Liberty et al v. Rhode Island Department of Corrections et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
CHARLENE LIBERTY; JOHN 	:
DAPONTE; JOHN DAVIS; DUANE 	:
GOMES; ADAM HANRAHAN; and 	:
CHARLES KENNER, on behalf of 	:
themselves and all others similarly 	:
situated; and DISABILITY RIGHTS 	:
RHODE ISLAND, on behalf of its 	:
constituents, 	:
Plaintiffs, 	:
:
v. 	: 	C.A. No. 19-573-JJM-PAS
:
RHODE ISLAND DEPARTMENT OF 	:
CORRECTIONS; PATRICIA COYNE- 	:
FAGUE, in her official capacity as the 	:
Director of the Rhode Island Department of :
Corrections; MATTHEW KETTLE, in his 	:
official capacity as the Assistant Director 	:
of Institutions and Operations at the Rhode 	:
Island Department of Corrections; and 	:
BARRY WEINER, in his official capacity 	:
as the Assistant Director of Rehabilitation 	:
Services at the Rhode Island Department 	:
of Corrections, 	:
Defendants. 	:
MEMORANDUM AND ORDER
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Filed on October 25, 2019, this putative class action seeks injunctive and declaratory
relief to ameliorate alleged violations of constitutional and federal statutory limitations on the
use of restrictive housing by the Rhode Island Department of Corrections (“RIDOC”) to sanction
and manage prisoners who have been identified as suffering from serious and persistent mental
illness (“SPMI”). See ECF No. 1; Liberty v. Rhode Island Dep’t of Corr., C.A. No. 19-573JJM,
2022 WL 1224448, at *1 (D.R.I. Apr. 26, 2022).
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Now before the Court on referral to me for determination1 is RIDOC’s motion to stay the
matter pending “discussions about moving towards a resolution.” ECF No. 123. While the
parties agree that there should be a stay, particularly in light of the Court’s recent appointment of
an independent mental-health expert pursuant to Fed. R. Evid. 706 (“Rule 706 Expert”) to
provide professional opinions to the Court in connection with “ongoing mediation proceedings,”
they disagree vehemently on the scope of the stay. ECF No. 126; see also ECF Nos. 123; 128;
129; 132. Except for certain outstanding discovery, which it has agreed to complete, RIDOC
asks for a temporary (ninety days with the option for the Court to continue the stay on the motion
of either party) buffer from all litigation proceedings, including discovery, during this critical
phase. ECF Nos. 123; 123-1. By contrast, Plaintiffs state that they are willing to agree to a
ninety-day stay only of “discovery” (except for the agreed-upon completion of outstanding
discovery) renewable only with their consent, with the representation that they intend to use the
stay period to file significant motions,2 most importantly their motion for class certification.
ECF No. 128 at 1-2. Plaintiffs also argue that the stay is premature because of the outstanding
discovery.3
I. 	BACKGROUND
The Liberty complaint is narrowly focused on a “limited issue”: whether RIDOC has
systemically placed inmates known to be suffering from SPMI in restrictive housing in violation
1 A motion to stay is nondispositive and should be determined pursuant to 28 U.S.C. § 636(b)(1)(A). Powershare,
Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010).
2 Plaintiffs also plan to file a motion regarding the complaint’s definition of restrictive housing; pertaining to that
proposed motion, they state correctly that, at a recent discovery conference, the Court “has already agreed” that they
may file it during the stay. ECF No. 128 at 2.
3 Plaintiffs’ surreply appears to ask the Court to delay entering any stay until this production is complete. ECF No.
132.
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of the Eighth and Fourteenth Amendments of the United States Constitution. 4 Liberty, 2022 WL
1224448, at *1. As pertinent to the stay motion, this issue is also before the Court in three cases
that preceded Liberty:
 	Morris v. Travisono, 69-cv-4192-JJM (“Morris”);
 	Paiva v. RIDOC, 17-mc-14-JJM (“Paiva”);5 and
 	Diaz v. Wall, 17-cv-94-JJM (“Diaz”).
Because ongoing court-annexed mediation proceedings in these three cases is a critical part of
the foundation underpinning the Court’s exercise of its discretion to enter a time-limited stay of
all proceedings in Liberty, and not just a limited discovery stay, some background regarding
these cases is necessary.
A. 	Morris/Paiva
Morris is a 1969 class action in which the Court certified the class of all current and
future inmates of the Adult Correction Institutions with a subclass of inmates at the Behavioral
Correctional Unit. Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991); Morris v. Travisono, 310
F. Supp. 857 (D.R.I. 1970). In 1972, the Morris Court entered an injunction that has come to be
known as the Morris Rules, which broadly addressed, inter alia, inmate classification and the use
and indicia of restrictive housing for all inmates, including those suffering from what has since
come to be called SPMI, as well as any mental illness. See Morris v. Travisono, 499 F. Supp.
149, 151-53 & 151 n.1 (D.R.I. 1980).
The Morris Rules fell into disuse and the injunction was not enforced for many years
until January 16, 2017, when Mr. Richard Paiva, proceeding pro se, initiated Paiva. Paiva, 17-
4 Plaintiffs also make claims pursuant to the Americans with Disabilities Act and § 504 of the Rehabilitation Act.
5 Morris and Paiva are related and are collectively described as “Morris/Paiva.”
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mc-14-JJM, ECF No. 1 at 1. After protracted activity involving several appeals, on December
21, 2018, the First Circuit found that the injunction remained in full force and effect and vacated
the District Court’s rejection of Mr. Paiva’s attempt to revive the Morris Rules. In re Paiva, No.
17-1511 (1st Cir. Dec. 21, 2018). Paiva was remanded for further proceedings. Id.
On December 18, 2019, the Court granted Mr. Paiva’s motion to intervene in Morris and
to be designated as successor class representative. Paiva, 17-mc-14-JJM, Text Order of Dec. 18,
2019. The Court appointed successor class counsel and, on February 7, 2020, ordered that all
proceedings then pending in Morris be stayed pending further order of the Court. Morris, 69-cv-
4192-JJM, ECF No. 4. On September 18, 2020, Morris/Paiva was referred to me for court-
annexed mediation. After eight mediation sessions, and with substantial input from all parties,
the Court appointed a Rule 706 expert to be paid for by RIDOC for the purpose of obtaining
expert opinions for guidance in connection with the ongoing mediation proceedings. Morris, 69-
cv-4192-JJM, ECF Nos. 18-20; Paiva, 17-mc-14-JJM, ECF Nos. 83-85. Since the appointment
of this Rule 706 expert, all parties in Morris/Paiva have engaged in court-annexed mediation in
good faith. There has been no need for court intervention arising from a breach by any party of
the Order’s mandate that each must cooperate with the Court’s 706 expert. See Morris, 69-cv-
4192-JJM, ECF No. 19 at 2-3; Paiva, 17-mc-14-JJM, ECF No. 84 at 2-3.
With the Liberty mediation ongoing, and mindful that the Morris/Paiva certified class
includes individuals with mental illness (including SPMI), the Court sua sponte raised with the
Morris/Paiva parties whether the Court should add a second court-appointed independent expert
– one with expertise in mental health – to the court-appointed expert team. On December 8,
2022, in the interest of judicial efficiency, in furtherance of the Court’s goal to facilitate
RIDOC’s good faith commitment to address all Morris/Paiva issues and following consultation
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with the Morris/Paiva parties and the previously appointed Morris/Paiva Rule 706 expert, the
Court appointed the same independent mental health expert who had been vetted and chosen as
the Rule 706 Expert in Liberty.
B. 	Diaz
On March 7, 2017, Mr. Samuel Diaz, proceeding pro se, filed a case with two loosely
connected claims. As relevant here,6 Diaz is based on the allegation that Mr. Diaz, an individual
allegedly known by RIDOC to be suffering from mental illness, potentially SPMI, was
repeatedly placed in disciplinary restrictive housing in violation of the Eighth Amendment.
Diaz, 17-cv-94-JJM, ECF Nos. 1; 58. After this claim survived a motion to dismiss, Diaz v.
Wall, C.A. No. 17-94 WES, 2018 WL 1224457 (D.R.I. Mar. 8, 2018), the Court granted a
motion to appoint counsel from its pro bono panel, with the appointment limited to claims for
injunctive and declaratory relief arising from Mr. Diaz’s alleged excessive placement in
restrictive housing. Diaz, 17-94-JJM, ECF No. 47. On December 21, 2018, this aspect of Diaz
was referred to me for court-annexed mediation. While no formal stay has entered, Diaz has not
been actively litigated at all while the mediation has been pending. In total, I have conducted
almost thirty mediation sessions; all parties in Diaz have engaged in this court-annexed
mediation in good faith. The pace of the Diaz mediation slowed in 2021, after the Court and
RIDOC had begun to invest substantial resources in the Morris/Paiva mediation. Mr. Diaz has
been, and continues to be, a member of the Morris/Paiva class.
C. 	Liberty
With the Diaz mediation ongoing, and with Morris/Paiva reactivated as a class action by
the First Circuit with a new class representative and newly court-appointed class counsel, Liberty
6 Mr. Diaz’s unrelated claim ultimately was severed and proceeded separately as Diaz v. Wall, 21-cv-241JJM.
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was filed on October 25, 2019. ECF No. 1. Cast as a putative class action, Liberty seeks only
injunctive and declaratory relief. Id. at 56-58. All of the putative class members in Liberty are
members of the certified class in Morris/Paiva. The Liberty claims are narrower than, but
substantially overlap with the injunctive relief claims in Diaz; further, they fall within the broad
scope of what is in issue in Morris/Paiva.
Liberty names five7 individuals as putative class representatives; each claims to have
been known by RIDOC to be suffering from SPMI while in its custody yet to have been placed
in restrictive housing in violation of the Eighth and Fourteenth Amendments. Liberty, 2022 WL
1224448, at *2. Also joined as a Liberty plaintiff is a not-for-profit Rhode Island corporation
known as Disability Rights Rhode Island (“DRRI”). Id. DRRI’s statutory authority to bring this
legal action requires it to mediate before resorting to litigation and is therefore pertinent to the
stay motion. See ECF No. 1 ¶¶ 30-37; 42 U.S.C. § 10807(a). In that regard, while DRRI is
designated by federal law to pursue legal remedies “to ensure that the rights of individuals with
mental illness are protected,” 42 U.S.C. § 10801(b)(1), its authorization to pursue legal actions
requires that, “[p]rior to instituting any legal action in a Federal or State court on behalf of a[n]
individual with mental illness, an eligible system . . . shall exhaust in a timely manner all
administrative remedies where appropriate.” 42 U.S.C. § 10807(a). The legislative history of
§ 10807(a) makes clear that Congress intended entities such as DRRI to be guided by the
principle that “conciliation, negotiation, mediation and other administrative procedures can work
effectively in providing protection and advocacy of the mentally ill, especially because litigation
in most instances is costly and time consuming.” Dunn v. Dunn, 219 F. Supp. 3d 1163, 1173
(M.D. Ala. 2016) (internal quotation marks omitted); see Prot. & Advoc., Inc. v. Murphy, No. 90
7 The case originally had six plaintiffs. Liberty, 2022 WL 1224448, at *2. The lead plaintiff, Charlene Liberty, is
deceased and was terminated as a plaintiff in June of 2022. Text Order of June 23, 2022.
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C 569, 1992 WL 59100, at *12 (N.D. Ill. Mar. 16, 1992) (while Congress expanded use of
litigation as advocacy for those with mental illness, it did so voicing its “antipathy toward the
unfettered use of litigation” and making clear that “litigation in state and federal courts is
available only as a remedy of last resort”); Gonzalez v. Martinez, 756 F. Supp. 1533, 1537 (S.D.
Fla. 1991) (“whenever possible there should be timely and reasonable attempts made to mediate
and negotiate appropriate administrative remedies”).
On July 6, 2020, the Court referred Liberty to me for court-annexed mediation.
However, despite this mediation referral, Plaintiffs did not agree to any respite from aggressive
discovery and litigation. By contrast with the mediations in Morris/Paiva and Diaz, and despite
DRRI’s statutory duty to mediate, this phase of the Liberty mediation petered out after
approximately ten sessions. Throughout and following this mediation effort, litigation continued
unabated requiring repeated court intervention to address the parties’ many disputes.
In June 2022, at Plaintiffs’ request, the Court discussed with the parties the possibility of
resuming mediation. On July 21, 2022, Plaintiffs indicated that they would agree to the Court’s
engagement of a Rule 706 mental health expert similar to the engagement in Morris/Paiva, with a
time-limited stay of discovery. RIDOC indicated its agreement to a Rule 706 expert that it
would pay for, provided that the time-limited stay would stop all proceedings, including
discovery, to allow it to focus on the mediation. On November 16, 2022, Plaintiffs advised the
Court [in mediation] that they would agree to a ninety-day discovery stay, finite but renewable,
provided that RIDOC would complete production of certain documents (to which RIDOC had
agreed) and that Plaintiffs could proceed with a discovery motion to define “restrictive housing”
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as used in their complaint. Plaintiffs did not advise the Court (or RIDOC, see ECF No. 129 at 2)
that they planned to use the stay-based hiatus to file their motion for class certification.8
On November 29, 2022, RIDOC filed the instant motion for a stay. ECF No. 123. On
December 8, 2022, the Court appointed the same mental health Rule 706 Expert in both
Morris/Paiva and Liberty. On the same day, Plaintiffs filed their opposition to the stay motion.
II. 	STANDARD OF REVIEW AND APPLICABLE LAW
A district court “has broad discretion to stay proceedings” in its own court. Clinton v.
Jones, 520 U.S. 681, 706 (1997). This includes the inherent power to enter a stay for prudential
reasons as appropriate, for example, to avoid an enormous duplication of effort and waste of
judicial resources or when management of its docket reasonably requires such intervention.
Microfinancial, Inc. v. Premier Holidays Intern., Inc., 385 F.3d 72, 77 (1st Cir. 2004); Cardelli v.
DAE Aviation Enterprises, Corp., Civil No. 2:11-cv-217-NT, 2012 WL 983584, at *1 (D. Me.
Mar. 22, 2012); Walcon Corp. v. D.J. MacKenzie Associates, Inc., 620 F. Supp. 89, 89-90 (D.
Me. 1985). A stay cannot be cavalierly dispensed: there must be good cause for its issuance; it
must be reasonable in duration; and the Court must ensure that competing equities are weighed
and balanced. Marquis v. F.D.I.C., 965 F.2d 1148, 1155 (1st Cir. 1992).
Consistent with these principles, a stay may be entered sua sponte. Broidy Cap. Mgmt.
LLC v. Muzin, No. 19-cv-150 (DLF), 2022 WL 2157047, at *2 n.1 (D.D.C. June 15, 2022)
8 In general, the parties’ mediation communications are confidential pursuant to the Court’s Alternative Dispute
Resolution Plan. United States District of Rhode Island Alternative Dispute Resolution Plan § VIII at 6 (Mar. 1,
2006) (https://www.rid.uscourts.gov/sites/rid/files/documents/adr/ADRPlan-030106.pdf). However, to avoid
manifest injustice, the Court may find that confidentiality no longer protects such of the content of mediation
communications as are necessary to the Court’s determination of a pending issue. Abdullah v. Evolve Bank & Tr.,
No. CA 14-131 S, 2015 WL 4603229, at *2 & *2 n.5 (D.R.I. July 29, 2015); see In re Anonymous, 283 F.3d 627,
640 (4th Cir. 2002) (mediator may disclose such confidential information when mandated by manifest injustice as is
indispensable to resolution of an important subsequent dispute, and not going to damage mediation program). The
paragraph above references mediation communications based on what is strictly necessary to the Court’s
determination of the stay motion.
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(court could issue a stay sua sponte; it is not bound by parties’ request); Amadi v. McManus,
Civil Action No. 16-11901-NMG, 2017 WL 11509440, at *1 (D. Mass. June 15, 2017) (court
exercises power to order sua sponte stay based on proceedings in related case). Thus, “[a] trial
court may, with propriety, find it is efficient for its own docket and the fairest course for the
parties to enter a stay of an action before it, pending resolution of independent proceedings
which bear upon the case.” Backowski v. PeopleConnect, Inc., Case No. C21-0115RAJ, 2022
WL 1092519, at *2 (W.D. Wash. Apr. 12, 2022) (internal quotation marks omitted). Similarly, a
time-limited stay that delays the court’s consideration of class certification is appropriate when
implemented for the purpose of preserving the status quo heading into mediation. Swearingen v.
Amazon.com Servs., Inc., 3:19-cv-1156-JR, 3:20-cv-1751-JR, 2021 WL 602711, at *1-3 (D. Or.
Feb. 16, 2021) (“A district court has inherent power to control the disposition of the causes on its
docket in a manner which will promote economy of time and effort for itself, for counsel, and for
litigants”; with parties agreeing to mediate but disagreeing whether to stay class certification
until after mediation, court grants motion to stay) (internal quotation marks omitted).
III. 	ANALYSIS
In these four cases – Liberty, Morris/Paiva and Diaz – with the good-faith participation of
RIDOC, this Court has invested substantial judicial resources in ongoing mediation. That effort
is now supported by two Rule 706 experts in Morris/Paiva, the case with a certified class and
class counsel, one of whom is also the independent mental health Rule 706 Expert in Liberty.
The Court appointed its Liberty Rule 706 Expert with the understanding that there would be a
halt to aggressive and time-consuming litigation to facilitate mediation similar to what has been
ongoing since 2020 in Morris/Paiva and consistent with DRRI’s statutory obligation. Because
the parties in Liberty have been unable to agree on the precise scope of the stay, the Court now
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exercises its discretion to adopt a stay that is based on the parties’ agreement (as far as it went),
but that, considering all of the equities, is framed to protect the integrity of the court-annexed
mediation in all four cases and to facilitate the work of the court-appointed Rule 706 Expert not
just in Liberty but also in Morris/Paiva.
In exercising this discretion, the Court has considered the substantial burden that
litigation of the class certification motion in Liberty will impose on the Court and the parties
because of the factually and legally difficult issues that it will present. The breadth of the burden
is well illustrated by a decision in a case with similar issues, Sabata v. Nebraska Dept. of
Correctional Servs., 337 F.R.D. 215 (D. Neb. 2020), in which the briefing of class certification
and related motions comprised more than 16,000 pages of argument, exhibits and reports. Id. at
223-24. The Sabata court ultimately denied certification of a putative class of prisoners with
mental and other health issues where the evidence established prison policies that provided for
access to healthcare despite placement in restrictive housing, the use of restrictive housing as a
last resort, and a multidisciplinary team making final placement decisions; plaintiffs’ expert
conceded during testimony that to further fix the alleged negative impact of restrictive housing
on mental health would require individualized solutions. Id. at 223-28, 246-72; see Parent/Pro.
Advoc. League v. City of Springfield, Mass., 934 F.3d 13, 31 (1st Cir. 2019) (denying class
certification for lack of commonality because matter in issue “is likely to yield individualized
rather than common answers”).9 Further, while it is true that, over the more than three years that
Liberty has been pending, the Court had repeatedly (as Plaintiffs acknowledge) inquired of
Plaintiffs about class certification, the Court did not – and would never – suggest that the right
9 Exacerbating the complexity of the legal issues to be faced by this Court in connection with class certification is
the First Circuit’s questioning in Parent/Pro. Advoc. League whether an entity like DRRI is “authoriz[ed] . . . to
bring suits like this one on behalf of hundreds of individuals.” 934 F.3d at 35 n.2.
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timing for class certification would be during a time-limited stay entered to facilitate court-
annexed mediation, particularly where the Court has appointed a Rule 706 Expert (paid for by
RIDOC) to support the mediation.
Based on the foregoing, the Court finds that litigation of class certification during this
first phase of Rule 706 Expert’s appointment would significantly and potentially catastrophically
interfere with the ongoing mediations and the work of the Rule 706 Expert in both Morris/Paiva
and Liberty. The Court further finds that a delay of a few months will inflict no prejudice on the
putative Liberty class, especially where all of the Liberty putative class members are already
members of a certified class in Morris/Paiva, in which the same Rule 706 Expert is also
appointed. Relatedly, the Court finds that the limited stay as advocated for by Plaintiffs’ counsel
would likely be more harmful to the true interests of the putative Liberty class because it would
further delay solutions that RIDOC was already working toward before Liberty was filed.
Mindful of RIDOC’s willingness to mediate, as demonstrated in Diaz and Morris/Paiva, the
Court also finds that the stay is consistent with DRRI’s statutory obligation to mediate and to
litigate as a last resort.
As to timing, as cabined by the Court’s further instructions to the Rule 706 Expert,
entered under seal in both Liberty (ECF No. 127) and Morris/Paiva (ECF Nos. 25 & 98
respectively), the first phase of the Rule 706 Expert’s work will be completed by April 7, 2023.
Accordingly, instead of ninety days as the parties agreed, this stay shall remain in full force and
effect until April 21, 2023, to allow Rule 706 Expert’s work in both Morris/Paiva and Liberty to
proceed unimpeded. On April 21, 2023, the Court will determine whether (and, if necessary,
with what limitations) the stay should continue. The parties shall provide the Court with their
positions regarding any such continuation in filings that are due no later than April 11, 2023.
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Regarding RIDOC’s obligation to continue litigation-based document production, the
Court orders that RIDOC shall comply with its agreement to complete production of certain
documents during the stay, provided that RIDOC’s duty to cooperate with the Rule 706 Expert
and to focus on the mediation in both Liberty and Morris/Paiva shall have priority during the
period of the stay. Finally, prior to the appointment of the Liberty Rule 706 Expert, when the
Court was focused on the Liberty mediation only, and with the parties seemingly near agreement
regarding the scope of the stay, the Court indicated that a motion for clarification of the term
“restrictive housing,” as it is used in the Liberty complaint, could be filed during the stay.
Because the Court now is considering not just Liberty, but also Morris/Paiva, as well as because
the now-entered Order of appointment of the Court’s Rule 706 Expert provides that her access to
information is not limited by any such definition, the Court finds that it is not necessary for this
term to be defined during the period of the stay. Therefore, the Court further orders that this stay
bars Plaintiffs from filing their “restrictive housing” discovery motion.
IV. 	CONCLUSION
Based on the foregoing, RIDOC’s motion for stay is granted. Acting pursuant to its
inherent power, the Court orders that this matter is hereby stayed for all purposes until April 21,
2023, with the exception of the ongoing completion of certain discovery as outlined above.
Relatedly, the Court hereby cancels its previously scheduled quarterly discovery status
conferences and vacates its Orders requiring the parties to file status conference reports, pending
further Order of the Court.
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
December 30, 2022
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