Reynolds v. Barrett

741 F.Supp.2d 416

Jerry REYNOLDS, Plaintiff,

v.Dave BARRETT, Industrial Superintendent of Elmira Correctional Facility, Larry Pocobello, Assistant Industrial Superintendent of Elmira, Jack Rathbin, General Foreman of Elmira Print Industry, Terry Chamberlin, Industrial Training Supervisor of Elmira Print Industry, Floyd Bennett, Superintendent of Elmira Correctional and Reception Center, George Sarno, Industrial Training Supervisor of Elmira Print Industry, Janet Kent, Industrial Training Supervisor of Elmira Print Industry, Dana M. Smith, Deputy Superintendent of Elmira, James P. Thompson, Senior Correction Counselor of Elmira, John Conroy, Director of Correctional Industry, Individually and in their official capacities, Defendants.Kay Gould, Plaintiff,

v.Terry Chamberlin, Industry Training Supervisor, Larry Pocobello, Industry Assistant Superintendent, Dave Barrett, Industry Superintendent, Jack Rathbin, Industry Foreman, Janice Kent, Industry Training Supervisor, Floyd Bennett, Correctional Facility's Superintendent, Defendants.Anthony Mack, Plaintiff,

v.David Barrett, Industry Superintendent at Elmira Correctional and Reception Center, Larry Pocobello, Industry Assistant Training Superintendent at Elmira, Terry Chamberlin, Industry Training Supervisor at Elmira Jack Rathbin, Industry Foreman at Elmira, John Conroy, Director of Correctional Industries for DOCS, George Sarno, Industrial Training Supervisor in Elmira Print Shop, Floyd Bennett, Superintendent at Elmira, Dana M. Smith, Deputy Superintendent of Programs at Elmira, Jim Thompson, Program Committee Chairman at Elmira, Defendants.Joseph Sergio Ponder, Plaintiff,

v.Terry Chamberlin, Jack Rathbin, George Sarno, Defendants.

Nos. 99–CV–6228L

99–CV–6503L

00–CV–6436L

00–CV–6440L.

United States District Court, W.D. New York.

Oct. 4, 2010.

J. Nelson Thomas, Michael J. Lingle, Patrick J. Solomon, Thomas & Solomon LLP, Rochester, NY, Andrew F. Capoccia, Albany, NY, for Plaintiffs.Gary M. Levine, New York State Office of the Attorney General, Rochester, NY, Matthew J. Neuren, Weiss, Neuren & Neuren, Esqs., New City, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

These four cases arise out of alleged racial discrimination against inmates at the Elmira Correctional Facility, which is operated by the New York State Department of Correctional Services (“DOCS”) in Elmira, New York. The four African–American plaintiffs, Jerry Reynolds, Khalib Gould, Anthony Mack, and Joseph Ponder, all of whom were at all relevant times incarcerated at Elmira, allege that they were subjected to discrimination on account of their race in connection with their inmate jobs in the Print Shop at Elmira. Plaintiffs assert claims under 42 U.S.C. §§ 1983 and 1985.

Several motions are now pending before the Court. Plaintiffs have moved to amend their complaints, by filing a single consolidated complaint governing all four actions. Plaintiffs have also moved to certify a class under Rule 23 of the Federal Rules of Civil Procedure. In addition, defendants have moved for summary judgment dismissing all the plaintiffs' claims.

BACKGROUND

These cases have their collective genesis in this Court's decision in Santiago v. Miles, an action that was filed in 1986 by a class of inmates at Elmira against various prison officials, alleging widespread discrimination at Elmira on the basis of race, in violation of the Fourteenth Amendment to the United States Constitution. The case went to trial, and on October 1, 1991, this Court found that black and Hispanic inmates at Elmira had been “systematically subjected ... to discrimination on the basis of race in the areas of housing and job assignment and in the imposition of discipline.” 774 F.Supp. 775, 801. The Court directed the parties to work together to create a plan to end that discrimination and to agree on the terms of a remedial injunction to be issued by the Court.

On April 13, 1993, the court adopted a plan, previously agreed to by the parties, setting forth various provisions and safeguards designed to remedy the systemic discrimination at Elmira. For example, the plan provided that inmate jobs at Elmira were required to be assigned in such a way that the percentage of black and Hispanic inmates in certain “preferred” jobs, see id. at 782, including jobs in the Print Shop, would correspond to the percentage of blacks and Hispanics in Elmira's inmate population. Santiago, 86–CV–694, Dkt. # 128 ¶ 9. The plan further provided that the judgment incorporating the plan would “continue in full force and effect and bind the defendants as well as their successors, agents, and employees until modified or terminated by the Court ...,” and that “[i]n the event that plaintiffs believe that defendants are not in compliance with this Judgment, ... plaintiffs may seek relief from this Court.” Santiago, Dkt. # 128 ¶ 29.

The first of the four cases at bar, Reynolds v. Chamberlin, was filed on June 3, 1999. Reynolds, who began working in the Print Shop in 1994, alleges that his incentive bonus pay was docked for alleged errors that, if committed by a white inmate, would not have resulted in a similar reduction in pay. Reynolds Second Amended Complaint (Dkt. # 6) ¶ 20. Reynolds was terminated from the Print Shop in September 1999, after he was found guilty on several charges involving possession of contraband in his cell.

The second of these actions, Gould v. Barrett, was filed on October 5, 1999. Gould, who also began working in the Print Shop in 1994, alleges that he was passed over for promotion, demoted, and eventually removed from the Print Shop in March 1999, ostensibly for poor performance, but in reality on account of his race, and in retaliation for his having filed grievances about various matters related to the Print Shop. Gould Complaint (Dkt. # 1) ¶¶ 13–96.

The complaint in Mack v. Barrett was filed on March 27, 2000. Mack began working in the Print Shop in 1998. He alleges that despite his initially satisfactory job performance, he was repeatedly, and unfairly, blamed by his supervisors for printing press malfunctions. After receiving a series of inmate counseling notifications for those alleged problems, Mack was programmed out of the Print Shop in April 1999. He contends that he was programmed out because of his race, and also in retaliation for his having filed grievances about some of these matters.

The fourth action, Ponder v. Chamberlin, was commenced on September 7, 2000. Ponder began working in the Print Shop in 1997. He was programmed out of the Print Shop in March 1999, after having also received a number of inmate counseling notifications. Plaintiff alleges that his termination was the result of race discrimination and retaliation for his prior complaints about various matters.

In November 2000, the Court appointed counsel for plaintiffs in all four of these actions. In October 2001, plaintiffs' counsel filed a motion to consolidate these actions for all purposes under Rule 42(a), and for leave to file a consolidated amended complaint. Reynolds, Dkt. # 47.¹

On November 15, 2001, Magistrate Judge Jonathan W. Feldman issued an order directing plaintiffs to refile a proposed amended complaint providing more detail as to the nature of each plaintiff's claims against each individual defendant. Dkt. # 51. That order also set forth a briefing schedule on the motion to amend, should defendants oppose the motion.

By stipulation and order entered on December 20, 2001, these cases were consolidated for purposes of discovery. Dkt. # 52. That stipulation and order also set forth the parties' agreement and understanding that “no adverse inferences shall be drawn and neither side shall be prejudiced in any way because either (I) the defendants stipulate to proceed with discovery on a consolidated basis, or (ii) plaintiffs agree to amend the complaints after discovery has been completed.”

Pursuant to a scheduling order issued on May 2, 2005, discovery in these actions was closed on August 31, 2005. Dkt. # 87. On October 3, 2005, plaintiffs again filed a motion for leave to file an amended consolidated complaint. Dkt. # 99. Defendants filed papers in opposition to the motion, after which the Court heard oral argument and reserved decision on the motion.

While the motion to amend was pending, defendants filed summary judgment motions in each of these actions on October 29, 2008. Dkt. # 118. Two days later, on October 31, 2008, plaintiffs filed their class certification motion. Dkt. # 123. The Court heard oral argument on those motions on April 8, 2009.

DISCUSSION

I. Timing and Sequence of the Motions

“Courts have held that in general, issues relating to class certification should be decided before a decision on the merits is rendered.” Mendez v. The Radec Corp., 260 F.R.D. 38, 44 (W.D.N.Y.2009) (citing cases). See also Fed. R. Civ. P. 23(c)(1) (district court should determine whether a class is maintainable “[a]t an early practicable time after a person sues or is sued as a class representative”). That is particularly true in cases in which certification is sought under Rule 23(b)(3), which requires that absent class members be given an opportunity to exclude themselves from the class. Once the opt-out date has passed in a Rule 23(b)(3) action, absent members are bound by the judgment.

“There are exceptions to that general principle, however,” and in particular, “there is authority that a defendant can waive any objection to a decision on the merits prior to, or simultaneous with, a decision on class certification.” Mendez, 260 F.R.D. at 45. See, e.g., Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir.1995) (defendant may elect to seek summary judgment prior to decision on class certification as a “way to try to knock ... off [the action] at low cost,” by disqualifying the named plaintiffs as proper class representatives, in order to moot the question whether to certify the suit as a class action); ...