Rosario v. Department of Correctional Services, 03 Civ. 0859 (S.D.N.Y.)

Nature of Claims: This class action challenges the exclusion from program activities such as education, work, substance abuse programs, and outdoor recreation of prisoners who are assigned to “Regional Medical Units” at Fishkill, Walsh, and Wende Correctional Facilities, but whose medical condition permits them to engage in program activities. Some prisoners were denied the opportunity to earn “merit time” and therefore lost eligibility for earlier release by the exclusion. PRP argued that the exclusion violates the Americans with Disabilities Act and § 504 of the federal Rehabilitation Act. PRP also argued that the failure to provide access to outdoor recreation at Fishkill Correction Facility violates those statutes.

Current status: The district court initially dismissed the case for failure to exhaust administrative remedies, holding that plaintiffs were obliged to exhaust the U.S. Department of Justice disability complaint procedures in addition to the prison grievance procedure. On appeal, the defendants withdrew the defense, asserting that the Department of Correctional Services would not again raise it in future cases. On remand to the lower court, the defendants changed their position on the merits of the case, and the parties entered into a settlement agreement making available a number of specific programs to RMU prisoners, and instituting a system of individual assessments to determine RMU prisoners’ access to programs outside the RMU. The defendants had created an outdoor recreation space for Fishkill RMU prisoners during the litigation, and the settlement remedied some of the deficient conditions of that area. The settlement was approved by the court on September 29, 2006. The compliance monitoring period ended in July 2009. All indications are that the defendants have substantially complied with the settlement and are committed to continuing the valuable program created under it.

Persons Affected: The Fishkill RMU, to which class certification was limited, contains about 80 prisoners, of whom substantial numbers are sufficiently healthy to engage in program activities. Defendants have stated they will implement their new policies in all the RMUs, which probably means that 400 to 500 prisoners will be benefited.

Reported decisions: Rosario v. N.Y. State Dept. of Correctional Services, 400 F.3d 108 (2d Cir. 2005) (per curiam), vacating and remanding, 2003 WL 22429271 (S.D.N.Y., Sept. 24, 2003).