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FORTS v. MALCOLM

February 1, 1977

Iola FORTS and Fannie Bryant, detainees of the New York City Correctional Institution for Women, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
Benjamin J. MALCOLM, Commissioner of Correction of the City of New York, et al., Defendants


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

MEMORANDUM

TENNEY, District Judge.

 This action has been brought by pretrial detainees at the New York City Correctional Institution for Women ("NYCCIFW"), located on Rikers Island, who ask the Court to enjoin a number of practices at the institution which are said to violate the plaintiffs' constitutional rights. Before the Court at this time are three motions: (1) the plaintiffs' motion for a preliminary injunction as to many of the claims stated in the complaint and for certification of the plaintiffs' class; (2) the defendants' cross-motion for partial summary judgment on a smaller number of claims; and (3) a further cross-motion by plaintiffs for partial summary judgment on two claims. For the reasons stated below, the Court certifies this action as a class action. Partial summary judgment is awarded to plaintiffs on their claims concerning contact visits and personal attire and to defendants on the claim concerning grooming standards. Summary judgment is denied as to all other claims, and the motion for a preliminary injunction is denied. The case is referred to United States Magistrate Sol Schreiber for all pretrial purposes.

 CLASS ACTION

 The plaintiffs were, at the time of the filing of the complaint, pretrial detainees at the NYCCIFW. They challenge institutional practices which are said to affect the daily lives of all pretrial detainees in that institution. Thus, their request for class certification is even stronger than that presented to this Court by the plaintiff-detainees in Jordan v. Malcolm, 75 Civ. 1071 (CHT) (S.D.N.Y. Jan. 21, 1975), which was certified as a class action. *fn1" Indeed, the defendants do not oppose class action certification. Defendants' Memorandum of Law, filed March 22, 1976, at 1. The apparent fact that all three original class representatives have left the NYCCIFW before class certification will not defeat the motion where plaintiffs are pretrial detainees. Gerstein v. Pugh, 420 U.S. 103, 110-11 n.11, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). Therefore, the Court directs, pursuant to Rule 23(b) of the Federal Rules of Civil Procedure ("Rules"), that this action may be maintained as a class action on behalf of all persons held in detention at NYCCIFW for the purpose of ensuring their presence in court pending disposition of criminal charges against them, and also directs that notice of the action be provided to all members of the class. Proposals for the provision of such notice shall be submitted forthwith to United States Magistrate Sol Schreiber, who shall hear those proposals and determine the method and form of the notice.

 PRELIMINARY INJUNCTION AND SUMMARY JUDGMENT

 Plaintiffs have moved for a preliminary injunction as to many, but not all, of their claims. At the same time, the defendants have moved for partial summary judgment on most of these same claims, as to which they contend there are no genuine issues of material fact. As discussed below, the Court finds that genuine issues of fact exist as to all but three of these claims and therefore that summary judgment must be denied on those claims. The defendants contend that they are entitled to partial summary judgment since the plaintiffs' verified complaint, the only sworn document submitted in opposition to the defendants' motion, does not qualify as the affidavit required by Rule 56(e). A verified pleading does qualify as such an affidavit, however, if it meets the specific requirements set forth in Rule 56(e). Runnels v. Rosendale, 499 F.2d 733, 734 n.1 (9th Cir. 1974); see Schoenbaum v. Firstbrook, 405 F.2d 200, 209 (2d Cir. 1968); Dressler v. MV Sandpiper, 331 F.2d 130, 131 (2d Cir. 1965). In this regard, Rule 56(e) states:

 
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."

 Here, there is no dispute that the verified complaint is "made on personal knowledge," or that the plaintiffs are "competent to testify to the matters stated" in the complaint. The only question concerns whether the complaint "sets forth such facts as would be admissible in evidence" and whether such facts are sufficiently "specific" as opposed to "mere allegations."

 Most of the relevant paragraphs in the complaint contain statements such as "[during] the winter months, plaintiffs are accorded virtually no access to the outdoors." (para. 11). Certainly such statements would be admissible into evidence. Even if they were to be characterized as opinions or conclusions, they would be admissible under Rules 701 and 704 of the Federal Rules of Evidence which permit opinions if they are "rationally based on the perception of the witness and . . . helpful to a clear understanding of his testimony or the determination of a fact in issue", even if they embrace "an ultimate issue to be decided by the trier of fact." With respect to their specificity, the Court notes that the allegations of the verified complaint are no more general than the responses in the affidavit of defendant NYCCIFW Superintendent Essie Murph upon which the defendants principally rely. For example, with respect to outdoor recreation in the winter defendant Murph states:

 
"It is most unusual for women here to request recreation outdoors in the winter season. However, I wish to encourage them to do so and I am attempting to obtain funds to construct a handball court outdoors." (para. 6).

 Thus, on all plaintiffs' claims other than those concerning contact visiting and personal attire and grooming standards the Court finds that genuine issues of material fact exist and therefore denies summary judgment.

 On the issue of inmate discipline, both parties acknowledge that there is no dispute concerning certain facts. Nevertheless, summary judgment must be denied for two reasons. First, the existence of genuine issues of material fact with respect to many elements of the disciplinary procedures at the NYCCIFW make it imprudent for this Court to pass on the due process claims of the plaintiffs without a full and complete picture of the actual practices employed at the institution. Second, no affidavits have been introduced as to the effect which the addition of the elements requested by the plaintiffs would have on security and other aspects of life at NYCCIFW. The recent decisions of the Supreme Court in the related area of disciplinary procedures for sentenced prisoners *fn2" demonstrate the necessity for a full evidentiary hearing on these questions before this Court can pass on the disciplinary issue.

 At the same time, the Court feels that it is inappropriate to grant a preliminary injunction as to those claims on which summary judgment is denied. In seeking a preliminary injunction the plaintiffs assume "the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that they [raise] serious questions going to the merits and that the balance of hardships [tips] sharply in their favor." Robert W. Stark, Jr., Inc. v. New York Stock Exchange, Inc., 466 F.2d 743, 744 (2d Cir. 1972). In satisfying this burden, "the facts upon which plaintiffs base their right to relief must be essentially undisputed or appear with such substantial clarity that the Court can weigh and determine the probability of success." Brass v. Hoberman, 295 F. Supp. 358, 361 (S.D.N.Y.1968). This Court is not convinced that the plaintiffs have established probable success or serious questions going to the merits where their claims that they are subject to institutional practices which ...


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