The opinion
UNITED STATES DISTRICT COURT 2/1/ 2021
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EASTERN DISTRICT OF NEW YORK
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LONG ISLAND OFFICE
MATTHEW JOSEPH MCAVOY,
Plaintiff,
ORDER
-against- 21-CV-0349(JS)(ST)
SUFFOLK COUNTY and SUFFOLK COUNTY JAIL,
Defendants.
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APPEARANCES:
For Plaintiff: Matthew Joseph McAvoy, 18-A-2287, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, New York 13024
For Defendants: No appearances.
SEYBERT, District Judge:
On January 20, 2021, pro se plaintiff Matthew Joseph
McAvoy (“Plaintiff”), who is incarcerated, commenced this action
by filing a Complaint along with an application to proceed in forma
pauperis (“IFP”) and an application for the appointment of pro
bono counsel. (Compl., ECF No. 1; IFP Mot., ECF No. 2; Counsel
Mot., ECF No. 3.) Upon review of Plaintiff’s declaration
submitted in support of his IFP application, the Court finds that
Plaintiff is qualified by his financial status to commence this
action without prepayment of the filing fee. Accordingly,
Plaintiff’s application to proceed in forma pauperis is GRANTED.
Pursuant to this Court’s January 23, 2012 Consolidation
Order in Butler, et al. v. DeMarco, et al., No. 11-CV-2602 (JS)(ST)
(E.D.N.Y.) (the “Consolidated Action”), the Court has reviewed the
instant Complaint and finds that it relates to the subject matter
of the Consolidated Action. (Consol. Order, No. 11-CV-2602, ECF
No. 327.) Accordingly, this action shall be consolidated with the
Consolidated Action. This affects Plaintiff in the following
ways:
1. Plaintiff in this action shall become a member of the
certified classes in Butler (No. 11-CV-2602);1
1 The classes are defined as follows:
(1) [A]n Injunctive Class comprised of all
persons who, now or at any time in the future,
are or will be detainees or prisoners in the
custody of the Suffolk County Sheriff=s
Department and housed in the SCCF [Suffolk
County Correctional Facility], with separate
subclasses for those persons detained in
Riverhead and Yaphank; and
(2) [A] Damages Class comprised of all persons
who are or were detainees or prisoners in the
custody of the Suffolk County Sheriff’s
Department and housed in the SCCF and who were
or will be released from the SCCF on or after
April 5, 2009, with separate subclasses for
those persons detained in Riverhead and
Yaphank.
(See Aug. 29, 2016 Order, No. 11-CV-2602, ECF No. 428, at 2-3.)
On August 29, 2016, in the Consolidated Action, this Court adopted
then-Magistrate Judge Gary R. Brown’s Report and Recommendation
and granted the Consolidated Action Defendants’ cross motion to
amend the class definitions to “exclude all Suffolk County
Correctional Facility inmates ‘who were or have been housed
exclusively at the new jail facility in Yaphank, New York.’” (Id.
at 3-5.)
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2. Any claims in the instant Complaint that are not
included in the Consolidated Amended Complaint in Butler
shall be severed (see Consol. Order at 17 (describing
the process for proceeding with any severed claims after
the resolution of the Consolidated Action)); and
3. Plaintiff, as a member of the class, shall be
represented by pro bono counsel, Shearman & Sterling
LLP.2 Accordingly, Plaintiff’s application for the
appointment of pro bono counsel is DENIED as moot.
A copy of the Consolidation Order and the Consolidated Amended
Complaint (the operative Complaint) in Butler are annexed to this
Order.
If Plaintiff does not wish to proceed as a member of the
Consolidated Action, he must inform the Court, in writing, within
thirty (30) days after receiving a copy of this Order. Upon
receipt of such a letter, the Court will direct the Clerk of the
Court to sever this Complaint from the Consolidated Amended
Complaint and reopen and reinstate this individual pro se action.
For the foregoing reasons, Plaintiff’s application to
proceed in forma pauperis (ECF No. 2) is GRANTED and his
application for the appointment of pro bono counsel (ECF No. 3) is
2 Counsel’s mailing address is:
Daniel Hector Rees LaGuardia
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Counsel’s telephone number is: (212)848-4000.
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DENIED as moot. The Clerk of the Court is directed to CONSOLIDATE
this matter with Butler, et al. v. DeMarco, et al., No. 11-CV-
2602; to mail a copy of this Order, the Order of Consolidation
(No. 11-CV-2602, ECF No. 327), and the Consolidated Amended
Complaint (No. 11-CV-2602, ECF No. 334) to Plaintiff at his last
known address; and to mark this case CLOSED.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-
45 (1962).
SO ORDERED.
_/s/ JOANNA SEYBERT_______
Joanna Seybert, U.S.D.J.
Dated: February 1 , 2021
Central Islip, New York
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