entered: 01/17/2019)

01/23/2019

494 ORDER: As discussed during today's status conference, Plaintiffs' counsel must serve Tonja Fenton's complaint and related letters to Defendants by January 25, 2018. Defendants must submit a letter by January 30, 2019. The Parties must submit a joint status report by February 22, 2019. The Court will hold a status conference in this matter on February 7, 2019 at 11:30 a.m. Counsel should appear in person in Courtroom 1306 at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY, on the date and time specified above. Counsel should also make sure Tonja Fenton is available by telephone. SO ORDERED. Status Conference set for 2/7/2019 at 11:30 AM in Courtroom 1306, 40 Foley Square, New York, NY 10007 before Judge Andrew L. Carter Jr. (Signed by Judge Andrew L. Carter, Jr on 1/23/2019) (rj) (Entered: 01/23/2019)

01/23/2019

Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Status Conference held on 1/23/2019. Philip Desgranges for Plaintiff(s). Rebecca Durden for Defendant(s). Brooke Morris present. Plaintiff Tonja Fenton appears via telephone. See Docket No. 494 for complete details. (Court Reporter: Kristen Carannante) (tdh) (Entered: 01/24/2019)

01/30/2019 495 STATUS REPORT. Re: Ms. Fenton and Request for Transfer Document filed by Anthony Annucci. (Attachments: # 1 Exhibit policy)(Durden, Rebecca) (Entered: 01/30/2019)

02/01/2019

497 LETTER addressed to Judge Andrew L. Carter, Jr. from Philip Desgranges dated February 1, 2019 re: Clarifying the Record Regarding Tonja Fenton's Transfer. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 02/01/2019)

02/01/2019

498 MOTION for Kayvan B. Sadeghi to Withdraw as Attorney . Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Attachments: # 1 Text of Proposed Order)(Hunt, Adam) (Entered: 02/01/2019)

02/01/2019

499 DECLARATION of Adam J. Hunt in Support re: 498 MOTION for Kayvan B. Sadeghi to Withdraw as Attorney .. Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson. (Hunt, Adam) (Entered: 02/01/2019)

02/05/2019

500 ORDER OF WITHDRAWAL OF KAYVAN B. SADEGHI, ESQ. Upon consideration of the motion to withdraw the appearance of Kayvan B. Sadeghi, Esq., this Court orders that Kayvan B. Sadeghi, Esq. be withdrawn from this case, and further orders that Mr. Sadeghi be removed from the Court's electronic service list. So ordered. Granting 498 Motion to Withdraw as Attorney. Attorney Kayvan Betteridge Sadeghi terminated. (Signed by Judge Andrew L. Carter, Jr on 2/5/2019) (rjm) (Entered: 02/05/2019)

02/06/2019

501 LETTER addressed to Judge Andrew L. Carter, Jr. from Kevin Bruen dated February 6, 2019 re: Ms. Fenton Request for Transfer - Reply. Document filed by Anthony Annucci.(Durden, Rebecca) (Entered: 02/06/2019)

02/07/2019

502 ORDER re: 494 Scheduling Order. The Court is in receipt of Plaintiff Tonja Fenton's motion to withdraw as a party in this case. ECF No. 494. As discussed in today's status conference, that motion has been rescinded. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 2/7/2019) (ks) (Entered: 02/07/2019)

02/07/2019

Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Status Conference held on 2/7/2019. Philip Desgranges for Plaintiff(s) in 11-CV-2694. Ashley Fillmore and Melanie Burke for Plaintiff Tonja Fenton in 18-CV-10985. Plaintiff Tonja Fenton appears by phone. Rebecca Ann Durden for Defendant(s) in 11-CV-2694. Yan Fu for Defendant(s) in 18-CV-10985. See Docket No. 502. (tdh) (Entered: 02/14/2019)

02/22/2019

503 STATUS REPORT. Joint Status Update Regarding Court's January 23 Order (ECF 494) Resolving Time-Cut Issue Raised by Tonja Fenton Document filed by Tonja Fenton, Leroy Peoples, Dewayne Richardson.(Desgranges, Philip) (Entered: 02/22/2019)

06/28/2019 504 STATUS REPORT. Document filed by Anthony Annucci.(Durden, Rebecca) (Entered: 06/28/2019)

09/09/2019

505 LETTER addressed to Judge Andrew L. Carter, Jr. from Michael Ruiz, dated 9/3/19 re: Non-party Michael Ruiz writes that, in the settlement made by the Court in this case, it states that the inmate housed in the Special Housing Unit is not to be penalized with SHU - prehearing confinement. However, the rules and regulations which are to be complied with by DOCCS are being ignored in that th 66 days which he spent in the SHU are not being counted etc. (sc) (Entered: 09/09/2019)

09/24/2019

506 LETTER addressed to Judge Andrew L. Carter, Jr. from Michael Ruiz, dated 9/17/19 re: Non-party Michael Ruiz informs the Court that he has received a letter from Philip Desgranges dated 9/12/19 regarding the assistance which he requested from the Court; and that the D.O.C.C.S. has not, as Mr. Desgranges said, not credited him with 66 days spent in the SHU, wrongfully confining him past his SHU sanction imposed of 204 days etc. (sc) (Entered: 09/25/2019)

10/21/2019 507 LETTER addressed to Clerk from Amin Booker dated 10/14/2019 re: Enclosed is an itemized list, of exhibits I'd submitted with the above motion on October 9th, 2019. (rj) (Entered: 10/21/2019)

12/04/2019

508 LETTER from DeSean Hill, dated 11/26/19 re: Non-party DeSean Hill writes to the Court pursuant to the Settlement Agreement which was agreed upon by Plaintiff and DOCCS; and he informs the Court that not one of the rules or conditions agreed upon have been honored, his group being the first of the inmates to participate. (sc) (Entered: 12/05/2019)

12/18/2019 509 LETTER addressed to Judge Andrew L. Carter, Jr. from Amin Booker dated 12/1/19 re: Enclosed are copies of letter notices I'd mailed to you previously. (mro) (Entered: 12/18/2019)

03/02/2020

510 NOTICE OF MOTION FOR RELIEF FROM JUDGMENT, ENFORCING JUDGMENT AND HOLDING IN CONTEMPT.(sc) (Entered: 03/03/2020)

03/05/2020 511 LETTER from Piru Umoja, a non-party, dated 2/29/20 re: I request a copy of the "SHU Settlement Agreement." Document filed by Piru Umoja. (sc) (Entered: 03/05/2020)

03/05/2020

Request for Copy of Settlement Agreement Received: Re 511 Letter. Request for copy of Settlement Agreement, ECF#144 from P. Umoja, DIN#06A1269, Mid-State C.F., P.O. Box 2500, Marcy, NY 13403. received on 3/5/20. Transmission to Records Management for processing. (sc) (Entered: 03/05/2020)

03/05/2020

Request for Copies/Transcripts/Docket Sheet Processed: Mailed letter to Piru Umoja Din: 06-A-1269 at Mid-State Correctional Facility PO Box 2500 Marcy, NY 13403 advising that copy/copies of the Settlement Agreement at D.E. #144 requested will be furnished upon receipt of the statutory fee of $43.50 in the form of a company check, certified check or money order payable to the Clerk of the Court, SDNY. (jri) (Entered: 03/05/2020)

04/24/2020

512 ORDER with respect to 510 Motion for Reconsideration. On March 2, 2020, Plaintiff filed a motion requesting relief from judgment, (ECF No. 510). Defendants are ordered to respond by May 8, 2020. (Signed by Judge Andrew L. Carter, Jr on 4/24/2020) (rj) (Entered: 04/24/2020)

04/24/2020

Set/Reset Deadlines: Responses due by 5/8/2020 (rj) (Entered: 04/24/2020)

04/28/2020 513 RESPONSE to Motion re: 510 MOTION for Reconsideration. . Document filed by Anthony Annucci..(Durden, Rebecca) (Entered: 04/28/2020)

05/21/2020

514 PLAINTIFF BOOKER REPLY MEMORANDUM IN SUPPORT OF MOTION FOR RELIEF, ENFORCEMENT, AND CONTEMPT in Support re: 510 MOTION for Reconsideration. Filed by Amin Booker. (jwh) Modified on 5/22/2020 (jwh). (Entered: 05/22/2020)

06/05/2020

515 LETTER addressed to Judge Shira A. Scheindlin from Kamico Caines dated 5/25/2020 re: I'm writing to you pertaining a one L. Peoples vs B. Fischer 11-cv-2694. I would like to report a "Notice of Substantial Breach" from this facility, and as further specified in this letter. (rjm) (Entered: 06/05/2020)

07/29/2020 516 LETTER addressed to Judge Shira A. Scheindlin from Erick Lewis dated 4/20/2020 re: Letter (Complaint) (See Order, Doc. #7 in 20cv3405). (nb) (Entered: 08/04/2020)

11/13/2020

518 LETTER addressed to Judge Shira A. Scheindlin from P. Nieves, dated 11-7-20 re: Non-party P. Nieves requests that the Court inform him as to whether he is still entitled to the SHU tablet even though it was revoked at his disciplinary hearing. Also, he would like to know that if he is not entitled to the SHU tablet, per the Settlement Agreement, why

he is allowed to make phone calls and not receive the tablet. (sc) (Entered: 11/16/2020)

11/16/2020

519 NOTICE OF APPEARANCE by Antony Philip Falconer Gemmell on behalf of Tonja Fenton, Leroy Peoples, Dewayne Richardson..(Gemmell, Antony) (Entered: 11/16/2020)

11/16/2020

520 LETTER from Blake Wingate dated 10/13/20 re: The Consent Decree and Court Order in relation to Peoples et al. v Fischer et al. are being violated every day. The Southport SHU has us sign papers for the SHU Rules, but we do not have a copy etc. They are misinterpreting your keeplock factors, and we have no on to help us straighten this out.(sc) (Entered: 11/16/2020)

03/04/2021

521 LETTER from Joshua Lake, DIN#12A3698, dated 3/1/21 re: I am writing to notify the Court that the Department of Corrections & Community Supervision is currently in non-compliance with the aboveentitled Settlement Agreement in regard to the Fishkill Keeplock Unit. On pages 30 and 31 of The Settlement Agreement, the conditions for the Fishkill Keeplock Unit are clearly laid out etc. Despite this, upon arriving in Keeplock at this Fishkill Keeplock Unit, Administration confiscates your musical instrument, tobacco, fan, lamp and many other items which an inmate is allowed to in the general population. I would like the Court to direct D.O.C.C.S. to comply with the Settlement Agreement or hold them in "Contempt of Court" for not complying. Document filed by Joshua Lake.(sc) Modified on 3/5/2021 (sc). (Entered: 03/05/2021)

03/30/2021

522 MEMORANDUM AND ORDER denying 510 Motion for Reconsideration re 510 MOTION for Reconsideration. Accordingly, Class Counsel should take note of and consider Mr. Booker's concerns in determining whether a class complaint is justified, however, the Court must dismiss Mr. Booker's claim. Should Mr. Booker wish to move to remove the New York Civil Liberties Union as Class Counsel, that is a distinct motion that Mr. Booker will need to file. Relatedly, should Mr. Booker seek to file an ineffective assistance or other action regarding Class Counsel, he must file pro se or with independent counsel, an entirely new complaint to that effect. SO ORDERED.. (Signed by Judge Andrew L. Carter, Jr on 3/30/2021) (rj) (Entered: 03/30/2021)

PACER Service Center Transaction Receipt

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Hudson-Erdman
1:11-cv-02694ALC 3.00