Whan states that she has difficulty participating in group counselling. Although not clear from the present record, Surles may be responsible for providing the relief requested also. Joinder of Surles as a defendant pursuant to Rule 20(a) is therefore proper.
As to the remaining Proposed Defendants, they are the superintendents of the institutions where the Intervenors are or were incarcerated. In light of the above denial of the motions to intervene by Thomas, Randall, Phelps, and White, the motion to join Herbert, Kelly, Leonardo, and Berry as defendants is denied. No plaintiff is currently incarcerated at the facilities over which they preside. There is therefore an insufficient nexus between them and the relief requested by Clarkson or Whan to justify adding them as defendants at this time.
Gladwin, however, is the Superintendent of the Taconic Correctional Facility, where Whan is incarcerated. "Both the conditions of confinement and the quality of medical care rendered within the prison are matters within the responsibility of the Superintendent . . . ." Langley, 715 F. Supp. at 548; see also Wright v. McMann, 460 F.2d 126, 134-35 (2d Cir.), cert. denied, 409 U.S. 885, 34 L. Ed. 2d 141, 93 S. Ct. 115 (1972). It therefore is appropriate to allow Gladwin to be joined as a defendant.
The Defendants argue generally that there is no compelling reason to join these officials as defendants because relief may be obtained through Coughlin. Joinder is sought pursuant to both Rules 19 and 20, however. Although Clarkson may have overall authority over DOCS, the responsibility for certain activities relevant to this action has been delegated to the other defendants. There thus exists a sufficient enough nexus between Butler's, Surles's, and Gladwin's activities and the relief sought to justify adding them as defendants under Rule 20's more relaxed approach. See Vulcan Society v. Fire Department, 82 F.R.D. 379, 388 (S.D.N.Y. 1979).
IV. Class Certification
Whan seeks an order pursuant to Rule 23(b)(1) or Rule 23(b)(2) of the Federal Rules of Civil Procedure certifying this action as a class on behalf of all those
present and future deaf and hearing-impaired inmates of the New York State Department of Correctional Services who have been, are, or will be discriminated against, solely on the basis of their disability, in receiving the rights and privileges accorded to all other inmates.
The proposed class would not included those inmates housed at the SDU. Proposed Complaint para. 11. The Defendants contend that none of the four prerequisites to certification required by Rule 23 has been met.
Rule 23(a) provides that:
one or more members of a class may sue or be sued as representative parties on behalf of all 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.
If these prerequisites are not met, an action may not be maintained as a class. Fed. R. Civ. P. 23(b).
The class action device is particularly well-suited in actions brought by prisoners due to the "fluid composition" of the prison population. Dean v. Coughlin, 107 F.R.D. 331, 332 (S.D.N.Y. 1985). Prisoners frequently come and go from institutions for a variety of reasons. Veteran prisoners are released or transferred, while new prisoners arrive every day. Nevertheless, the underlying claims tend to remain. Id. at 332-33. Class actions therefore generally tend to be the norm in actions such as this. See Jones v. Smith, 784 F.2d 149, 151 (2d Cir. 1986); see also Loper v. New York City Police Department, 135 F.R.D. 81 (1991).
In support of the motion for class certification, the Intervenors have submitted a DOCS report prepared in October 1990 entitled "Inmates with Sensorial Extended Class Code" (the "Report"). The Report was obtained through a New York State Freedom of Information request and lists some 48-50 inmates who allegedly were deaf or hearing-impaired as of that date.
Twelve of these inmates were at the Eastern Facility, and presumably the SDU, when the Report was produced. Significantly, the Report lists only male inmates; it provides no data on female inmates.
The class definition sought is expansive, covering both male and female inmates who are not incarcerated at the SDU. Yet the form of relief that a person is entitled to may well depend on that person's gender. A male inmate's needs may be satisfied by a transfer to the SDU assuming that there is sufficient space available for the transfer to take place. This remedy is not available for a female inmate. Instead, her needs cannot be satisfied without further institutional changes on DOCS's behalf. Inmates of both genders do, though, share common relief goals, such as ensuring that assistive personnel and devices are available at intake. In light of the different forms of relief that apply, if this action does proceed as a class, there should be two sub-classes of plaintiffs. One sub-class should represent all those present and future male inmates who are hearing-impaired or deaf and who are not incarcerated at the SDU. The other sub-class should represent all those present and future female inmates who are hearing-impaired or deaf.
As set forth above, the motions of the four male inmates who sought to intervene in this action were denied at this juncture. Three of these inmates had been or were about to be transferred into the SDU, while the extent of the other's disability could not be determined. None of these inmates is in a position to represent the putative sub-class of male inmates adequately. Certification of such a class thus is not appropriate now, although leave is granted to renew this motion once an adequate representative has intervened.
Whan has not yet established that there are any other female inmates in DOCS besides herself who suffer from a hearing disability. Even though there is no magic minimum number that breathes life into a class, see Bruce v. Christian, 113 F.R.D. 554, 556 (S.D.N.Y. 1986), and lack of knowledge of the exact number of persons affected is not a bar to certification where the defendants alone have access to such data, see McNeill v. New York City Housing Authority, 719 F. Supp. 233, 252 (S.D.N.Y. 1989); Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y. 1980), there must be something within the record from which it can be inferred that a class does exist.
Whan argues that this inference can be drawn from the DOCS Report showing that there were at least forty-eight male inmates in DOCS's custody in November 1990. While this report would satisfy the numerosity requirement for the sub-class of male inmates, no inference can be drawn from it concerning female inmates.
Whan also contends that the number of hearing-impaired or deaf female inmates is information within Defendants' control and that DOCS has refused to produce such information. Lewis v. Gross, 663 F. Supp. 1164, 1169 (E.D.N.Y. 1986); Folsom, 87 F.R.D. at 445; see Defendants' Response, no. 3 (May 29, 1991). In both Lewis and Folsom, classes were certified where the exact number of class members could not be determined by the plaintiffs because the pertinent information was within the defendants' control. However, a rough estimate of the class size could be made in both instances. See Lewis, 663 F. Supp. at 1169 (over 2000 members, as estimated by plaintiff); Folsom, 87 F.R.D. at 445 (membership in the "hundreds," as estimated by court). Here, there are no data offered from which the size of the putative class of current female inmates can be estimated. Whan's motion to certify is therefore denied at this juncture, with leave granted to renew in the future.
V. Defendant Lord
Defendant Lord has moved to dismiss the claims against her on two grounds. First, she argues that she is not a proper party to this lawsuit because she has no extraordinary responsibility for designing or implementing correction policies. Second, Lord argues that since Clarkson has been paroled, there is no named plaintiff incarcerated at the institution over which she is the Superintendent.
The first argument is essentially the same as that made by Gladwin in opposing the motion to join her as a defendant. For the reasons set forth above, this argument is rejected. See also Langley, 715 F. Supp. at 548.
Lord's second argument fails at this stage as well. In a typical action, it probably would be correct to dismiss Lord from the case since Clarkson's personal claims against her are moot and no other plaintiff has asserted a claim against her. But this is a class action brought by a prisoner on behalf of herself and other similarly situated prisoners. For principally the same reasons why the case as a whole is not moot, it would be improper to dismiss Lord.
A prisoner's length of stay at a particular prison or within a prison system is "inherently transitory and cannot be determined from the outset." Jane B., 117 F.R.D. at 68. Prisoner plaintiffs' "interest in averting the possibility of the action becoming moot, with the concomitant interest in judicial economy, makes class certification . . . more than an empty formality." Alston v. Coughlin, 109 F.R.D. 609, 612 (S.D.N.Y. 1986), see also Dean, 107 F.R.D. at 332 (noting the "fluid composition" of prison populations in granting class certification).
Although a class has not been certified yet, it appears that the underlying controversy for which Clarkson sought relief is very much alive. The class Clarkson sought to represent invariably included deaf or hearing-impaired inmates imprisoned at Bedford Hills. While there presently is insufficient evidence in the record upon which to certify the class, see supra, there also is insufficient evidence in the record refuting its existence. Furthermore, Whan alleges that before she was transferred to Taconic, she was incarcerated at Bedford Hills. See Proposed Intervenor Complaint para. 67. She too was presumably denied the relief presently sought while there, as was Clarkson, and is eligible for transfer back to Bedford Hills. This raises the specter of successive motions for dismissal and joinder and of an attempt by the Defendants to evade review. The nature of this case and interests of judicial economy therefore call for denying Lord's motion to dismiss until a dispositive decision denying class certification is made, if at all. Cf. Sosna v. Iowa, 419 U.S. 393, 401, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975).
VI. Venue Transfer
The Defendants also seek to transfer this action to the Northern District of New York. The venue statute, 28 U.S.C. § 1404(a), provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
In Don King Productions, Inc. v. Douglas, 735 F. Supp. 522 (S.D.N.Y. 1990), the several factors to consider when deciding a motion for a change of venue were set forth: (1) the place where the operative facts occurred; (2) the convenience to parties; (3) the convenience of witnesses; (4) the relative ease of access to sources of proof; (5) the availability of process to compel attendance of unwilling witnesses; (6) the plaintiff's choice of forum; (7) the forum's familiarity with the governing law; and (8) trial efficiency and the interests of justice. Id. at 533 (citing cases). Moreover, the moving party must make a clear showing to justify a change of venue. Id.
The Defendants contend that the Northern District of New York is more appropriate because some of the Defendants are State officials whose place of business is in Albany, witnesses with knowledge about the relevant policies "most likely" will reside there, records will be more easily obtained there, and a trial will be less expensive if held there. This must, of course, be counter-balanced against the "great weight" to which a plaintiff's choice of forum is entitled. See Eastern Refractories Co. v. Forty Eight Insulations, Inc., 668 F. Supp. 183, 187 (S.D.N.Y. 1987).
When she filed this action, Clarkson was incarcerated at Bedford Hills, while Whan is incarcerated at Taconic. Both institutions are located within the Southern District of New York. They therefore were entitled to bring this action in the Southern District of New York, Tunin v. Ward, 78 F.R.D. 59, 61 (S.D.N.Y. 1977), and many of the facts of which they complain occurred here. Defendants Lord and Gladwin have their principal places of business in the Southern District. As to the other Defendants, "it is not overly burdensome for state officials to travel to New York [City]." Sharif v. New York State Education Department, 709 F. Supp. 345, 358 (S.D.N.Y. 1989). Convenience to the parties and witnesses, and the ease of access to the proof therefore weigh in favor of the Southern District of New York.
Availability of process and the forum's familiarity with the governing law certainly do not tip the balance in favor of the Northern District. As to trial efficiency and the interests of justice, the Defendants have not put forth an argument that would compel a transfer. See Pinto v. Doskocil, 91 Civ. 1518, slip op. at 22 (S.D.N.Y. Oct. 2, 1991); Gibbs & Hill, Inc. v. Harbert International, Inc., 745 F. Supp. 993, 997 (S.D.N.Y. 1990).
A plaintiff's choice of forum is entitled to even greater deference when the plaintiff has chosen the home forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). The Defendants have simply failed to adduce the kind of evidence required to meet their heavy burden for this action to be transferred. Their motion to transfer this action to the Northern District of New York is therefore denied. Tunin, 78 F.R.D. at 61.
For the reasons set forth above, the Defendants' motion to dismiss the class complaint as moot is denied. Clarkson's personal claims against the Defendants are dismissed as moot. Whan's motion to intervene in the action is granted, while the motion by Thomas, Randall, Phelps, and White is denied with leave granted to renew. The motion to join Butler, Surles, and Gladwin is granted. The motion to join the other Proposed Defendants is denied with leave granted to renew. Whan's motion to certify the proposed class is denied at this time with leave granted to renew. Defendant Lord's motion for summary judgment and the Defendants' motion to transfer the action are denied.
It is so ordered.
New York, N. Y.
February 3, 1992
ROBERT W. SWEET