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Hawker v. Consovoy

January 23, 2001


The opinion of the court was delivered by: Pisano, District Judge




On May 2, 2000, Ian Hawker, Nelson Miles, and Jermaine Lawrence (collectively, "Named Plaintiffs"), three inmates incarcerated at Riverfront State Prison in Camden, New Jersey, filed a class action complaint pursuant to 42 U.S.C. § 1983 against Andrew Consovoy, William T. McCargo, Loraine Kulick, Peter W. Loos, Dominic Porrovecchio, Rolando Gomez Rivera, Rachel Torres-Chowaniec, and Ruby J. Washington ("Defendants"), the members of the New Jersey State Parole Board ("Parole Board"). *fn1 (Compl. at ¶¶ 10-22). The complaint alleges that the Parole Board knowingly and consistently failed to meet the deadlines for the preparation of pre-parole reports and the conduction of parole hearings, as required by the New Jersey Parole Act of 1979 ("Act"), N.J.S.A. 30:4-123.45 to 30:4-123.69, in violation of the due process clause of the fourteenth amendment to the United States Constitution. *fn2 (Compl. at ¶¶ 7,23-24,46-47,74-75). As a result of the Parole Board's alleged ongoing inaction, the Named Plaintiffs and thousands of potential class members have remained incarcerated past their respective parole eligibility dates. (Compl. at ¶¶ 45-48). The complaint demands declaratory and injunctive relief, and a class-wide award of nominal damages. *fn3 (Compl. at ¶¶ 24,82). The Court has subject-matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1343.

Immediately following the filing of the complaint, the parties began to hold settlement negotiations. During that period, the Defendants' time to file an answer was extended, and the Court conducted several status conferences to monitor the parties' progress. While settlement talks were occurring, the Court received many letters from potential class members commenting on various aspects of the case, and informing the Court of their inability to obtain redress from the Parole Board. As a result, the Court ordered the Clerk of the District Court to establish a document depository in which these correspondence would be maintained for review by interested parties.

As of September 2000, a settlement still had not been reached, and the Named Plaintiffs filed a motion to certify the class pursuant to Federal Rule of Civil Procedure ("Rule") 23. The following month, they filed a motion for a preliminary injunction pursuant to Rule 65 for an order compelling the Parole Board to eliminate the parole hearing backlog, to ensure future compliance with the Act, and to appoint a special master to monitor the Parole Board's activity. The Defendants opposed the Named Plaintiffs' motions, and moved for summary judgment pursuant to Rule 56, or, in the alternative, to dismiss pursuant to Rule 12(b)(6).

In November 2000, before the Court addressed the merits of the pending motions, the parties informed the Court that they had executed a Settlement Agreement. *fn4 The Court subsequently granted the parties' request for class certification for the purpose of settlement only, and approved the methods for notifying the potential class members of the terms of the settlement. Notice of the proposed settlement was ordered to be published in the Philadelphia Inquirer and the Newark Star Ledger, and posted in all prisons and jails in which potential class members were incarcerated. *fn5 The Court subsequently dismissed without prejudice the Named Plaintiffs' motion for a preliminary injunction, and the Defendants' dispositive motion.

The parties' execution of the Settlement Agreement, which resolves all claims, triggered the Court's duty to confirm that the class certification requirements of Rule 23 have been met, and to determine whether the settlement is fair and reasonable. Pursuant to that obligation, the Court conducted a fairness hearing on January 16, 2001. For the reasons set forth below and on the record following the fairness hearing, the Court finds that the requirements of Rule 23 have been satisfied, and that the Settlement Agreement should be approved.


The Act establishes a comprehensive scheme for the administration of parole determinations for eligible inmates. The parole determination process entails the completion of various tasks, each having a deadline which is calculated with reference to the inmate's parole eligibility date. *fn6 The Act creates a presumption in favor of granting parole on the date of eligibility, unless the Parole Board can prove that the inmate should not be released. N.J.S.A. 30:4-123.53a; see also New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 206 (1983).

The first step in the process is the preparation of an eligible inmate's pre-parole report by employees of the facility in which the inmate is incarcerated. N.J.S.A. 30:4-123.54a. The report must be filed with the parole board panel "[a]t least 120 days but not more than 180 days prior to the parole eligibility date." Ibid. A pre-parole report details the inmate's pre-incarceration records, behavior during the period of confinement, proposed parole plan, and likelihood of committing crimes if released. N.J.S.A. 30:4-123.54b(1). When the pre-parole report is filed with the parole board panel, the inmate also receives a copy. N.J.S.A. 30:4-123.54c. At that time, the inmate has the opportunity to submit "a written statement regarding the report, but shall do so within 105 days prior to the primary parole eligibility date." Ibid.

The Act next mandates that "a designated hearing officer shall review the reports . . . and shall determine whether there is a basis for denial of parole in the preparole report . . . . " N.J.S.A. 30:4-123.55a. If the hearing officer finds no basis to deny parole and no need for a hearing, the officer is required to submit to the applicable parole hearing panel, "at least 60 days prior to the inmate's parole eligibility date," a written recommendation in favor of granting parole. Ibid. If the assigned parole panel member concurs with the hearing officer's recommendation, the panel member will certify the inmate's release "as soon as practicable after the eligibility date and so notify the inmate and the [parole] board." N.J.S.A. 30:4-123.55b. But if the hearing officer or the panel member determines that parole should be denied, or that a parole hearing is necessary, the parole board and the inmate are notified, and a hearing is conducted "at least 30 days prior to the eligibility date." N.J.S.A. 30:4-123.55c. "At the hearing, which shall be informal, the board panel shall receive as evidence any relevant and reliable documents or in person testimony . . . . " Ibid. An inmate has the right to present and to rebut evidence at the hearing. Ibid.

After the hearing, the parole panel may order that parole be granted or denied. N.J.S.A. 30:4-123.55d. If parole is denied, the panel must file with the parole board "within 30 days of the hearing a statement setting forth the decision." Ibid. An inmate who is denied parole is given a future parole eligibility date based on relevant considerations, such as the severity of the crime and the inmate's record. N.J.S.A. 30:4-123.56a. As the future parole eligibility date nears, the Parole Board must repeat the parole determination process to decide whether to release an inmate who was previously denied parole. N.J.S.A. 30:4-123.56c.


The Settlement Agreement divides all parole eligible inmates into categories based on when they became or will become parole eligible, and when the Parole Board had the capacity to know or will have the capacity to know of their parole eligibility date. A past eligible inmate is an inmate eligible for parole who has not received a parole hearing before his parole eligibility date. (Settlement Agreement at 3). The category of past eligible inmates is divided into current past eligible inmates and future past eligible inmates. A current past eligible inmate is one who, prior to approval of the Settlement Agreement, is incarcerated and overdue for a parole hearing. A future past eligible inmate is one who will become a past eligible inmate after the date that the Settlement Agreement is approved.

Structural past eligible inmates are a sub-set of past eligible inmates, and are defined as those inmates "who become past eligible or will become past eligible in a manner beyond the control of the Parole Board which did not afford the full 120 days provided by N.J.S.A. 30:4-123.54a to prepare for the initial and panel parole hearings." (Ibid.). In other words, an inmate becomes structural past eligible when the Parole Board cannot determine an inmate's parole eligibility date sufficiently in advance of the date to comply with the first requirement of the Act, namely, the preparation of a pre-parole report no later than 120 days before the parole eligibility date.

An inmate can become structural past eligible in a number of ways, including, but not limited to, the following: (1) having received enough prior custody credits before sentencing; (2) being resentenced to a lesser term of incarceration; (3) being resentenced to concurrent terms of imprisonment rather than consecutive terms; (4) having a longer sentence vacated; (5) having prison credits restored after they had been forfeited; and (6) having reconsidered a prior decision not to cooperate with the parole process. (Settlement Agreement at 3-5).

Under the terms of the Settlement Agreement, current past eligible inmates will receive a parole panel hearing within ten weeks after November 13, 2000, the date on which the Settlement Agreement was executed. (Settlement Agreement at 9). If more past eligible inmates are discovered after that date, those inmates will receive a parole panel hearing before the expiration of the ten-week period beginning on November 13, 2000, or within 60 days after discovery of their past eligible status, whichever period is longer. (Ibid.).

Inmates who become eligible for parole on or after the date that the Court approves the Settlement Agreement, but before two years following the approval date, will receive a parole panel hearing no later than their parole eligibility date. (Settlement Agreement at 10). Inmates who become eligible for parole more than two years, but less than four years, after the approval date, will receive a parole panel hearing no later than 30 days before the parole eligibility date, as required by N.J.S.A. 30:4-123.55c. *fn7 (Ibid.). Any individual who becomes a structural past eligible inmate after the approval date will, within 120 days, either have a parole panel hearing or be given a written explanation why a parole hearing could not be provided. (Settlement Agreement at 11).

The Settlement Agreement also establishes an administrative appeal process by which current past eligible inmates, future past eligible inmates, and structural past eligible inmates who claim not to have received a parole hearing in the manner specified by the Settlement Agreement can file an appeal to the Parole Board. (Settlement Agreement at 12). Appeal forms will be available to all inmates, and the Parole Board will be required to respond to an appeal filed by current past eligible inmates and future structural past eligible inmates within 30 days either by providing a parole panel hearing or a written explanation for its failure to do so. (Settlement Agreement at 12-13). With respect to appeals filed by future past eligible inmates, the Parole Board will have 45 days to respond. (Settlement Agreement at 14).

A denial of an appeal by the Parole Board will constitute a final agency decision within the meaning of New Jersey Court Rule 2:2-3(a)(2), thereby permitting an appeal as of right to the New Jersey Superior Court, Appellate Division. (Settlement Agreement at 13). The Parole Board's failure to respond timely to an appeal will be automatically deemed a final agency decision denying the appeal. (Ibid.). For every day after the applicable deadline that the Parole Board does not respond to an administrative appeal, it must pay a sanction in the amount of $17.50 to the American Friends Service Committee, Prisoners Resource Center ("AFSC"). *fn8 (Ibid.).

The Settlement Agreement also requires the Parole Board to submit to the Office of Administrative Law proposed amendments to N.J.A.C. 10A:71-4.2 and 10A:71-4.3, which will recognize the new appeal process. (Settlement Agreement at 16-17). In addition, there will be a proposed amendment to N.J.A.C. 10A:71-3.18(a)(3)(I), which will provide that a parole board panel can only defer a parole determination "90 days past the inmate's parole eligibility date" when the panel is awaiting a psychological evaluation with respect to parole eligibility. (Ibid.).

Periodic reports detailing the progress of the Parole Board will be submitted to class counsel, and rosters listing all future past eligible inmates and future structural past eligible inmates will be posted monthly in every facility operated by the New Jersey Department of Corrections. (Settlement Agreement at 18-19). The Settlement Agreement also provides that the Parole Board will pay class counsel attorneys' fees and costs in the amount of $110,000. *fn9 (Settlement Agreement at 23). Finally, in the event that class counsel must seek to enforce any provision of the Settlement Agreement, class counsel is entitled to attorneys' fees and costs in the amount of $200.00 per hour. (Settlement Agreement at 23-24).


A putative class representative seeking class certification must satisfy the four requirements of Rule 23(a), and must also demonstrate that the action is maintainable under one of the three categories set forth in Rule 23(b). Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3rd Cir. 1998) (citation omitted), cert. denied, 526 U.S. 1114 (1999). Rule 23(a) provides:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. [Fed. R.Civ.P. 23(a).]

A court must undertake a "rigorous analysis" to determine whether the putative class and its proposed representatives satisfy each of the prerequisites to class certification. General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).

In considering whether class certification is appropriate, a court must refrain from conducting a preliminary inquiry into the merits of the action. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). However, it may be necessary for the court "to analyze the elements of the parties' substantive claims and review facts revealed in discovery in order to evaluate whether the requirements of Rule 23 have been satisfied." In re Ford Motor Co. Ignition Switch Prods. Liab. Litig., 174 F.R.D. 332, 353 (D.N.J. 1997).

A. RULE 23(a) ...

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