UNIT ED S TAT ES COU RT OF A PP EALS
FOR THE SE CON D CIR CUIT

__________ August Term, 2002 Argued: March 6, 2003 Decided: Aug ust 13, 2003 Docket No. 02-0097 (L); 02-0233

_________________________________________________________ MICH AEL W EBB , DO NYE LL BEC KW ITH, WILLIE BRADLEY, MARI

ANO CAPPELANMENA, TI MOTHY COLLI ER, STEVEN CORBETT, RENE ELL IS, LEO N HAR DY, TOM MY J ACK SO N, J R. , J EFF RE Y Mc NEIL, BRI AN MORGAN , JIMMY

RAMOS, SHAK

A REYNOL

DS, ERIC SMITH, AN GEL VAL ENTINE, JAMES WALL S, EDWARD WALSH, SAM WATERS, RICHARD WEATHERLY , HARRY WI

LLIAMS, RODNEY WRI GHT, HERB ERT BURGESS, M

ANNY CAB ASSA, AND RES CHAPARRO SHAWN CORWALL, GERAL D DeROSSE, MICHAEL McKENZIE, DANIEL

MORALES, THOMAS MURPHY, CORNELIUS RI

CKS, and GE ORGE SI

MMONS, Plaintiff s-Appell ants ,

-v- GLEN S. GOORD, I

ndividually and as Commissioner of the New York State Dept. of Correctional Services, DR. L ESTER WRIGHT, I

ndividually and as Associate Commissioner for Health Se rvices o f the New

York State

Dept. of Correct ional Services, FRANK HEADL EY, Individually

and as Su pe ri nt en de nt of

th e A rt hu r K il l C or re ct io na l F ac il it y, DANIEL SEN

KOWSKI , Ind

ividually and as Sup erinten

dent of the Clinton Correctional Facility, CHA RLES GREINER, Indiv idually and as Sup erintendent of th e Sing Sin g Corre ctional Facility , EARL COUTURE, Indiv

idually and as Sup erintendent of the Governeur Correctional Fac ility, MI CHAEL McGI NNES, Indiv idually and as Sup erintendent of th e Southpor t Correc tional Facility, EDWARD REYNOL DS, Individually

and as Superintendent o f the Moha

wk Corre ctional F acility, ROBERT KUHLMANN, I

ndividually and as Superintendent of the2

Sullivan Cor

rectional Faci lity , MELV IN L . HOLLI

NS, Individually

and as Superintendent of the Oneida Correctional Facility, CONNEL LY, Mr., as Deputy

Director of Security Sing Sing Corr

ectional Facility , GEBBER, Mr. as Co rr ec ti on al Co un se l o f S in g S in g C or re ct io na l F ac il it y, PETER LACY, Individually and as Superintendent of the Bare Hill Correctional Facility, BRIAN MAL ONE, as Inspector General of the DOCS, BERI OS, Sgt., NETTI CONDEL L, Correct ion Counse lor, JOSEPH Mc COY, I ndividual ly a

nd as Superintendent of the Cayuga Correctional Facility , HUGGINS Sgt., BLANKENSHI

P,Sgt., DANIEL

CRUMB, Officer, PUTNAM, Officer, JOHN DOE KEL LY, Officer, WEI

N, Officer, FOSTER, Officer, CAL DWELL, L

t., BISHOP, Sgt., CONNELL

Y, Deputy Superintende

nt, SHERMAN, Lt., FARREL, Lt., V AUGHAN , Sgt., HO OD, Corr ection Of ficer, CHARL ES DUFRAIN, I

ndividually and as Superintendent of the Franklin Correct ional Fa cility , SWEENEY, Mr., as D eputy Superinte

ndent of Security at the G overneur Correctional Facility, RABSATT, Captain, BOURGAL, Sgt., R. NAGL E, Correction Officer, T. LI NK, Correction Officer, Defendants-Appellees

.

_________________________________________________________ BEFORE: POOLER, SACK, and B.D. PARKER, JR., Circuit Judges

. Appeal from the Decision and Order, dated Ma rch 28, 2002, of the United States District Court of Southern District of New York (Victor Marrer o, Judge) dismissing the plaintiffs’ second amended complain t. Affirmed.

__________

PAUL E. KERSON, John F. Duane (of counsel), Koppell, Leavitt, Kerson, L effler & Duane, New York, NY, for Plaintiff s-Appell ants

. DAVI D LAWRE

NCE I II , Assistan

t Solicitor Genera l, Eliot Spitzer, Attorney General of the State of New York, and MICHAEL BELOHL AVEK, Deputy Solicitor Ge neral (of counsel), New York, NY, for Defendants-Appellees

.3

POOLER, Circu it J udge : The original complaint in this action was filed on October 8, 1999, and an a mended complaint was filed on January 14, 2000 be fore the defendants had responded to the orig inal complain t. The dist

rict cou rt dismisse d the ame

nded comp laint purs

uant to Fe deral Rul e of Civil Procedure 12(b)(6), but grante d the plaintiffs an opportunity to replea d their allegations. Webb v. Goord , 197 F.R.D. 98 (S.D.N.Y. 2000). The plaintiffs filed a second amende d complaint on October 27, 2000, b

ut the distr

ict cour t again ruled tha t dismissal was warr

anted pur suant to Rul e 12(b)(6). Webb v. Goord , 192 F. Su pp. 2d 208 ( S.D.N.Y. 2002). Th e plaintif fs appea l from this second d ismissal.
FACTS The plaintiffs, with the exception of one who has been released, a re inmates incarcerated in various correctional facilities administered by the New York State Department of Correctional Services (“DOCS”). The second amended c omplaint names an array of defendants: (1) the Commissioner of DOCS; (2) the Health Commissioner of DOCS; (3) the Inspector Ge neral of DOCS; (4) the Superintendents of fourteen separate c orrectional facilities administered by DOCS; (5) a

pproximate ly f

ifty other DO CS employ

ees, most of whom a

re corr ections o fficers, and many of whom a

re identified only by

their last name; and (6) one hundred “John Doe” defendants alleged to be DOCS corre ctions officers. The second amended complaint alleges that e ach of the plaintiffs suffered a violation of his civil rights as a result of actions, or failures to act, on the par t of DOCS officials and employees. Specif

ically, the second a

mended complaint alleges the occurre nce of more than forty incidents that re sulted in serious physical injury to the plaintiffs, including attacks by corrections officers, improper phy sical punishments, attacks by other inmate s for which the4

defendants are responsible because of their failure to provide a safe prison environment, a nd denials o f medica

l care to plaintiff s suffer ing fro m injury

and illne ss. Some fea tures of these al legati ons stand o

ut. First , the sec ond amend ed compla

int only sets fort h the most b asic fa

cts of the incident s alleg ed to have resulted in injury . For the

most part, each plaintiff is allotted one paragr aph of the complaint, which provides the place and approximate time of the incident involving him, along with a sentence or two conc erning the injury allege d to have a

risen fr om the inc ident. Further, the incidents are dispersed ac ross time and space. That is, the events complained of are alleged to have take n place at fourteen separate D OCS facilities and, while most of the incid ents a re all eged to have t aken p lace be tween 1997 a nd 199 9, in ciden ts occ urrin g as lon g ago as 1990 are included in the second amended complaint. The pla intiffs’ allegations therefore share a common nucleus of operative fac t only in a very

broad sense. The sec ond amend

ed compla

int asser ts feder al cause s of actio

n under the Eighth Amendmen

t to the Uni

ted State s Constitution and unde r 42 U.S.C. Section 19 83. I t also asse

rts common law claims of assault, intentional infliction of emotional distress, respondeat superior liability, neglig ence, and “denial of medical trea tment.” In spite of the brevity

with which the plaintiffs’ factual allegations are set forth, the second amended complaint constitutes a catalog of violenc e and ill treatment toward the plaintiffs. Numerous incidents resulting in, among other things, lac erations, serious bruises and fractu res are allege d. For example, pla intiff Edward Walsh

allege s that, af

ter DOCS o fficial s denied his request to be placed in protective custody , he was attacked so brutally by other inmates that he received facial wounds requir ing sixty-eight stitches. Plaintiff Rodney Wright alleges that he required thirty -five stitches to close a wound received as a r esult of an attack by other inma

tes. Plain tiff Mich ael McKe

nzie alleg es that a

n attack by c orrect

ions offic ers left

him1 The article was excerpted from a hig hly accla imed book. See Ted Conover, Newjack: Guarding Sing Sing

(2000). T

he book won the Nati onal Boo k Critics Ci rcle Aw ard and was a finalist for the Pulitzer Prize. 5 with seve nteen br oken bone s in his fac e. I

t is neithe r trite nor patron

izing for the Court t

o
recog nize the se

riousnes s of such a

llegat ions. After the first amended complaint was filed, the plaintiffs soug ht discovery as to matters going far bey

ond the specific events alleged there in. For example, the plaintiffs requested that the defendants produce “[a] list of the number of incidents in the past y ear where prisoners received 5 or more stitches” and “[a] list of the number and nature of complaints by prisoners against [DOCS] personnel for brutality a nd/or use of excessive force.” The second amended complaint specifically seeks relief only

in the form of compensatory damages for each plaintiff. I n correspondence with the district court, however, both be fore and after the dismissal of the second amended complaint, the plaintiffs’ counse l asserted that much broader relief was appro

priate. In a

letter to the distri ct court , dated A pril 3, 200 0, the pla

intiffs’ counsel a sserted

that “an extraord inary event” had occu

rred in that The New Yorker magazine, in its issue of April 3, 2000, had published an article entitled “Guarding Sing Sing .” The article, written by Te d Conover , a journa list who ha

d taken a job as a c orrect

ions offic er at a D OCS facility , descri bes seve ral insta nces of brutality

toward in

mates. 1 None of these instances of brutality, however , involved any of the plaintiffs. N evertheless, the plaintiffs’ counsel asserted that the a rticle “ constitute s substant ial admiss ions that te

nd to prove

all of the allega tions in this case and cry

out for the appointment of a Special Master to govern the sta te prison system pursuant to the Prison Litigation Reform Act (PL RA), 18 U.S.C. Section 3626.” Further, after the second amende d complaint was dismissed, the plaintiffs moved for reconsideration in light of the U.S. Supreme Court’s decision in Hope v. Pelzer , 536 U.S. 730 (2002), which was issued on June 27, 2002. According to the plaintiffs’ counsel, Hope not only6

established that summary judg ment should be granted in favor of the plaintiffs, but also that “[a] Special Master should be appointed to run DOCS pursuant to the Prison Litiga tion Reform Act (PLRA), 18 U.S.C. Section 3626.” The district court subsequently denied the motion for reconsideration.
DISCUSSION We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Scutti Enters., LLC v. Park Plac e Entertainment Corp ., 322 F.3d 211, 214 ( 2d Cir. 200 3). Employ ing this s tandard , we aff

irm the dis trict cou

rt. I. The General Inadequacy of the Second Amended Complaint. In its opinion dismissing the first amended complaint, the district court expressed puzzlement that the instant action “although not so labeled, [is] akin to a class action challenging State prison conditions and operational practices.” Webb v. Goord , 197 F.R.D. 98, 100 (S.D.N.Y. 2000). In none of the thre e complaints that have been filed in this action do the plaintiff s actual ly a ssert cla ss action claims pur

suant to F ederal

Rule of Civil Proced

ure 23. T his seems to us to be the most striking thing about this case. I f anything , we have even more reason to be puzzled than was the district court because the bulk of the law upon which the plaintiffs rely on this appea

l is class action law, and a good part of oral a rgument was devoted to the question o f why

this case was notbrought as a class action. I n sum, this case looks, walks, and sounds like a class action, but ye t is not one. We hasten

to add tha

t, becau se this ca se has not been bro ught as a class action, cla ss action la w is not disp ositive as

to our dec ision to af

firm the d istrict c ourt. Bu

t we fee l that some discussion of the class action law of this Circuit is highly useful to the explanation of our decision. For herein lies an explanation of the fundamental infirmity of the second amended complain t. Amalg amating

more tha n forty discrete incident s of miscon

duct by DOCS offic ials7

does not make for a sustainable lawsuit. As the district court recognized, the claim of eac h individua l plaintif f, standi ng alon e, may

or may not have merit. Bu

t, taken t ogethe r, the cl aims do not establish the existence of a policy or pr actice existing throughout the DOCS sy stem, or within a si

ngle DO CS facility

, such tha t manag eable di scovery

or a rea sonable t

rial cou ld be held in this action. Our Circuit has expressed some trepidation regarding the efficacy

of class action litigation in providing relief to individual inmate plaintiffs who claim that prison conditions, or the actions of prison officials, have violated their civil rights. I n Bly den v. Ma ncusi , 186 F.3d 252 (2d Cir. 1999), we considered the results of a district court’s tre atment of class action litigation arising from injuries allegedly suffered by

inmates during the infamous 1971 disturbances at the Attica prison. The allegations spec ifically claimed that punishments meted out to inmates by prison officials and c orrections officers once control of Attica ha d been regained after an inmate ta keover of the facility

violated the Eighth Amendment. Although we acknowledged the propriety of certify ing a class of inmates when it was foresee able that the parties might reach a settlement ag reement, id. , at 269-7 0, we expr essed ske pticism tha

t trials conducted by the

district court could have adequately assessed the damages suffere d by eac h member o f the inma

te class: We cannot claim to have the same familiarity with the record as the district court, but, even at a glance, the ca se bristles with individual issues. For example, the determination of what acts constituted “repri sals” inv olves con siderati on of a va riety of condu ct, including forcing the inmates to strip and lie on the gr ound, making them run through gauntlets, beatings during the gauntlets, singling out and beating the leaders, and more r andom acts of violence agains t individua

l prisone rs. As to e ach, a tr

ier [of fa ct] must determine what happened and . . . its constitutional significance. Id. , at 271. Still, district courts in our Circuit continue to properly rec ognize the utility of the class action devic e in suits c hallenging pris on conditi ons when t hey believe that the r equirem ents8

of Rule 23 have been met. See , e.g. , Ingles v. City of New York , 2003 WL 402565 (S.D.N.Y. Feb. 20, 2003) (certify

ing inmate class alleging use of excessive force in facilities operated by the New York City De

partment of Correction).
As a lre ady n ot ed, how eve r, t he p lai nt iff s ha ve n ot att emp ted to mai nt ain a cl ass act io n. If they had done so, it is likely that we would consider the concerns expressed in Blyden to be highly releva nt. While tha

t case “ bristle[d] w

ith individu

al issues, ” the fa

ctual all egations pled in the second amended complaint present nothing but individual issues. While Blyden arose out of a single event – th e Attica

disturba nces – the instant ca se arise s from mor e than mor

e than forty discrete acts of a lleged misconduct encompa ssing a r ange o f defen

dants so br

oad that t heir only substantia l relation to one an

other is that they

are all a ssociate d with DOCS. This case simply cannot be sustained as an action seeking to adjudica te claims and defenses arising from ac ts of misconduct which are only substantially related bec ause they a ll are alleged to have occur red at DOCS fac ilities. Th e sheer diffuse ness of th e plaintif

fs’ alle gations

complete ly s

ubverts t heir federa l law cla ims. II. Eighth Am endment

Claims. The Eig hth Amend

ment proh

ibits “cr uel and un

usual puni shments.”

Again, it is possibl e that any of the individual incidents alleg ed by the plaintiffs may amount to a violation of the amendment in an action involving that incident alone. But proving this for a ny single incide

nt would be extremely impractica l in the context of a trial adjudicating claims arising from more than forty incidents. With respect to proving a violation of the Eighth Amendment by DOCS as a whole, the plaintiffs have not shown that more than forty unrelated incidents occurring over te n
years a t thirteen separate DOCS facilities can satisfy their burden of proving that “the conditions of [their] confinement violate contemporary standards of decency .” Phelps v. Kapnolas , 308 F.3d 180, 185 (2d Cir. 2002) (per curiam).9

Specifically, the ne cessary foundation of a finding that a prison system has violated the Eighth Amendment is evidence of a concer ted intent among prison officials, one expressed through discernable reg

ulations, policies or practices. It is by no means the case that federal courts ha ve rece ntly become i ndiffer ent to cla ims charg ing sy stemic vio lations of

the Eigh th Amendment by the conc erted acts of prison officialdom. Nor is it the case that such cla ims are guaranteed a favora

ble hearing. Compare Overton v. Bazzett

a , __ U.S. __, __, 123 S. Ct. 2162, 2170 (2003) (deny

ing Eighth Amendment challenge to Michig an state prison policy of r estricting visitation rights of prisoners who have violated regulations on substance abuse) with Hope v. Pelzer , 536 U.S. 7 30 (2002)(decla ring Ala bama sta te prison policy of shack ling pri soners to hitching posts to be a violation of the Eighth Amendment). But the c ases just c ited stand apart f rom the ins tant cas e in that sys temic abuses were at issue, while this case involves a series of discrete incidents taking place within a single prison system over a long

period of time. It is impossible for us to be more precise here without resorting to the vocabulary of metaphysics, but we hope we are not misunderstood when we assert that an accumulation of incidents – we do not say “a mere accumulation” – does not

necessa rily amount to a

qualitati ve violat ion of the Eighth A mendment

. III. Conspir acy to Vi olate Civ il Rights. The plain tiffs’ c laim unde

r 42 U.S.C. § 1983, wh

ich is sty led “Cons piracy to Violate Civil Right s,” should

actually be state d as a cla

im under Se ction 1985 , which a pplies spe cifical ly to conspiracies. In order

to maintain an action under Section 1985, a plaintiff “must provide some factual basis supporting a meeting of the minds, such that de fendants entered into an agreement, express or tacit, to achieve the unlawful end.” Romer v. Morgenthau , 119 F. Supp. 2d 346, 363 (S.D.N.Y . 2000) (c itation omi tted); see also Warburton v. Underwood , 2 F. Supp.2d 306, 319 (W.D.N.Y. 1998) (plaintiff stated claim of conspiracy to violate civil rights where10

prison officials allegedly

conspired to force him to participate in drug trea tment program that compromis ed his re ligious b eliefs) . The pla intiffs ha ve not all eged, except in the most conclusory fa shion, that any such meeting of the minds occurred among any or all of the defendants. Their conspiracy allegation must therefore fail. See Boddie v. Schnieder , 105 F.3d 857, 862 ( 2d Cir. 199 7) (dismis sal of “c onclusor y, v ague or gene

ral alle gations

of conspi racy to deprive a person of constitutional rights” is proper). IV. Appointment of a Special Master. The pl ain ti ffs ass ert th at, pur sua nt to th e Pr is on Li ti gat io n R efo rm A ct ( “PLR A”) , P ub. L. No. 104-134, 110 Stat. 1321-70 (1996), codified at 18 U.S.C. § 3626, a special master should be appointe d to essen

tially administe

r DOCS in or

der to en sure its c omplianc e with the Eighth Amendment. If one looks only at this country’s history

of prisoner rights litigation before the
passag e of the PL

RA, this re quest is un

derstan dable. I n a compr

ehensive assessme nt of this history, two political scientists have asserte d that it amounts to “our nation’s most aggressive campaign of judicial policy making.” Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed Americ a’s Prisons , at 263 (1998). A primary mea

ns through which this campaign was eff ected was the appointment of special masters to oversee prison conditions. This was largely because “[t]he power to appoint a compliance coordinator, more familiarly known as a special master, is traditionally regarded as an inhere

nt power of an equity

court and is explicitly authorized by the Federal Rules of Civil Procedure.” Id. at 75 (citing Fed. R. Civ. Pro. 53(b)). Whether or not the actions of the federal courts throug hout this history was consistent with their proper r ole in our polity , and with

the eff ective ma nifestat ion of the Eighth Amendments ideals, is the subject of much argument. But there is no argument over whether or not the PL

RA repre sents a f

undament al brea k with this h

istory . The PL

RA has subs tantially11

limited the

capaci ty o f feder

al court s to appoin

t specia l masters to overse e prison c onditions, specifically in orde

r to ensure compliance with the Eighth Amendment. This may or may not be a good thing, but “Congress’s ability to take action of this sort demonstrates that the courts are

not near ly s o imperia

l, or unsto ppable, a s their cr

itics have claimed, even whe

n groun ding the ir authority on the Constitution.” Id. at 383. We hope it goes with say ing that we cannot disregard the requirements set forth in the PLRA. That statute provides that a feder al court may not g

rant any pr

ospective relief at all – let alone appoint a special master to administer a state prison sy stem – unless the court finds that “such relief is narrowly

drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means ne cessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). The mer e assertion that the appointment of a special master is appropriate ob viously

does not me et these

strictur es. V. Exhaustio n of Administrative R emedie s. The PLRA further provides that a pla intiff may not bring a

suit in federal court challenging prison conditions “until such administrative remedies as a re available are exhausted.” 42 U.S.C. § 1997e(a). It is uncontested that none of the plaintiffs has alleged that he has exhaus ted avai lable ad ministrati ve reme dies. There was formerly

some question as whether the PLRA’s exhaustion requirement reached suits involving individual instances of prison misconduct, as opposed to prison conditions generally . In Porter v. Nussle , 534 U.S. 516, 532 (2002), however, the Supreme Court established that “the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve g eneral

circumst ances or particu lar episo des.” Th e plaintif fs attemp t to escape the holding of Porter by contending

that it should not be retroactively a pplied. “When [the

Supreme] Co

urt applie s a rule o f feder al law to t he parti es befor

e it, that r ule2 We also hol d that the district c ourt did no t abuse its discreti on in decl ining to e xercise supplemental jurisdiction over the plaintiffs’ state law claims. See Ametex Fa brics, I nc. v. Just In Materials, I

nc. , 140 F.3d 101, 105-06 (2d Cir. 1998). 12 is the con trolling interpre tation of f ederal law and mu st be giv en full re troactiv e effe ct in all cases still open on direct review and as to all events, reg ardless of whether such events predate or postdate [the] announcement of the rule.” Harper v. Virginia Dep’t. of Ta xation , 509 U.S. 86, 97 (1993). Our Circuit has already applied Porter

retroactively , see Lawrence v. Goord , 304 F.3d 198, 200 (2d Cir. 2002) (per curiam), and we see no r eason to not do so here. VI. Hope v. Pelzer. Finally , the plai ntiffs’ c laim that Hope v. Pelzer , 536 U.S. 730 (2002), requires reversal here is baseless. In Hope , as we have already noted, the Supreme Court found that Alabama’s practic e of shac

kling pr isoners to hitching posts as a

disciplina

ry measure violates t he Eigh th Amendment. The case had nothing to do with the adequac y of pleading s in an action challenging prison conditions. 2
CONCLUSION Each incident alleged by

the plaintiffs involves grave allegations of r ights violations either perpetrated or tolerated by DOCS officials. In affirming the district court’s dismissal of the second amended complaint, we take pains to assert that we are not establishing the triumph of form ove r substance. Rath er, our a ffirman ce should stand for the propo sition that form matters in our system of adjudication. I t matters because it is conducive to the coherent prese ntation of a plaintiff ’s claims , to the al lowance of a fai r opportu nity to defen dants to challeng e those c laims, and to the provision

of appro priate r elief. I n sum, a pr

oper att ention to f

orm is a pr

erequis ite to the fair and eff icient vin dication of righ ts. The judgment of the district court is AFFI RMED.