STEVEN AUSTIN, et al. v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al.



CIVIL ACTION NO. 90-7497



UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA



876 F. Supp. 1437; 1995 U.S. Dist. LEXIS 8077



January 5, 1995, Decided









COUNSEL: [**1]

For STEVEN AUSTIN, FRANKLIN CASTLE, EUGENE DUNSON, JOHN REGELMAN, KEVIN SANDERS, RICHARD BOOZER, JOSEPH MULCAHY, DEBRA SPEAKES, on behalf of themselves and all others presently incarcerated or who will in the future be incarcerated within the Pennsylvania Department of Corrections, TROY CALHOUN, FRANKLIN D. BALTIMORE, SR., LEONARD T. MORTON, JR., SCOTT DOCKLER, GARY ROOS, PERCY MCCONNELL, JOHN DOE, POLICE OFFICER, JOHN ROE, on behalf of themselves and presently incarcerated or who will in the future be incarcerated within the Pennsylvania Department of Corrections, PLAINTIFFS: DAVID RUDOVSKY, KAIRYS & RUDOVSKY, PHILA, PA. STEFAN PRESSER, PHILA, PA. ROBERT W. MEEK, DISABILITIES LAW PROJECT, PHILA, PA. ANGUS R. LOVE, INSTITUTIONAL LAW PROJECT, PHILADELPHIA, PA. ALVIN J. BRONSTEIN, THE NATIONAL PRISON PROJECT, WASHINGTON, DC. STUART H. ADAMS, JR., NATIONAL PRISON PROJECT OF THE AMER CIVIL LIBERTIES UNION, WASHINGTON, DC. ELIZABETH ALEXANDER, NATIONAL PRISM PROJECT, WASHINGTON, DC. SCOTT BURRIS, ACLU OF PENNSYLVANIA, PHILA, PA. EDWIN J. GREENLEE, PHILA, PA. MARJORIE RIFKIN, AMERICAN CIVIL LIBERTIES UNION-NATL PRISM PROJECT, WASHINGTON, DC.


For PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOSEPH LEHMAN, sued in his official capacity as Commissioner of the Pennsylvania Department of Corrections, JEFFREY BEARDS, sued in his official capacity as Superintendent of State Corrections Institution at Camp Hill, MARTIN DRAGOVICH, sued in his official capacity as Superintendent of State Corrections Institution at Cresson, JOSEPH RYAN, sued in his official capacity as Superintendent of State Corrections Institution at Dallas, DONALD T. VAUGHN, sued in his official capacity as Superintendent of State Corrections Institution at Graterford, FREDERICK ROSENMEYER, sued in his official capacity as Superintendent of State Corrections Institution at Greensburg, GILBERT A. WALTERS, sued in his official capacity as Superintendent of State Corrections Institution at Mercer, DENNIS R. BERHARDT, sued in his official capacity as Superintendent of State Corrections Institution at Retreat, JOSEPH F. MAZURKIEWICZ, sued in his official capacity as Superintendent of State Corrections Institution at Rockview, MARGARET A. MOORE, sued in her official capacity as Superintendent of State Corrections Institution at Smithfield, CHARLES H. ZIMMERMAN, sued in his official capacity as Superintendent of State Corrections Institution at Waymart, DEFENDANTS: LINDA C. BARRETT, FRANCIS R. FILIPI, OFFICE OF ATTORNEY GENERAL, HARRISBURG, PA. R. DOUGLASS SHERMAN, DEPT. ATTY GENERAL, OFFICE OF ATTORNEY GENERAL, HARRISBURG, PA. DENISE A. KUHN, OFFICE OF ATTORNEY GENERAL, PHILA, PA. For RICHARD BROWNING, GEORGE MILLER, NICHOLAS BORSELLO, PAUL SOLOMAN, DEFENDANTS: STEFAN PRESSER, PHILA, PA. LINDA C. BARRETT, OFFICE OF ATTORNEY GENERAL, HARRISBURG, PA. R. DOUGLASS SHERMAN, DEPT. ATTY GENERAL, OFFICE OF ATTORNEY GENERAL, HARRISBURG, PA.


HIRAM R. JOHNSTON, JR., JAILHOUSE LAWYER, MOVANT, [PRO SE], S.C.I. FRACKVILLE, FRACKVILLE, PA. STEFAN PRESSER, ESQ., MOVANT, [PRO SE], AMERICAN CIVIL LIBERTIES UNION, PHILADELPHIA, PA. JEROME SILO, MOVANT, [PRO SE], PITTSBURGH, PA. DERON HOLLOWAY, MOVANT, [PRO SE], PITTSBURG, PA. GEORGE RAHSAAN BROOKS-BEY, MOVANT, [PRO SE], SCI - GREEN, WAYNESBURG, PA. FRANCISCO FIGUEROA, MOVANT, [PRO SE], S.C.I. WAYMART, WAYMART, PA. LEONARD BOCCHICCHIO, MOVANT, [PRO SE], STATE CORRECTIONAL INSTITUTION - DALLAS, DALLAS, PA. JESSE R. ROBBINS, MOVANT, [PRO SE], SCI ROCKVIEW, BELLEFONTE, PA. RICHARD KANE, MOVANT, [PRO SE], STATE CORRECTIONAL INSTITUTION, CRESSON, PA.MATTHEW A. BROWN, II, MOVANT, [PRO SE], WAYMART, PA. ALFONSO PERCY PEW, MOVANT, [PRO SE], S.C.I. CAMP HILL, CAMP HILL, PA. BRUCE PETTIFORD, MOVANT, [PRO SE], SCI WAYMART, WAYMART, PA.


For WILLIAM LOVE, sued in his official capacity as Superintendent of State Corrections Institution at Huntingdon, TIMOTHY ENGLISH, sued in his official capacity as Superintendent of State Corrections Institution at Waynesburg, JOSEPH CHESNEY, sued in his official capcity as Superintendent of State Corrections Institution at Frackville, ROBERT CASEY, sued in his official capacity as Governor of the Commonwealth of Pennsylvania, DEFENDANTS: LINDA C. BARRETT, FRANCIS R. FILIPI, OFFICE OF ATTORNEY GENERAL, HARRISBURG, PA. R. DOUGLASS SHERMAN, DEPT. ATTY GENERAL, OFFICE OF ATTORNEY GENERAL, HARRISBURG, PA.


WILMER B. GAY, MOVANT, [PRO SE], SCI - GREENE, WAYNESBURG, PA. RICHARD HOLLIHAN, MOVANT, [PRO SE], SCI PITTSBURGH, PITTSBURGH, PA. ALAN B. DAVIS, MOVANT, [PRO SE], SCI PITTSBURGH, PITTSBURGH, PA. WILLIAM C. MUELLER, MOVANT, [PRO SE], SCI PITTSBURGH, PITTSBURGH, PA. RICHARD HOFFMAN, MOVANT, [PRO SE], SCI PITTSBURGH, PITTSBURGH, PA. JOHN W. TAYLOR, MOVANT, [PRO SE], STATE CORRECTIONAL INSTITUTION, CRESSON, PA.



JUDGES: JAN E. DUBOIS, J.



OPINIONBY: JAN E. DUBOIS



OPINION:

[*1441] ORDER

AND NOW, to wit, this 5th day of January, 1995, upon consideration of the Stipulation of Dismissal Pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii), the Proposed Settlement Agreement, as amended, Plaintiffs' Memorandum of Law in Support of Proposed Settlement Agreement, Defendants' Memorandum of Law in Support of the Proposed Settlement Agreement, the objections of class members received by the Court between August 9, 1994, and the date of this Order, n1 and all other documents to which reference is made in this Court's Memorandum which will be filed on or before January 17, 1995, following a hearing on December 12 and 13, 1994, at which time the Court received testimony from designated [*1442] class representatives and other class members concerning the Proposed Settlement Agreement, for the reasons summarized below and set forth in more detail in the Court's Memorandum which will be filed on or before January 17, 1995, IT IS ORDERED as follows:



n1 All written objections from class members received by the Court were docketed.


[**2]

1. Members of the plaintiff class were given adequate notice of the proposed settlement, the proposed dismissal of the action without prejudice, their right to file objections, the manner of filing objections, and the hearing on the proposed settlement scheduled for December 12, 1994 and December 13, 1994, pursuant to Federal Rule of Civil Procedure 23(e) and Orders of the Court dated September 20, 1994, November 21, 1994 and November 29, 1994;

2. The Settlement Agreement fairly, reasonably and adequately advances and protects the interests of the plaintiff class and is APPROVED pursuant to Federal Rule of Civil Procedure 23(d). The Court's review of the Settlement Agreement was conducted solely to comply with Federal Rule of Civil Procedure 23(e) and does not convert the Settlement Agreement into an order of the Court or a consent decree;

3. The Stipulation of Dismissal without prejudice pursuant to Federal Rule of Civil Procedure 41 (a)(1)(ii), except for plaintiffs' claims regarding tuberculosis control which will be covered by a subsequent order, is APPROVED in accordance with Federal Rule of Civil Procedure 23(e);

4. Any plaintiff, including those plaintiffs who [**3] filed objections or wrote letters to the Court which stated personal or individual concerns, may at any time file a new complaint raising some or all of the issues presented in this action, and any other issues justiciable in this Court. Because this Court has dismissed the action, plaintiffs are now informed that the Court no longer has jurisdiction to consider individual objections or individual correspondence relating to the action; n2



n2 The parties, through counsel, have agreed to continue to investigate certain individual claims designated by the Court and to report to the Court after they have done so.


5. If within three (3) years of the date hereof the plaintiffs, by their current counsel, file a new action on any issues presented by this action, the new action will be considered a "related case" and assigned to this Court;

6. All discovery that has been provided by the parties in this action shall be deemed to be part of discovery in any new action filed in accordance with paragraph 5 above. Plaintiffs' [**4] counsel may maintain control and custody of all discovery provided to date. Plaintiffs' counsel shall continue to comply with the provisions of all protective orders; and,

7. If any of the corrections issues that were the subject of testimony in the trial of the corrections phase of this case are raised in a new action filed pursuant to paragraph 5 above, the testimony and evidence introduced in the corrections phase of this case shall be admissible on the merits in the new action.

IT IS FURTHER ORDERED that (a) all pending motions of class members to intervene, some of which were filed as objections to the proposed settlement, are DENIED on the ground that there is no need for class members to intervene as all objections filed by class members were considered by the Court, (b) all pending motions of class members for appointment of counsel, some of which were filed as objections to the proposed settlement, are DENIED on the ground that there is no basis for appointment of counsel for individual class members, the entire class being adequately represented by class counsel, (c) all pending motions of class members to enjoin the proposed settlement, some of which [**5] were filed as objections to the proposed settlement, are DENIED for the reasons set forth above and in the Court's Memorandum which will be filed on or before January 17, 1995, and (d) all other pending motions related to the proposed settlement, some of which were filed as objections to the proposed settlement, are DENIED.

IT IS FURTHER ORDERED that notice of the provisions of the within Order shall be provided by defendants to members of the plaintiff class and other inmates in the state [*1443] correctional system who are affected by the Order by posting such notice in appropriate places in state correctional institutions.

BY THE COURT:

JAN E. DUBOIS, J.