Henderson et al v. Bentley et al
MEMORANDUM OPINION AND ORDER directing that (1) plaintiffs' 2 MOTION for class certification is GRANTED; (2) a plaintiff class is certified as consisting of all present and future prisoners diagnosed with HIV in the custody of the Alabama D epartment of Corrections; (3) the class representatives are Louis Henderson, Dana Harley, Darrell Robinson, Dwight Smith, Albert Knox, James Douglas, Alqadeer Hamlet, and Jeffery Beyer. Signed by Honorable Judge Myron H. Thompson on 8/30/12. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
LOUIS HENDERSON, et al.,
KIM THOMAS, Commissioner,
Alabama Department of
Corrections, et al.,
CIVIL ACTION NO.
OPINION AND ORDER
The plaintiffs are eight HIV+ inmates who challenge
the policy of the Alabama Department of Corrections of
The plaintiffs claim that the defendants
discriminated against them on the basis of a disability
(HIV+ status) in violation of Title II of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,
and § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
Jurisdiction is proper under 28 U.S.C. § 1331 (federal
The case is currently before the court on
incarcerated in ADOC prisons.
For the reasons that
follow, the court will certify this class under Federal
Rule of Civil Procedure 23(a) and (b)(2).
Federal Rule of Civil Procedure 23 “establishes the
legal roadmap courts must follow when determining whether
class certification is appropriate.”
Valley Drug Co. v.
Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1187 (11th
The party seeking to maintain the class
action bears the burden of demonstrating that all the
requirements of Rule 23 have been met.
satisfies all the requirements of Fed. R. Civ. P. 23(a)
and at least one of the alternative requirements of Rule
Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d
999, 1005 (11th Cir. 1997) (footnotes omitted).
to establish any one of the four prerequisites under Rule
23(a) and at least one of the alternative requirements of
Rule 23(b) precludes class certification.
350 F.3d at 1188.1
The court's role at the class-certification stage is
not to decide the merits of the case, but rather to
See Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 177-78 (1974).
However, “the trial court can
and should consider the merits of the case to the degree
The prerequisites to a class action are
numerosity, commonality, typicality, and adequacy of
Fed. R. Civ. P. 23(a).
plaintiffs seek a class certified under Rule 23(b)(2),
which is appropriate when “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
respecting the class as a whole.”
necessary to determine whether the requirements of Rule
Valley Drug, 350 F.3d at 1188
23 will be satisfied.”
The eight plaintiffs (Louis Henderson, Dana Harley,
Douglas, Alqadeer Hamlet, and Jeffery Beyer) are inmates
who have been diagnosed with HIV.
They allege that ADOC
maintains a policy that segregates them from the general
prison population and
discriminates against them on the
basis of a disability, namely their HIV status.
seek to represent and have certified a class to pursue
injunctive relief requiring the defendants to end these
allegedly illegal practices.
Alabama law requires HIV testing for all prisoners.
1975 Ala. Code §§ 22-11A-17 & 22-11A-38.
however, is silent on the segregation of HIV+ prisoners.
The defendants’ HIV-segregation policy dictates that HIV+
inmates are housed in separated accommodations, both
inter- and infra-facility and regardless of security
Alabama has five levels of prisoner classification:
Security classification is a multi-
factor analysis that includes an individual’s criminal
sentence, and pendency of unresolved charges.
Affidavit (Doc. No. 47-1) ¶ 3.
Close-custody is “reserved for prisoners who have
demonstrated severe behavioral problems, some prisoners
sentenced to life without parole, and some detainees
Second Amended Complaint (Doc. No. 61) ¶ 37.
custody prisoners are held at medium- or close-security
institutions and are housed in double-occupancy cells or
Medium-custody prisoners may receive work
assignments inside a secure facility.
parts, all of which permit some type of work outside a
Most important for present purposes,
transfer to a work-release center.
(Doc. No. 47-1) ¶ 5.
classification system, all HIV+ inmates are housed in
Male HIV+ inmates are housed at either
Release/Community Work Center.
Female HIV+ inmates are
housed at either Julia Tutwiler Prison for Women or the
Montgomery Women’s Facility.
The centerpiece of Alabama’s segregation policy is
that HIV+ prisoners are housed at certain facilities and
inmates who have a six-month clear record may apply to
transfer to a facility closer to their families.
While no inmate has a right to transfer, HIV+ male
inmates are prohibited entirely from transferring. Thus,
the male plaintiffs are barred from approximately two
dozen facilities around the State.
At Limestone, all HIV+ prisoners are housed
on the A-side.
HIV+ prisoners, therefore, are excluded
from the general population area in B-Side and the FaithBased Honor Dorm in C-Side.
They are also barred from
the senior dormitory in A-Side.
Limestone separates HIV+
prisoners by forcing them to wear white armbands, thereby
staff, and visitors.
Because Alabama has far fewer female inmates, it
maintains only one secure institution (Julia Tutwiler
Prison for Women) and two work-release facilities for
Within Tutwiler, HIV+ prisoners are housed in two
of 15 housing units: an HIV dormitory and the healthcare
setting, the HIV-segregation policy as applied to females
mirrors the male counterpart.
The plaintiffs further allege that ADOC utilizes a
According to the plaintiffs, the policy forces inmates to
start antiretroviral medications before their viral loads
require it. Second Amended Complaint (Doc. No. 61) ¶ 86.
treatment in transferring male prisoners to Decatur Work
inmates, for example, are barred from the residential
component of any program, such as Limestone’s substanceabuse program.
And by implication, the plaintiffs are
barred from programs at the majority of ADOC’s prisons.
The HIV-segregation policy extends beyond residential
prohibits HIV+ inmates from obtaining food-
Finally, the plaintiffs assert that
punishment and the unlawful disclosure of their medical
evidence presented so far on the class-certification
This background is, of course, not binding on
the court at trial.
The court also recognizes that the
named plaintiffs may have changed, and are changing,
since the court began considering the class-certification
But the ultimate question is whether these are
defendants’ alleged discriminatory policy, with perhaps
a change in class representation.
Nevertheless, to the
extent the evidence at trial differs materially from this
background, the defendants may ask the court to revisit
the class-certification issue.
The plaintiffs seek certification pursuant to Federal
Rule of Civil Procedure 23(a) and (b)(2).
addresses each requirement for class certification in
Numerosity is satisfied if joinder of all class
members would be impracticable.
Courts have held that
sufficiently large under Fed. R. Civ. P. 23(a)(1).
e.g., Cox v. American Cast Iron Pipe Co., 784 F.2d 1546,
1553 (11th Cir. 1986).
Moreover, the fluid nature of a
plaintiff class--as in the prison-litigation context-counsels in favor of certification of all present and
See Kilgo v. Bowman Transp. Inc., 789
F.2d 859, 878 (11th Cir. 1986) (affirming a certified
class of 31 present members and future members, who could
not be identified); Green v. Johnson, 513 F. Supp. 965,
975 (D. Mass. 1981) (Freedman, J.) (finding numerosity
after considering “the fact that the inmate population at
these facilities is constantly revolving”).
Here, the plaintiffs have submitted evidence, and the
defendants concede, that approximately 260 ADOC inmates
are HIV+. The plaintiffs, therefore, easily satisfy the
The defendants respond by parsing the plaintiffs’
defendants contend that 180 of the 260 HIV+ inmates are
ineligible for work release because of their security
Defendants’ Brief (Doc. No. 47) at 45.
But this still leaves approximately 80 HIV+ inmates who
are eligible for a work-release transfer, a number that
easily satisfies Rule 23(a)(1). The defendants’ argument
does not even speak to the plaintiffs’ broader claim to
be eligible to transfer to other ADOC prisons or to even
move within Limestone or Tutwiler.
Relatedly, the defendants assert that at least one
named plaintiff must be eligible for and seek a specific
plaintiffs challenge ADOC’s HIV-segregation policy as a
segregation policy violates federal anti-discrimination
segregation; discriminatory criteria for assignment to
residential components of programs; disparate punishment;
and public revelation of private medical information.
As to each of these claims, the named plaintiffs have
Within Limestone and Tutwiler, the
plaintiffs seek re-assignment to other dorms, such as the
senior dorm and the honor dorm.
ADOC also permits
inmates to request transfers to other secure facilities
for vocational programs or to be closer to family.
Atchison Affidavit, Doc. No. 47-1, ¶ 13.
Several of the
Douglas–-are eligible for and seek transfer to another
ADOC secure facility.
security classifications but have been denied transfer
because of defendants’ allegedly discriminatory medicalclearance
defendants’ refusal to lower his security classification
and therefore assign him to work release is based on his
transferred to Decatur Work Release only recently, seeks
family’s home in Atlanta.
Turning to programs, the male plaintiffs seeking
transfer to other prisons are excluded from programs
unique to those institutions. The defendants’ policy also
precludes HIV+ inmates from working in the food-service
Plaintiff Hamlet, who has prior experience in
this field, is currently housed at Decatur Work Release,
disparate-punishment claim is represented by Knox, who
was disciplined for attempting to eat in the general
population chow hall-–which he is prohibited from doing
solely because of his HIV status.
And the plaintiffs’
unlawful-disclosure claim is satisfied by Hamlet, whose
HIV+ status prevents him working in the food-service
industry at Decatur Work Release.
Finally, the defendants object to the inclusion of
female HIV+ prisoners in the class.
Currently, there are
approximately 10 female prisoners diagnosed with HIV.
Defendants’ Brief (Doc. No. 47) at 48-49.
contend that the female HIV+ population is too small and
their circumstances too unique to warrant inclusion in
the plaintiffs’ class.
To be sure, Tutwiler’s status as the sole secure
facility for women in Alabama changes the analysis to an
They are also limited to one of two work-
Thus, female HIV+ prisoners face the
same allegedly discriminatory policy as male inmates–only the institutional context is different.
The court recognizes that the defendants contend that
the plaintiffs’ challenge to the defendants’ overall
‘policy,’ rather than to each program, is not actionable.
With this opinion, the court does not resolve the issue
of whether the plaintiffs’ approach is appropriate.
court has merely assumed such, and, if the plaintiffs’
claims lack merit, they will lose.
Commonality and Typicality
The “‘commonality and typicality requirements of Rule
23(a) tend to merge.’”
Wal-Mart Stores, Inc. v. Dukes,
Telephone Co. of the Southwest v. Falcon, 457 U.S. 147,
157 n.13 (1982)).
Both inquiries ask “‘whether under the
particular circumstances maintenance of a class action is
economical and whether the named plaintiff's claim and
the class claims are so interrelated that the interests
protected in their absence.’”
Here, the plaintiffs claim that they have the same
policy affects them in similar ways.
For example, every
plaintiff is barred from transferring within their secure
facility and all male plaintiffs are prohibited from
female–-are subject to the same allegedly discriminatory
medical-clearance policy and may only transfer to one
The factual differences between the plaintiffs are
minor and do not rise to the level to defeat class
certification. See Kornberg v. Carnival Cruise Lines,
Inc., 741 F.2d 1332, 1137 (11th Cir. 1984) (“A sufficient
nexus is established if the claims or defenses of the
class and the class representative arise from the same
event or pattern or practice and are based on the same
legal theory. ... A factual variation will not render a
class representative's claim atypical unless the factual
position of the representative markedly differs from that
of other members of the class.”).
the named plaintiffs’ legal claim-–that the defendants
are engaged in disability discrimination in violation of
See Prado-Steiman ex rel. Prado v. Bush,
221 F.3d 1266, 1279 n.14 (11th Cir. 2000) (noting that “a
strong similarity of legal theories will satisfy the
differences”) (internal quotation marks omitted). Thus,
Adequacy of Representation
Under Rule 23(a)(4), the adequacy-of-representation
analysis “encompasses two separate inquiries: (1) whether
any substantial conflicts of interest exist between the
representatives will adequately prosecute the action.”
Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d
1181, 1189 (11th Cir. 2003) (internal quotation marks and
citation omitted). The fact that the plaintiffs have
satisfied the commonality and typicality requirements is
strong evidence that they adequately represent the class.
See Wal-Mart, 131 S. Ct. at 2552 n.5 (quoting Falcon, 457
U.S. at 157 n.13).
The defendants, however, foresee a potential conflict
of interest between the named plaintiffs and the class.
The defendants point to certain living conditions and
medical treatment received by HIV+ inmates pursuant to a
now-expired consent decree.
See Settlement Agreement,
Leatherwood v. Campbell, No. CV-02-BE-2812-W (N.D. Ala.
defendants note that Limestone’s HIV-dorm is less crowded
than other dorms and that HIV+ inmates receive better
food than other prisoners.
47-2) ¶¶ 3-4.
Mitchem Affidavit (Doc. No.
The defendants assert that some HIV+
inmates may prefer their present accommodations to the
right not to be discriminated against on the basis of a
The defendants present an illusory choice.
Amendment violations in HIV healthcare at Limestone and
expired in 2006.
Notwithstanding any relief that may be
Leatherwood consent decree, the defendants are still
adequate level of care.
The Eighth Amendment and federal
anti-discrimination statutes are not mutually exclusive.
Moreover, “the conflict must be more than merely
speculative or hypothetical.” 5 Moore’s Federal Practice
§ 23.25[b][ii] (3d ed. 2011).
“[T]he existence of
minor conflicts alone will not defeat a party's claim to
class certification: the conflict must be a ‘fundamental’
one going to the specific issues in controversy.” Valley
Drug, 350 F.3d at 1189 (emphasis added).
The defendants speculate as to the scope of any
relief and whether certain class members would prefer
their current living conditions at Limestone over the
free choice to transfer inter- and infra-facility.
weighing of these options is premature and nebulous.
Tellingly, the defendants’ argument relies on cases in
economic winners and losers.
See, e.g., Defendants’
Brief (Doc. No. 47) at 62-63 (citing Valley Drug, 350
F.3d at 1189).
The defendants’ alleged conflict is too
ancillary and contingent to defeat class certification
Finally, the court finds that plaintiffs’ counsel are
involving prisons and, therefore, satisfy the adequacy
plaintiffs seeking prospective relief for the class as a
involving challenges to racial segregation–-conduct that
was remedied by a single classwide order.”
S. Ct. at 2558.
This case fits squarely within Rule
Indeed, this same class has been
certified twice before by this court.
See Onishea v.
Hopper, 171 F.3d 1289, 1292 (11th Cir. 1999) (en banc);
Edwards v. Alabama Department of Corrections, 81 F. Supp.
2d 1242, 1245 (M.D. Ala. 2000) (Thompson, J.).
Here, the plaintiffs seek a declaratory judgment that
Alabama’s HIV segregation policy violates federal anti-
discrimination laws and an injunction against its further
The plaintiffs do not seek monetary relief.
policy of disability discrimination and their request for
prospective relief, Rule 23(b)(2)’s requirements have
Accordingly, it is ORDERED that:
(1) Plaintiffs’ motion for class certification (Doc.
No. 2) is granted.
(2) A plaintiff class is certified as consisting of
all present and future prisoners diagnosed with HIV in
the custody of the Alabama Department of Corrections.
(3) The class representatives are Louis Henderson,
Dana Harley, Darrell Robinson, Dwight Smith, Albert Knox,
James Douglas, Alqadeer Hamlet, and Jeffery Beyer.
DONE, this the 30th day of August, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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