Hammond et al v. Department of Corrections et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KHALIL HAMMOND, et al., 	: 	CIVIL NO. 1:25-CV-00048
:
Plaintiffs, 	:
:
v. 	:
: 	(Magistrate Judge Carlson)
PENNSYLVANIA DEP’T OF 	:
CORRECTIONS, et al., 	:
:
Defendants. 	:
MEMORANDUM OPINION
I. 	Introduction
This putative prisoner class action lawsuit comes before us for consideration
of a discovery dispute. This dispute revolves around the scope and timing of
discovery. For their part, the defendants invite us to bifurcate discovery, initially
limiting discovery to class certification issues, and then only later addressing merits
discovery. The plaintiffs oppose this bifurcated approach, arguing that merits and
class certification issues are so closely intertwined that any effort to bifurcate these
questions will lead to confusion, delay and duplication of efforts.
Upon consideration, for the reasons set forth below, we will decline the
invitation to bifurcate discovery but will provide some guidance on the course of
discovery going forward.
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II. 	Background
A. The Complaint and Class Allegations
This case is a putative class action which also challenges the prolonged solitary
confinement of six individual inmates, Khalil Hammond, David Thompson, Antoine
Walker, 	Muwsa 	Green, 	Tyrone 	Leonard, 	and 	Malika 	Henderson, 	who 	are
incarcerated within the Pennsylvania Department of Corrections (DOC). Each of
these individual plaintiffs alleges they suffer from a mental health disorder and that
they have been confined to a solitary confinement placement, which the plaintiffs
characterize as “SL5” placement, for five or more years. Because of this prolonged
solitary confinement, the plaintiffs allege their mental health has deteriorated to the
point that they have attempted suicide multiple times. Moreover, several of the
defendants allege they have been confined without any opportunity to challenge their
placement.
The plaintiffs allege a putative class action, in part, relying upon their mental
health designations, as set forth in the DOC’s Mental Health/Intellectual Disability
(MH/ID) Roster which assigns a letter designation to every prisoner. (Doc. 29, ⁋⁋
157-61). According to the MH/ID, A- and B-Roster individuals have no need for
treatment or support from prison psychology staff. (Id., ⁋⁋ 158-59). Conversely, C-
and D-Roster individuals are receiving psychological treatment; C-Roster individuals
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are currently receiving treatment but are not currently diagnosed with a “serious
mental illness” (SMI) as defined by the DOC while D-Roster individuals are currently
diagnosed with an SMI, intellectual disability, or “credible functional impairment,”
or were found “guilty but mentally ill” in their criminal cases. (Id., ⁋⁋ 160-61). DOC
policies contemplate special requirements for D-Roster individuals in administrative
custody (AC) or disciplinary custody (DC), including at least twenty hours of out-of-
cell time per week, which the plaintiffs allege demonstrates that the ordinary
conditions of SL5 units are not appropriate for individuals with severe mental illness
because of the substantial risk of harm such conditions pose for them. (Id., ⁋ 162).
Moreover, the plaintiffs allege that the DOC’s contracted psychiatric providers
determine the diagnoses and whether they are considered to be SMIs, often without
proper evaluation or explanation, causing roster statuses to be changed from D to C.
(Id., ⁋ 164, 166).
The plaintiffs are all C-Roster individuals who are receiving mental health
treatment but are not subject to the DOC’s special requirements for solitary
confinement, allowing them to be subjected to the most restrictive forms of solitary
confinement while also providing them with fewer psychological services. (Id., ⁋
165). Furthermore, the plaintiffs allege that, as C-Roster individuals, they are
statistically more likely to be placed in solitary confinement compared to the general
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population. (Id., ⁋⁋ 167-68).
The plaintiffs also lay out the variety of solitary confinement units in the DOC
under the umbrella of Security Level 5 or SL5 housing units, including Restricted
Housing Unit (RHU), where individuals classified as being on either Disciplinary
Custody (DC) or Administrative Custody (AC) are housed, Restricted Release List
(RRL), and Intensive Management Unit (IMU). The plaintiffs allege that, as a general
practice, individuals in SL5 units in the DOC are kept inside their cells for twenty-
one to twenty-four hours every day with severe restrictions in their ability to
communicate within the prison and with those outside the prison and in the property
they 	can 	keep 	in 	their 	cell 	and 	are 	not 	able 	to 	participate 	in 	confidential
communications with mental health staff. (Doc. 29, ⁋⁋ 81-90). In this complaint, the
plaintiffs take specific issue with the management and application of the RRL, which
they allege is a list of individuals who are subject to indefinite solitary confinement.
(Id., ⁋⁋ 104-28). On this score, the plaintiffs allege individuals on the RRL are not
provided with the reason for their placement on the RRL, their placement and
continuation on the RRL is not appealable, and, although their placement on the RRL
is subject to annual review, including a staff “vote sheet” and consideration of a
psychological evaluation, the standards and considerations used by the DOC in
conducting the annual reviews, if any, are unknown to those on the RRL and the
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individuals on the RRL are not permitted to participate in the annual review process.
(Id.) They allege that final authority to remove or continue someone on the RRL rests
with Defendant Wenerowicz whose decision can only be overruled by Defendant
Harry. Moreover, individuals on the RRL are not informed of what they need to do
in order to be released from RRL and there are no known or identifiable criteria
individuals can fulfill in order to be removed from the RRL. (Id.)
Similarly, the plaintiffs highlight the IMU, a phased solitary confinement
program used at three DOC prisons with six phases which takes a minimum of three
years to complete. (Id., ⁋⁋ 129-56). As individuals progress through the six phases,
privileges increase – for example, in phases 6 through 4, individuals are offered only
two hours of out-of-cell time per day, increasing to three hours per day in Phase 3 -
although the plaintiffs allege DOC often offers much less out-of-cell time than what
is stated in DOC policy. (Id.) Further, individuals are restrained for any out of cell
time for the first 21 months in IMU. (Id.) The plaintiffs allege individuals are
deprived of meaningful social and programmatic activities while in IMU, are
regularly restrained when offered opportunities for socialization, and that there are
no clear criteria for phase advancement and individuals can be set back a phase for
various, 	unspecified 	reasons. 	(Id.) 	According 	to 	the 	plaintiffs, 	Defendant
Wenerowicz has final approve to progress individuals to Phase 1 of the IMU. (Id.)
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Overall, the plaintiffs allege the conditions in SL5 units are intolerable and
inhumane. 	According 	to 	the 	plaintiffs, 	individuals 	are 	physically 	isolated 	in
windowless cells for twenty-one to twenty-four hours per day with a permanently
illuminated fluorescent light, making sleep difficult and disorienting their sense of
time. (Id., ⁋⁋ 169-82). Individuals incarcerated in solitary confinement units are not
allowed contact visitation, and visitation hours are significantly restricted, making it
difficult for visitors, and they have no access to vocational, rehabilitative, or
therapeutic 	programs, 	gyms 	or 	exercise 	equipment. 	(Id., 	⁋⁋ 	183-96). 	Most
significantly, the plaintiffs allege that individuals in solitary confinement receive
grossly inadequate mental health treatment or none at all, with mental health staff
infrequently speaking to these individuals through the food slot or crack between the
side of the cell door for only a few seconds with no privacy, known as “drive-bys.”
(Id., 	⁋⁋ 	197-206). 	Moreover, 	these 	individuals 	are 	deprived 	of 	psychosocial
rehabilitation services which they allege are required as part of their treatment. (Id.)
The plaintiffs allege that the severely restrictive conditions in solitary confinement
statistically increase rates of self-harm, suicide attempts, and suicides and that the
defendants are either aware of the vastly disproportionate rates of self-injury, suicide
attempts, and suicides in solitary confinement units or have opted, with deliberate
indifference, not to review the data which is readily available to them. Thus, in our
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view the plaintiffs’ individual and class-based allegations are often wedded to factual
issues which relate to the merits of these claims such as questions regarding the
severity of various inmates’ mental impairments; the level of care prescribed by DOC
policy for these inmates; and the degree of care actually extended to prisoners.
In their amended complaint, the plaintiffs assert causes of action under the
Eighth and Fourteenth Amendments to the United States Constitution as well as
violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act
of 1973 (RA). Specifically, the plaintiffs allege that the defendants violated the
Eighth Amendment through their deliberate indifference to the serious risk of harm
posed by their prolonged solitary confinement as individuals with mental illness.
They also allege that their initial and continued placement on the RRL without notice
of the reasons or any meaningful review violated their Procedural Due Process rights
under the Fourteenth Amendment. Further, the plaintiffs allege that they were placed
in 	solitary 	confinement 	both 	because 	of 	the 	manifestations 	of 	their 	mental
impairments and without appropriate accommodations for their mental impairments
in violation of the ADA and that they failed to reasonably accommodate their
psychiatric disabilities in DOC programs, activities, and services in violation of the
RA. They have asserted these claims against the Pennsylvania Department of
Corrections (DOC) and five institutional defendants at the DOC: Secretary of
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Corrections Laurel Harry, Acting Secretary of Corrections from September 2021
until January 2023 George Little, Executive Deputy Secretary for Institutional
Operations of the Department of Corrections Michael Wenerowicz, Deputy Secretary
for Office of Reentry for the DOC, Lucas Malishchak, and Director of Psychology
for the DOC, Brian Schneider. Broadly speaking, the plaintiffs impute liability on the
defendants by arguing that they are aware of the serious risks and harms presented
by 	prolonged 	indefinite 	solitary 	confinement 	of 	individuals 	with 	psychiatric
disabilities but approved of and oversaw policies which continued these harmful
practices and directly oversaw the placement of these individuals in solitary
confinement.
In addition to asserting these claims on their own behalf, the plaintiffs have
framed their complaint as a putative class action case, which seeks to invoke these
constitutional and statutory protections on behalf of seven distinct classes of
incarcerated individuals which they allege are directly affected by these policies.
They seek declaratory, injunctive, compensatory, punitive, and nominal relief for
these violations and seek class certification pursuant to Federal Rule of Civil
Procedure 23.
It is against this backdrop that we are presented with a dispute concerning the
scope and staging of discovery. For their part, the defendants recommend that
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discovery be bifurcated, and that the parties first engage in class certification
discovery before turning to any merits discovery. Viewing issues of class certification
narrowly, the defendants suggest that the necessary documentary evidence to
determine class certification issues could be assembled and analyzed without the
necessity of depositions. (Doc. 111).
The plaintiffs disagree. Embracing a more holistic approach, they insist that
class and merits issues of closely intertwined and insist that fairness and efficiency
would be promoted by pursuing discovery in a comprehensive manner without
bifurcation of merits and class discovery. While these competing approaches each
have some merit, upon consideration, we conclude that the better approach to take in
this case is one which permits the parties to simultaneously engage in fulsome and
complete class and merits discovery. Therefore, we will decline the invitation to
formally bifurcate discovery in this case but will direct the parties to focus their
discovery initially upon those issues which relate to class certification, while noting
that class certification questions necessarily implicate issues relating to the merits of
these claims.
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III. 	Discussion
Questions relating to bifurcation of discovery in the context of putative class
action litigation entail a balancing of competing considerations. On one hand we are
enjoined to address class certification as early as is practicable, a factor which
cautions against the delay which wholesale discovery may entail. Yet the very factors
cited by Rule 23 as relevant to class certification—which include commonality and
typicality—by their nature entail some merits consideration. As one court has aptly
noted:
This Court has broad discretion to resolve discovery disputes, including
whether to bifurcate discovery. See, e.g., Richards v. Johnson &
Johnson, Inc., Civ. No. 05-3663 (KSH), 2007 WL 2123697, at *1
(D.N.J. 	July 	20, 	2007); 	Physicians 	Healthsource, 	Inc. 	v. 	Janssen
Pharms., Inc., Civ. No. 12-2132 (FLW), 2014 WL 413534, at *4 (D.N.J.
Feb. 4, 2014) (Bongiovanni, J.) (explaining that “broad discretion
afforded courts in handling discovery disputes extends to decision over
bifurcating discovery” as part of the courts’ “wide discretion in trial
management”). Rule 42(b) provides that a court may exercise its
discretion to bifurcate discovery “[f]or convenience, to avoid prejudice,
or to expedite and economize.” Fed. R. Civ. P. 42(b). But courts . . .
have made clear that “bifurcation is the exception rather than the rule in
managing cases.” Webstaurant Store, Inc. v. Everything Is In Stock
LLC, Civ. No. 20-02558 (CCC), 2020 WL 4040842, at *1 (D.N.J. July
15, 2020); see also Cephalon, Inc. v. Sun Pharm. Indus., Ltd., Civ. No.
11-5474 (FLW), 2013 WL 3417416, at *3 (D.N.J. July 8, 2013) (“Courts
in this district do not routinely grant motions to bifurcate discovery,
unless there is some showing on the part of the moving party as to why
bifurcation 	is 	appropriate.”). 	Consequently, 	[the 	defendant 	who
advocates for bifurcation] bears the burden to establish that bifurcating
discovery is warranted. Cephalon, 2013 WL 3417416, at *3.
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Moreover, the Third Circuit has instructed that in putative class actions,
district courts should address class certification “at an early practicable
time,” noting that such an inquiry “requires a thorough examination of
the factual and legal allegations” and, at times, a “preliminary inquiry
into the merits.” In re Hydrogen Peroxide Antitrust Lit., 552 F.3d 305,
317–18 (3d Cir. 2008). Yet the Third Circuit also has observed that
district courts should not inquire into the merits of the case before a
motion for class certification, except insofar as is necessary to determine
whether class certification is appropriate. Id. at 317. Accordingly, in
putative class actions, courts . . . —whether they formally bifurcate or
not—often have focused discovery first on class certification and then
on the merits. See, e.g., Conner v. Perdue Farms, Inc., Civ. No. 11-888
(MAS), 2013 WL 5977361, at *7 (D.N.J. Nov. 7, 2013) (bifurcating
discovery into two phases, with the first phase limited to issues
necessary to address whether class certification is appropriate and the
second phase on substantive issues regarding the merits of the parties’
claims and defenses); Bell v. Lockheed Martin Corp., 270 F.R.D. 186,
199 (D.N.J. 2010), aff'd, Civ. No. 08-6292 (RBK), 2010 WL 3724271
(D.N.J. Sept. 15, 2010) (in a putative class action alleging gender
discrimination, declining formally to bifurcate discovery into class and
merits phases, but allowing the defendant to object to specific discovery
requests unrelated in any way to class certification issues).
MacLean v. Wipro Ltd., No. CV2003414GCJBD, 2023 WL 3742832, at *2 (D.N.J.
May 31, 2023).
Because there is frequently an overlap between merits and class certification
questions, attempts to rigidly bifurcate these two issues can foster confusion and
unnecessary conflict. On this score:
This overlap between merits issues and class certification requirements,
together 	with 	the 	challenge 	of 	distinguishing 	whether 	any 	given
discovery falls into one category versus the other, and the likelihood that
disputes over such distinctions will arise, has left courts “reluctant to
bifurcate class-related discovery from discovery on the merits.” Ahmed
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v. HSBC Bank USA, Nat'l Ass'n, Civ. No. 15-2057, 2018 WL 501413,
at * 3 (C.D. Cal. Jan. 5, 2018) . . . . Even when bifurcation of class and
merits discovery is warranted, “the frequent overlap between merits and
class certification inquiries may make its enforcement fraught with
difficult line-drawing disputes.” 1 McLaughlin on Class Actions § 3:10
(18th ed. 2021) (observing so in the context of staying merits discovery
in favor of an early class certification motion).
Wesley v. Samsung Elecs. Am., Inc., No. CV 20-18629-JMV-AME, 2022 WL
2870200, at *2 (D.N.J. July 21, 2022) (some citations omitted).
In our view, the allegations in this case do not lend themselves to some sort of
easy mechanical distinction between merits and class certification discovery. At the
outset, we note that bifurcation of the type proposed by the defendants may actually
prolong and delay the discovery process since it is clear from the pleadings that, at a
minimum, there will need to be fulsome merits discovery regarding the claims of the
six named plaintiffs. In sum, this is not a case where the litigation, and need for
discovery, would end once class certification was resolved. Therefore, under the
current schedule case management schedule, if discovery was bifurcated and limited
to class determination, once we received and resolved class certification motions—
which the parties propose to file in February of 2028—it would likely be necessary
to undertake extensive additional merits discovery.
Further, a determination of whether there is the degree of commonality and
typicality necessary for class certification requires some inquiry into issues that are
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bound up with the merits; namely, the conditions of putative class members’
confinement and the extent to which various putative classes of inmate receive access
to mental health treatment. All of these factors weigh against attempting to structure
some formal bifurcation of discovery.
Yet, while we conclude that bifurcation of discovery is not appropriate in this
case, we agree that the parties should endeavor to focus their initial energies and
attention on class-based discovery so the Court can address this issue in the manner
contemplated by Rule 23: “At an early practicable time after a person sues or is sued
as a class representative. . . .” Fed. R. Civ. P. 23(c)(1)(A). Therefore, in the first
instance, the parties should focus discovery on those factual and legal issues
pertaining to class certification to enable a decision under Rule 23 at an early
practicable time. See Hydrogen Peroxide Antitrust Lit., 552 F.3d at 317–18; Bell, 270
F.R.D. at 199. To the extent that disputes arise regarding individual discovery
requests that cannot be resolved through good faith meet-and-confers, the parties may
bring them to the Court's attention.
An appropriate order follows.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
DATED: October 13, 2026
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