The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANDRAE HALL, DONTE THOMAS, SEAN ROSE,
PATRICK GUILLAUME, KENNETH REGAN,
and JEREMY TONEY,
Plaintiffs,
ORDER
-against- 21-CV-0006(JS)(ST)
SUFFOLK COUNTY CORRECTIONAL FACILITY
WARDEN FRANCHIE,
Defendant.
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APPEARANCES:
For Plaintiffs: Andrae Hall, 753586, pro se
Donte Thomas, pro se
Sean Rose, pro se
Patrick Guillaume, 760728, pro se
Kenneth Regan, pro se
Jeremy Toney, 689969, pro se
Suffolk County Correctional Facility
110 Center Drive
Riverhead, New York 11901
For Defendant: No appearance.
SEYBERT, District Judge:
On January 4, 2021, plaintiffs Andrae Hall (“Hall”),
Donte Thomas (“Thomas”), Sean Rose (“Rose”), Patrick Guillaume
(“Guillaume”), Kenneth Regan (“Regan”), 1 and Jeremy Toney
(“Toney”), who are incarcerated and proceeding pro se, filed a
1 Kenneth Regan is listed on the Notice of Petition (see Compl. at
ECF p. 7), among other places, but not on the cover page of the
Complaint (see id. at ECF p. 1.)
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Complaint in this Court pursuant to 42 U.S.C. § 1983. (Compl.,
ECF No. 1.) For the reasons that follow, the claims brought by
Thomas, Rose, and Regan are DISMISSED WITHOUT PREJUDICE; Hall,
Guillaume, and Toney are GRANTED leave to proceed in forma
pauperis; and this action is CONSOLIDATED with Butler, et al. v.
DeMarco, et al., No. 11-CV-2602 (JS)(ST) (E.D.N.Y.).
I. Claims Brought by Plaintiffs Thomas, Rose, and Regan are
Dismissed Without Prejudice
Only Hall signed the Complaint and completed an
application to proceed in forma pauperis (“IFP”) and the required
Prisoner Litigation Reform Authorization (“PLRA”) form. (See
Compl.; IFP Mot., ECF No. 3; PLRA Form, ECF No. 2.) Accordingly,
by Notice of Deficiency dated January 6, 2021, the Court notified
Plaintiffs Thomas, Rose, Guillaume, Regan, and Toney that they
must return a signed copy of the Complaint and either remit the
filing fee or complete and return an IFP application and PLRA form,
which were provided by the Court. (Notice of Def., ECF No. 5.)
Notice sent to Thomas at his address of record was
returned to the Court and marked “discharged” and “unable to
forward” (see ECF No. 9) and, to date, he has not updated his
address nor has he otherwise communicated with the Court.
Further, to date, Plaintiffs Rose and Regan have not complied with
the Notice nor have they otherwise communicated with the Court
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regarding this case. Accordingly, claims brought by Plaintiffs
Rose, Thomas, and Regan are DISMISSED WITHOUT PREJUDICE pursuant
to Federal Rule of Civil Procedure 41(b).
II. Plaintiffs Hall, Guillaume, and Toney are Granted Leave to
Proceed In Forma Pauperis
After the Court mailed the Notices of Deficiency,
Plaintiff Toney timely filed a signed copy of the Complaint and
Plaintiffs Toney and Guillaume timely completed and filed IFP
applications and PLRA forms. (Guillaume PLRA Form, ECF No. 7;
Guillaume IFP Mot., ECF No. 8; Toney PLRA Form, ECF No. 12; Toney
IFP Mot., ECF No. 14;2 Toney Compl., ECF No. 10.) Upon review of
the declarations submitted by Hall, Guillaume, and Toney
(hereinafter, “Plaintiffs”) in support of their IFP applications,
the Court finds that they are qualified by their respective
financial status to commence this action without prepayment of the
filing fee. Accordingly, the applications to proceed in forma
pauperis are GRANTED.
III. This Action is Consolidated with the Consolidated Action
Pursuant to this Court’s January 23, 2012 Consolidation
Order in Butler, et al. v. DeMarco, et al., No. 11-CV-2602 (JS)(ST)
2 Toney originally submitted an incomplete IFP application.
(Toney First IFP Mot., ECF No. 11.) The Court sent Toney a second
Notice of Deficiency (ECF No. 13) and, on or around February 16,
2021, Toney submitted an updated IFP application (see ECF No. 14).
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(E.D.N.Y.) (the “Consolidated Action”), the Court has reviewed the
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 Plaintiffs in the following
ways:
1. Plaintiffs in this action shall become a member of the
certified classes in Butler (No. 11-CV-2602);3
3 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. Plaintiffs, as members of the class, shall be
represented by pro bono counsel, Shearman & Sterling
LLP.4
A copy of the Consolidation Order and the Consolidated Amended
Complaint (the operative Complaint) in Butler are annexed to this
Order.
If Plaintiffs do not wish to proceed as members of the
Consolidated Action, they 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.
CONCLUSION
For the foregoing reasons, Plaintiffs’ applications to
proceed in forma pauperis (ECF Nos. 3, 8, and 14) are GRANTED and
this action is CONSOLIDATED with the Consolidated Action. The
4 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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claims brought by Thomas, Rose, and Regan are DISMISSED WITHOUT
PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b).
The Clerk of the Court is directed to terminate the
motion pending at ECF No. 11; consolidate this action with Butler,
et al. v. DeMarco, et al., No. 11-CV-2602; 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 Plaintiffs Hall, Guillaume, and Toney at their addresses
of record; mail a copy of this Order to Plaintiffs Thomas, Rose,
and Regan at their addresses of record; and 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: March 4 , 2021
Central Islip, New York
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