A.T. v. Harder

298 F.Supp.3d 391

A.T., a minor, BY AND THROUGH his parent and natural guardian Shakeema TILLMAN, and B.C., a minor, by and through Kristi Cochardo, Plaintiffs,

v.David HARDER, Broome County Sheriff, in his official capacity, Mark Smolinsky, Jail Administrator of the Broome County Correctional Facility, in his official capacity, and Kevin Moore, Deputy Administrator, in his official capacity, Defendants.

9:17–CV–817

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

Signed April 4, 2018

LEGAL SERVICES OF CENTRAL NEW YORK, JOSHUA T. COTTER, ESQ., SAMUEL C. YOUNG, ESQ., SUSAN M. YOUNG, ESQ., 221 South Warren Street, Suite 300, Syracuse, NY 13202, Attorneys for Plaintiffs

LEGAL SERVICES OF CENTRAL NEW YORK, GEORGE B. HADDAD, ESQ., 168 Water Street, Binghamton, NY 13901, Attorneys for Plaintiffs

BROOME COUNTY ATTORNEY'S OFFICE, ROBERT G. BEHNKE, ESQ., Broome County Office Building, 60 Hawley Street, P.O. Box 1766, Binghamton, NY 13902, Attorneys for Defendants

MEMORANDUM—DECISION and ORDER

DAVID N. HURD, United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION...399

II. BACKGROUND...400

A. The Broome County Jail...401

B. Solitary Confinement at the Jail...401

C. Andrea Weisman, Ph.D....401

D. Defendants' Opposition...402

1. Proposed Regulatory Amendment...402

2. Reports from Supervisory or Accrediting Bodies...402

3. Affidavits from Broome County Jail Staff...402

i. Sean Bell...402

ii. James Borchardt...403

iii. Marcus DeAngelo...403

iv. Jeff Katen...403

v. Jason Kirk...403

vi. Dennis Rowe...403

vii. Daniel Snyder...404

viii. Jennifer Vasquez...404

ix. Adam Wilcox...404

III. DISCUSSION...404

A. Class Certification...404

1. Numerosity...406

2. Commonality...408

3. Typicality...408

4. Adequacy of Representation...410

5. Rule 23(b)...411

6. Ascertainability...411

B. Preliminary Injunction...411

1. Substantial Likelihood of Success...412

i. Deliberate Indifference to Conditions of Confinement...412

ii. Fourteenth Amendment Due Process & the IDEA...416

iii. The ADA & Section 504...416

2. Strong Showing of Irreparable Harm...417

3. Public Interest...417

4. Balance of Hardships...418

IV. CONCLUSION...418

I. INTRODUCTION

Named plaintiffs A.T. and B.C.¹ seek declaratory and injunctive relief on behalf of themselves and a proposed class of fellow 16– and 17–year–olds ("juveniles") who have been or will be held in some form of solitary confinement at the Broome County Correctional Facility (the "Broome County Jail" or the "Jail").

The Broome County Jail is operated by defendants Broome County Sheriff David Harder ("Sheriff Harder"), Jail Administrator Mark Smolinsky ("Administrator Smolinsky"), and Deputy Jail Administrator Kevin Moore ("Deputy Administrator Moore") (collectively "defendants"), each of whom is sued here in their official capacity.²

Plaintiffs' first amended complaint asserts five claims. In the first and second causes of action, they assert 42 U.S.C. § 1983 claims alleging defendants routinely place juveniles in solitary confinement and then deny them access to educational opportunities in violation of the Eighth and Fourteenth Amendments (the proposed "juvenile class").

In plaintiffs' third cause of action, they assert a claim under the Individuals with Disabilities in Education Act ("IDEA") alleging a subclass of juveniles placed in solitary confinement are being denied the special education and related support services to which they are entitled under the statute (the proposed "IDEA subclass").

In plaintiffs' fourth and fifth causes of action, they assert claims under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504") alleging a separate subclass of qualifying juveniles are being denied access to certain programs, services, and benefits without first receiving the individualized assessment mandated by these federal laws (the proposed "disability subclass").

Plaintiffs have moved for class certification under Federal Rule of Civil Procedure ("Rule") 23. Plaintiffs have also moved for a preliminary injunction under Rule 65. Defendants oppose both requests. The parties have exchanged limited discovery on an expedited basis and the motions were fully briefed in advance of oral argument, which was heard on March 23, 2018 in Utica, New York. Decision was reserved.

II. BACKGROUND

Plaintiffs have submitted declarations and other evidence in support of their request for class certification, see Cotter Class Cert. Decl. (detailing supporting submissions), and in support of their motion for preliminary injunctive relief, see Cotter Prelim. Inj. Decl. (same); Weisman Decl. (including supporting exhibits).

In opposition, defendants have submitted selected records from current or former members of the proposed juvenile class, see Behnke Class Cert. Aff. (detailing submissions), information about proposed regulatory changes, Behnke Prelim. Inj. Decl. Ex. A, reports from the New York State Commission of Correction and the National Commission on Correctional Health Care, Behnke Prelim. Inj. Decl. Exs. B & C, and a series of two- and three-page affidavits from Broome County Jail staff members Sean Bell, James Borchardt, Marcus DeAngelo, Jeff Katen, Jason Kirk, Dennis Rowe, Daniel Snyder, Jennifer Vasquez, and Adam Wilcox.

All of these materials have been considered and the particularly relevant portions will be summarized below. Notably, however, neither party has sought an evidentiary hearing in connection with either of plaintiffs' motions, and an independent review of the submissions has not revealed any genuine disputes over the facts essential to resolve the pending requests. See, e.g., Matter of Defend H2O v. Town Bd. of the Town of E. Hampton, 147 F.Supp.3d 80, 96–97 (E.D.N.Y. 2015) (discussing circumstances where an evidentiary hearing on a preliminary injunction may prove unnecessary). Accordingly, while disputes over certain factual matters remain outstanding, their resolution is unnecessary at this juncture.

A. The Broome County Jail

The Broome County Jail is a 563–bed correctional facility located in Dickinson, New York that houses pre-trial detainees, convicted individuals serving sentences, and technical parole violators. The Jail primarily holds an adult inmate population. However, the facility is also used to house juveniles, many of whom suffer from mental health or intellectual disabilities.

Generally speaking, juveniles being held at the Broome County Jail are housed in their own pod ("F–Pod"), where they are permitted outside their cells for about 12 hours a day for recreation, showers, library use, class time, and other programming. The average length of time a juvenile spends at the Jail is 37 days, and the vast majority of the juveniles held at the Jail are pre-trial detainees.

B. Solitary Confinement at the Jail

Defendants' policies contemplate several different forms of disciplinary isolation or segregation: (1) "informal discipline," where an inmate waives the right to a hearing and simply accepts the corrections officer's proposed sanction, which is usually a 24–hour period of confinement in a cell; (2) "administrative segregation," where an inmate is confined to their cell or to the Secure Housing Unit ("SHU") for up to 15 business days pending a disciplinary hearing; (3) "protective custody," a form of administrative segregation that can exceed the 15–day limit; and (4) "disciplinary segregation" or "keep-lock," an additional period of lock-in or SHU time imposed as a punitive measure.

In each instance, the inmate is confined to a sparsely furnished cell measuring about 8 by 10 feet for approximately 23 hours a day. Plaintiffs contend these measures are routinely imposed by Broome County Jail staff on members of the proposed juvenile class regardless of mental health history and even for minor misbehavior, such as horseplay, engaging in a water fight, tossing paper into a waste basket, or failing to clean their cell to a guard's satisfaction. Plaintiffs assert that once a juvenile is placed in any of these forms of solitary confinement, defendants deny them access to education or special education instruction and related support services in violation of state and federal law.

In addition, plaintiffs contend the Broome County Jail's practices and policies fail to distinguish between adults and juveniles, between pre-trial detainees and post-conviction prisoners, or even between normal juveniles and those with mental or intellectual disabilities. As a result, juveniles at the Jail often come in visual or physical contact with members of the adult inmate population, who among other things have been known to try to attack them, to throw urine at them, and to shout threatening messages to them.

C. Andrea Weisman, Ph.D

In support of their request for preliminary relief, plaintiffs have submitted a detailed declaration from Andrea Weisman, Ph.D., a licensed clinical psychologist. Dr. Weisman visited the Broome County Jail, interviewed two of the five juveniles being held there at the time of her visit, reviewed the Jail's written policies, examined the records of various juveniles who were held at the facility, and interviewed various members of the Jail staff.

Dr. Weisman opines in relevant part that "the policies and practices guiding the placement of youth in solitary confinement are extraordinarily harsh and are extremely damaging to youth so confined" and concludes that defendants' "adherence to these policies place all juveniles who are, or will be, incarcerated at the Jail at substantial risk of serious harm."

D. Defendants' Opposition

Defendants' submissions can be divided into three categories: (1) an explanation of the salient features of a proposed amendment to state corrections law; (2) reports from supervisory or accrediting bodies; and (3) a series of short affidavits from Broome County Jail staff members offering context for defendants' penological decision-making vis-à-vis certain juveniles who have submitted declarations in support of plaintiffs' pending requests for relief or...