Supreme Court, Albany County, September 11, 2023

Letitia James, Attorney General, Albany (Michael G. McCartin of counsel), for respondent.

New York Civil Liberties Union, New York City (Antony Philip Gemmell, Molly K. Biklen and Ifeyinwa Karen Chikezie of counsel), and Prisoners' Legal Services of New York, Buffalo (Andrew Austin Stecker, Hallie Elizabeth Mitnick and Elise Marie Czuchna of counsel), for petitioners.

On May 26, 2023, an amended petition and complaint having been filed by plaintiffs-petitioners Fuquan F., Luis G. and Jimmy B. (hereinafter referred to as petitioners) identified as a putative class action "hybrid" CPLR article 78 and declaratory judgment proceeding; and in said proceeding, petitioners seek to challenge, inter alia, defendant-respondent Department of Corrections and Community Supervision's (hereinafter referred to as DOCCS) confinement policy as being contrary to the provisions of the Humane Alternatives to Long-Term Solitary Confinement Act (hereinafter referred to as HALT Act); and an answer and memorandum of law in support having been filed by counsel for respondent requesting that the relief sought in the petition be denied and that the petition be dismissed in the entirety; and a memorandum in support having been filed with the court; and a notice of motion to dismiss and memorandum being filed by respondent seeking dismissal of the declaratory judgment action and the attendant class allegations; and a further{**81 Misc 3d at 519} notice of motion having been filed requesting that this court certify them as a class pursuant to CPLR 901 (a); and further submissions having been received opposing and supporting said certification.

Now, it is the finding of this court that the motion to dismiss is denied and the motion for class action certification is hereby granted.^[FN1]

On January 12, 2023, while incarcerated at a New York correctional facility and experiencing a mental health crisis, petitioner F. allegedly exposed himself, urinated on the floor, threatened a correction officer and threw "wet looking sugar packets" at the officer. He was charged with assault on staff, lewd conduct and unhygienic acts. He was found guilty at a tier III disciplinary hearing and received a 180-day penalty which he served in a "Special Housing Unit" (hereinafter referred to as SHU). According to the allegations in the petition, the Hearing Officer failed to issue a written decision containing findings regarding the conduct at issue rising to the level required under the HALT Act.

On or about September 20, 2022, petitioner Luis G., while being held in a Residential Mental Health Unit at a New York correctional facility, allegedly threw an "unknown brown feces smelling liquid that purportedly hit two officers." A tier III disciplinary hearing was held, he was found guilty of two counts of assault on staff and two counts of committing an unhygienic act and sentenced to a 730-day sanction to be served in a Residential Mental Health Unit. The Hearing Officer's written determination did not include a specific determination that the acts that he committed constituted a heinous or [*2]destructive act as defined in Correction Law § 137 (6) (k) (ii) (A)-(G).

Jimmy B. was found guilty at his disciplinary hearing for assault on incarcerated individuals and unhygienic acts for spraying three incarcerated individuals with a "brown liquid substance {**81 Misc 3d at 520}[that] had the odor of feces."^[FN2] A tier III disciplinary hearing was held, wherein he was found guilty of numerous charges, including, but not limited to, assault on an inmate, unhygienic act and possession of contraband. Once again, the decision of the Hearing Officer did not include a specific determination that Mr. B.'s conduct constituted a heinous or destructive act or that his placement in general population would create a significant risk as required by the provisions of the Correction Law. He was sentenced to 210 days in a SHU.

Each petitioner claims that he was disciplined in violation of the provisions of the HALT Act and that he was placed in a setting that constitutes "segregated confinement" as that term is used in Correction Law § 137. They each argue that respondent did not conduct a case-by-case analysis to determine whether the acts the petitioners committed are "so heinous or destructive that placement of the individual in general population housing creates a significant risk of imminent serious physical injury to staff or other incarcerated persons, and creates an unreasonable risk to the security of the facility" (Correction Law § 137 [6] [k] [ii]). They argue that respondent has adopted a "policy" whereby any offense identified as a tier III violation meets the criteria set forth in the HALT Act, that this policy is followed in all tier III disciplinary proceedings and that this policy is in violation of the clear provisions of the HALT Act which require an evidentiary hearing and specific written findings set forth in a decision.

Petitioners further argue that as a matter of course, DOCCS exceeds the durational limits by imposing "k (ii) confinement" for acts not specified in the applicable provisions of the Correction Law and that respondent's hearing officers routinely fail to make individual or written determinations that the statutory requirements have been met. Petitioners argue that they have each been harmed by DOCCS' policy as they were each sentenced to lengthy periods of confinement without required individualized written findings regarding their specific acts of misconduct. Petitioners seek to represent themselves and all those similarly situated individuals "with regard to a general challenge of these practices in defiance of the Legislature's reasoned judgment."

In response, respondent initially argues that petitioners made procedural errors by bringing this matter as a declaratory{**81 Misc 3d at 521} judgment action when they are not challenging the HALT Act itself but rather challenging specific administrative determinations that were made regarding the individual petitioners. Respondent further argues that class actions are not considered to be a preferred method for the fair and efficient adjudication of controversies against a governmental agency like DOCCS and they argue that class action certification is inappropriate. They further argue that the HALT Act does not impose limitations on the length of sanctions imposed for misconduct. Rather, it defines where those sanctions can be served and also limits the time an individual can be placed in segregated confinement. Finally, with regard to the argument that respondent failed to issue written decisions outlining specific findings, respondent argues that their findings were implicit and self-evident from the record and that they are legally sufficient.

The HALT Act was enacted by the New York State Legislature in 2021. As set forth in Correction Law § 137, the HALT Act imposes specific limits and regulations regarding the placement of individuals in segregated and other specific forms of disciplinary confinement. The HALT Act defines segregated confinement as a type of confinement in which the incarcerated individual is offered less than seven hours of out-of-cell programming or other out-of-cell activities daily.^[FN3] HALT limits segregated confinement to not more than 15 consecutive days or 20 total days in any 60-day period.^[FN4]

Specifically, Correction Law § 137 (6) (k) (ii) provides in relevant part that

"[t]he department may place a person in segregated confinement beyond the limits of subparagraph (i) of this paragraph or in a residential rehabilitation unit only if, pursuant to an evidentiary hearing, it determines by written decision that the person committed one of the following acts and if the commissioner or his or her designee determines in writing based on specific objective criteria the acts were so heinous or destructive that placement of the individual in general population housing creates a significant risk of imminent serious physical injury to{**81 Misc 3d at 522} staff or other incarcerated persons, and creates an unreasonable risk to the security of the facility."

As noted above, petitioners allege, inter alia, that respondent has adopted a "k (ii) confinement" policy that "reflects a failure to perform a duty enjoined upon him by law," that the confinement policy is arbitrary and capricious, affected by an error of law and an abuse of discretion and that it violates Correction Law § 137 (6) (k). Petitioners request that this court certify this action as a class action and appoint counsel of record for petitioners to represent the class.

With regard to class action certification, CPLR 901 (a) provides in relevant part that a party seeking class action certification must establish that

"1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

"2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;

"3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;

"4. the representative parties will fairly and adequately protect the interests of the class; and

"5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

"[T]hese criteria must be liberally construed and any error, if there is to be one, should be in favor of allowing the class action" (Hurrell-Harring v State of New York, 81 AD3d 69, 72 [3d Dept 2011]).^[FN5]

"Courts have recognized that the criteria set forth in CPLR 901 (a) should be broadly construed not only because of the general command for liberal construction of all CPLR sections, but also because it is apparent that the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which [*4]preceded it" (City of New York v Maul, 14 NY3d 499, 509 [2010]).

"[C]lass actions are deemed a superior method for adjudication of a controversy where, as here, the members of a proposed{**81 Misc 3d at 523} class are indigent individuals who seek modest benefits and for whom commencement of individual actions would be burdensome" (Matter of Stewart v Roberts, 163 AD3d 89, 94 [3d Dept 2018]). In certain situations "where governmental operations are involved, and where subsequent petitioners will be adequately protected under the principles of stare decisis . . . class action relief is not necessary" (Matter of Martin v Lavine, 39 NY2d 72, 75 [1976]). In New York City Health & Hosps. Corp. v McBarnette (84 NY2d 194, 206 [1994]), the Court of Appeals clarified that the holding in Matter of Jones v Berman (37 NY2d 42 [1975]) "concerns itself only with the inefficiency of using the class action form when the prospective rights of interested nonlitigants can be safeguarded by other means." The determination of whether to grant class action status "ordinarily rests within the sound discretion of the trial court" (Small v Lorillard Tobacco Co., 94 NY2d 43, 52 [1999]; see also City of New York v Maul, 14 NY3d 499).

Motion to Dismiss

Respondent requests that this court dismiss the action on the grounds that claims have been improperly brought in the form of a declaratory judgment action. Specifically, they argue that petitioner is "essentially challenging a government agency determination" and that "the avenue for relief lies in a CPLR article 78 proceeding." This court has considered the arguments presented and agrees with counsel for petitioners that insofar as petitioners seek the review of an allegedly continuing policy, a declaratory judgment action is appropriate (see Matter of Zuckerman v Board of Educ. of City School Dist. of City of N.Y., 44 NY2d 336 [1978]; Matter of Dorst v Pataki, 167 Misc 2d 329 [Sup Ct, Albany County 1995], affd 90 NY2d 696 [1997]). As such, the motion to dismiss the declaratory portion of the petition is hereby denied.

Class Action Certification

This court has considered the facts and circumstances, the applicable law and the arguments presented by counsel, and finds, based upon the specific allegations and claims raised in the pleadings, that class action certification is appropriate.

It is the finding of this court that while the circumstances and alleged transgressions of each individual petitioner are distinct, the fundamental issue that they all raise is the same. Essentially, they each claim that respondent is obligated to{**81 Misc 3d at 524} make case-by-case determinations regarding specific misconduct and that the policy they allege is being followed is not in compliance with the terms of the HALT Act. They also each allege that written findings of fact are required under the act and that respondent has failed to provide such findings.

It is the further finding of this court that under the circumstances, joinder of all members of the purported class is impracticable and there are questions of law and fact that are common to the entire class which clearly predominate over the specific questions that affect only the individual members before the court. Moreover, insofar as the petition questions an alleged policy of DOCCS regarding all disciplinary proceedings that result in a HALT Act confinement, the claims raised are typical of the claims or defenses of the class. This court is also satisfied that the representative parties will fairly and adequately protect the interests of the class and that [*5]a class action is superior to any other available method for the fair and efficient adjudication of the issues before the court. In making these findings, this court also notes that the petition requests both prospective and retroactive relief, a factor that weighs in favor of granting class action status.

This court has considered the arguments presented by respondent in support of their motion to dismiss the petition on the merits and finds the arguments to be without merit. Notably, while respondent cites to numerous decisions that address the deference that courts are required to grant to an administrative agency, and also cites numerous decisions that speak to the "highly charged atmosphere" in a prison disciplinary proceeding and the "legitimate penological interests in seeing that disciplinary determinations are made quickly," they do not address the specific claim raised herein. Specifically, they do not directly address the allegations that they have adopted a policy that essentially leads to an automatic classification of all tier III offenses as meeting the criteria for confinement under section 137 of the Correction Law. They also do not dispute that following this policy, they do not render case-by-case determinations, nor do they make findings of fact that are set forth in written decisions.

This court has considered respondent's argument that the particular acts committed by each petitioner were, in fact, heinous or destructive and that these acts warranted the type of discipline that was administered. This court has also considered respondent's argument that "the requisite findings {**81 Misc 3d at 525}were implicit in the hearing officer's determinations" and finds that this argument is not persuasive, particularly given the thus far uncontested claim that hearing officers are currently following a "policy" adopted by DOCCS rather than making case specific determinations that particular conduct is "heinous or destructive." Under the circumstances, for the purpose of the motion to dismiss, respondent has not established their entitlement to judgment as a matter of law.

For the foregoing reasons, the motion to dismiss is denied and the motion for class action certification is granted.