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January 10, 1984

CHARLES ALLMAN, et al., Plaintiffs,
THOMAS A. COUGHLIN III, et al., Defendants and Third-Party Plaintiffs, v. ALFRED DELBELLO, et al., Third-Party Defendants

The opinion of the court was delivered by: GOETTEL


 The claims of Fourth and Fourteenth Amendment violations, brought in this action pursuant to 42 U.S.C. §§ 1983 and 1985 (1976), arise out of events that occurred at the Westchester County Jail (the "Jail") on July 12 and 13, 1981 (the "relevant period"), when New York State's Correctional Emergency Response Team (the "CERT") regained control of the Jail following a three-day takeover by its inmates. The named plaintiffs, who were confined in the Jail during the events in question, now move pursuant to Fed. R. Civ. P. 23 for certification of the class of all male inmates incarcerated in the Jail during the relevant period. The defendants, who are state officials charged by the plaintiffs with responsibility for the deployment of the CERT, *fn2" not only oppose class certification but also make two cross-motions: one seeking dismissal of a number of the plaintiffs' claims pursuant to Fed. R. Civ. P. 12(b)(6), and the other requesting that the Court abstain from considering any of their claims on the ground that they should be heard in state, rather than federal, court. *fn3" For reasons discussed below, the Court grants the plaintiffs' motion for class certification and denies both of the defendants' cross-motions.

 I. Background

 The alleged facts upon which the plaintiffs' complaint is based can be summarized briefly. On Friday, July 10, 1981, an inmate disturbance at the Jail resulted in the evacuation of its correction officers. Shortly thereafter, negotiations began between inmates and Westchester County officials. By Sunday, July 12, the county officials, frustrated with the pace of the negotiations, requested defendant Thomas Coughlin, Commissioner of the New York State Department of Correctional Services, to send the CERT to the Jail to search and secure the facility.

 Before the CERT arrived, however, county and inmate negotiators were able to reach an agreement on how control of the facility could be returned to the county officials. Inmates were to return to their cells voluntarily, put all contraband in the corridors for confiscation by correction officers, and submit to reasonable procedures incident to a search for contraband. In return, the county officials promised, among other things, that inmates would not be subjected to physical reprisals during or after the retaking of the facility.

 Despite this agreement, the county officials apparently continued to feel a need for assistance and, therefore, asked that the CERT be deployed to resecure the Jail. The wisdom of that decision is challenged by the plaintiffs. They claim that, though the inmates offered little or no resistance to the CERT, its line officers systematically engaged in activities designed to injure the inmates physically and psychologically and to seize their property in a manner that virtually precluded its later return. More specifically, it has been alleged, and the plaintiffs have offered evidence to suggest, that at least some of the CERT line officers engaged in such activities as: (1) forcibly stripping inmates; (2) handcuffing their hands so tightly that circulation was cut off and excessive pain caused; (3) running the inmates barefooted over glass-strewn floors; (4) kicking, pushing, tripping, beating and spitting on inmates; (5) running some of them into stone walls; (6) forcing them to stand naked in the courtyard of the Jail for as long as five hours; (7) taunting and abusing them verbally while they stood naked and handcuffed in the courtyard; and (8) emptying the contents of their cells into large piles, which were later stuffed into garbage bags, so that particular items could not subsequently be identified as belonging to particular prisoners.

 II. Discussion

 These activities, claim the plaintiffs, constituted violations of their Fourth Amendment right to be spared unreasonable searches and seizures and their Fourteenth Amendment right not to be deprived of liberty or property without due process of law, as well as violations of 42 U.S.C. §§ 1983 and 1985. The plaintiffs further contend that because virtually all of the inmates were subjected to what is alleged to have been a systematic and indiscriminate violation of their rights, they should all be included in a class, with the named plaintiffs to serve as their class representatives. In addition, the plaintiffs ask the Court to divide the class members into two subclasses, one to include the sixty or so male inmates who were confined in that section of the Jail known as the Women's Annex and the other to include the approximately 200 male inmates who were confined in the main section of the Jail. *fn4" Both parties apparently agree that the two groups of inmates were treated sufficiently differently that, if the class is to be certified, the creation of two subclasses is merited.

 A. Certification of the Class

 Before the requested class can be certified, this Court must assure itself that the requirements of Rule 23(a) and (b) have been met. In the first place, a class action can be permitted:

only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 Fed. R. Civ. P. 23(a). In the second place, it is further required in a class action of the type requested here that:

the court find[] that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

 Fed. R. Civ. P. 23(b)(3). The plaintiffs contend that all of these requirements are met in the instant case.

 The defendants respond, however, that several of the Rule 23 requirements are not satisfied. *fn5" The first one said to be lacking is the predominance of common issues of fact or law. With regard to the facts, the defendants contend that each inmate was treated individually and that any actions taken against him involved only him and the particular CERT officers who took those actions. With regard to the legal issues, the defendants claim that there is no evidence of a plan, pattern, or practice of constitutional violations by the defendants, but rather, at most, only evidence of a few ...

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