The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
AMENDED DECISION and ORDER
This prisoner civil rights case is before the Court on plaintiff's motion for class certification pursuant to Federal Rule of Civil Procedure 23. The proposed class is "all prisoners in the custody of the New York State Department of Correctional Services who must now or in the future use a wheelchair for mobility.." (Pl.'s Notice of Motion at 1-2.) For the reasons that follow, plaintiff's motion (# 27) is granted.
The following information is taken from plaintiff's complaint. During the period encompassed by this lawsuit, plaintiff has been incarcerated within the New York State Department of Correctional Services ("DOCS"), confined at either Green Haven Correctional Facility ("Green Haven"), or Five Points Correctional Facility ("Five Points"). Plaintiff is paralyzed from the waist down and requires a wheelchair for mobility. He alleges that he is a qualified individual with a disability, as defined under the Americans with Disabilities Act, 42 U.S.C. § 12102(2) and the Rehabilitation Act, 29 U.S.C. § 705(20). He further states that because of his medical condition, he requires a facility that is accessible to individuals in wheelchairs. Consequently, he was housed in the Unit for the Physically Disabled in Green Haven until on or about May 23, 2003. Then he was transferred to Five Points.
Plaintiff alleges that DOCS has arranged for outside providers to furnish necessary medical services to prisoners, when such services are unavailable at the facility at which the prisoners are incarcerated. Prisoners with serious physical disabilities, including plaintiff and others who require a wheelchair for mobility, often need necessary medical treatment that is unavailable at the facility in which they are incarcerated. During the time plaintiff spent confined at Green Haven, he received medical treatment at outside facilities on numerous occasions. Moreover, since he entered Five Points, he has received, and expects to receive in the future, medical treatment outside the prison.
Plaintiff further alleges that when prisoners who use wheelchairs for mobility must travel to an outside medical provider, DOCS transports them in a van. He also asserts that many of the vans used by DOCS are manifestly unsafe for individuals in wheelchairs, since they do not ensure that transport will occur without the risk of serious physical harm. Specifically, plaintiff contends that many of the vans fail to provide that a wheelchair-bound prisoner is adequately secured, and that this failure creates the risk that the prisoner will be expelled from the wheelchair during transport. Further, plaintiff asserts that when prisoners in wheelchairs are transported, they are restrained in such manner that, in the event a prisoner falls from his wheelchair during transport, his ability to protect himself is substantially diminished.
Plaintiff also contends that defendants Goord and Wright are generally responsible for deciding which wheelchairs will be provided to DOCS' prisoners, and that defendants Goord, Wright, Poole, and/or Gregoire are specifically responsible for deciding which wheelchairs will be provided to prisoners at Five Points. Furthermore, plaintiff asserts that the wheelchairs themselves create additional risk of serious bodily injury, since they are not approved for seating use within a motor vehicle.
Plaintiff goes on to allege he was issued a wheelchair by DOCS, Goord, and/or Wright that carries a sticker containing the following language: "No wheelchair has been approved for use as a seating surface within a motor vehicle." He further alleges, that each wheelchair issued by DOCS carries a sticker containing the same language. In addition, plaintiff asserts that the Owner's Operator and Maintenance Manual issued by the manufacturer of the wheelchair issued to him, and all other inmates, contains the following language:
Invacare recommends that wheelchair users NOT be transported in vehicles of any kind while in wheelchairs. As of this date, the Department of Transportation has not approved any tie-down system for transportation of a user while in a wheelchair, in a moving vehicle of any type. It is Invacare's position that users of wheelchairs should be transferred into appropriate sea[t]ing in vehicles for transportation and use be made of the restraints made available by the auto industry. Invacare cannot and does not recommend any wheelchair transportation systems.
AS REGARDS RESTRAINTS -- SEAT POSITIONING STRAPS -- IT IS THE OBLIGATION OF THE DME DEALER, THERAPISTS AND OTHER HEALTHCARE PROFESSIONALS TO DETERMINE IF A SEATING RESTRAINT IS REQUIRED TO ENSURE THE SAFE OPERATION OF THIS EQUIPMENT BY THE USER. SERIOUS INJURY CAN OCCUR IN THE EVENT OF A FALL FROM A WHEELCHAIR. (Compl. ¶ 32.) Plaintiff further contends that the Owner's Operator and Maintenance Manual for each of the wheelchairs issued to prisoners by DOCS and its employees contains the same language as referenced above.
With regard to his specific injury, plaintiff alleges that as a result of inadequate training and supervision, an inadequate wheelchair, inadequate means of transportation, and due to the use of restraints, he suffered serious physical harm on September 28, 2000, while being transported from St. Agnes Hospital to Green Haven. While restrained in his wheelchair, plaintiff states that the van in which he was traveling made a sharp turn, causing his wheelchair to collapse. As a result, plaintiff claims he was thrust forward and that his forehead stuck a support beam within the vehicle, injuring his head and neck. Plaintiff also maintains that, prior to the date of the incident, other prisoners in DOCS's custody who required a wheelchair for mobility, had been injured in a similar fashion.
As a result of the September 2000 incident, plaintiff states that, on February 14, 2001, he filed a pro se complaint in the Southern District of New York. After obtaining counsel in that action, he filed a First Amended Complaint on or about September 6, 2002, against Defendants Goord, DOCS, and others not named in this case. That First Amended Complaint contained allegations similar or identical to the allegations contained in paragraphs 1-37 of the complaint here. Through his Southern District lawsuit, plaintiff states that he sought, inter alia, injunctive relief requiring the named defendants, including Goord, and DOCS, to transport disabled prisoners who require the use of a wheelchair in a safe manner. Then, on or about May 6, 2003, plaintiff moved The Honorable Deborah A. Batts, Southern District of New York, for a preliminary injunction, asking that defendants be ordered to transport plaintiffs in a safe manner and with procedures and equipment that are consistent with the ADA.
In support of his motion for preliminary injunction in the Southern District lawsuit, plaintiff submitted a report prepared by Gina Bertocci, Ph.D., whom plaintiff identified as a wheelchair transportation expert. According to the complaint, Dr. Bertocci is an Assistant Professor in the University of Pittsburgh's School of Health and Rehabilitation Sciences. Dr. Bertocci has held the position of Director of the Rehabilitation Engineering Research Center on Wheelchair Transportation Safety since on or about November, 2001. On March 28, 2003, Dr. Bertocci conducted an inspection of the wheelchair transport van used at Green Haven. This inspection included a review of the equipment used by Green Haven*fn1 to transport prisoners who use wheelchairs for mobility, the wheelchairs used during such transport, and the wheelchair securement and the occupant restraint techniques used by corrections officers responsible for transporting such prisoners.
As a result of this inspection, Dr. Bertocci came to the following conclusions: (a) the wheelchair being used to transport plaintiff is not intended for use as a motor vehicle seat and does not meet current American National Standards Institute/Rehabilitation Engineering and Assistive Technology Society of North America ("ANSI/RESNA") standards; (b) the technique used by defendants to secure wheelchair-bound prisoners exposes them to a higher risk of injury; and (c) the failure to properly use the Wheelchair Tiedown and Occupant Restraint System ("WTORS") exposes wheelchair-bound prisoners to a higher risk of injury. Dr. Bertocci concluded that the procedures demonstrated by Green Haven personnel were in violation of ADA regulations, industry recommended practice, and guidelines provided by the WTORS manufacturer which are posted in the vehicle. Dr. Bertocci further concluded that the inappropriate wheelchair used to transport passengers, in combination with the poor procedure, will lead to an increased risk of injury during either normal driving maneuvers, emergency driving maneuvers, or a crash. Dr. Bertocci recommended that to reduce the injury risk, ANSI/RESNA WC-19 compliant wheelchairs should be used for transporting inmates and that those responsible for wheelchair transportation undergo appropriate training.
On or about May 23, 2003, plaintiff was transferred from Green Haven to Five Points. Plaintiff asserts that he did not request or consent to this transfer. On or about June 9, 2003, defendants filed their opposition to plaintiff's motion for preliminary injunction in the Southern District lawsuit, arguing that plaintiff's application was moot because he had been removed from Green Haven. In his complaint in this case, plaintiff maintains that Goord and DOCS in the Southern District lawsuit, did not dispute any of Dr. Bertocci's conclusions. On or about August 8, 2003, Judge Batts entered an Order denying plaintiff's motion for preliminary injunction, finding that his transfer to Five Points did moot the action. Order, Shariff v. Greiner, No. 01-CV-1140-DAB-DFE (S.D.N.Y. Aug. 8, 2003).
Plaintiff claims that he was transported from Green Haven to Five Points in the same unsafe manner as complained of in the Southern District action. He alleges that since his arrival at Five Points, he has sought assurances that he would be safely transported to outside medical facilities, but no such assurances have been given. Accordingly, until February 10, 2004, plaintiff states that he did not travel outside Five Points for any medical appointments.
On or about February 10, 2004, plaintiff was transported in a van to Auburn Correctional Facility ("Auburn") to visit a urology specialist. Defendant Williams was assigned to transport him to and from Auburn. Upon leaving and returning to Five Points on February 10, 2004, plaintiff alleges that Williams failed to properly secure him and that Williams used a "black box"*fn2 to restrain him.
Plaintiff contends that, based upon by Dr. Bertocci's expert report, Williams' conduct put him at a higher risk of injury. Moreover, plaintiff also alleges that the use of a black box while transporting paraplegic prisoners is prohibited at Green Haven. Plaintiff states, that although he informed Williams that due to his medical condition he should not be shackled to a black box during transport, Williams ignored his protests and shackled him to the black box anyway. Plaintiff further contends that was transported in the same type of wheelchair deemed unsafe for transport by Dr. Bertocci in her report, and that Williams did not secure ...