Brennan v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

DOMINICK BRENNAN, et al.,

Plaintiffs, MEMORANDUM & ORDER

-against- 19-CV-02054 (NGG) (CLP)

THE CITY OF NEW YORK, et al.,

Defendants.

ALALEKAN ABOUBAKAR, et al.,

Plaintiffs, 20-CV-01716 (NGG) (CLP)

-against-

THE CITY OF NEW YORK, et al.,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Pending before the court are motions for class certification in

Brennan v. City of New York and Aboubakar v. City of New York.

(Plaintiffs Memorandum of Law in Support of Motion for Class

Certification (“Mot.”) (Brennan Dkt. 138); Plaintiffs Memoran-

dum of Law in Support of Motion for Class Certification

{Aboubakar Dkt. 100).) Plaintiffs aliege in each case that the con-

ditions of confinement at Brooklyn Central Booking (“BCB”), a

New York City Police Department (“NYPD”) holding facility lo-

cated at 120 Schermerhorn Street, Brooklyn, New York, have

deprived them of their rights to due process under the Fourteenth

Amendment. (Third Amended Complaint (“Brennan TAC”)

(Brennan Dkt. 57) 4 1; First Amended Complaint (“Aboubakar

FAC”) (Aboubakar Dkt. 27) 41.) In both cases, Plaintiffs seek to

certify a class representing all detainees at the facility from “April

8, 2017, to the date on which Defendants are ordered to remedy

the unconstitutionally inhumane conditions in BCB, or otherwise

remedy those conditions” (the “Class Period”). (Brennan TAC 4

12; Aboubakar FAG § 12.)

For the following reasons, the motions to certify the classes in

each case are DENIED without prejudice.

I. BACKGROUND

A. Factual Background?

BCB is a pre-arraignment holding facility for detainees arrested

in Brooklyn. (Brennan TAC § 1.) The Named Plaintiffs are former

detainees at BCB who were held at BCB between 2016 and 2019,

each for less than thirty-six hours. (id. "| 28-36; Aboubakar FAC

| 28-41; Mot. at 11.)

Plaintiffs allege that while detained at BCB they experienced “in-

humane conditions of confinement” in violation of their rights

under the Due Process Clause of the Fourteenth Amendment.

(Brennan TAG § 1.) Specifically, Plaintiffs allege the following

conditions at BCB: (1) overcrowding; (2) unsanitary toilets; (3)

scattered garbage and inadequate sanitation; (4) vermin infesta-

tion; (5) a lack of toiletries and hygienic items; (6) inadequate

nutrition and water; (7) extreme temperatures and poor ventila-

tion; (8) crime and intimidation; and (9) sleep deprivation.

(Brennan TAC §§ 37-46.) These are the same general conditions

that the Second Circuit held could support a due process claim

against BCB in Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017), (See

Brennan TAC § 2 (citing Darnell, 849 F.3d at 26, 36).) Plaintiffs

allege that the conditions reviewed in Darnell have persisted de-

spite the Defendants being put on notice of the conditions by that

1 In resolving the motion to certify the class, the court draws from the Bren-

nan Third Amended Class Action Complaint and Aboubakar First Amended

Complaint. (See generally Brennan TAC; Aboubakar FAC.) The court has

also considered the declarations (and attached exhibits) submitted by the

Plaintiffs. These include the declaration of Stephen Bergstein, Esq. in sup-

port of motion for class certification (“Bergstein Dec!.”) (Dkt. 142), and the

reply declaration of Stephen Bergstein, Esq. in further support of motion

for class certification (“Second Bergstein Decl.”) (Dkt. 141).

case, letters, and news reports. (Brennan TAC % 3, 21-27.)

Plaintiffs allege that because these inhumane conditions per-

sisted, Defendants deprived the entire Proposed Class—every

detainee at BCB since April 8, 2017—~of their due process rights.

(Brennan TAC 4 1, 3-4, 37.)

Defendants are the City of New York and officers and employees

of the NYPD and the Department of Citywide Administrative Ser-

vices (collectively “Defendants”). (Brennan TAC 4 1.) Plaintiffs

allege that the officer-Defendants, acting under color of law at all

relevant times, oversaw BCB and were responsible for maintain-

ing BCB’s conditions. (id. (4 11, 15, 47.) Plaintiffs also allege

that these individuals were aware of BCB’s inhumane conditions

of confinement due to personal observation, official documents,

news reports, complaints, and prior lawsuits. (fd. {4 49-54.) Fur-

ther, Plaintiffs allege that despite being on notice, Defendants did

not take remedial measures to correct these conditions and oth-

erwise failed to act, thereby “tacitly authoriz[ing]” the facility’s

inhumane conditions. Ud. "4 56, 58.)

B. Procedural Background

Dominick Brennan, along with six others, filed the first Com-

plaint in this case on April 9, 2019. (Brennan Compl. (Dkt. 1).)

They filed the operative Third Amended Complaint on November

17, 2020. (See generally Brennan TAC.) Olakean Aboubakar,

along with additional Plaintiffs, brought suit against the same

Defendants on April 7, 2020 in a separate case, alleging the same

2 While the allegations focus on the same general conditions of confine-

ment at BCB, the actual facility at issue in Darnell, located at 275 Atlantic

Avenue, Brooklyn, New York, see Darnell, 849 F.3d at 22, differs from the

facility where members of the Proposed Class were detained, (Compl. 41).

BCB had been relocated by the time of the Circuit’s decision in February

2017. Darnell, 849 F.3d at 22. The motion papers and briefing do not make

clear whether the facility at 275 Atlantic Avenue is still in use as a holding

facility.

constitutional violations relating to the conditions at BCB. (See

generally Aboubakar Compl. (Aboubakar Dkt. 1).) Plaintiffs in

both cases (collectively “Plaintiffs”) now seek certification of the

same class of individuals held at BCB since April 8, 2017, alleging

that as detainees of BCB they were deprived of their due process

tights. (Brennan TAC { 1, 12; Aboubakar FAC 4 1, 12.)

Plaintiffs bring multiple claims under 42 U.S.C. § 1983, including

violation of due process, supervisory liability, and failure to in-

tervene, seeking both damages and injunctive relief. (See

Brennan TAC {{{ 1, 61-76; Aboubakar FAC 4 1, 66-81.) They also

bring a due process claim under the New York State Constitution.

(See Brennan TAC 1, 77-81; Aboubakar FAC §§ 1, 82-86.) Be-

cause the issues in both cases, Brennan and Aboubakar, are

“substantively identical” and the Defendants are the same, the

court granted the Plaintiffs’ request to consolidate the cases for

discovery purposes on January 25, 2021. (See Jan. 25, 2021

M&O (Brennan Dkt. 64) at 3-4.) Briefing on Plaintiffs’ motion for

class certification was completed on February 9, 2023. (See Mot.;

Opposition to Plaintiffs Motion for Class Certification (Opp.”)

(Brennan Dkt. 139); Plaintiffs’ Reply in Further Support of the

Motion (“Reply”) (Brennan Dkt. 140).)° Plaintiffs seek certifica-

tion of both a damages class under Federal Rule of Civil

Procedure (“Rule”) 23(b)(3) as well as an injunctive class under

Rule 23(b)(2). (Mot. at 9, 12.) In the event the court denies cer-

tification of a 23(b)(3) class, Plaintiffs alternatively seek

certification of an issue class under Rule 23(c)(4) to determine

liability. (id. at 16.)

Because the Plaintiffs in both cases seek to certify overlapping

classes, present essentially the same legal issues, filed briefing to-

gether, and rely on the same evidence of the conditions at BCB

3 Because of the similarities between the allegations and claims in both

cases, the court generally cites to the filings in Brennan.

to support their motions, the court considers the two Brennan

and Aboubakar motions for class certification together.

fl. LEGAL STANDARD

Class certification is governed by Rule 23, under which all class

actions must meet the following four requirements:

(1) the class is so numerous that joinder of all members is

impracticable (numerosity);

(2) there are questions of law or fact common to the class

(commonality);

(3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class (typicality); and

(4) the representative parties will fairly and adequately pro-

tect the interests of the class (adequate representation).

Fed. R. Civ. P. 23(a). The Second Circuit has also recognized an

implied fifth requirement of “ascertainability” which demands

that a class be “sufficiently definite so that it is administratively

feasible for the court to determine whether a particular individ-

ual is a member.” In re Petrobras Secs. , 862 F.3d 250, 264 (2d Cir.

2017) (quoting Brecher v. Republic of Argentina, 806 F.3d 22, 24

(2d Cir. 2015)).*

A class action must also satisfy the requirements of one of the

provisions of Rule 23(b), which sets out prerequisites for each of

three different types of class actions. Brown v. Kelly, 609 F.3d

467, 476 (2d Cir. 2010). Rule 23(b)(2), which allows certifica-

tion of a class sought by plaintiffs seeking injunctive relief, “is

appropriate ‘if the party opposing the class has acted or refused

to act on grounds that apply generally to the class, so that final

injunctive relief or corresponding declaratory relief is appropriate

4When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted, and all alterations are adopted.

respecting the class as a whole.” Id. (quoting Fed. R. Civ. P.

23(b)(2)). Rule 23(b) (3), which allows class members to recover

money damages, requires showings of predominance and supe-

riority to ensure that the class is sufficiently cohesive. Id. A class

may alternatively be certified under Rule 23(c)(4) “[w]hen ap-

propriate . . . to single out issues for class treatment[,]” even

when the requirements of Rule 23(b)(3) are not met. In re Nas-

sau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir.2006).

The “party seeking class certification must affirmatively demon-

strate [] compliance with the Rule [23 requirements.]” Wal-Mart

Stores, Inc. v. Dukes, 564 U.S, 338, 350 (2011). The district court

must determine whether plaintiffs demonstrate compliance

which may require resolving “factual disputes relevant to each

Rule 23 requirement” and establishing “whatever underlying

facts are relevant to a particular Rule 23 requirement[.]” In re

Initial Pub. Offerings Secs. Litig., 471 F.3d 24, 41 (2d Cir. 2006).

“While the plaintiffs pleadings are assumed to be true, the court

must nevertheless conduct a rigorous analysis to determine

whether a class action is appropriate, considering materials out-

side of the pleadings and weighing conflicting evidence as

necessary.” Jackson v. Bloomberg, L.P., 298 F.R.D 152, 159

(S.D.N.Y. 2014). “[T]he preponderance of the evidence standard

applies to evidence proffered to establish Rule 23’s require-

ments.” Teamsters Loc. 445 Freight Div. Pension Fund v.

Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008). While this

often requires a consideration of the merits of the underlying

claim, Wal-Mart, 564 U.S. at 351, a “determination as to a Rule

23 requirement is not binding on the trier of fact in its determi-

nation of the merits.” Johnson v. Nextel Comme’ns Inc., 780 F.3d

128, 138 (2d Cir. 2015).

Ii. DISCUSSION

Plaintiffs seek to certify a class composed of “all persons who □

were detained in BCB from April 8, 2017, to the date on which

Defendants are ordered to remedy the unconstitutionally inhu-

mane conditions in BCB, or otherwise remedy those conditions”

(the “Proposed Class”). (Brennan TAC 12; Aboubakar FAC 4

12.) This is essentially all detainees at BCB between April 8, 2017

and the present. (Brennan TAC { 1; Aboubakar FAC { 1.) Plain-

tiffs seek both monetary damages under Rule 23(b)(3) and

injunctive relief under Rule 23(b)(2). (Mot. at 9, 12-14.) As an

alternative to certification of a Rule 23(b) (3) class, Plaintiffs seek

to certify an “issue class” to determine liability pursuant to Rule

23(c)(4). Ud. at 16.)

The court reviews each of the Rule 23 requirements necessary to

certify the Proposed Class. It starts with the Rule 23(a) and as-

certainability requirements, and then turns to the requirements

for each type of class under Rule 23(b)(2), Rule 23(b)(3) and

Rule 23(c)(4).

A. Rule 23(a)

For a court to certify a class, plaintiffs must affirmatively show

that the Proposed Class meets the four Rule 23(a) requirements

(numerosity, typicality, commonality and adequacy of represen-

tation) as well as the implied fifth requirement ascertainability.

See Fed. R. Civ. P. 23(a); In re Petrobras, 862 F.3d at 264, For the

following reasons, the court finds that Plaintiffs meet each of

these requirements.

1. Numerosity

Numerosity requires that the Proposed Class be so large “that

joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1).

In this Circuit, “[n]umerosity is presumed for classes larger than

forty members.” Penn. Pub. Sch. Emps.’ Ret. Sys. V. Morgan Stan-

ley & Co., 772 F.3d 111, 120 (2d Cir. 2014); see also Consol. Rail

Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).

Precise calculation of the number of potential class members is

not required. In re Vivendi Univ., S.A. Secs. Litig., 242 F.R.D. 76,

83 (S.D.N.Y, 2007).

The Proposed Class includes all those detained at BCB between

April 8, 2017 and the present day, Plaintiffs identify 163,740 BCB

detainees between 2016 and 2019, (Mot. at 4}, suggesting that

the Proposed Class numbers in the hundreds of thousands. De-

fendants do not dispute that Plaintiffs meet the numerosity

requirement. (See generally Opp.) The court finds that the Class

is sufficiently numerous.

2. Commonality

Commonality requires showing that “there are questions of law

or fact common to the class.” Fed. R. Civ. P. 23(a)(2). A single

common question will suffice. Wal-Mart, 564 U.S. at 359. How-

ever, a single common question does not mean any common

question—what Rule 23(a)(2) requires is that plaintiffs’ claims

“depend upon a common contention [that is] of such a nature

that it is capable of classwide resolution[.]” Id. at 350. In other

words, plaintiffs must demonstrate that a common issue among

class members exists, “the determination of its truth or falsity will

resolve an issue that is central to the validity of each one of

[plaintiffs] claims in one stroke.” Id.

This requirement may be met where, although individual experi-

ences and conditions differ, class members’ injuries “derive from

a unitary course of conduct by a single system[.]” Marisol A. v.

Giuliani, 126 F.3d 372, 377 (2d Cir. 1997); see also Butler v Suf-

folk County, 289 F.R.D. 80, 98 (E.D.N.Y. 2013) (“[WJhat matters

to class certification [is] .. . the capacity of a classwide proceed-

ing to generate common answers apt to drive the resolution of

the litigation.”). Courts in this Circuit have therefore found com-

monality on this basis for classes alleging constitutional

violations by municipal systems. In Marisol A., for instance, the

Second Circuit affirmed the district court’s certification of a class

in a case challenging aspects of New York City’s child welfare

system where the court “identified as a common question of law

‘whether each child has a legal entitlement to the services of

which that child is being deprived” and a common question of

fact ‘whether defendants systematically have failed to provide

these legally mandated services.” 126 F.3d at 377 (quoting Mari-

sol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662, 690 (S.D.N.Y.

1996)). Although each child faced unique circumstances and the

allegations implicated different “statutory, constitutional and

regulatory schemes,” the Circuit concluded that the district court

did not err in finding that the allegations challenging the welfare

system presented common legal and factual issues. Id. at 376-77.

Similarly, in Butler the court granted certification where plaintiffs

challenged conditions of confinement at two facilities that made

up the Suffolk County Correctional Facility (“SCCF”). 289 F.R.D.

at 87, 103. Although brought before Darnell, the plaintiffs made

similar claims to those Plaintiffs now pursue—that the conditions

at the SCCF were so objectively inhumane as to deprive detainees

of their rights under the Eighth and Fourteenth Amendments of

the Constitution. id. at 87. In certifying both a damages and in-

junetive class, the court found that the plaintiffs met the

commonality requirement because “[w]hether the County was

aware of and deliberately indifferent to the conditions at the

SCCF is a common question subject to classwide resolution.” Id.

at 98 (citing Wal-Mart, 564 U.S. at 359).°

In both cases, Marisol A. and Butler, the courts considered and

found commonality despite the unique character of each individ-

ual plaintiffs’ experiences. In such circumstances, plaintiffs may

still demonstrate commonality when they allege systemic failures

that deprived the proposed class of their rights.

5 The court also divided the class into subclasses to consider the conditions

at each of the two separate facilities independently which allowed for an

additional common question as to whether each facility’s conditions fell

“below constitutionally acceptable standards.” Butler, 289 F.R.D. at 98.

Here, Plaintiffs allege that Defendants violated the Due Process

Clause of the Fourteenth Amendment by subjecting the class to

unconstitutionally inhumane conditions in BCB. (Brennan TAC

"{ 1, 16.). Whether this claim presents a common question under

Rule 23(a) (2) requires showing that (1) the court can determine

that Plaintiffs suffered an objective deprivation on a classwide

basis (i.e., that the court could resolve whether the conditions fell

below constitutional requirements for the entire class}; and (2)

BCB can be considered a “single system” such that Defendants

- were responsible for the Proposed Class’s injuries. See Marisol A.,

126 F.3d at 377. If so, the court could resolve common questions

central to the Proposed Class’s claims. Wal-Mart, 564 U.S. at 350.

If not, Plaintiffs’ claims would not give rise to common answers

and class certification would be inappropriate.

a. Objective Deprivation on a

Classwide Basis

To demonstrate an injury, Plaintiffs must meet the two Darnell

requirements. Plaintiffs must show: (1) that “the challenged con-

ditions were sufficiently serious to constitute objective

deprivations of the right to due process”; and (2) that “the of-

ficer[s] acted with at least deliberate indifference to the

challenged conditions.” 849 F.3d at 29. The deliberate indiffer-

ence prong can be met by assessing whether the defendant

“recklessly fail[e]d to act to mitigate the risk that the condition

posed to the pretrial detainee even though the defendant-official

knew, or should have known, that the conditions posed an exces-

sive risk to health or safety.” Id. at 32, 35-36, Each requirement

allows for an objective determination that a deprivation oc-

curred. Id. Because a court may determine whether each prong

is met based on objective criteria, the court could resolve whether

each member of the Proposed Class faced a common injury as

Plaintiffs allege, (Brennan TAC 15-16, 63-64). In other words,

a court may determine whether the Proposed Class suffered an

injury on a classwide basis.

10

Defendants argue that Plaintiffs’ individual experiences do not

allow for classwide resolution because courts must determine un-

constitutional conditions of confinement on a case-by-case basis.

(Opp. at 6 (citing Darnell, 849 F.3d at 30).) This, according to

Defendants, requires assessing each individual Plaintiffs experi-

ences at BCB and, if done on a classwide basis, would require the

court to effectively undertake the Darnell analysis “hundreds of

thousands of times.” (id.) Thus, according to Defendants, class

treatment is inappropriate for conditions of confinement cases—

apparently for any class, no matter its size—because a required

individual assessment of harm precludes a finding of a common

injury among class members.

However, Defendants misinterpret the case-by-case analysis re-

quired by Darnell. Darnell requires courts to consider “conditions

of confinement cases” on a “case-by-case basis” without using

“bright-line durational or severity limits.” 849 F.3d at 31, 37-38

(emphasis added). It does not, however, require case-by-case

analysis of each individual detainee. Determining whether con-

ditions of confinement are sufficiently serious to constitute an

objective deprivation in a particular case requires a fact intensive

analysis wherein courts consider the conditions’ aggregate im-

pact of relevant conditions on detainees. Id. at 30, For instance,

“Tulnsanitary conditions, especially when coupled with other

mutually enforcing conditions, such as poor ventilation and lack

of hygienic items (in particular, toilet paper), can rise to the level

of an objective deprivation.” Id. Thus, a court must take a close

look at the facility’s aggregate conditions to determine whether

an injury occurred, but a court need not assess each plaintiffs

individual subjective experience. See id. at 31 (“this Court... has

never imposed a requirement that pretrial detainees show that

they actually suffered from serious injuries.”). Individual and

unique conditions of confinement may, however, create separate

gradations of the injury and speak to damages. Id. at 31-32.

11

In sum, differences in plaintiffs’ experiences are expected in cases

alleging injuries due to a defendant’s systemic failures that create

a deprivation of rights, but they do not preclude the finding of

commonality. See, e.g., Hill v. County of Montgomery, No. 14-CV-

993 (BKS) (DJS), 2018 WL 3979590, at *8-9 (N.D.N.Y. Aug. 20,

2018) (finding commonality in case alleging unconstitutional

conditions of confinement); Butler, 289 F.R.D. at 98 (same);

Marisol A., 126 F.3d at 377 (affirming the district court’s finding

of commonality despite the presence of unique issues raised by

plaintiffs); Nat'l L. Ctr. on Homelessness & Poverty, R.L v. New

York, 224 F.R.D, 314, 322-24 (E.D.N.Y. 2004) (finding common-

ality was met for a class of homeless children in a case

challenging systemic failures in providing access to education de-

spite the “unique situation of each child”). Thus, whether the

Proposed Class faced a common injury can be considered on a

classwide basis.

b. Single System for Which

Defendants Are Responsible

Plaintiffs must also show that Defendants may be held responsi-

ble for the Proposed Class’s alleged classwide injury. In other

words, that BCB may be considered a “single system” for the pur-

pose of resolving the Proposed Class’s claims. Marisol A., 126

F.3d at 377. The parties dispute this, (Mot. at 7; Opp. at 11; see

also Brennan TAC 4{ 11, 47, 55), but Plaintiffs’ arguments that

BCB operates as a single system for which Defendants are respon-

sible are more persuasive.

Plaintiffs offer deposition testimony by Gary Strebel and Donna

Jones, former assistant chiefs within the NYPD’s Criminal Justice

Bureau (“CJB”}, to support the contention that CJB is responsible

for ensuring that conditions at BCB are safe and sanitary. (Ex. B

to Second Bergstein Decl. (“Strebel Dep.”) (Dkt. 141-2) at 37-38;

Ex. C to Second Bergstein Decl. (“Jones Dep.”) (Dkt. 141-3) at

12

10-11).) As detailed by Strebel and Jones, individual on-duty of-

ficers report up through a chain of command to higher-level CJB

officers, who are ultimately responsible to the first deputy com-

missioner of the NYPD, who in turn is ultimately responsible to

the Police Commissioner. (Strebel Dep. at 26-27; Jones Dep. at

11.) On-duty officers must also follow departmental guidelines

to ensure “prisoners were treated properly and that the facility

was maintained.” (Strebel Dep. at 125-26; see also Jones Dep. at

21, 153, 162-64.)

Defendants concede that “some of the conditions are governed

by departmental guidelines,” but argue that the “ultimate deci-

sionmaker” over the conditions at BCB is the on-duty

commanding officer. (Opp. at 11.) Because of this discretion, De-

fendants argue that there is no single source of responsibility for

the conditions at BCB, so commonality cannot be met. Ud, at 12.)

In making this argument, Defendants rely heavily on Wal-Mart.

(id,) In Wal-Mart, plaintiffs sought to certify a class of 1.5 million

current and former Wal-Mart employees, alleging companywide

discrimination against women in pay and promotion decisions in

violation of Title VII. 564 U.S. at 343. The Supreme Court re-

versed the lower court’s certification of the class, holding that the

class lacked commonality due, in large part, to the individual

managers’ discretion in hiring and pay decisions. Id. at 355-56.

Because of this discretion, even if there was discrimination in cer-

tain stores or in certain regions, plaintiffs would not be able to

demonstrate that there existed a companywide discriminatory

pay and promotion policy such that the company would be liable

for all proposed class members’ alleged injuries. Id. at 358-59.

Thus, plaintiffs did not present a common question. Id.

This case is readily distinguishable. The claims in Wal-Mart re-

lated to an amalgamation of individual decisions by local

managers across thousands of stores that led to pay and hiring

disparities. Id. at 355-56, While the pay and hiring decisions in

13

Wal-Mart were left to “local managers’ broad discretion,” id. at

343, Strebel and Jones’ testimony indicates that higher-level of-

ficers are ultimately responsible for conditions at BCB and that

facility-wide guidelines limit the discretion of on-duty officers,

(Strebel Dep. at 26-27; Jones Dep. at 11). Defendants offer little

to support the opposite conclusion—that only those on-duty are

responsible for BCB’s conditions and that there is not a common

source of oversight. They only point to statements by Strebel and

Jones that on-duty commanding officers had discretion over a

single decision: how many individuals were put in cells at a given

time. (Opp. at 11-12.) It would be absurd to find that giving dis-

cretion to lower-level officers over some decisions bars a finding

of commonality. See Wal-Mart, 564 U.S. at 355 (“To be sure, we

have recognized that, in appropriate cases, giving discretion to

lower-level supervisors can be the basis of Title VII liability[.]”).

Similarly, Defendants do little to dispute that guidelines limit dis-

cretion of individual officers, arguing only that the guidelines

covered “some of the conditions” at issue without detailing which

ones or their importance in maintaining the facility. (Opp. at 11.)

Thus, for the purpose of class certification, the court finds that

BCB operated as a single system susceptible to common assign-

ment of responsibility for the alleged injuries suffered by the

Proposed Class.

C. Conclusion

Because the Proposed Class’s injuries may be determined objec-

tively as a class and BCB may be considered a single system for

the purposes of assigning liability for these injuries, the court is

able to define a number of common questions. Specifically: (1)

whether the conditions at BCB were of such a condition that the

Class was deprived of their due process rights; (2) whether De-

fendants were aware or should have been aware of such

conditions; and (3) whether the City had or has a policy, practice

14

or custom that allows these facilities to remain in an unconstitu- ~

tional condition. Each of these questions is capable of classwide

resolution such that a determination of their “truth or falsity will

resolve an issue that is central to the validity” of Plaintiffs’ claims.

Wal-Mart, 564 U.S. at 350.

Thus, Plaintiffs meet the commonality requirement under Rule

23(a}(2).

3. Typicality

Rule 23(a)(3) requires that the “claims or defenses of the repre-

sentative parties are typical of the claims or defenses of the class,”

Fed. R. Civ. P. 23(a)(3). When the “sare unlawful conduct was

directed at or affected both the named plaintiffs and the prospec-

tive class, typicality is usually met.” Stinson v. City of New York,

282 F.R.D. 360, 371 (S.D.N.Y. 2012) (citing Robidoux v. Celani,

987 F.2d 931, 936-37 (2d Cir. 1993)). The commonality and typ-

icality requirements of Rule 23(a) tend to merge such that similar

considerations inform the analysis for both prerequisites. Wal-

Mart, 564 U.S. at 349 n.5; Marisol A., 126 F.3d at 376.

Here, this element is met for many of the same reasons that com-

monality is met. The Named Plaintiffs were detained at BCB for

the relevant time period and suffered injuries that they allege re-

sulted from the Defendants’ deliberate indifference to the

facility’s conditions. (See Bergstein Decl. { 2 (summarizing depo-

sition testimony from the Named Plaintiffs).) While the Named

Plaintiffs were detained in BCB at different times than other Pro-

posed Class members and experienced differences in their

conditions, the core of the claims—that Defendants maintained

unconstitutional conditions at BCB over the Class Period—tre-

main the same. See Scott v. Quay, 338 F.R.D. 178, 188 (E.D.N.Y.

2021) (“Minor variations in the fact patterns underlying the in-

dividual claims’ will not defeat typicality where ‘plaintiffs allege

that their injuries derive from a unitary course of conduct by a

15

single system.”) (quoting Robidoux, 987 F.2d at 936-37 and

Marisol A., 126 F.3d at 377); Stinson, 282 F.R.D. at 371.

Defendants consider commonality and typicality together and

provide similar arguments for why the court should find that nei-

ther requirement is met. (See Opp. at 4.) Specifically, Defendants

argue that the conditions must be considered on a case-by-case

basis, and that facility conditions are determined by the on-duty

commanding officer’s discretion. Ud.) The court reviewed each

of these arguments when considering commonality and rejects

them in the typicality context for similar reasons; Plaintiffs have

demonstrated a unitary system of responsibility over conditions

at BCB and their allegations and experiences at the facility are

typical of the Class.

Thus, the court finds that the typicality requirement is met here.

4. Adequacy of Representation

Rule 23(a)(4) requires that “representative parties will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P.

23(a)(4). “Generally, adequacy of representation entails inquiry

as to whether: 1) plaintiffs interests are antagonistic to the inter-

est of other members of the class and 2) plaintiffs attorneys are

qualified, experienced and able to conduct the litigation.” Baffa

v, Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d

Cir. 2000).

The “proposed class representative must have an interest in vig-

orously pursuing the claims of.the class, and must have no

interests antagonistic to the interests of other class members.”

Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006).

Certification may be denied “where the class representatives

have so little knowledge of and involvement in the class action

that they would be unable or unwilling to protect the interests of

the class against the possibly competing interests of the attor-

neys.” Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072,

16

1077-78 (2d Cir. 1995). However, “named plaintiffs are not ex-

pected to possess expert knowledge of the details of the case and

must be expected to rely on expert counsel.” Baffa, 222 F.3d at

61.

Here, Named Plaintiffs are adequate representatives of the Pro-

posed Class. Their experiences detained at BCB over the Class

Period reflect an understanding of the facility’s conditions, (Bren-

nan TAG {ff 28-36.); they have shown an interest in the litigation

by providing depositions relating to their experiences at BCB, (see

Bergstein Decl. § 2 (summarizing deposition testimony from the

Named Plaintiffs)); and their interests are aligned with the rest

of the Proposed Class given the common interest in showing that

conditions at BCB were unconstitutional and that Defendants are

responsible, (id.) Defendants do not dispute that the Named

Plaintiffs would adequately represent the Class. Thus, the Named

Plaintiffs do not present the rare case where certification would

be denied based on inadequate qualifications of plaintiffs. See

Butler, 289 F.R.D. at 100.

Plaintiffs’ counsel has been involved since the onset of this litiga-

tion and engaged in discovery on their behalf prior to the

certification motion. Plaintiffs’ counsel is also experienced repre-

senting class action plaintiffs in civil rights litigation. (See

generally Exs. 23-25, 27 to Bergstein Decl. (Brennan Dkts, 142-

23, 142-24, 142-24, 142-27).) Defendants do not dispute that

Plaintiffs’ counsel would adequately represent the Class.

Therefore, Plaintiffs have satisfied the adequacy requirement.

5. Ascertainability

In addition to the factors stated explicitly in Rule 23(a), the Sec-

ond Circuit has also developed an implied ascertainability

requirement that plaintiffs must meet prior to certifying a class.

In re Petrobras, 862 F.3d at 264. Ascertainability “requires only.

that a class be defined using objective criteria that establish a

17

membership with definite boundaries.” Id. However, it is “mod-

est” and does not require a “showing of administrative

feasibility at the class certification stage.” Id. at 265, 269.

Here, the Proposed Class can be defined based on objective cri-

teria: detention at BCB during the relevant Class Period.

Defendants presumably have access to this information, making

it administratively feasible to determine whether a particular in-

dividual is a member of the Proposed Class. Brecher, 806 F.3d at

24. Therefore, the Proposed Class is ascertainable.

6. Summary

Plaintiffs meet the four requirements—numerosity, commonal-

ity, typicality, and adequacy of representation—under Rule

23(a), as well as the implied fifth requirement of ascertainability.

To certify a class, however, Plaintiffs must also meet one of the

requirements under Rule 23(b) or be an appropriate vehicle to

resolve particular issues under Rule 23(c)(4). The court next

turns to these issues.

B. Rule 23(b)(2)

For injunctive relief to be appropriate under Rule 23(b)(2),

Plaintiffs must show that an injunction would be an indivisible

remedy and that at least one Named Plaintiff has standing to seek

the relief requested.

1. Indivisibility Under Rule 23(b)(2)

if a class seeks injunctive relief, the requested relief must “apply

generally to the class” so that this relief “is appropriate respecting

the class as a whole.” Fed. R. Civ. P. 23(b)(2)}. This does not re-

quire “that that the relief to each member of the class be identical,

only that it be beneficial.” Barrows v. Becerra, 24 F.4th 116, 132,

(2d Cir. 2022). “[D]ifferent class members can benefit differently

from an injunction.” Id. However, the injunction must still benefit

18

each member of the class. Berni v. Barilla S.p.A., 964 F.3d 141,

146 (2d Cir. 2020) (citing Wal-Mart, 564 U.S. at 360).

Here, Plaintiffs do not demonstrate that the injunctive relief re-

quested would apply generally to the Proposed Class such that

each member would benefit. The Proposed Class includes all

those previously detained at BCB since April 2017, such as indi-

viduals who have been incarcerated multiple times and may be

likely to be re-incarcerated at BCB again. (Mot. at 16.) Such in-

dividuals could reasonably benefit from improved conditions at

BCB. See Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 97-98

(2d Cir. 2015) (finding that this requirement was met for a class

that include plaintiffs who might still be subject to further action

by defendants who fraudulently procured default judgments

even. when their judgments had been vacated). However, the

Proposed Glass (over 150,000 former detainees) also undoubt-

edly includes individuals who face little to no risk of future

detention—for instance individuals who no longer live in the

state with no plans to return. Plaintiffs do not demonstrate that

these individuals would benefit from the injunctive relief sought

and therefore do not meet the requirements under Rule

23(b)(2). See Fed. R. Civ. P. 23(b)(2) (Rule 23(b)(2) certifica-

tion is appropriate when the relevant actions that plaintiffs seek

to enjoin “apply generally” to the class).

In arguing for certification under Rule 23(b) (2), Plaintiffs liken

their case to other civil rights class actions that this provision is

meant to address. (Mot. at 13-14.) However, unlike the Proposed

Class here, the classes in Plaintiffs’ cited cases were crafted to

include individuals that would generally benefit from the for-

ward-looking injunctive relief sought. In Marisol A., for instance,

the class was comprised of “all children who are or will be in the

custody of the New York City Administration for Children’s Ser-

vices, and those children who . . . are or will be at risk of neglect

or abuse and whose status is or should be known to ACS.” 126

19

F.3d at 375 (emphasis added). Other cases cited by Plaintiffs sim-

ilarly focus on those experiencing current or future harm that the

sought-after injunction would enjoin. See, e.g., Nicholson v. Wil-

liams, 205 F.R.D. 92, 95, 102. (E.D.N.Y. 2001) (certifying various

injunctive subclasses of children and custodians of children who

suffered continued harm from child welfare policies); Braggs v.

Dunn, 317 F.R.D. 634, 673 (M.D. Ala. 2016) (certifying a class

of “all persons with a serious mental-health disorder or illness

who are now, or will in the future be, subject to defendants men-

tal-heaith care policies and practices in ADOC facilities,” with

some exclusions) (emphasis added); Baby Neal ex rel Kanter v.

Casey, 43 F.3d 48, 60 (3d Cir. 1994) (reversing the district court’s

denial of class certification for a class of children who “are subject

to the risk that they will suffer from the same deprivations result-

ing from the DHS’ alleged violations”) (emphasis added); Butler,

289 F.R.D. at 103 (certifying a class of detainees who “now or at

any time in the future, are or will be detainees or prisoners in the

custody of the Suffolk County Sheriffs Department”) (emphasis

added); see also Natl L. Ctr. on Homelessness & Poverty, R.L 224

F.R.D. at 322-23 (certifying a class of children who “are living or

will live” in the relevant county and “have been, are, or will be

‘homeless’ as defined in the McKinney-Vento Act”) (emphasis

added). Plaintiffs here seek to certify a class composed of those

previously detained at BCB. Plaintiffs make no attempt to craft a

class that would benefit from forward-looking injunctive relief or

account for the different requirements for a class seeking dam-

_ ages as opposed to injunctive relief for its Proposed Class. Cf

Butler, 289 F.R.D. at 103 (approving separate subclasses for cur-

rent and future detainees seeking injunctive relief and present

and past detainees seeking monetary relief).

In sum, Plaintiffs do not demonstrate that an injunction address-

ing future conditions at BCB would provide an indivisible benefit

to aclass comprised almost entirely of prior detainees. Therefore,

20

Plaintiffs do not meet Rule 23(b)(2)’s requirement that the re-

quested relief applies generally to the Proposed Class.

2. Standing

Even if injunctive relief applied generally to the Proposed Class,

it is unclear whether Plaintiffs could demonstrate standing to

seek injunctive relief, which could also prevent certification un-

der Rule 23(b)(2).

The party invoking federal jurisdiction bears the burden of estab-

lishing standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992). They must show that they have suffered an injury in

fact—a concrete and imminent harm to a legally protected inter-

est that is fairly traceable to the challenged conduct and likely to

be redressed by the lawsuit. Jd, at 560-61. “[T]he presence of one

party with standing is sufficient to satisfy Article III's case-or-con-

troversy requirement.” Rumsfeld v. F. for Acad. and Inst. Rts., Inc.,

547 U.S. 47, 53 n.2 (2006); see also Biden v. Nebraska, 143 S. Ct.

2355, 2365 (2023). “[I]f none of the named plaintiffs purporting

to represent a class establishes the requisite of a case or contro-

versy with the defendants, none may seek relief on behalf of

himself or any other member of the class.” O’Shea v. Littleton, 414

U.S. 488, 494 (1974); see also Amador v. Andrews, 655 F.3d 89,

99 (2d Gir, 2011) (“[A] class action cannot be sustained without

a named plaintiff who has standing.”).

Even if practices that caused injury are widespread and persist, a

plaintiff does not have standing to enjoin such conduct if they

cannot demonstrate “any real or immediate threat that they will

be wronged again-~a likelihood of substantial and immediate ir-

reparable injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 111

(1983). Demonstrating standing is often difficult for plaintiffs

seeking to enjoin allegedly unconstitutional conduct by law en-

forcement because of the need to show a sufficient “likelihood of

a future encounter with the [j police” leading to injury. Shain v.

Ellison, 356 F.3d 211, 215 (2d Cir. 2004); Lyons, 461 U.S. at 111.

al

In O’Shea, for instance, plaintiffs sought to enjoin a county’s “un-

constitutional and selectively discriminatory enforcement and

administration of criminal justice[.]” 414 U.S. at 491. However,

because the O’Shea named plaintiffs could not show a real or im-

minent threat that they would be harmed by the challenged

practices, they did not have standing to bring the claim. Id. at

497-99.

Plaintiffs here face a similar problem because “[p]retrial deten-

tion is by nature temporary[.]” Gerstein v. Pugh, 420 U.S. 103,

110 n.11 (1975). None of the Named Plaintiffs were detained at

BCB at the time they brought this suit, (Brennan TAC { 28), so

Plaintiffs cannot demonstrate standing to enjoin a current ongo-

ing injury due to the unconstitutional conditions at BCB.

Recognizing this, Plaintiffs instead argue that they face a substan-

tial threat of future deprivations because at least some of the

Named Plaintiffs are likely to be detained there again and sup-

port this likelihood by noting that multiple Named Plaintiffs were

arrested and detained at BCB on several different occasions.

(Mot. at 16.) One Named Plaintiff, Dwight France, has been de-

tained at BCB seven times between November 2017 and

December 2019, (Bergstein Decl. at 7)—each detention appar-

ently a result of driving with a suspended license, (Ex. 12 to

Bergstein Decl. (Brennan Dkt. 142-12) at 25-26).

Past confinement does not itself demonstrate standing, but it

may provide useful “evidence bearing on whether there is a real

and immediate threat of repeated injury.” O’Shea, 414 U.S. at

496. The court agrees that Plaintiffs’ multiple arrests indicates

that Named Plaintiffs such as France face a greater likelihood of

future injury than the plaintiffs in Lyons, O’Shea, and other fol-

low-on cases relating to allegedly unconstitutional but transitory

practices by police officers. In Lyons, the Court found that the

plaintiff did not have standing because the police did not have a

general policy of inflicting chokeholds on Los Angeles citizens,

22.

and it was too speculative that the police would both (1) stop

Lyons again and (2) use an illegal chokehold on him. Lyons, 461

U.S. at 104, 108. In O’Shea, the court found plaintiffs did not

have standing in part because plaintiffs provided only “general

assertions or inferences” that they would be subject to future ar-

rest and assumed Plaintiffs would not break the law again in the

future. O’Shea, 414 U.S. at 497-98. And in Shain, the court de-

termined that the plaintiff did not have standing because he had

not been re-arrested in the year since the action was brought, did

not have any further encounters with police and that even if he

were to be re-arrested, it was “entirely conjectural that [the plain-

tiff] would be detained overnight and remanded to the NCCC”

and that a strip search would occur without “particularized rea-

sonable suspicion that he is concealing contraband.” 356 F.3d at

213, 215-16. Here, by contrast, France was arrested seven times

(indicating a likelihood of re-arrest) and there is a more immedi-

ate path for Named Plaintiffs to suffer a future injury—arrest and

detention in BCB (since Plaintiffs allege that these unconstitu-

tional conditions persist and subject every detainee to an

objective deprivation). Thus, the present matter does not involve

the same level of conjecture or series of inferences that preciuded

standing in these cases.

On the other hand, if the deprivation is the result of a Named

Plaintiffs continued illegal activity, standing may be improper

because the court should assume that a plaintiff will follow the

law. See O’Shea, 414 U.S. at 497 (“We assume that respondents

will conduct their activities within the law and so avoid prosecu-

tion and conviction as well as exposure to the challenged course

of conduct said to be followed by petitioners.”); see also Lyons,

461 U.S. at 103. Plaintiffs cite Floyd v. City of New York, 283

F.R.D. 153 (S.D.N.Y. 2012) to support their argument that the

likelihood of recurring encounters with police could establish

standing, but this case is meaningfully distinguishable from

23

Floyd, (Mot. at 16.) In Floyd, the court found standing for plain-

tiffs representing a class challenging the NYPD’s stop-and-frisk

policy because the named plaintiffs’ record of being stopped mul-

tiple times demonstrated a non-speculative likelihood of future

harm, Id. at 159, 169. However, the court also noted that, unlike

in Lyons and Shain, the injury at issue did not depend on future

arrest for unlawful conduct because plaintiffs were often stopped

without reasonable suspicion of criminal activity. Id. at 167, 169-

70. The scale of the practice (with the NYPD conducting over

1,200 stops each day) also made it more likely named plaintiffs

would be subject to a future deprivation due to the challenged

policy. Id, at 170.

Here, Named Plaintiffs do not establish that they can avoid re-

arrest by refraining from engaging in future illegal activities and

do not allege that the NYPD arrested the Named Plaintiffs with-

out probable cause. Plaintiffs reference the idea that Plaintiffs

may be arrested without committing a future infraction by noting

the dismissal of some charges against Plaintiffs. (Mot. at 16.)

However, simply pointing out that some charges were dismissed

is insufficient to show Plaintiffs were arrested and placed in BCB

without committing any infraction and face a significant likeli-

hood of this recurring in the future. For instance, Named Plaintiff □

Dwight France was arrested and placed in BCB seven times due

to a suspended license, (Ex. 12 to Bergstein Decl. at 25-26), but

Plaintiffs do not discuss whether France can avoid re-arrest by

simply not driving with a suspended license. Absent discussion of

whether they can avoid re-arrest, or alternatively, why commit-

ting further infractions does not matter for the purposes of

standing, Plaintiffs are likely unable to demonstrate standing to

certify a class to pursue injunctive relief.

To summarize, despite multiple prior arrests, demonstrating

standing is challenging for Plaintiffs without a greater discussion

of the likelihood of re-arrest and how this likelihood may be due

24

to Named Plaintiffs’ continuing to engage in illegal activity. How-

ever, because Plaintiffs do not meet the indivisibility requirement

under Rule 23(b)(2), the court need not rule that Named Plain-

tiffs lack standing.

Cc. Rule 23(b){3)

To certify a class under Rule 23(b)(3) Plaintiffs must show that

(1) “questions of law or fact common to class members predom-

inate over any questions affecting only individual members”; and

(2) “a class action is superior to other available methods for fairly

and efficiently adjudicating the controversy.” In re Petrobras, 862

F.3d at 260 (citing Fed. R. Civ. P. 23(b)(3)). The court reviews

each of these requirements in turn.

1. Predominance

Rule 23(b)(3)’s predominance requirement “also speaks in terms

of commonality, [but] it imposes a ‘far more demanding’ in-

quiry” than Rule 23{a)(2). Sykes, 780 F.3d at 87 (quoting

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)).

While Rule 23(a)(2) requires only a single common fact or ques-

tion, Rule 23(b)(3) considers all factual or legal issues to

determine whether issues “that are subject to generalized proof,

and thus applicable to the class as a whole predominate over

those issues that are subject only to individualized proof.” Cordes

& Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91,

107-08 (2d Cir. 2007).

The purpose of the predominance requirement is to “ensure[]

that the class will be certified only when it would ‘achieve econ-

omies of time, effort, and expense, and promote uniformity of

decision as to persons similarly situated, without sacrificing pro-

cedural fairness or bringing about other undesirable results.” Id.

at 104 (quoting Amchem, 521 U.S. at 615). While common issues

must predominate, this requirement still allows for some individ-

ualized issues among members of the class. Sykes, 780 F.3d at

25

81. Included among the relevant individual or common issues

evaluated under Rule 23(b)(3) is the potential need to calculate

class members’ damages on an idnividuazlied basis. Roach v. T.L.

Cannon Corp., 778 F.3d 401, 408 (2d Cir. 2015) (“the fact that

damages may have to be ascertained on an individual basis is ...

a factor that we must consider in deciding whether issues suscep-

tible to generalized proof ‘outweigh’ individual issues.”).

However, the need to meastire individualized damages does not

alone defeat predominance. Id. at 407. As with the Rule 23(a)(2)

commonality requirement, the court’s predominance analysis of-

ten requires a consideration of plaintiffs’ underlying claims,

Nextel Comme'ns Inc., 780 F.3d at 138.

Here, the Proposed Class is composed of individuals de-

tained at BCB between April 2017 and the present, during which

time the conditions of confinement were purportedly so inhu-

mane that each detainee was deprived of their due process rights.

(Brennan TAC { 1.) As reviewed when discussing commonality,

the Proposed Class’s injuries could be determined objectively and

BCB may be seen as a single unitary system; therefore, common

questions for the court are whether the Proposed Class suffered

from an objective deprivation and whether Defendants’ alleged

deliberate indifference to BCB’s conditions make them liable for

the Proposed Class’s resulting injuries.

However, the Proposed Class has too many individualized

issues for Plaintiffs to satisfy Rule 23(b)(3)’s predominance re-

quirement. Plaintiffs allege the following conditions at BCB that

when considered in the aggregate deprived Proposed Class mem-

bers of their right to due process: (1) overcrowding; (2)

unsanitary toilets; (3) scattered garbage and inadequate sanita-

tion; (4) vermin; (5) a lack of toiletries and hygienic items; (6)

inadequate nutrition and water; (7) extreme temperatures and

poor ventilation; (8) crime and intimidation; and (9) that detain-

ees cannot sleep in the cells. (Brennan TAC §§ 37-46.) These

26

alleged conditions will impact Proposed Class members differ-

ently such that the “gradation{s] between the conditions of

confinement” for each class member will result in the need to

separately calculate damages for each Proposed Class member.

See Darnell, 849 F.3d at 37-38. For a class of this size, covering

this length of time, the many individual considerations of class

members’ conditions outweigh the Proposed Class’s common is-

sues.

If Plaintiffs succeeded in proving liability, the degree of

injury (and therefore damages) for each Proposed Class member

will depend on many factors including: length of detention; the

recency of the facility’s cleaning and maintenance; how crowded

the cells were; whether the Proposed Class member was detained

with inmates that posed a risk to health or safety; the condition

of the toilets at the facility; and where in the facility they were

detained. Proposed Class members’ degree of injury will also de-

pend on external factors such as: whether the member was

detained at the height of COVID-19; whether they were detained

in the winter or summer; and whether they were detained when

the facility as a whole was relatively crowded. In addition, Pro-

posed Class members’ injury may depend on idiosyncratic

characteristics of each Proposed Class member. For instance,

Latoya Holmes-McFadden, testified that she was in the fourth

month of a high-risk pregnancy when she was detained at BCB

and denied medical treatment while at the same time subject to

BCB’s “inhumane” conditions. (Ex. 14 to Bergstein Decl. (Bren-

nan Dkt. 142-14) at 36.) Other Named Plaintiffs testified that

they were unable to obtain medication for blood pressure or

heart disease. (E.g. Ex. 1 to Bergstein Decl. (Brennan Dkt. 142-1)

at 44-45.) These unique circumstances could impact the degree

of injury and damages owed to each Proposed Class member

given the fact-specific inquiry courts take when considering both

deprivation and damages in conditions of confinement cases.

Darnell, 849 F.3d at 37-38. To be sure, many detainees point to

a7

similar conditions in the facility. (See, e.g., Bergstein Decl. at 35

(“[Nlearly every Plaintiff saw cockroaches in the holding cells,

sometimes crawling on the walls and ceilings.”).) But given the

size of the Proposed Class, these similar conditions do not out-

weigh the many unique conditions that the over 150,000

Proposed Class members faced at BCB.®

Plaintiffs acknowledge the individualized damages issues present

in this case but argue that predominance is still met either be-

cause the individual damages issues are minor or because the

common issues are so significant that they outweigh individual

issues. Plaintiffs argue that the need for individual damages cal-

culations should not defeat predominance because there are

ways for the court to manage individualized damages calcula-

tions as they arise such as: “trial bifurcation, assignment to a

magistrate judge or special master for damages calculations, or

decertification and notice after a liability determination.” (Mot.

at 10 (quoting Scott, 338 F.R.D. at 190).) However, while such

tools may exist, they do not remove the need to consider dam-

ages issues when determining predominance. Roach, 778 F.3d at

408. In addition, given the nature of the claims, the injuries here

are unlikely to be amenable to formulaic consideration of dam-

ages which some courts have found also weighs against finding

predominance. See Newberg on Class Actions § 4:54 (citing

6 The court is aware of ongoing litigation in Capobianco v. City of New York,

21-CV-6125 (LDH) (VMS) (E.D.N.Y.), in which plaintiffs proposed a class

defined as “{a]il pre-arraignment detainees in City of New York’s Central

Booking facilities from February 3, 2020 to the present.” See Capobianco

y. City of New York, 21-CV-6125 (LDH) (VMS), Dkt. 101 at 4 (ED.N.Y.).

The court takes no position on whether the narrower time period proposed

in Capobianco and the focus on the impact to detainees from the COVID-

19 pandemic, see id., could address some of the deficiencies discussed in

this Memorandum and Order such that class certification in that case

would be appropriate.

28

McLaughlin v. American Tobacco Co., 522 F.3d 215, 231 (2d Cir.

2008)).

Plaintiffs also argue that predominance is met because the Pro-

posed Class members’ injuries derive “from a unitary course of

conduct by a single system.” (Reply at 7.) However, Plaintiffs do

not cite any authority to support this contention—that allega-

tions against a “single system” alone—sufficiently demonstrates

predominance. Rather, as is the case generally, “the balance must

tip such that [] individual issues predominate.” Sykes, 780 F.3d

at 87.

Lastly, Plaintiffs analogize this case to Scott v. Quay where the

court certified a class under Rule 23(b)(3), (Mot. at 9-10 (citing

338 F.R.D. at 189-190)), but the size of the class and the length

of the class period make Scott meaningfully different from this

case, In Scott, the plaintiffs brought claims under the Federal Tort

Claims Act (“FTCA”), alleging negligence relating to a power out-

age at the Metropolitan Detention Center that led to inhumane

conditions that posed a substantial risk to plaintiffs’ health and

safety. 338 F.R.D. at 182-83. The plaintiffs sought certification of

a class “consisting of all those people who were confined in the

Metropolitan Detention Center’s West Building from January 27, □□

2019 until February 3, 2019, and who have or will in the future

have satisfied the exhaustion requirement imposed by the FTCA.”

Id, at 186. Thus, the class thus covered a week-long period and

included approximately 1,694 members. Id. at 187. There were

significant individualized issues among the inmates, see, e.g., id.

. at 185 (reviewing one inmate’s inability to receive kidney medi- -

cation), which, as noted, do not alone defeat class certification.

However, the class experienced the same general conditions with

the court noting that the “claims all involve allegations of negli-

gence against the same actors, arising from the same conduct,

affecting claimants who were all housed in the same building at

the same time in the same or similar ways.” Id. at 190, After

29

weighing both individual and common issues, the district court

found that some plaintiffs’ “unique injuries” did not predominate

“over the common duty, breach, and injury questions” central to

the Scott plaintiffs’ negligence claim. Id.

Here, “questions affecting only individual members,” Fed. R. Civ.

P, 23(b)(3), are far more significant than in Scott such that they

outweigh the common issues. Common issues here include: (1)

whether the conditions at BCB were of such a condition that the

Class was deprived of their due process rights; (2) whether De-

fendants were aware or should have been aware of such

conditions; and (3) whether the City had or has a policy, practice

or custom. that allows these facilities to remain in an unconstitu-

tional condition. These issues are central to Plaintiffs’ claims and

are significant. Cf Scott v. Quay, 338 F.R.D. 178, 190 (E.D.N.Y.

2021) (describing the central issues in that case relating to deter-

minations of liability and considering the degree of harm).

However, unlike in Scott, these common questions do not pre-

dominate over questions specific to individual members of the

Proposed Class, The Proposed Class here includes over 150,000

individuals detained at BCB over a six-year period. (Mot. at 2).

While Plaintiffs experienced conditions that share similarities,

the degree of harm each detainee faced will depend on the facil-

ity as it existed at the time of detention which will create

individual questions when determining damages, see Darnell,

849 F.3d at 37-38.

The court finds the size of the class and length of the Class Period

relevant in this analysis because individualized concerns would

be reduced if Plaintiffs proposed a smaller class detained at BCB

over a narrower time period. Such a reduction in individualized

issues would makes it more likely that the common issues central

to this claim could predominate Proposed Class members’ indi-

vidual issues. However, under Plaintiffs’ proposed definition

before the court, it is improper to certify a damages class. In sum,

30

Plaintiffs have not demonstrated that the Proposed Class meets

the predominance requirement under Rule 23(b)(3).

2, Superiority

Whether Plaintiffs meet the superiority requirement under Rule

23(b)(3) is a more difficult question; because Plaintiffs do not

meet the predominance requirement, the court need not address

it. The court notes, however, that while there are some efficiency

benefits to proceeding as a class, Plaintiffs face a number of chal-

lenges in demonstrating that a class action is “the most ‘fair and

efficient’ method of resolving this case.” Strip Search Gases, 461

F.3d at 230 (quoting Fed. R. Civ. P. 23(b)(3)).

In evaluating superiority, the court considers whether the claims

at issue are susceptible to generalized proof such that a class ac-

tion will achieve “significant economies of time, effort, and

expense and promote uniformity of decision.” In re U.S. Foodser-

vice Inc, Pricing Litig., 729 F.3d 108, 130 (2d Cir. 2013) (citing

Fed.R.Civ.P. 23 advisory committee's notes). Additional relevant

matters include:

(A) the class members’ interests in individually control-

ling the prosecution or defense of separate actions; (B)

the extent and nature of any litigation concerning the con-

troversy already begun by or against class members; (C)

the desirability or undesirability of concentrating the liti-

gation of the claims in the particular forum; and (D) the

likely difficulties in managing a class action.

Fed, R. Civ. P. 23(b)(3)).

Here, whether proceeding as a class action under Plaintiffs’ pro-

posed definition is more efficient than proceeding in

individualized actions is unclear. There are some likely efficiency

benefits: there has already been discovery into BCB’s conditions

relevant to the Proposed Class’s claims and proceeding through

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a class could prevent duplicative and potentially inconsistent lit-

igation concerning Defendants’ liability. However, the need to

evaluate individualized damages reduces much of these effi-

ciency gains. After a finding of liability to the Proposed Class, the

court would still need to calculate individual class members’

damages based on the conditions that existed at BCB during

more narrow time periods when class members were injured. Be-

cause these individualized proceedings may resemble individual

actions that determine both liability and injury, efficiency gains

from proceeding on a classwide basis would likely be signifi-

cantly reduced.

Whether class members have an “interest[] in individually con-

trolling the prosecution or defense of separate actions,” Fed. R.

Civ. P. 23(b)(3){A), is also mixed. Proposed Class members may

benefit from the class action because the cost of individual ac- —

tions may be outweighed by the expected recovery. See U.S.

Foodservice Inc. Pricing Litig., 729 F.3d at 130 (citing Amchemn

Prods., Inc., 521 U.S, at 617). However, proceeding with such a

long Class Period may disadvantage many Proposed Class mem-

bers. To successfully proceed on claims for the Proposed Class,

Plaintiffs would need to show that conditions at BCB were so se-

rious as to deprive all detainees at BCB of their rights for over six

yeats. This showing is almost certainly more difficult than what

would be required for many individual Proposed Class members

who may have faced relatively harsher conditions during their

individual periods of detention at BCB.” Aggregating such class

7 Given the need to consider the range of conditions in this case that in the

aggregate lead to an objective deprivation as well as the need to determine

individualized damages based on these conditions, this case differs in

meaningful respects from In re Nassau County Strip Search Cases, No. 99-

CV-2844 (DRH), 2008 WL 850268 (E.D.N.Y. Mar. 27, 2008), cited by

Plaintiffs, (Reply at 6). The damages sought by plaintiffs there centered on

the “injury to human. dignity” caused by the specific act at issue—the strip

search—which the court found created a “strong commonality” between

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members claims may therefore disadvantage them relative to

proceeding based on individual actions or actions with narrower

time frames.®

Lastly, the Proposed Class’s large size and timeframe create issues

of manageability, often the most important consideration when

determining superiority. Sykes, 780 F.3d at 82. The need to man-

age discovery into the facility’s conditions for the entire Class

Period and to then determine individualized issues subsequent to

the finding of liability would create challenges for many of the

same reasons individual issues predominate over issues common

to the class. See 2 Newberg and Rubenstein on Class Actions §

4:72, (6th ed.) (“[T}he manageability concern often simply ech-

oes the predominance analysis.”). Specifically, the court would

still need to consider the severity of the conditions at BCB in more

narrow time periods after a finding of liability.

In sum, while not necessary to decide superiority because pre-

dominance is also not met, it is unlikely Plaintiffs would be able

to demonstrate that the proposed class action is superior to other

forms of adjudication.

D. Rule 23(c)(4)

Lastly, Plaintiffs also seek to certify an issue class under Rule

23(c}(4) for liability purposes as an alternative to certifying a

the violation and the harm. Id. at *3, 6. The need in this case to consider

varied conditions at the facility to find a deprivation and the injury’s less

clear relationship to damages make the claims here unlike those in the

Strip Search Cases.

8 The court acknowledges that members of the Proposed Class would have

the opportunity to opt out under Rule 23(c}(2)(B} which may mitigate this

concern. However, the court still considers the large class and differences

in experience as relevant to a determination of superiority given the poten-

tial that individual claims or a different proposed class definition could

better represent many palintiffs’ individual conditions while detained at

BCB.

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damages class under Rule 23(b)(3), arguing that doing so would

“advance the litigation in a meaningful way.” (Mot. at 16-17.)

Under Rule 23(c)(4), a court may “[w]hen appropriate” certify a

“class action with respect to particular issues.” Fed. R. Civ. P.

23(c)}(4). This allows a district court, in its discretion, to certify a

class “when the action as a whole does not satisfy Rule 23(b)(3).”

Strip Search Cases, 461 F.3d at 227. For instance, the court may

certify an issue class to “separate the issue of liability from dam-

ages” when the Rule 23(b)(3) predominance requirement is not

met. Id. at 226-27. The “Second Circuit has consistently endorsed

a broad reading of Rule 23(c)(4).” United States v. City of New

York, 276 F.R.D. 22, 33 (E.D.N.Y. 2011). The Third Circuit has

noted a number of factors that a district court may consider when

determining whether an issue class is appropriate, such as: the

“type of claims and issues in question”; the “overall complexity

of the case”; and “efficiencies to be gained by granting partial

certification in light of realistic procedural alternatives|.]” Russell

v. Educ. Com’n for Foreign Med. Graduates, 15 F.4th 259, 268 (3d

Cir. 2021).

The court finds that Rule 23(c)(4) certification is inappropriate.

Plaintiffs have not demonstrated that there are efficiency benefits

to litigating issues of liability, only to have damages calculations

occur in separate proceedings where the factual issues would sig-

nificantly overlap with the determination of liability. An issue

class to determine liability would consider the overall conditions

at BCB for the Class Period to determine whether they fell below

constitutional standards, The damages proceedings would follow

this litigation and involve similar issues and facts, but for individ-

ual detainees or smaller groups of detainees. Darnell, 849 F.3d at

37-38. Plaintiffs do not address the efficiency benefits of separat-

ing these issues compared to alternative forms of litigation, apart

from noting that determining liability as a class “will only leave

the remaining question of how much each individual is owed.”

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(Mot. at 17.) While true, Plaintiffs do not address that determin-

ing how mich each individual is owed will still be complex and

require an evaluation of more particularized conditions in which

the Class was detained, removing much of the issue class litiga-

tion’s efficiency benefits. Further, because the legal standard for

determining liability for claims such as Plaintiffs’ is established in

this Circuit, see Darnell, 849 F.3d at 29, proceeding as an issue

class would not have a separate benefit of resolving an unsettled

legal issue for the entire Class.

Thus, the court finds that it would be inappropriate to proceed

as an issue class and declines to separate the issue of liability for

class treatment under Rule 23(c) (4).

E. Summary

Having found that Plaintiffs are unable to meet the requirements

under Rule 23(b)(2), Rule 23(b)(3) or Rule 23(c)(4), the Plain-

tiffs’ motion for class certification is denied without prejudice. In

the interests of justice, Plaintiffs may amend their class certifica-

tion motion to address the problems discussed in this

Memorandum and Order. See Fed.R.Civ.P. 15(a) (“fLleave to

amend shall be freely given when justice so requires.”); see also

In re Beacon Assocs. Litig., No. 09-CV-777 (LBS) (AJP), 2012 WL

1372145, at *3 (S.D.N.Y. Mar. 19, 2012) (denying a class certi-

fication without prejudice and allowing the plaintiffs to correct

deficiencies in the motion for class certification); Hill vy. County of

Montgomery, No. 914CV933BKSDJS, 2017 WL 9249663, at *9

(N.D.N.Y. Sept. 29, 2017) (same). Any new motion for certifica-

tion should include an amended class definition as well as further

briefing addressing the impact of any redefinition on the analysis

of the Rule 23(b) and Rule 23(c)(4) requirements.

Before proceeding under a new class definition, Plaintiffs and

their counsel should carefully consider how to craft a class ap-

propriate for the claims they raise. As discussed herein, a

proposed class that is too large, covers too long a time period,

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and has too many individualized issues among class members is

unmanageable and inappropriate for certification. Proceeding

with such a class would create serious doubts that Plaintiffs could

reasonably litigate their case—i.e., prove that the inhumane con-

ditions at BCB persisted for over six years such that they deprived

all class members (hundreds of thousands of detainees) of their

due process rights. While the court recognizes the severity of the

claims raised by Plaintiffs, as the Second Circuit did in Darnell,

this alone does not make class certification appropriate. The class

definition must also allow for manageable resolution of the

claims. Ignoring certification requirements only disadvantages

the class members that Plaintiffs and their counsel seek to repre-

sent.

IV. CONCLUSION

Plaintiffs’ motions to certify the classes in each case are DENIED

without prejudice. Plaintiffs are DIRECTED to inform the court

within 60 days whether they will proceed on individual claims or

whether they intend to amend their motion as discussed herein.

SO ORDERED.

Dated: Brooklyn, New York

September | , 2023

s/Nicholas G. Garaufis

NICHOLAS G. GARAUFIS\

United States District Judge

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