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February 27, 1980

Elizabeth POWELL et al., Plaintiffs,
Benjamin WARD et al., Defendants.

The opinion of the court was delivered by: STEWART


Plaintiffs, inmates at the Bedford Hills Correctional Facility ("Bedford Hills") have moved for an order holding defendant Phyllis Curry, superintendent of Bedford Hills, in contempt for failing to comply with our Order issued on June 23, 1975.

 Plaintiffs brought this action to enjoin the officials at Bedford Hills from enforcing prison disciplinary procedures unless and until they comply with the guidelines set forth by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). *fn1" We granted class certification on March 27, 1975, defining the class to include "all persons who are now and who may be incarcerated in Bedford Hills Correctional Facility" and "who are or may be subject to Adjustment Committee Proceedings or Superintendent's Proceedings at the institution."

 Hearings were conducted, and we held that "any disciplinary proceedings which may result in placement in solitary confinement", which included Adjustment Committee Proceedings and Superintendent's Proceedings, must conform to the procedural requirements established by the Supreme Court in Wolff v. McDonnell, supra. We then found that defendants failed to provide inmates facing Adjustment Committee Proceedings with adequate notice, opportunity to call witnesses, explanation of the disposition, and statement of the evidence relied upon in reaching the disposition. There was also evidence showing that inmates were placed in segregation for as long as four weeks pending investigation of charges against them and that the official involved in an incident leading to a disciplinary proceeding or a subsequent investigation of that incident presided in some instances over the disciplinary proceedings.

 Although some of the safeguards set forth in Wolff v. McDonnell, supra, were generally followed in the Superintendent's Proceedings, some of the procedures were never followed, such as providing inmates with the right to call witnesses, and others were provided sporadically. See Powell v. Ward, 392 F. Supp. 628 (S.D.N.Y.1975). We concluded that injunctive relief was warranted, and entered a preliminary injunction on June 23, 1975, which was modified on appeal. Powell v. Ward, 542 F.2d 101 (2d Cir. 1976). *fn2"

 In December of 1976 three members of the plaintiff class moved to hold the superintendent of Bedford Hills in contempt for failing to comply with the Court's Order. We ordered that the correctional and parole files of the three inmates be expunged of all reference to the incident giving rise to the contempt motion, awarded plaintiffs attorneys' fees, and noted that "this Court is concerned by indications that our prior order has not been fully complied with and we will consider future violations of the order as matters of utmost seriousness." Powell v. Ward, 74 Civ. 4628, June 24, 1977 (order).

 In March of 1979 Carol Crooks, a member of the plaintiff class brought this motion to hold defendant Phyllis Curry in contempt and for other related relief. After a one day hearing, Crooks adjourned her motion and a contempt motion on behalf of the class was filed. Hearings were held in June of 1979, and the parties subsequently submitted proposed findings of fact and conclusions of law.

 Class Certification

 Before determining whether the defendant has failed to comply with our order and if so whether her non-compliance constitutes contempt, we must address defendant's contention that the class action order is jurisdictionally defective insofar as it includes future inmates and future Adjustment Committee and/or Superintendent's Proceedings. Defendant's failure to challenge class certification in a timely manner constitutes sufficient grounds for rejecting defendants' claim, especially in light of the unfairness to the class which would result from decertifying the class at this time. We originally granted class certification on March 27, 1975. Defendants did not oppose certification at that time or during the trial and did not raise any such objection on appeal. Nor did defendants challenge the validity of the class at the first contempt hearing in 1977. We are reluctant to consider at this late date the threshold question of the validity of the class.

 However, in light of the importance of the Article III requirements of existence of case or controversy, we have considered defendants' claim and find it to be without merit. Courts have approved certification of classes which include future members, Robertson v. National Basketball Association, 389 F. Supp. 867, 897 (S.D.N.Y.1975), especially in civil rights cases, where the members of the class are usually "incapable of specific enumeration." Advisory Note to Rule 23. See, e.g., Marcera v. Chinlund, 595 F.2d 1231, 1940 (2d Cir. 1977); Forts v. Malcolm, 426 F. Supp. 464, 465 (S.D.N.Y.1977); Baird v. Lynch, 390 F. Supp. 740 (W.D.Wis.1974); Wallace v. McDonald, 369 F. Supp. 180, 188 (S.D.N.Y.1973); Inmates of Lycoming County Parish v. Strode, 79 F.R.D. 228 (M.D.Pa.1978); Tunin v. Ward, 78 F.R.D. 59 (S.D.N.Y.1978). Any class consisting of the inmates confined at an institution is likely to include individuals who were not identifiable at the time the class was certified. In the prison context, where any action taken will affect future inmates and "the constant existence of a class of persons suffering the deprivation is certain", class certification including future members is appropriate. Gerstein v. Pugh, 420 U.S. 103, 110-11, n.11, 95 S. Ct. 854, 861 n.11, 43 L. Ed. 2d 54 (1974); Inmates of Lycoming County Prison v. Strode, 79 F.R.D. at 231. *fn3"

 Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976), the case upon which the defendants base their argument, is not inconsistent with our decision upholding class certification. There, the Court was concerned with the appropriateness of class certification in a case brought under the Social Security Act, which requires final agency action by the Secretary of HEW denying enrollment in a particular Medicare program before a federal court can exercise jurisdiction. See 42 U.S.C. § 405(g). The Supreme Court relied on the absence of such final agency action as a basis for holding that a class defined to include those who "will be denied enrollment" was too broad. 426 U.S. at 71, n.3, 96 S. Ct. at 1887, n.3. Those concerns are inapposite in the instant case, which is brought under 42 U.S.C. § 1983. Therefore, we decline to modify or vacate our class certification order.

 Res Judicata as to Inmates Santana and Harris

 Defendants argue that inmates Santana and Harris may not be heard on this motion because their "claims" were previously litigated in Article 78 proceedings. Prior to the institution of this contempt motion by the class, Janie Harris brought an Article 78 proceeding under N.Y.C.P.L.R. § 7801 challenging the validity of the determination of a Superintendent's Proceeding dated June 15, 1979 based on defendants' failure to permit her to call witnesses, to inform petitioner of the factual circumstances supporting the charge, to accurately inform her of the testimony of inmate witnesses, and to provide her with an impartial hearing officer, in violation of our order in Powell v. Ward. Her petition was denied. Inmate Luz Santana filed an Article 78 petition for relief from an adverse determination of a Superintendent's Proceeding entered March 13, 1978. Her petition was granted based, inter alia, on defendants' failure to interview an employee and to inform the inmate of the factual circumstances supporting the charge, and the absence in the record of anything relating to the incident which allegedly occurred.

 The precise nature of defendants' res judicata defense is not clear. Neither Harris nor Santana have filed individual claims in the instant case, and both are proceeding as members of the class. The class was not a party to the prior litigation, and it is well established that an adverse judgment cannot be asserted against a party unless there has been reasonable notice of the claim against him and an opportunity to be heard in opposition to that claim, as required by the due process clauses of the Constitution. Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940); Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d Cir. 1972). Therefore, the class is not precluded from relitigating the issue of the adequacy of the procedural safeguards provided in Harris' Superintendent's Proceeding for purposes of determining whether defendants are in contempt of our order.

 We are particularly puzzled by the assertion of Santana's prior litigation as a defense to the instant motion, in light of the determination in the Article 78 proceeding that defendants failed to provide necessary procedural safeguards and Santana was therefore entitled to relief. If this judgment is to have any binding effect on the determination of defendant's compliance with our order, it would be to estop the defendant from challenging the findings of the prior proceeding that defendants failed to notify Santana of the specific charges against her, to interview employees, to inform her of the factual circumstances supporting the charge or to give her a written disposition stating the basis for the decision. Santana v. Superintendent, Bedford Hills Correctional Facility, January 27, 1978 (Article 78 proceeding). *fn4" However, in the absence of any pleadings or motions by plaintiff invoking collateral estoppel as to Santana's proceedings, it is unnecessary to determine whether the defendant is bound by the determinations in that prior litigation.

 It remains to determine whether Santana and Harris are barred from class membership or from obtaining specific relief to the extent that their claims have already been litigated. We note that the issues before the state court only challenged the validity of two Superintendent's Proceedings and did not concern most of the facts at issue or the relief sought in this case. In any case, we find that the prior judgments do not affect Santana's or Harris' membership in the class or their entitlement to class relief. A class action brought under 23(b)(2) is specifically intended "to reach situations where a party has taken action or refused to take action with a class, and final relief of an injunctive nature . . . settling the legality of the behavior with respect to the class as a whole is appropriate." Committee Note of 1966 to Rule 23, 3B Moore's Federal Practice P 23.01(10-2). A prerequisite to granting class certification under 23(b)(2) in addition to the general requirements is that:

The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole.

 F.R.Civ.P., Rule 23(b)(2). The class is to be treated as an entity, rather than as an aggregate of individuals. See O. Fiss. The Civil Rights Injunction (1978). There are no opt out provisions for 23(b)(2) class actions, *fn5" and in any case it would be difficult to exclude inmates from relief which is designed to affect the practices and procedures of the defendant.

 The situation here is analogous to that in Sledge v. J. P. Stevens Co., Inc., 585 F.2d 625 (4th Cir. 1978), where the court dismissed individual plaintiffs' claims of discrimination, but granted class relief for discrimination. There, the court held that "the judgment of dismissal did not strip (the individuals) of any class membership, and to the extent that they would personally benefit, directly or indirectly, from any of the other remedies ordered by the district court, they have not been denied such benefits." Id. at 637.

 The prior litigation may affect Harris' and Santana's entitlement to individual relief, such as expungement of records or damages. Although there is some confusion concerning the standard for determining whether res judicata bars subsequent relief in civil rights cases, see Winters v. Lavine, 574 F.2d 46, 55 (2d Cir. 1978), in the most recent case dealing with this issue, the Court of Appeals held that "where a constitutional issue has been actually raised in the state court, the litigant has made his forum choice and may not relitigate that issue in federal court." Ornstein v. Regan, 574 F.2d 115, 117 (2d Cir. 1978). To determine whether a constitutional issue was actually litigated, the Court considered the extent to which the pleadings and the lower court opinion referred to constitutional issues and the scope of jurisdiction of the state forum. Id.

 Santana's Article 78 proceeding concerned whether her Superintendent's Proceeding was conducted in accordance with 7 N.Y.C.R.R. Part 253. There was no mention of violations of constitutional due process or Powell v. Ward. Therefore, she did not actually litigate the constitutional issues now before us, and she is not barred from individual relief such as damages should such relief be found to be warranted.

 Harris did litigate the constitutional issues in her Article 78 proceeding. She based her claims for relief squarely on the order in Powell v. Ward. Unless it is determined that the limited scope of jurisdiction of Article 78 proceedings precludes the application of res judicata, *fn6" Harris is precluded from relitigating the issue of her entitlement to individual relief for violations pertaining to the Superintendent's Proceeding challenged at the Article 78 proceeding. The Article 78 court had jurisdiction to provide the individual relief Harris sought. Therefore, we cannot hold that her claim was not actually and fully litigated there, and Harris is barred from relitigating her entitlement to relief concerning the Superintendent's Proceeding challenged in the Article 78 proceeding.

 Defendant's Compliance with the Court Order

 The issue before us concerns the extent to which the defendant has complied with our order requiring conformance to the procedural requirements set forth in Wolff v. McDonnell, supra, and embodied in our order. Based on the testimony and documents submitted at the hearings and depositions conducted in June of 1979, the affidavits submitted by the parties and all other material on the record concerning this issue, we make the following findings: *fn7"

 Adjustment Committee

 The introductory section of paragraph 1 of the order states that:

Defendants shall conduct all Adjustment Committee or Superintendent's Proceedings, or other disciplinary proceedings that may result in an inmate at Bedford Hills Correctional Facility being confined in a Special Housing Unit or Segregation Unit, in accordance with the following procedures. . . .

 Defendant Curry contends that this paragraph does not require procedural safeguards to be instituted in Adjustment Committee Proceedings, and has indicated that the administration at Bedford Hills treated the order as applying solely to Superintendent's Proceedings, tr. at 356, 365, 644. Defendant's position, which reads "Adjustment Committee" out of the order, is based at best on a strained interpretation of the last phrase of the introductory paragraph. The argument is that, because that last phrase refers only to proceedings resulting in confinement to Special Housing Unit or segregation, that phrase qualifies the scope of the order requiring procedural safeguards at Adjustment Committee Proceedings. Specifically, defendant argues that the safeguards are not applicable to proceedings that might result in keeplock, which is twenty-four hours a day confinement in one's cell, often without privileges or exercise, tr. at 12, 49, 52, 122. Also, defendant argues, the Adjustment Committee is not authorized to sentence an inmate to the Special Housing Unit as a disposition in a case. True, defendant concedes, following an Adjustment Committee Proceeding an inmate may be detained in the Special Housing Unit for a period of time pending a Superintendent's Proceeding. But the defendant suggests that, because the officer on the floor, not the Adjustment Committee, initially placed the inmate in segregation and only the Superintendent's Proceeding can ultimately sentence the inmate to the Special Housing Unit, the Adjustment Committee's decision to continue an inmate's detention in Special Housing for as long as sixteen days does not fall within the terms of the order, tr. at 17-18. The defendant concludes that, because the Adjustment Committee Proceedings never result in such confinement as a disposition and the order does not apply to keeplock, the order does not apply to Adjustment Committee Proceedings.

 This complicated and somewhat tortured presentation of the meaning of our order does not in any way alter our long-standing view that the order unequivocally applies to Adjustment Committee Proceedings. The language of the order is clear and unqualified. Moreover, the findings of fact and conclusions of law which were issued prior to the order specifically enjoined the use of Adjustment Committee Proceedings unless and until due process safeguards were instituted. Powell v. Ward, 392 F. Supp. 628, 631 (S.D.N.Y.1975). Defendants never requested a modification or clarification of the scope of the order, nor was this issue raised on appeal. We are inclined to view defendant's grammatical gymnastics as an attempt to circumvent the impact of the order.

 Furthermore, defendant's arguments ignore the fundamental concern underlying our decision in this case, namely, that the substantial deprivation resulting from solitary confinement of an inmate be based on a fair impartial hearing. 392 F. Supp. at 629. The language relied on by the defendant to limit the scope of the order was intended to insure that all proceedings that may result in solitary confinement were within the scope of the order. The testimony of prison officials and inmates alike indicated that keeplock is the equivalent of solitary confinement, tr. at 316. Indeed, keeplock is sometimes even more restrictive than confinement in the Special Housing Unit, when shower, exercise and other basic privileges are removed. Tr. at 49. Thus, keeplock is clearly included in the language and spirit of the order. *fn8"

 We are equally unpersuaded by the argument that the Adjustment Committee cannot sentence an inmate to the Special Housing Unit. Defendant Curry overlooks the important consideration that inmates have spent as long as sixteen days in solitary confinement awaiting a Superintendent's Hearing. A fair hearing after the fact does not detract from the deprivation the inmate has already suffered. Even though the Adjustment Committee does not sentence the inmate, it makes a decision, based on the information presented to it at the hearing, that continued confinement is warranted. Due process requires that, if such a substantial deprivation is to be imposed on an inmate, a hearing conforming to the procedural requirements established in Wolff v. McDonnell, supra, is necessary. *fn9"

 Thus it is clear from both the language and spirit of our order that it applies to Adjustment Committee Proceedings. It must now be determined to what extent the proceedings currently employed at Bedford Hills comply with our order.


 Paragraph 1(a) of the order ...

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