The opinion of the court was delivered by: Brieant, J.
Before this Court is Defendants' motion to dismiss the amended complaint and Plaintiffs' cross-motion for class certification. Plaintiffs commenced this purported class action on January 23, 2006, alleging that Defendants unlawfully eliminated or curtailed the Parole Board's discretion when making parole release determinations for A-1 violent offenders in violation of 42 U.S.C. § 1983. Plaintiffs filed an amended complaint on March 23, 2006. On April 17, 2007, Defendants moved to dismiss the Amended Complaint (Doc. 73). Plaintiffs filed their opposition to the motion to dismiss and a cross-motion for class certification on May 10, 2007 (Doc. 77). Defendants filed a memorandum of law in further support of their motion to dismiss and in opposition to class certification on June 22, 2007 (Doc. 87). Plaintiffs filed their memorandum of law in reply to Defendants' opposition to their motion for class certification on July 12, 2007 (Doc. 89). Oral argument was held on July 20, 2007.
Defendants' Motion to Dismiss
In support of their motion to dismiss, Defendants argue that Plaintiffs' claims are moot now that Governor Pataki and Parole Chairman Robert Dennison have left office. Governor Pataki and Parole Chairman Dennison were both sued in their official capacities only. (Am. Compl. ¶¶ 18, 20.) Rule 25 of the Federal Rules of Civil Procedure provide that "[w]hen a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party." Fed. R. Civ. P. 25(d)(1). The current Governor is Eliot Spitzer and the current Chairman of the New York State Board of Parole is George B. Alexander.
"A case is deemed moot where the problem sought to be remedied has ceased, and where there is 'no reasonable expectation that the wrong will be repeated.'" Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (quoting Preiser v. Newkirk, 422 U.S. 395, 402 (1975)). Plaintiffs' First Amended Complaint alleges that it was "[t]he unofficial policy or practice of the Parole Board, as instigated by Pataki and executed by the Division of Parole under Parole Chairman Robert Dennison, . . . to unlawfully eliminate or substantially curtail the Parole Board's discretion when making parole release determinations concerning prisoners serving sentences for A-1 violent offenses." (1st Am. Compl. ¶ 2.) Thus, the change of office does not necessarily mean that policy or practice of the Parole Board "sought to be remedied has ceased" or that "there is no reasonable expectation that the wrong will be repeated."
Spomer v. Littleton, 414 U.S. 514 (1974), and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974), upon which Defendants rely, do not dictate otherwise. In Spomer, the original defendant, a State's Attorney, was sued in his personal and official capacities and "[n]o charge [was] made in the complaint that the policy of the office of State's Attorney [was] to follow the intentional practices alleged." Spomer, 414 U.S. at 521. In Mayor of Philadelphia, the Supreme Court held that the Court of Appeals for the Third Circuit "erred in ordering prospective injunctive relief against the new Mayor in a case devoted exclusively to the personal appointment policies of his predecessor." Mayor of Philadelphia, 415 U.S. at 613. In the instant case, Plaintiffs allege that it was the policy of the Parole Board, in concert with the Governor and Parole Chairman, to resist parole release for A-1 violent offenders. Neither Governor Pataki nor Chairman Dennison were sued in their personal capacities and Plaintiffs do not allege that the unlawful policy was solely carried out by former Governor Pataki and former Chairman Dennison.
Defendants' motion to dismiss is thus denied.
Plaintiffs' Motion for Class Certification
Plaintiffs have brought a cross-motion to certify "a class comprised of all prisoners in the custody of the New York State Department of Correctional Services who (1) were convicted of A-1 violent felony offenses; (2) have served the minimum terms of their indeterminate sentences and are therefore eligible for parole release; and (3) have had their most recent applications for parole release denied by the Parole Board solely because of the 'seriousness of the offense', the 'nature of the present offense'" or similar reasons. (Am. Compl. ¶ 3.) All named plaintiffs except Friedgood also seek to represent a subclass of prisoners who meet the qualifications of the main class but who were sentenced to less than the statutory maximum for their violent offenses. (Am. Compl. ¶ 4.)
Under Rule 23(a) of the Federal Rules of Civil Procedure, "[o]ne or more members of a class may sue . . . as representative parties on behalf of all only if" the following four prerequisites are met: "(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). Rule 23(b)(2) requires in addition 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 or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2).
The court must receive "enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met." In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006). Defendants argue that Plaintiffs have failed to demonstrate the first three requirements for class certification of Rule 23(a), numerosity, commonality, and typicality, and the requirement of Rule 23(b)(2).
Defendants argue that Plaintiffs have only speculated about the number of class members. Evidence of the exact number of class members is not required, however, and our Court of Appeals has held that "numerosity is presumed at a level of 40 members." Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). In support of their motion for class certification, Plaintiffs submitted a declaration listing 540 prisoners who fit the class definition, 441 of whom are serving less than maximum sentences and thus also fit the definition of the sub-class. (Isseks Declaration Exs. A, B.) This Court finds that these lists are not mere speculation, but contain ...