Solitary Stipulation

8/13/2019 Solitary Stipulation

1/12

U NITED STA TES D ISTRICT CO URTSO U TH ERN D ISTRICT O F N EW Y ORI(. - - - - - - - -- - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - -- - - - - - - - - - - -x

LERO Y PEO PLES, et al.,STIPULA TIO N FO R A STAYW IT H C ON D IT IO N S

Plaintiffs,D o ck et N u mb erll-C V-26 94 (S AS)

BRIA N FISCH ER, et al.,

Defendants.

T he p arties, b y th eir atto rn ey s, h ereb y stip ula te as fo llo ws:

W HE REA S, Plaintiffs Leroy Peoples, D wayne R ichardson and Tonja Fenton, inm ates incustody of the New York State D epartm ent of Corrections and Com m unity Supetvision( D OC CS ), filed a T hird A mended C lass A ction C om plaint (herein, as am ended and corrected,referred to as the Com plaint ) alleging that the use and length of confinem ent sanctions andconditions. in D OC CS Special H ousing U nits ( SI-IU ) create an unconstitutional risk of harm ,and seeking declaratory and injunctive relief on behalf of putative class of sim ilarly situ atedindividu als and dam ages on behalf of the nam ed plaintiffs;

W H EREA S, follow ing the filing by D efendants of a m otion to dism iss Plaintiffsdam ages claim s and before the filing of an answ er to the Com plaint or a class certificationm otion, a Stipulation and Order w as entered on M ay 1,2013, pursuant to w hich the D efendantsm otion to dism iss w as w ithdraw n w ithout prejudice and all scheduling of briefing and discoveryin the law suit w as suspended for ninety (90) days to perm it the parties to conduct settlem entnegotiations;

W HEREA S, pursuant to endorsed Orders entered on July 29, 2013, O ctober 1,2013, andD ecem ber 19,2013, the C ourt has extended the litigation stay to and including January 30; 2014,to allo w th e p arties to co ntin ue th eir settlem en t d iscu ssio ns;

W H EREAS, the parties have each designated an expert in prison operations andsegregated housing to assess current prison disciplinary practices in N ew York State and m akerecom mendations to assist the parties in achieving a resolution of the claim s for injunctive reliefraised in th e C om plain t;

W HEREA S, DO CeS recognizes a sound progressive disciplinary system protects theh ealth , sa fe ty, an d secu rity o f all p erso ns w ith in D O CC S co rrectio nal facilities;


2/12

WHEREAS, DOCCS recognizes that disciplinary sanctions must never be arbitrary orcapricious or overly severe and. that a sound disciplnary system relies on certainty andpromptness of action rather than upon severity;

WHEREAS, inmates designated as seriously mentally ll with SHU confinementsanctions in excess of thirty (30) days have since 2007 been diverted from SHU to alternativeprograms absent exceptional circumstances; and

WHEREAS, the parties in good faith have negotiated the terms of this Stipulationproviding for a further stay of the litigation to establish a process for expert evaluation andconsultation and to permit the implementation and evaluation of initial changes with regard toDOCCS disciplinary system and SHU conditions with the goals of (i) removing certainvulnerable populations from SHU confinement to alternative programs, (ii) increasing system-wide oversight to promote consistent prison disciplinary practices and confinement sanctions thatare appropriate and necessary to protect the safety of both staff and inmates, (iii) implementingguidelines for all confinement sanctions to promote transparency and consistency of disciplinaryconfinement sanctions, (iv) improving SHU conditions as provided in this Stipulation, and (v)reaching a final comprehensive settlement agreement;

NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED:

SECTION 1. STAY OF LITIGATION.

A. This action shall be stayed for a period (the Stay Period ) of twenty-four (24) monthsfrom the Effective Date under Section 8 of this Stipulation or until the Stipulation isvacated and/or the Stay lifted pursuant to Section 5 and, subject to the Court s approval,shall be placed on the Court s Suspense Calendar. During the Stay Period none of theparties may seek judicial relief in this action, except to vacate the Stipulation and/or liftthe Stay and proceed with the litigation in accordance with the terms, conditions andprocedures set forth in Section 5 of this Stipulation.

B. The actions set forth in Sections 2 and 4 of this Stipulation are being voluntarilyundertaken by the Defendants and DOCCS to implement policy goals shared by theparties. The parties agree that none of the terms of this Stipulation contained in Sections2 and 4 below shall constitute So Ordered prospective relief enforceable in any court,nor do such terms constitute contractual obligations of the Defendants or DOCeSenforceable as binding provisions of a stipulation or settlement agreement. During theStay Period the sole remedy fl P laintiffs isa motion to vacate the Stipulation and/or liftthe Stay in accordance with the terms, conditions and procedures set forth in Section 5 of

this Stipulation.

C. The actions set forth in Section 2 below shall be implemented in accordance with the timeperiods specified and goals set in Section 2 and in any event as S0011 as practicable afterthe Effective Date of this Stipulation as defined in Section 8.

2


3/12

SECTION 2. ACTIONS TO BE TAKEN.

A. Al te rnatives to SHU Sanc tions for Juven ile s.

1. Contingent on DO CCS ability to secure the necessary funding, DOCCSshall ensure that even under the m ost restrictive form of disciplinaryhousing, 16 and 17 year old inm ates shall five (5) days a w eek be offeredou t-of -cell p rogrammingand ou tdoor exerc ise, l imi ting time in their cells ton in ete en (1 9) h ou rs a d ay, e xc ep t in ex ce ptio nal c ircu ms ta nc es re fe rre d toCentral Office .

2. Contingent on DOCCS ability to secure the necessary funding, DOCCSw ill im ple me nt a p ro gra m to se pa ra te ly h ou se m ed iu m se cu rity c la ss ifie d16 and 17 year olds at a thirty (3 0) cell g en eral popu lation ho usin g u nit atWo o db ou rn e C orre ctio na l F ac ility a nd a t a fifty (5 0) b ed d on nito ry g en era lpopulation housing unit at G reene C orrectional Facility. D OC CS w ill

co ntin ue to ad mit q ua lify in g 1 6 a nd 1 7 y ea r o ld s to its S ho ck In carc era tio nprogram . M axim um security 16 and 17 year old inm ates w ill be housedseparately in a tw enty-tw o (22) cell general population housing unit atC oxsackie C orrectional Facility. A ged 16 and 17 year old inm ates w ithd is cip lin ary c on fin em e nt s an ctio ns o f le ss th an th irty (3 0) d ay s w ill re m aina t Wo od bo urn e o r G re en e C orre ctio nal F ac ilitie s a nd th ere w ill b e a n e ig ht(8) bed separation unit at G reene C orrectional Facility. A ged 16 and 17year old inm ates w ith S HU confinem en t sanction s in ex cess o f thirty (30)days w ill be placed in a separate tw enty-tw o (22) cell housing unit, as ana lt ernat ive to p lacement in SHU, a t Coxsackie Correctional Fac ility.

3. If the necessary funding is provided, Doces will comply with theseprovisions as soon as practicable and w ith an im plem entation goal in noe ve nt la te r th an e ig hte en (1 8) m o nth s a fte r th e E ffe ctiv e D ate .

B . P resum :Q tion again st S HU Sanctions fo r P regnant Inm ates.

1. W ithin one m onth of the Effective D ate, D OCC S shall im plem ent a w rittenpolicy b y m eans o f a m em orandu m issued b y the D ep uty C om m issio ner fo rC orrec tio na l F acilitie s e stab lis hin g a p re su mp tio n a ga in st p la ce me nt o f apregnant female inm ate in SHU for disciplinary purposes, except inexcep tional c ircums tances re fe rred to Central Office.

C . A lternatives to SH U Sanctions for Special N eeds Im nates.1. D OC CS shall im plem ent a program that, absent exceptional circum stances

re fe rre d to D O CC S C en tra l O ffic e a nd to th e e xte nt th at sp ac e is a va ilab lein the program , provides an alternative to SH U for certain inm ates w hohave a BETA/WAlS of 7001 b elo w o r w ho D O CC S o th erw ise d ete rm in eshave significantly lim ited intellectual capabilities and/or adaptive

3


4/12

functioning and coping skills and have received SHU confinementsanctions exceeding thirty (30) days. This program will be established atSullivan Correctional Facility and entitled the Correctional AlternativeRehabilitation or CAR program.

2. The CAR program will involve three phases: i) assessment and orientation,(ii) treatment, and (iii) transition to non-disciplinary housing settings. Twohours per day of out of cell group programming will be offered in theorientation phase and four hours per day in the second and third phases,five (5) days a week for each phase. In addition to programming, the CARprogram will use a range of incentives to reward behavioral progress. Theincentives will be offered on an individualized basis and will be treatmentplan chiven.

3. . DOCCS will implement these provisions as soon as practicable and in noevent later than three (3) months after the Effective Date.

D. Central Office Oversight of SHU Confinement.

1. Contingent on DOCCS ability to secure the necessary funding, a newAssistant Commissioner and a research staff position will be created andfilled by DOCCS to oversee and monitor the disciplinary systemthroughout the State by data collection and performance trackingprocedures with the goals of promoting consistency and fairness of SHUconfinement sanctions and the health, safety and security of inmates andstaff.

2. If the necessary funding is provided, DOCCS will implement this provisionas soon as practicable with an implementation goal in no event later thanthree (3) months after the Effective Date.

E. Disciplinary Confinement Sanctions: Guidelines, Policies and Training.

With the exception of guidelines for certain violent and drug-relatedoffenses, no guidelines currently exist for confinement sanctions imposedin prison disciplinary hearings. The existing guidelines for violent anddrug-related offenses were put into effect throughout the system by amemorandum issued by the Deputy Commissioner for CorrectionalFacilities.

2. DOCCS shall implement new comprehensive and prospective guidelinesfor all disciplinary confinement sanctions (documents Bates-stampedS3682 to 83705, pursuant to and subject to the May 15, 2013confidentiality agreement ( Confidentiality Agreement ) executed by theparties in this litigation).

4


5/12

DOCCS shall also im plement new disciplinary policies and reinforceexisting policies, including without limitation the follow ing:(i) arequirem ent that Tier Review O fficers docum ent reasons for any decisionto assign a disciplinary violation other than to the low est possible tier;(ii) a

presum ption against consecutive confinem ent sanctions for violations thatarise fro m th e sam e ev en t ab sen t ex cep tio nal circu mstan ces; (iii) g uidelin esfor the application of second and third infractions of a particular rule onlywhere the subsequent infraction occurs within a specified time after theoriginal incident as reflected in the new guidelines; and (iv) discretion forhearing officers to depart upw ard from . these guidelines in appropriatecircum stances that shall be articulated by the heating. officer andsub seq uen tly referred to C en tral O ffice.

4. D OCCS shall develop new training m aterials for hearing officers toimplem ent the new guidelines for disciplinary sanctions and relatedpolicies. Experts retained by the partieswill rev iew th e train in g m aterialsand be provided w ith an opportunity to com ment before im plem entation.

5. DOCCS shall give full consideration to the experts comm ents011 th etraining m aterials, T he parties shall m eet to discuss the experts com mentswithin the two-week com ment period referred to in Section 2(E)(7)(A),W hen the training materials are finalized, DO CCS shall share a finalversion w ith Plaintiffs counsel and experts pursuant to the M ay15 , 2013Confiden tial ity Agreement,

6, DO CCS shall undertake a comprehensive training of DO CeS hearingofficers on a regional basis in each of the hubs as to the guidelines and

related policies, The experts may attend and observe relevant portions ofthe first training and shall be provided with an opportunity to comment onthe training, Any training materials that are revised in response to theexperts com ments shall be provided to plaintiffs and the experts pursuant

. to the Confidentiality Agreement, and all observations by the experts atsuch training, the content of such training and statem ents made by anyperson during such training shall be covered by all provisions of theConfident ia li ty Agreement.

7, DO CeS will im plement the provisions of Subsection E above on thefollow ing schedule, w ith all dates starting from the E ffective D ate:

i. W ithin three (3) m onths, DOCeS shall have shared draft trainingm aterials w ith the experts, W ithin tw o w eeks thereafter, the experts w illhave provided their com ments on the training m aterials to D OCeS;

ii. W ithin five (5) months, DOCCS shall have finalized all trainingm ateria ls; a nd

5


6/12

1 1 1 . W ithin nine (9) months, D oces shall have completed training atall regional hubs, and the guidelines referred to in Section 2(E)(2) of thisStipulation w ill be fully implem ented and issued to all staff and inmates inthe system by means of ft mem orandum issued by the Deputy

C om m iss io ne r fo r C orre ctio nal F acilitie s.

F. Interim Actions on SHU Conditions.

1. D OCCS shall take the following initial actions with regard to SHUconditions: (i) Outdoor exercise tim e shall be increased in SHU 200s andU pstate C orrectional Facility by one hom per day;(ii) an additional hour ofoutdoor exercise can be earned on w eekends for inmates at PIM S level 3 atUpstate and SH U 200s; and(iii) at Upstate, Southport and SH U 200s,DOCCS shall provide headphones to all inmates after initial processingfollowing admission to SHU and in-cell study packets to all inmates onPIM S Level 1.

2. DO CCS will im plement these provisions asSOOl1 as practicable and in noevent later than three (3) m onths after the E ffective D ate.

G. ReQ uired Budgetary Awroval. Funding provisions required to carry out the actions to betaken during the Stay Period under Sections 2(A ) and2(D ) of this Stipulation shall berequested by D OCCS to the Executive fol inclusion in the proposed budget to besubm itted to the Legislature on or about January 21,2014. T he actions necessary toim plem ent Sections 2(A ) and 2(D ) of this Stipulation shall besubject-tothe necessarybudgetary approval by the Legislature for the fiscal year beginning A pril I , 2014.

SECTION 3. RESOLUTION OF M ATTERS AD DRESSED BY TI-IlS INTERIMSTIPULATION.

A. W aiver of Further Relief For Vulnerable Populations. Absent the Court vacating thisInterim Stipulation pursuant to Section 5(B),infra Plaintiffs waive the right to seekadditional relief specific to the following groups of inmates, which Plaintiffs haveid en tified as v uln erab le p opu lation s :(i) inmates who are younger than 21 years old;(ii) pregnant inmates; (iii) inm ates w ho are cognitively im paired; (iv) inmates over theage of 55; ancl Cv) inm ates w hoare legally blind or deaf

B. Lim ited W aiver of Further Relief W ith Respect To The Length of Sanctions. During theStay Period, Plaintiffs w aive the right to seek additional relief w ith respect to the length

o f d is cip li na ry s an cti on s.

C. Limitation of W aivers. The aforementioned waivers are specifically limited to itemsid en tifie d in 3 CA ) a nd 3(B ).

6


7/12

S EC TIO N 4, R EPO RT IN G A ND E XP ERT C ON SU LTAT IO N D UR IN G STAY PE RIO D,

A. P etio dic R ep ortin g, D urin g th e S tay P erio d, D O CC S sh all p ro vid e P lain tiffs co un selw ith re po rts a nd d ata c on ce rn in g th e im p le m en ta tio n a nd e ffe cts o f th e a ctio ns d es crib ed

in S ub se ctio ns A th ro ug h F o f S ectio n 2 ab ov e, A ll su ch rep orts a nd in fo rm atio n sh all b ec ov ere d b y th e C o nfid en tia lity A g re em e nt. W h er ev er p ra ctic ab le D O C CS sh all p ro vid eth e d ata in e le ctro nic s pre ad sh ee ts , s uc h a s E xc el o r .c sv f ile fo rm a t. T he p erio dic re po rtsand data prov ided sha ll include the following :

1, M onthly D ata Production, B eginning A pril 1, 2014, D OC CS shall provided ata o n th e f irs t o f e ac h m o nth su ffic ie nt to e va lu ate th e fo llo w in g:

i Dem ographics of inmates in SHU: who is in SHU and for whatre aso n (fo r e xa mp le , a dm in istra tiv e se gre ga tio n, v olu nta ry o r in vo lu nta ryprotective custody,01 discipl inary confinement by infractionis j) , includingd em o gra ph ic in fo rm a tio n (n am e , D IN , a ge , ra ce , s ex , fa cility, O M H le ve l,etc.) and the length of total continuous SHU tim e served by inmatesc ur re ntly in S H U;

ii. Deprivation orders: the frequency, length and rationale ford ep riv atio n o rd ers in clu din g d em og rap hic in fo rm atio n (n am e, D IN , a ge,race, sex, facility, OM R level, etc.); and

E x ce ptio na l C irc um sta nc es : a ny in sta nc es in w h ic h C en tra l O ffic eauthorizes or review s an exception to the policies or presum ptions inS ectio n 2 an d th e reason s th erefo r, in clud ing placing a juv en ile in S HU ,p lacin g a preg nan t fem ale in S HU , im po sin g a S HU san ctio n th at ex ceed sth e m ax im lu n a llo w ab le u nd er th e g uid elin es , a nd a ss ig nin g a n in fra ctio n tothe h ighes t rather than lowes t poss ib le t ie r.

2. Q uarterly Periodic Reporting on Outcome and Performance M easures.D OeC S, and in particular the A ssistant C om missioner to be hired underS ec tio n 2 (D ), sh all c on su lt w ith th e p artie s e xp erts to d ev elo p re po rts a ndp erfo rm an ce tra ck in g m ea su re s re ga rd in g th e o utc om es o f th e d is cip lin aryS I-lU p ro gra m a nd v ario us a ltc m ativ es to S H U p ro gra ms ( fo l e xa mp le , th eC AR p ro gram , th e Juv en ile P ro gram ), T hese rep orts sh all be prod uced toP lain tiffs startin g o n Ju ly 1 , 2 01 4, an d o n a q uarterly b asis th ereafter, an dm ay include reports on disciplinary m easures: for every instance of aninfraction eligible for confinem ent sanctions, the infractiom s), the

co nfin em en t an d/o r n on -co nfin em en t san ctio n im po sed (in clu din g, n on -punitive interventions such as referrals to offender rehabilitationc oo rd in ato rs o r re fe rra ls to O M l-I, e tc .), d em o gra ph ic in fo rm a tio n (n am e,D IN , ag e, ra ce, sex , facility, O M H lev el, etc.), th e facility, an d th e h earin gofficer, D OCCS shall give full consideration to any expert com mentreg ard in g the qu arterly rep orts. A ny u nderly in g data u sed to p ro duce theq ua rte rly re po rts n ot a lre ad y a va ila ble to P la in tiffs m ay a ls o b e p ro du ce d to

7


8/12

Plaintiffs upon request and, where practicable, in electronic spreadsheetformat.

B. Non-:Reriodic Re:Rorting. DOCCS shall keep Plaintiffs promptly informed as to any

material developments bearing on the timely implementation of the provisions in Section2, including without limitation the successful completion of relevant benchmarks and thebudgetary approval process.

C. Facility Tours, Central Office Meetings, and EX:RertRequests for Additional Information.During the Stay Period the parties experts may conduct up to three tours total, eachconsisting of threeindividual facilities or three days at one facility. The experts maysubmit the facilities they wish to tour, but the final selection will be by the Commissionerof Corrections and Community Supervision. The experts may combine such tours with ameeting with DOCeS Central Office officials and staff. Such tours shall span no morethan three (3) consecutive days, including any meeting requested with DOCCS CentralOffice. At the request of the experts, the facility tours may include SHU and Keeplockunits and locations specified in Subsections A and C of Section 2 of this Stipulation forthe program for the 16 and 17 year old inmates and for the CAR program. Tours shall beconducted ona mutually agreed schedule. DOCCS shall provide documents, includingSHU rosters and a reasonable number of disciplinary history printouts and disciplinaryhearing packets, as may be requested by the experts thirty (30) days in advance of thetour in order for the experts to select inmates to interview during a particular facility visit.All communioations between the experts and staff or inmates during the course of suchtours and Central Office visits shall be covered by the terms of the ConfidentialityAgreement. Nothing shall preclude the experts from making additional reasonablerequests for documents and information, which DOCeS shall make available to theexperts, if not unduly burdensome. All such documents, reports and information

provided under Section 4 shall be subject to the Confidentiality Agreement.

D. Consideration Of EX:Rcrts Recommendations.

1. All parties will give full consideration to advice, suggestions 01 proposalsoffered by either party s expert during the Stay Period. Any decisionsmade or actions taken by DOCCS following any such advice, suggestionsor proposals shall be made by DOeCS in accordance with the goals of thisStipulation and DOeCS statutory responsibilities for the care, custody andcontrol of the offender population. The experts may address any issues theydetermine the parties should consider with regard to the disciplinary SHUsystem.

2. The parties agree to direct their respective experts to provide their initialadvice, suggestions Ol proposals to Doces and the parties counsel, inNew York City or Albany, on or before March 31, 2014. The parties shallseparately agree upon a timetable to meet and confer about the expertsadvice. Should DOCeS, during the Stay Period, undertake any additionalactions in response to the proposals, suggestions or advice of the experts,

8


9/12

th e p arties shall m eet to discuss the im plem en tatio n and assessm en t o fth ose actio ns. T he p arties sh all o th erw ise co ntin ue en gag in g th e ex pertsduring the Stay Period with the goal of using the expert processcoll abora tive ly to reach a f inal comprehens ive sett lement agreement.

SE CT IO N 5. VAC AT IN G T HE IN TE RIM ST IPU LATIO N A ND /O R L IFT IN G T HE STAY.

A. M o tio n to Vacate In terim S tip ulatio n an d/o r to L ift S tay. P lain tiffs m ay m ov e th is C ou rtfo r a n o rd er v ac atin g th e In te rim S tip ula tio n a nd /o r liftin g th e s ta y a nd re tu rn in g th e c aseto th e C ou rt s active calend ar for g ood cau se as d efin ed in S ectio n5 C B o r e xh au stio n o fgood faith negotiations as defined in 5(C) and subject to the conditions set forth inSectionSeD . U p on su ch re tu rn o fth e c as e to th e a ctiv e c ale nd ar, th e p artie s w ill p ro po sean appropriate schedule for motions and responsive pleadings. .

B . Vacating the Interim Stipulation and/or L ifting the Stay for G ood C ause.

T he m otio n to v acate th e In terim S tip ulatio n an d/o r lift th e S tay u nd er th is S ectio nsh all b e P la in tiffs so le a nd e xc lu siv e re m ed y a nd re co urs e fo r a ctio ns o r in ac tio nsthat P lain tiffs p erceive to be n ot in co nform ity w ith the pro vision s o f S ectio ns 2and 4 of this Stipulation. A s set forth in Section 1(B) of this Stipulation, theparties agree th at th e term s o f th is S tip ulation set fo rth in S ection s 2 and 4 abo veare voluntarily undertaken by Defendants and D OCCS and do not constitutelegally b ind ing obliga tions of Defendan ts01 D OC CS . Plaintiffs m ay not seek anaw ard o f d am ag es, in ju nc tiv e relief o r a fin din g o f co ntem pt b ased o n th e alleg edn on -p erfo rm an ce b y th e D efen dan ts o r D O CC S o f an y p ro visio n o r term co ntain edin S ec tio n 2 o r 4 o f th is S tip ulatio n.

2. G ood cause shall exist for vacating the Interim Stipulation and lifting the Stayunder the following circumstances:

i F un din g n ecessary to im plem en t ch an ges in S ection s 2 (A ) or 2(D ) o f th isS tip ula tio n is n ot a llo ca te d, a nd a fte r m ee tin g a nd c on fe rr in g th e p artie s a re u na bleto reach an y ag reem en t to co ntinu e th e in terim stip ulatio n in lieu o f th e fun din gallocation;01

ii. D O CC S is n ot ac tin g in su bstan tial c on fo rm ity w ith th e te rm s o f S ectio ns 2a nd 4 0fth is S tip ula tio n.

C . L ifting th e S tay fo r E xh au stio n o f G oo cl Faith N eg otiation s.

P lain tiffs m ay seek to lift th e stay o f litig atio n if th e p arties can no t reach ag reem en t, afterf ully e xh au stin g a ll g oo d fa ith n eg otia tio ns, r eg ar din g p ro po sa ls , s ug ge stio ns01 advicep ro vid ed by th e exp erts p ursu an t to S ectio n 4(D ),supra p ro vid ed th at s uc h p ro po sa ls ,suggestions01 adv ice c loes110tper ta in to i ssues sub ject to the waivers con ta ined in Sec tion supra.

9


10/12

D. Procedures A1212licableto M otion. The parties shall meet and confer before any motion tovacate the Interim Stipulation and/or lift the Stay is filed pursuant to S(B) or SeC) of thisStipulation. The provisions of the C onfidentiality A greem ent shall rem ain in effect duringthe pendency of any motion to vacate and/or lift the Stay, and shall survive any order to

lift th e S tay and /o r to v acate th e Interim S tip ulatio n.

1. Motions M ade Pursuant to Section 5(B). W here good cause for vacating theInterim Stipulation and lifting the Stay is alleged pursuant to Sections SeB)(2)(i} orSeB)e2)eii),supra Plaintiffs m ay not file a m otion to vacate the Interim Stipulation,lift the Stay and reinstate the action until the following conditions are alsosatisfied:

l At least six (6) m onths shall have passed since the Effective Date;

ii . P laintiffs attorn ey s have prov ided D efend an ts a tto rn ey s w ith a w rittennotice setting forth w ith specificity the facts that support Plaintiffs belief thatDOCCS is not acting in substantial conformity with the terms of Sections 2 and 4of this Stipulation and, thereafter, afforded DOCCS thirty (30) days to confer,respond to and/or rem edy the alleged nonconform ance; and

1 1 1 . Following such thirty (30) day period for DOCCS to respond and/orrem edy the alleged no nco nform ance, in th e ev en t that P laintiffs atto rneys b eliev eth at su bstan tial no nco nform ance exists and /or p ersists, Plain tiffs atto rn eys m aythereafter move the Court upon twenty (20) days written notice of motion, for anorder lifting the Stay and returning the case to the Court s active calendar form otion s, disco very and trial.

2. M otions M ade Pursuant toSecHan S(C). W here Plaintiffs seek to lift the Stay dueto the exhaustion of good faith negotiations pursuant to Section 5(C),supraPlaintiffs may not file a motion to lift the Stay and reinstate the action until thefo llo win g co nd itio ns are als o s atisfie d:

i At least twelve (12) m onths shall have passed since the Effective Date;

ii . Plain tiffs atto rneys h av e prov ided D efendants attorn ey s w ith a w rittennotice setting forth w ith specificity the facts that support Plaintiffs belief that theparties have exhausted good faith negotiations and, thereafter, afford DOCCSthirty (30) days to confer and respond to the allegation that negotiations have beenex hau ste d; an d

1 1 1 . Following such thirty (30) day period for DOCeS to respond to the allegedexhausted negotiation, in the event that Plaintiffs attorneys believe that furthernegotiations w ould be futile, Plaintiffs attorneys m ay thereafter m ove the C ourtupon twenty (20) days written notice of motion, for an order lifting the Stay andreturning the case to the C ourt s active calendar for m otions, discovery and trial.

10


11/12

SECTION 6. NO AD M ISSIO NS AND OTHER RESERVATIONS.

This Stipulation and its contents do not constitute (i) an admission by D efendants01D OC CS of any constitutional violation01 other violation of law01 wrongdoing; (ii) an

admission by Defendants or DOCCS that any action, policy, practice01 procedurech alleng ed in th is actio n v io latesOl fails to com ply w ith any constitutional requirem ent orany other applicable law, rule01 regulation; Ol (iii) an adm ission by Plaintiffs that anyaction , p olicy, practice01 procedure challenged in this action is constitutional. ThisStipulation and its contents are not a w aiver of Plaintiffs individual claim s for m onetarydam ages or any other individual claim s that m ight arise after the Effective D ate ..

SECTION 7. CONCLU SIO N OF STA Y _PERIO D.

U nless the parties agree otherwise during the Stay Period, at the conclusion of the StayPerlad the litigation will be rem oved from the suspense calendar and returned to activelitigation status, in w hich case the parties shall propose to the C ourt a reasonable schedulefo r m otio ns, resp onsiv e p lead in gs, d isco very and trial.

SECTION 8. EFFECTIVE DATE.

This Stipulation shall be submitted to the Court by counsel to the parties anel shallbecom e effective on the date w hen the so-ordered Stipulation is entered by the Court.


12/12

Il

t

l

l

SECTION 9, XEClltlQN Qf l BE INTIDllM STIPULATION

T his Interim Stipulation m ay be e xec utedin m ultiple counterpa rts, a nd faxed and/oremailed signatures will be valid and enforceable, each of which shall bo deemod anoriginal, and all of which shan constitute one and the sameinstrument,

Dated: New York, New YorkJanuary24, 2914

NEW YORK CIVIL LIBERTIESUNIONCounsel to P la in tiffs

ChristopherDunn

Counsel to Plaintiffs55 FifthAvenue, Room 93gNew York) New York 10003

New York, New YorkSo O rdered: 2014

Shira A Scheindlin--United Sta tes Disu le tJudge

ERIC T, SCHNEIDERMANAttorney General of the Sta te ofNew York

Defendants

W. BrewsterAssi stant Atto rney Genera l

NEW YORK STATEDEPARTMENT OF CORRECTIONSA ND C OM MU NIT Y StJ11E RV ISIO N

]~ i_,_~_~ _ _ dMaureen E. BoUD eputy C om missioner and C ounsel

2

Solitary Stipulation

Documents

Transcript of Solitary Stipulation