Marcera v. Chinlund

91 F.R.D. 579, 33 Fed. R. Serv. 2d 695, 1981 U.S. Dist. LEXIS 14757
CourtDistrict Court, W.D. New York
DecidedSeptember 30, 1981
DocketNo. CIV-76-508C
StatusPublished
Cited by15 cases

This text of 91 F.R.D. 579 (Marcera v. Chinlund) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marcera v. Chinlund, 91 F.R.D. 579, 33 Fed. R. Serv. 2d 695, 1981 U.S. Dist. LEXIS 14757 (W.D.N.Y. 1981).

Opinion

CURTIN, Chief Judge.

Many of the pending questions in this action were once adjudicated in prior proceedings.1 When the United States Supreme Court, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281, vacated and remanded the most recent appellate decision in this case, however, these issues once again became subject to dispute. The parties have reasserted them to this court for resolution.

The constitutional issue presented by this case is whether pre-trial detainees in county jails have a right to have contact visits with their friends and families. Because I view this matter as one which preferably would be handled at the state level, see Rhodes v. Chapman, - U.S. -,--- & n.16, 101 S.Ct. 2392, 2401-02 & n.16, 69 L.Ed.2d 59 (1981); Procunier v. Martinez, 416 U.S. 396, 404-05 & n.9, 94 S.Ct. 1800, 1806 & n.9, 40 L.Ed.2d 224 (1974), I have been reluctant to press this case forward due to the possibility of a resolution in the New York State courts.

Nevertheless, the lack of significant action at the local level2 and the remands of the Supreme Court and the Court of Appeals for the Second Circuit compel me to confront the questions posed by plaintiffs. See footnote 1, supra. Defendants have, until recently, argued vigorously that Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) absolutely voids any possible federal constitutional claim with respect to contact visitation. Because recent case law convinces me otherwise, I denied [581]*581defendants’ motion to dismiss.3 See Order entered July 1, 1981. The time has come to dispose of many of the remaining motions and to move this case towards a conclusion.

I. PLAINTIFFS’ MOTION TO AMEND COMPLAINT 4

Plaintiffs moved in 1979 to add a pendent state constitutional claim 5 and additional requests for relief. As a rule, a motion to amend must be granted “freely when justice so requires,” Fed.R.Civ.P. Rule 15(a), unless there is undue delay, bad faith, or a dilatory motive on the part of the movant, or when the opposing party would be unduly prejudiced by the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

Defendants claim that if plaintiffs are now allowed to amend their complaint, they will be unjustifiably prejudiced by the inordinate time which has passed since plaintiffs brought their motion. I do State Teachers Retirement Board v. Fluor Corporation and Manufacturers Hanover Trust Company, 654 F.2d 843, (2d Cir. 1981), the Court of Appeals reversed the district court’s refusal to let plaintiffs add entirely new claims three years after they initiated their action. The court emphasized that, “Mere delay, ... absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.” Id. at 856.

As in State Teachers Retirement Board, plaintiffs’ amendment will not work any undue burden or hardship on defendants. The proposed additional claim relies on the identical facts as those underlying plaintiff’s federal claim. No new problems of proof will result. The new claim will not involve much new discovery, if any. No summary judgment motions have yet been resolved. At most, defendants will now be responsible for analyzing and assessing the applicable state law, with which they are [582]*582abundantly familiar,6 in addition to the federal law which has circumscribed this action so far.

In sum, defendants have not shown that plaintiffs’ amendment will unduly prejudice their ability to defend their lawsuit. Plaintiffs’ motion to amend their complaint is therefore granted nunc pro tunc as of the date of the initial complaint.

II. PLAINTIFFS’ MOTION FOR CLASS ACTION CERTIFICATION

Plaintiffs move for certification of both a plaintiff class and a defendant class.7 They request that the plaintiff class include all pre-trial detainees held in New York State county jails which, as a general rule, do not operate a contact visitation program for pre-trial detainees and which are not the focus of another lawsuit requesting contact visits. The proposed defendant class is comprised of all sheriffs in charge of the county jails where the plaintiff class members are confined.

As a threshold matter, Monroe County defendants suggest that class certification of this action must be denied because so much time has elapsed since the lawsuit was remanded to this court. To support their argument, they point to Fed.R.Civ.P. Rule 23(c)(1) which requires, “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” Defendants protest that class certification at this late date would violate this rule particularly because the parties have undergone many changes in the interim.

Defendants’ position is not convincing. As I explained to the parties at oral argument on July 7, 1981, any delay in deciding the class certification motion was occasioned by the court’s desire to give the sheriffs a first opportunity to rectify the problems.8 Plaintiffs stated at oral argument and in a subsequent letter memorandum dated August 6, 1981 that thirty-five county jails still have no operable contact visitation program. Inasmuch as the alleged constitutional violations persist and there is now no arguable state court bar to the sheriffs’ obligation to provide such programs, see footnote 8, I find that class certification at this time would be well within the bounds of timeliness and practicality.

Class certification, of course, cannot obtain unless the other requirements of Rule 23 of the Federal Rules of Civil Procedure are also present. The strict requirements of Rule 23 govern class certification of both plaintiff and defendants classes. Marcera v. Chinlund, 595 F.2d at 1237; Note, Defendant Class Actions, 91 Harv.L. Rev. 630, 633 (1978). The moving party must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law and 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 [583]*583the interests of the class. In addition one of the three conditions of Rule 23(b) must be met. Because a defendant class presents potentially more difficult problems than a plaintiff class, it is logical to consider first whether the putative defendant class qualifies for certification. See generally Williams, J., Some Defendants Have Class: Reflections on the GAP Securities Litigation, 89 F.R.D. 287, 290-93 (1981).

A. Defendant Class

1. Numerosity

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91 F.R.D. 579, 33 Fed. R. Serv. 2d 695, 1981 U.S. Dist. LEXIS 14757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcera-v-chinlund-nywd-1981.