Dunn et al v. Thomas et al

Filing 1013

PHASE 2A CLASS CERTIFICATION OPINION. Signed by Honorable Judge Myron H. Thompson on 11/25/16. (djy, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION EDWARD BRAGGS, et al., Plaintiffs, v. JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:14cv601-MHT (WO) PHASE 2A CLASS CERTIFICATION OPINION The plaintiffs in this putative class-action lawsuit are dozens of state prisoners and the Alabama Disabilities Advocacy Program (ADAP). The defendants are officials of the Alabama Department of Corrections (ADOC): the Commissioner and the Associate Commissioner of Health Services.1 They are sued in their official capacities only. 1. ADOC itself is also a party, but with respect to only claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and § 504 of the (continued...) In Phase 2A of this case, with which this opinion is concerned, ADAP and a subset of individual named plaintiffs assert the following claims: constitutionally inadequate mental-health treatment in Alabama prison without due facilities process. and They involuntary rely on the medication Eighth and Fourteenth Amendments, as enforced through 42 U.S.C. § 1983. relief. Plaintiffs seek declaratory and injunctive Jurisdiction is proper under 28 U.S.C. § 1331 (federal question) and § 1343 (civil rights).2 The case Rehabilitation Act of 1973, codified at 29 U.S.C. § 794, which are nearly settled and therefore not discussed in this opinion. See Joint Status Report (doc. no. 968) at 5 (“Plaintiffs and Defendants ADOC have agreed in substance to a settlement that resolves the Phase 2A ADA issues. These parties continue to work to resolve the Plaintiffs’ claims for attorneys and monitoring fees for these issues.”). To the extent that the parties are not successful in reaching a final resolution of these claims, they have reserved them for later adjudication. See Phase 2 Order on Remaining ADA Claims (doc. no. 981). 2. This case has twice been bifurcated for the administrative convenience of the court and the parties. The claims in Phase 1, which the parties settled with a consent decree approved by the court, involve ADA claims alleging discrimination on the basis (continued...) 2 is proceeding ADAP’s claims on and two the parallel tracks individual consisting named of plaintiffs’ claims. In August 2016, more than two years after this case was filed and after extensive discovery, the individual plaintiffs formally moved for certification of a Phase 2 class, while ADAP pursued its claims separately as an association whose constituents include the mentally ill prisoners in ADOC’s custody.3 of and non-accommodation of physical disabilities. See Dunn v. Dunn, -- F.R.D. --, 2016 WL 4718216 (M.D. Ala. Sept. 9, 2016) (Thompson, J.). The claims in Phase 2B, which are set to go to trial after the Phase 2A claims (should they survive summary judgment), involve Eighth Amendment claims related to medical and dental care. 3. As the court explained to the parties during the briefing process, it will, at this time, decide the motion only as to the Phase 2A claims, although the motion was filed for both Phase 2A and Phase 2B. Plaintiffs describe the class they seek to certify for purposes of Phase 2A as a mental-health subclass of a larger health care class they seek to have certified. As this case has been bifurcated into mental-health care and medical/dental care phases, the court will consider whether the mental-health class certified here should be considered a subclass of any future health care class when considering whether to certify such a class. 3 For reasons certification that filed follow, by the the motion for individual class plaintiffs (hereinafter referred to simply as plaintiffs) will be granted in part and denied in part, and two classes certified. The court has narrowed the scope of the mental-health care Eighth Amendment class, and winnowed down the involuntary-medication due-process claim to the portion suitable for class certification. I. Federal Rule Rule 23(c)(1)(B) of Civil Procedure 23(c)(1)(B) requires a certification order to “define the class and the class claims, issues, or defenses”; therefore, a court must consider the propriety of certification in relation to a specific putative class definition and specific putative class claims. Plaintiffs seek certification of a Rule 23(b)(2) class consisting of “all persons with a serious mental health disorder or illness who are now, or will in the future be, subject to Defendants’ mental health care 4 policies and practices in ADOC facilities.” Pls.’ Reply Br. (doc. no. 890) at 57.4 The first claim plaintiffs seek to bring on behalf of this class is that defendants are violating the 4. Defendants note that plaintiffs initially sought certification of a class of all prisoners subject to defendants’ mental-health care policies and practices. Plaintiffs have clarified that they seek certification of a narrower class, limited to prisoners with serious mental illnesses. Because there is some case law to suggest that healthy prisoners cannot raise Eighth Amendment health care claims, the court will employ the class definition limited to prisoners (current or future) with serious mental illness, in an exercise of its discretionary authority to “reshape the boundaries and composition of the class” based on a “determination that reformulating the class will better serve the purposes of Rule 23 and the underlying policies of the substantive law than would denying certification altogether.” Shelton v. Bledsoe, 775 F.3d 554, 564 (3d Cir. 2015) (quoting Tobias Wolff, Discretion in Class Certification, 162 U. Pa. L. Rev. 1897, 1925 (2014)). In doing so, the court notes that the effect of this choice of a narrower class definition on the progress of the case and on any eventual relief will be virtually nil. Plaintiffs’ Eighth Amendment claim does not concern the adequacy of mental-health care being provided to prisoners who are not seriously mentally ill. (Plaintiffs do contend that defendants fail to recognize many prisoners’ serious mental illnesses. The interests of class members in this category will be addressed at trial, because one of the practices plaintiffs challenge is (continued...) 5 Eighth Amendment by failing to provide constitutionally adequate mental-health care to prisoners with serious mental illnesses. defendants have Specifically, been they deliberately allege that indifferent to a substantial risk of serious harm posed to the putative class members by a number of policies and practices (both separately and in combination). Although these policies and both experts, sometimes helpful to practices, parse according contribute them in to order to each to parties’ other, ensure it that is the putative class can properly challenge them. Plaintiffs take the position that they need not demonstrate the suitability for class-wide adjudication of any particular policy or practice, and that they need only inadequate demonstrate that mental-health certification. the care overarching is claim appropriate of for But, as in Parsons v. Ryan, a similar recent case, the court must dive somewhat deeper. 289 defendants’ failure to adequately screen prisoners for mental illness.) 6 F.R.D. 513, 522-23 (D. Ariz. 2013) (Wake, J.) (certifying a state-wide class of prisoners challenging systemic deficiencies in both medical and mental-health care). Although the court agrees that plaintiffs have brought only one Eighth Amendment “claim,” this claim-as it has evaluating been the formulated risk of policies and practices. by harm plaintiffs--turns posed by on particular The court will need to ensure, therefore, that these policies and practices are common to the class, and that representatives have been put at risk by them. Defendants, for their part, seek to atomize the claims of plaintiffs by focusing on the minutiae of unimportant distinctions, failing to see the forest for the trees (and leaves). The court is thus left with the task of reaching an appropriate middle ground, and defining the policies and practices at issue in a way that recognizes themes articulated in quantity record of the allegations evidence the and court the has voluminous reviewed, while ensuring that defendants are not left to face a 7 singular amorphous contention that the mental-health care they are providing is not good enough. plaintiffs’ protestations, the headings Despite in their complaint do an admirable job in this respect, and the court has drawn heavily upon them in formulating the following list. The eight policies and practices at issue in plaintiffs’ Eighth Amendment claim are: (1) Failing to provide adequate numbers of and sufficiently qualified mental-health staff. (2) Failing to provide adequate levels of custodial staffing to avoid regular security-related interruptions to or interference with the provision of mental-health care. (3) Failing to identify mental illness or recognize the severity of mental illness, at initial screenings, in future classification and placement decisions, and in response to referrals. (4) Failing to prescribe and manage psychotropic medication and its side effects appropriately. (5) Failing to provide more than cursory psychotherapeutic care and counseling. (6) Failing to protect prisoners who are suicidal or engage in self-harm by inadequately monitoring and treating them and providing inadequate follow-up care. (7) Placing prisoners in segregation without regard to its harmful effects on their mental health. (8) Disciplining prisoners based on behavior that results from mental illness. 8 In addition, plaintiffs seek to raise on behalf of the class due-process medication. claims related to involuntary These, too, require some disaggregation. Plaintiffs seek to challenge three discrete policies or practices: (1) Denying substantive due process to prisoners subject to involuntary-medication orders by beginning or continuing to require them to be medicated absent a recent finding that they pose a danger to themselves to others. (2) Denying procedural due process to prisoners subject to involuntary-medication orders by failing to provide them adequate notice of hearings and other protections provided for in the applicable regulation. (3) Denying substantive and procedural due process to prisoners who are not subject to involuntary-medication orders by coercing consent. For the reasons set forth below, the court will certify two classes, as follows. With challenge respect to to the plaintiffs’ eight Eighth Amendment and practices policies enumerated above, the court will certify a class of “all persons with a serious mental-health disorder or illness who are now, or will in the future be, subject to defendants’ mental-health 9 care policies and practices release in ADOC centers facilities, and Tutwiler excluding Prison the for work Women.” Plaintiffs (and defendants) have agreed that prisoners at the work release centers should be excluded from the class definition; the court will explain below, in the context of its discussion of commonality, why it has also decided to exclude the female prisoners at Tutwiler. With respect to plaintiffs’ challenge to the policy or practice of denying procedural due process to prisoners subject to involuntary medication orders by failing to provide them adequate notice of hearings and other protections provided for in the applicable regulation, the court will also certify a class of “all persons with a serious mental-health disorder or illness who are now, or will in the future be, subject to defendants’ formal involuntary medication policies and practices.” The court has decided, in an exercise of its discretion to manage this litigation, not to certify for class-wide 10 litigation plaintiffs’ substantive due-process challenge to the policy or practice of requiring involuntary medication without a recent finding of dangerousness--which turns at least in significant part determination--or on their practice of obtaining However, the individual an inherently challenge to consent individualized the policy through plaintiffs who or coercion. have brought these claims will proceed to trial; ADAP, through its associational standing, may represent the interests of unnamed prisoners who are subject to these policies and practices. II. Evidentiary Burden In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court explained that “Rule 23 does not set seeking forth a class mere pleading certification standard. must A party affirmatively demonstrate his compliance with the Rule--that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law 11 or fact, etc.” 564 U.S. at 350. A court should only certify a class if it “is satisfied, after a rigorous analysis that the prerequisites of Rule 23(a) have been satisfied.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013).5 The party Supreme Court seeking has been certification clear that what the must “affirmatively demonstrate,” and what the court must find, is that the requirements for class certification are met--not that the class will prevail on its claims. As the Court put it in Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013), it “totally misapprehend[s] the essential point” of this case law to suggest that certification is improper unless plaintiffs are able to prove that the common question “will be answered in their favor.” All they need to 5. While a few circuits have held that parties seeking certification must demonstrate their compliance with Rule 23 by a preponderance of the evidence, this is not the law in this circuit; the court further notes that its conclusions as to the appropriateness of class certification would not differ under this standard. 12 offer evidence to show--for purposes of certification-is that there exists a common question, the answer to which will litigation.” be “apt to drive the resolution of the Wal-Mart, 564 U.S. at 350. III. Daubert The parties have raised Daubert objections to each other’s experts. motions, For purposes of the Phase 2A pretrial however, the only objections that must be resolved are those to plaintiffs’ mental-health expert, Dr. Kathryn Burns.6 Although the court has carefully 6. Defendants have also raised Rule 26 objections to the report offered by Dr. Burns. The court addressed these objections (like those plaintiffs made regarding defendants’ expert reports) by requiring both parties’ experts to supplement their reports with additional citations in order to facilitate the court’s review. The outstanding objections to the 50-page report offered by Dr. Burns do not hold water. In some cases, defendants’ objections are to opinions which Dr. Burns, as a highly-experienced mental-health practitioner and administrator of a state prison system’s mental-health services, has plainly based on her own experience, such as her opinion that certified registered nurse practitioners “have less training, knowledge, skill and judgment, which is why (continued...) 13 considered all of the evidence in the record, it need not resolve experts plaintiffs’ until appropriate trial, even because assuming evidence is admissible. for purposes Defendants do objections only of not raise class that to defendants’ certification defendants’ is expert The court therefore assumes-this opinion--that Daubert objections it is. to the they are considered mid-level clinicians and are required by law to have a collaborative relationship with a physician.” Burns Report (doc. no. 868-2) at 14. Defendants also object to instances in which Dr. Burns gives a few examples of a particular phenomenon she observes, but notes that she saw many more. However, she identifies in her report all of the prisoners she interviewed and those whose records she reviewed, and she produced to defendants her notes; notably, defendants’ experts relied on their notes to inform plaintiffs which specific records they relied upon in reaching their conclusions. Moreover, defendants were free to ask her for additional examples during her day-long deposition. In her lengthy report, Dr. Burns satisfied her obligation to explain “the basis and reasons” for her opinions, and to disclose to defendants “the facts or data” she considered in reaching her opinions. Fed. R. Civ. P. 26(a)(2)(B). 14 reports of plaintiffs’ other Phase 2A experts, Dr. Craig Haney7 and Eldon Vail.8 7. Although defendants have not raised any Daubert objections to Dr. Haney, their expert does criticize his reliance on statements by prisoners he interviewed in reaching his conclusion. However, Dr. Haney’s reliance on these statements was reasonable in light of the fact that he considered them among other sources of information, including observations, documents produced by defendants and MHM, testimony of ADOC and MHM employees, and medical records. The court notes that other courts have recognized that experts’ “consideration of [] inmates’ declarations and grievances as one of several sources informing his opinion is a valid methodology and does not render his opinion inadmissible.” Gray v. Cty. of Riverside, 2014 WL 5304915, at *20 (C.D. Cal. Sept. 2, 2014) (Phillips, J.) (discussing evidence regarding prison medical care, as part of a class-certification evaluation). Also, Dr. Haney explained in his deposition that the medical records he reviewed were in “disarray” and “weren’t helpful in conveying information” because they were “very difficult to read” and “had a lot that was missing from them,” that reviewing more of them would therefore have been only “marginally useful,” and that, although his “expectation was that the records would actually have been a very useful source of information,” he “was disabused of that notion when [he] began to look at them.” Haney Depo. (doc. no. 840-2) at 81-82, 187-88. Moreover, as Dr. Haney points out, his opinions concern systemic and widespread deficiencies; although heavy reliance on any one prisoner’s self-report about his own mental-health care could potentially be (continued...) 15 suspect, Dr. Haney found that the self-reports of numerous prisoners corroborated each other and were supported by other evidence; he appropriately relied on this evidence to reach the broader conclusions on which this case will turn. See Haney Report (doc. no. 868-4) at 28-29 (“[T]here was a remarkable amount of consistency in the data on which I relied--consistency in the observations that I made from facility to facility and consistency in what prisoners after prisoner told me, both about the damaging conditions of confinement to which they are exposed and the egregious treatment, or lack thereof, that they receive. ... Moreover, the prisoners’ observations were corroborated by the aggregate system-wide data that I have examined, as well [as] the deposition testimony of ADOC and MHM officials with oversight responsibilities....”); see also Haney Depo. (doc. no. 840-2) at 58-59 (“[N]o one particular prisoners giving me one particular opinion about something led me to conclude anything. ... [T]his particular gentleman’s expression to me, the expressions from other people to me about the mistreatment, was corroborated not only by other prisoners at other institutions, many of them, but also by the chief psychiatrist of the entire system. If this is the only person who told me this, then it would not have been something I would have put in my report or relied on. But it was ... apparently such a consistent theme that it bubbled up to the top of the system and became a concern by people in the system, running the system. So I felt confident in the fact it was a problem in the system.”). 8. Defendants did insert a very brief Daubert argument regarding Vail into a footnote. Because it is so peripherally raised, this objection is addressed (continued...) 16 1. After the Supreme Standard Court outlined a gatekeeping analysis for scientific expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and made that analysis applicable (with necessary modifications in the precise questions asked) to other technical expert testimony in Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999), the Eleventh Circuit explained ensure that the the purpose reliability of and this analysis relevancy of is “to expert testimony ... [and] to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes practice of an expert in the relevant field.” the United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc) (quoting Kumho Tire, 526 U.S. at 152). The appeals court went on to explain that under Federal below in the context of a related objection to Dr. Burns. 17 Rule of Evidence 702, courts are to “engage in a rigorous three-part inquiry,” considering “whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, understand issue.” omitted). technical, the Id. or evidence (citation The specialized or and proponents to expertise, determine internal of the a fact quotation expert to in marks testimony (here, plaintiffs) bear the burden of establishing that these three requirements are met. See id. Ordinarily, “[t]he safeguards outlined in Daubert are less essential in a bench trial”; a judge need not gatekeep for herself. M.D. v. Abbott, 152 F. Supp. 3d 684, 709 (S.D. Tex. 2015) (Jack, J.) (citing Gibbs v. Gibbs, 210 F. 3d 491, 500 (5th Cir. 2000)), appeal dismissed (Apr. 5, 2016). 18 However, the Eleventh Circuit and others have held that when a court relies on expert testimony to find that a Rule 23 requirement has been met, the court must conduct a Daubert analysis and conclude standard. that the expert’s opinions satisfy its Sher v. Raytheon Co., 419 F. App’x 887, 890-91 (11th Cir. 2011); see also In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011). Daubert Some courts have noted, however, that the analysis conducted for purposes of class certification may be narrower than that conducted for purposes of a trial on the merits, because “the inquiry is limited to whether or not the expert reports are admissible to establish the requirements of Rule 23.” Fort Worth Employees' Ret. Fund v. J.P. Morgan Chase & Co., 301 F.R.D. 116, 126 (S.D.N.Y. 2014) (Oetken, J.). Assessing an expert’s qualifications is generally the most straightforward of these tasks. not challenge discussed Dr. below, Burns’s the court 19 Defendants do qualifications, finds that and as she is exceedingly well-qualified to opine on the matters she addresses in her report. As for methodology, the court’s the court assessment is to of determine an expert’s “whether the reasoning or methodology underlying the testimony is ... valid and ... whether that reasoning or methodology properly can be applied to Daubert, 609 U.S. at 592-93. the facts issue.”9 in The traditional factors a court may consider, where appropriate, are “(1) whether the expert’s theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of whether the the particular technique [expert] community.” However, the court [expert] is generally Frazier, of technique; appeals 387 has and (4) in the accepted F.3d at 1262. emphasized that, 9. Notably, this is not an all-or-nothing inquiry. “Even if a part of an expert’s testimony is based on unreliable methodology, the court should allow those parts that are reliable and admissible.” Lohr v. Zehner, 2014 WL 3175445, at *1 (M.D. Ala. July 8, 2014) (continued...) 20 particularly in non-scientific illustrative, cases expert not like this evidence, exhaustive; one, “[t]hese not all involving factors of are them will apply in every case, and in some cases other factors will be equally important.... Sometimes the specific Daubert factors will aid in determining reliability; sometimes other questions may be more useful. As a result, ‘the trial judge must have considerable leeway in deciding determining in a particular whether reliable.’ case particular how expert to is evaluated may vary about testimony Kumho Tire, 526 U.S. at 152. reliability go is Exactly how from case to case....” Frazier, 387 F.3d at 1262; see also United States v. Brown, 2005) (explaining 415 F.3d that 1257, “the 1267-68 question (11th of Cir. whether Daubert’s specific factors are, or are not, reasonable measures matter of that reliability the law in grants a particular the trial case judge is a broad (Thompson, J.) (citing United Fire and Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1342 (11th Cir. 2013)). 21 latitude to determine” (internal citations omitted)); Ruiz v. Johnson, 37 F. Supp. 2d 855, 889-92 (S.D. Tex. 1999) (Justice, J.), rev’d on other grounds and remanded sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001) (explaining that an expert’s evaluation of the quality of the medical care provided by a prison system is “not the type of testimony that necessarily implicates Daubert’s requirement of scientific methodology”). To the extent that an expert witness relies or “solely primarily on experience, ... the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for reliably the opinion, applied to and the how facts.” that experience Morris v. is Fla. Transformer, Inc., 455 F. Supp. 2d 1328, 1331 (M.D. Ala. 2006) (Thompson, J.) (citing Fed. R. Evid. 702 advisory committee’s note).10 10. Although Dr. Burns does rely on her experience to a significant extent in reaching some of the opinions she offers (specifically, with respect to the competencies of providers with different levels of (continued...) 22 As for helpfulness, “the court must ensure that the proposed expert testimony is relevant to the task at hand, ... i.e., that it logically advances a material aspect of the proposing party’s case.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (citations and internal quotation marks omitted). Additionally, for expert evidence to be helpful to the finder of fact, it must offer insight “beyond the understanding and experience of the average citizen.” United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985). Although evidence is the higher relevance than the standard liberal for expert admissibility policy set forth in Rules 401 and 402, see Allison, 184 qualifications, and the risks posed by relying on them to serve assessment and treatment functions), she does not rely solely or even primarily on her experience; she also explains at some length the ways her preexisting views regarding the effects of reliance on underqualified and unsupervised providers were borne out by the evidence she gathered during her inspections and in reviewing documents. Moreover, the court concludes that, to the extent that Dr. Burns relies on her own experience in reaching these conclusions, she has adequately explained why her experience supports her opinions in this case. 23 F.3d at 1309-10, Daubert itself makes clear that a court can deem expert evidence sufficiently helpful to be admissible but nonetheless conclude that it is insufficient to create a genuine dispute of material fact for purposes of summary judgment. 509 U.S. at 595-96; see also Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011) (same). One final note bears mention. Here, because plaintiffs rely on the expert evidence of Dr. Burns with respect to their opposition to summary judgment and in support of their motion for class certification, the court is required first, to consider the admissibility of her opinions under Rule 702, and then to determine plaintiffs’ whether other they, evidence, in are conjunction sufficient with both to create disputes of material fact regarding the merits of plaintiffs’ claims for purposes of Rule 56, and to demonstrate the requirements of certification under Rule 23. As the court has explained previously, these analyses are “quite distinct” 24 and “must be kept separate.” Morris, 455 F. Supp. 2d at 1332 (quoting Rudd v. General Motors Corp., 127 F. Supp. 2d 1330, 1336 (M.D. Ala. 2001) (Thompson, J.)). In this section of the opinion, the court will address only Rule 702 admissibility. Later in this opinion, it will address the this role compliance that with evidence Rule in establishing Finally, 23. plays in the court’s simultaneously issued opinion on summary judgment, it has addressed at some length why this evidence creates material disputes of fact as to the merits of plaintiffs’ claims. 2. Dr. Burns As a preliminary matter, although defendants do not question Dr. Burns’s qualifications, the court notes that they are quite impressive.11 Defendants’ mental- 11. Of course, sterling qualifications are, on their own, insufficient to defeat a Daubert challenge. See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1351-42 (11th Cir. 2003) (“[W]hile an expert’s overwhelming qualifications may bear on the (continued...) 25 health expert, recognized her Dr. to Patterson, be a “top has himself nationally recently recognized expert[] in the field of correctional mental health.” Rep. on Suicides Completed in the California Dep’t of Corr. and Rehab. at 1, Coleman v. Brown, No. 2:90-cv-520 (E.D. Cal. March 13, 2013), ECF No. 4376. She currently serves as the Chief Psychiatrist of the Ohio Department of Rehabilitation and Correction (as she did for a period of four years in the late 1990s). She has also long been familiar with the provision of mental-health care in Alabama’s prisons, as she served as an expert in previous litigation that successfully obtained a remedial settlement, Bradley v. Harrelson. See Order Approving Settlement Agreement, Bradley v. Harrelson, No. 2:92-cv-70 (M.D. Ala. June 27, 2001) (Albritton, J.), ECF No. 412. As to Dr. Burns’s methodology, defendants essentially present two different arguments: that she reliability of [her] testimony, they are by no means a guarantor of reliability.”)). 26 did not see enough firsthand ( of 15 major facilities, 102 prisoners), randomly select and that prisoners she to (admittedly) interview.12 did In not other prison cases, a number of courts have rejected Daubert attacks on experts (offered defendants) on grounds non-random, and the that they by that did both plaintiffs their not samples consider and were enough prisoners at enough facilities in order to extrapolate conclusions about the system as a whole. F. Supp. 2d at 890-92, the court In Ruiz, 37 rejected the 12. Defendants also note that Dr. Burns criticized an audit conducted by MHM on the grounds that it involved only 10 facilities, and the non-random review of the records of 144 prisoners. This, they say, undermines her own findings as well. But the court is not convinced that this criticism substantially undercuts her conclusions; plaintiffs have taken the entirely reasonable position that, because the purpose of an audit (to track changes in the quality of care being delivered over time) fundamentally differs from that of an expert inspection (to aid the court in determining whether deficiencies in the mental-health care system create a substantial risk of serious harm to mentally ill prisoners), different methodologies are appropriate. In any event, even if Dr. Burns’s criticism of MHM’s methodology were applicable to her own work as an expert, it would hardly establish that (continued...) 27 defendants’ arguments statistical have not proof and of that “in violations cannot show the ..., absence the system-wide of plaintiffs violations,” explaining that although “[s]tatistical procedures can increase the court’s confidence in making inferences from a given set of data, ... this is an issue of weight, rather methodology. than admissibility Statistical models are of simply a given not the only method for making general inferences from specific data.” As for non-random sampling, as the court put it in the context of the claims in Ruiz, “[t]he fact that 30 records show excessive use of force does not change because the records were selected non-randomly.” at 891. 1303 See also Coleman v. Wilson, 912 F. Supp. 1282, (E.D. similar Id. Cal. objection 1995) to (Karlton, expert J.) (rejecting declaration that a the defendants contended were “unreliable insofar as they the methodology she did employ was not reliable to survive a Daubert challenge. 28 sufficiently are based on plaintiffs’ medical files counsel”). ‘pre-selected’ Another court by recently discussed at some length the use of non-random sampling by prison experts. In Dockery v. Fisher, 2015 WL 5737608, at *5 (S.D. Miss. Sept. 29, 2015) (Barbour, J.), the qualitative court recognized research methods that are both non-randomized “accepted and mainstream in the scientific community,” and, in the view of some experts, “more applicable to a proper evaluation of the delivery of health care at a prison.” The court quoted plaintiffs’ expert as explaining that “[w]hen sampling from people (patients, staff) and documents in qualitative research, random samples are to be avoided. Instead, the gold standard for sampling is sampling’ ‘judgment Instead samples, of a using random judgment or ‘purposeful number sample is generators chosen sampling.’ to based select on the expertise and judgment of a subject matter expert with knowledge of the system or process being assessed. The goal is to obtain a sample which is as broad, rich, and 29 representative conditions of as appropriate the diversity possible. because ... of operational Judgment ensuring that samples all are potential observational units in a population and sampling time frame have equal probability of selection is often not the most look to desired the or subject beneficial matter strategy. experts to Rather, guide we which areas, times of day, or segments of the population are most important to study and understand.” Id. at *6 (citation and internal quotation marks omitted). court also defendants’ recognized arguments the against potential this merit The of methodological approach, but concluded that this went to the weight to be given the admissibility. expert evidence, rather than its Id.; see United States v. Monteiro, 407 F. Supp. 2d 351, 366 (D. Mass. 2006) (Saris, J.) (“It may well be that other methods ... may prove to be the best method of analysis. However, Daubert and Kumho Tire do not make the perfect the enemy of the reliable; 30 an expert need not use the best method of evaluation, only a reliable one.”). In another recent case about the adequacy of prison health care, Jama v. Esmor Correctional Services., Inc., 2007 WL 1847385, at *26-27 (D.N.J. June 25, 2007) (Debevoise, J.), the court rejected a Daubert challenge to an expert on the grounds that he had reviewed only the 78 medical request forms submitted by the nine plaintiffs, who were among 1600 detainees housed at the facility at issue. “convenience” Plaintiffs argued that his use of rather than random sampling was unreliable and that “his sample size [was] too small to generate with reliable defendants weight of admissibility. statistics,” that his these evidence but the challenges rather court went than agreed to to the its The court and others recognized that this sort of sampling is particularly reasonable when it is part of a multifaceted review that considers not only the records and statements of individuals but also other sources such as deposition transcripts and other 31 documents that conclusions.” allows an expert to “draw general Id.; see also Parsons, 2014 WL 3721030, at *4. Defendants cite a number of cases for the proposition that because Dr. Burns cited in her report only 29 examples of different individual prisoners receiving inadequate care or classification, the size of her sample was insufficient to allow her to draw conclusions about systemic inadequacies.13 These cases are, however, distinguishable from the case at bar. Wal-Mart, the court concluded affidavits describing instances 235 of stores out 3,400 that of 120 In anecdotal discrimination at insufficient to were “demonstrate that the entire company operates under a general policy of discrimination.” 564 U.S. at 358 (citation and internal quotation marks omitted.) individual 13. include examples total of prisoners whose care Dr. Burns The discusses Dr. Burns has since supplemented the report to citations explicitly referencing another 29 with respect to 14 additional prisoners, for a 58 instances and 43 prisoners. 32 make up a significantly larger and more representative portion of the class than did the affiants in Wal-Mart, and, more important, the evidence about them is being used for an entirely different purpose. In Wal-Mart, the affidavits represented only one in approximately 12,500 class members; here, ADOC recognizes as mentally ill by placement on the caseload about 3,500 prisoners, meaning that the 43 prisoners Dr. Burns cites (even setting aside illustrative her representation examples drawn that from notes these are that but include others) represent in the vicinity of one in 80 class members. Moreover, while the Wal-Mart affiants related only to one in every 15 or so stores, Dr. Burns drew from about two-thirds of a much smaller number (15) of major correctional facilities. Moreover, and critically, the Court in Wal-Mart had already rejected the plaintiffs’ expert evidence, concluding that it did not establish that the company operated Court’s under a discussion policy of of the discrimination; affidavits, 33 it was in the simply explaining that they did not, on their own, suffice to support the inference that such a policy existed. With respect to all of Dr. Burns’s opinions, by contrast, she cites other evidence to establish the existence of a policy or practice (such as statements by prison mental-health practitioners or internal documents). In some cases, the existence of the policy or practice is effectively undisputed; for example, defendants do not disagree that a certain number of practitioners with certain qualifications prisoners. provide mental-health care to What they dispute, and what Dr. Burns cites these prisoners to show, is that these policies and practices place prisoners at a substantial risk of serious harm.14 14. Another one of defendants’ citations, Henderson v. City and County of San Francisco, 2006 WL 3507944, at *10 (N.D. Cal. 2006) (Walker, J.), is distinguishable for the same reasons. In that case, plaintiffs were attempting to show that a sheriff had a practice of “routinely exonerat[ing] deputies of wrongdoing.” Plaintiffs had presented “almost no evidence” of this fact, but were given an opportunity to file a supplemental brief based on new discovery. They submitted 18 grievances selected by the plaintiffs (continued...) 34 The court will address the remainder of defendants’ case law--offered in support of their contention that Dr. Burns lacks a sufficient conclusions--more briefly. basis for her Although Lloyd Noland Hosp. & Clinic v. Heckler, 762 F.2d 1561, 1568 (11th Cir. 1985), recognized the obvious point that a “sample size from more than 200 filed by prisoners over a one-year period in which over 6,000 prisoners were housed in the facility; the grievances described only 14 alleged incidents, and in five of those cases, the prisoners were satisfied with the responses they had received. This left nine complaints about “any kind of force,” much less unjustified force. The court quite reasonably concluded that this was insufficient, on its own, to create a dispute of material fact as to the “existence of a pervasive custom of excessive force.” The first key difference between Henderson and this case is that in Henderson, the court was presented with (a few) examples of documents plaintiffs simply asserted reflected excessive force, whereas here, far, far more voluminous evidence has been filtered through the expert judgment of Dr. Burns and resulted in her opinions. Moreover, even the facts on which Dr. Burns relied are easily distinguishable from the evidence deemed insufficient in Henderson: for one thing, Dr. Burns considered numerous different forms of evidence, including interviews, record reviews, inspections of facilities, internal documents, and testimony by mental-health care providers and administrators; for another, she considered facts regarding far more individuals--over a hundred, in fact. 35 [may be] too small” to draw certain conclusions from it, the issue in that case was worlds away: whether the Secretary of Health and Human Services had improperly relied on a study--which stated that “no broad conclusions can be drawn about the nature and extent of medical malpractice in this country” on the basis of the study--to reach a conclusion as to that very issue. Moreover, defendants suggest no basis for comparing the suitability of the sample size in the study at issue (or, indeed, what that sample size was) to that employed by Dr. Burns. Dukes v. Georgia, 428 F. Supp. 2d 1298, 1317 (N.D. Ga. 2006) (Forrester, J.), unremarkable proposition “sufficient data and stands that an for the similarly expert information” may to lack reach a conclusion. But the expert at issue in that case does not to appear speculated, have without sampled much basis, anything; about he simply whether a lab technician should have identified a strain of yeast. The case is hardly on point. 36 Gilliam v. City of Prattville, 667 F. Supp. 2d 1276, 1298 (M.D. Ala. 2009) (Fuller, J.), concluded that, even if an unqualified expert had been qualified, his testimony would not have been reliable for numerous reasons, including that he had not examined the autopsies of the individual about whose death he was testifying and had offered no data or explanation to support his theory as to the cause of death point. or to refute other theories. Again, not on Finally, in United States ex rel. Wall v. Vista Hospice Care, Inc., 2016 WL 3449833, at *12 (N.D. Tex. June 20, 2016) (Lynn, J.), the court was required to determine how many false claims had been submitted by physicians, which in turn required “individual physicians’ patients.” The court concluded (contrary to the view judgment assessments regarding of individual of at least one court in this circuit) that statistical sampling and extrapolation could not be used by experts to establish apparently liability believe in this such case a is case. Defendants relevant because mental-health care providers (obviously) exercise some 37 judgment in caring for individual prisoners. This case is readily distinguishable, for two reasons: First, Dr. Burns has not engaged in statistical sampling or attempted to offer a precise quantitative assessment of whether specific instances of mental-health care were or were not Commissioner adequate. and Second, Associate because it Commissioner, is not the the mental-health practitioners who provide care, who are the defendants, this case does not turn on assessments of the case-specific “subjective clinical judgment” of mental-health staff, but rather on whether, in staffing, funding, and overseeing the operation of the mental-health deliberately care system, indifferent to defendants an have objective risk been of serious harm to mentally ill prisoners. Defendants also cite a concurring opinion in EEOC v. Freeman, 778 F.3d 463, 469-70 (4th Cir. 2015) (Agee, J.), which expresses the judge’s serious concern that the EEOC “continues to proffer expert testimony from a witness whose work has been roundly rejected in our 38 sister circuits.” This expert had attempted to offer statistical evidence in support of a disparate impact theory. His work “contained a plethora of analytical fallacies”: although he had a complete data set, he opted to “ignor[e]” years of relevant data from more than half resulting of in dishonesty.” the “an years and egregious locations example of at issue, scientific Even within the subset of available data he did consider, he had “cherry-picked” the data that supported his conclusions. Dr. Burns, by contrast, is not statistical endeavoring opted for a to offer sampling method that evidence, other courts and have recognized as appropriate for an expert in her field, and that was especially reasonable in light restrictions on her ability to gather data.15 of the She has 15. Plaintiffs’ experts explained that, in contrast to their experience working on other similar cases, they had been provided an unusually limited level of access to information, and especially to medical records. See Haney Report (doc. no. 868-4) at 12 (“[A]lthough I had a wealth of information on which to rely and base my opinion--certainly enough information to reach and support the conclusions that are stated in (continued...) 39 considered all of the data she obtained in reaching her conclusions. and had larger it Had Dr. Burns been provided access to, been sample, feasible and had to she review, then a opted dramatically to base her assessments only on a small subset of those records and interviews, the concerns of defendants might be better founded. With respect to defendants’ contention that Dr. Burns did not tour all of defendants’ facilities, the court agrees with another court recently to consider this very issue that “otherwise admissible testimony based on investigation of some facilities but not all is still probative to some extent and any limitation goes to the weight of the opinions.” 3721030, at *4. case, the number Parsons, 2014 WL Moreover, as Judge Wake noted in that of tours plaintiffs’ experts were the remainder of this Report--my fact-finding was limited in some unprecedented respects,” including “having access to prisoner files only during the relatively brief time that they could be reviewed on-site.”). 40 allowed to complete, as well as the length of time they were allowed to spend in each facility and the number of prisoners whose records they were allowed to review and whose interviews they were permitted to conduct was circumscribed by defendants during the course of an extremely lengthy and contentious discovery mediation. See id. (“Defendants’ strenuous objections to the burdensome nature of the multiple prison tours, [and] the Court’s reduction of that burden by limiting the number of tours ... weigh[s] against complete exclusion of the reviewed opinions.”) policies The and fact that quality Dr. assurance Burns also documents relevant to other facilities, and that she reviewed the depositions of those responsible for providing or overseeing care at other facilities, further weighs in favor of considering her opinions even as to facilities she did not personally visit.16 16. Defendants also raise, in a brief footnote, a Daubert challenge to plaintiffs’ correctional expert, Eldon Vail. The scope of this challenge is limited to the contention that “[b]ecause Mr. Vail did not visit (continued...) 41 As a last methodological point, defendants take issue with Dr. Burns’s failure to review the entirety of the medical records of all of the prisoners she and has no knowledge regarding ADOC’s staffing policies at [a number of] facilities, he is not qualified under Daubert or Federal Rule of Evidence 702 to offer an opinion as to them.” ADOC’s Opp. to Class Cert. (doc. no. 810) at 8 n.3. Defendants point to Vail’s negative answer to the question “Are you aware of anything the Alabama Department of Corrections does at Bullock Correctional Facility to make sure that there are an adequate number of correctional staff present, given the number of inmates incarcerated at that facility?” as evidence that has no knowledge of staffing policies at that facility. But his “no” answer does not indicate that he had no basis for an opinion about staffing at that facility; it indicates only that he did not know of the existence of measures defendants take to ensure adequate staffing levels; in light of his other evidence that many ADOC facilities are severely understaffed, he appears to believe that no such measures are taken or that they are unsuccessful. In fact, Vail testified in his deposition that he did review, for purposes of extrapolating his findings, records stating the “number of inmates,” “number of staff,” and “design capacity” at each of the facilities in the system. Vail Depo. (doc. no. 810-1) at 96. Although defendants are certainly free to cross-examine Vail at trial if they believe that his reliance on these data resulted in inaccurate conclusions, they are an adequate basis for his expert opinion for purposes of Daubert. 42 interviewed, and contend that this reflects a failure to confirm prisoners’ self-reports. First of all, defendants concede that she did review the records of many of those she discusses specifically in her report. Furthermore, reliable she may well conclusions have with been respect without reviewing medical records. able to to some reach issues For example, to the extent that she disagreed with the classification of a severely mentally ill prisoner as an outpatient, she could well have both assessed the apparent severity of that prisoner’s currently illness classified and (and determined housed) without reviewing any documents. as that an he was outpatient As another example, Dr. Burns described in her report observing prisoners who had exhibited side been movement effects psychiatrist visible Finally, prescribed of who disorder although certain disorders these is that are without of reliance 43 She recognizing reference on who characteristic medications. capable bald antipsychotics to the is a such a records. totally uncorroborated statement of a single mentally ill individual might in some instances be questionable, Dr. Burns often describes statements by prisoners from her interviews as confirmatory of information she obtained from other sources, including directly from MHM. is, therefore, not a basis to exclude her This opinion, although defendants are free to cross-examine her on this point in order to undermine her conclusions at trial. Daubert See Allison, 184 F.3d at 1311 (explaining that analysis is “not intended to supplant the adversary system”). In sum, methodology the is court concludes sufficiently that reliable, Dr. and Burns’s that her opinions are based on a sufficient quantity, and range of sources evidence of, under data, Daubert to be admissible and Federal Rule as of expert Evidence 702. As for helpfulness, defendants insist that there is a “fit” problem between Dr. Burns’s report and the claims in this case, because her reports states that 44 various policies and practices subject prisoners to a “risk of harm”; they object to her failure to use the catchphrase from serious harm.” the case law, “substantial risk of But as Dr. Burns herself pointed out in her deposition, she has offered evidence helpful to the court in making this ultimate legal determination. She has she described in some detail the harms that believes will, and in some instances did, result from defendants’ policies and practices; it is the court’s task to determine whether these harms are “serious,” based on case law. Indeed, as Dr. Burns is not a legal expert and would not be applying this case law, any assessment harms would she made not be as to very the seriousness helpful.17 See of these Burkart v. 17. Defendants cite four cases that they contend support their position that there is not a sufficient “fit” between Dr. Burns’s opinions and the issues in this case. In these cases, however, the expert evidence at issue was totally unhelpful, whereas here the expert evidence is quite helpful but not sufficient on its own, absent some additional legal analysis by the court, to support liability. These cases all involve experts who, in one way or another, “fail[] to recognize ... the range of behavior between clearly (continued...) 45 unlawful and perfectly lawful.” Boca Raton Cmty. Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1233 (11th Cir. 2009); see also Corwin v. Walt Disney Co., 475 F.3d 1239 (11th Cir. 2007) (concluding that the district court had not abused its discretion in excluding portions of expert reports in a copyright case, when the experts had opined that there was a “striking similarity”--an element of the cause of action--between the ideas in a painting and a theme park, but this opinion was unhelpful because only the expression of an idea, and not the idea itself, could be copyrighted, and the experts had offered no opinions as to the expressions of ideas in the painting and theme park); Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1323 (11th Cir. 2003) (concluding that the district court had not abused its discretion in excluding portions of an expert report in which the expert asserted that there had been “an illegal price fixing conspiracy,” but “did not differentiate between legal and illegal pricing behavior, and instead simply grouped both of these phenomena under the umbrella of illegal, collusive price fixing,” explaining that “[t]his testimony could not have aided a finder of fact to determine whether appellees’ behavior was or was not legal”); United States v. Aegis Therapies, Inc., 2015 WL 1541491, at *6-9 (S.D. Ga. Mar. 31, 2015) (Wood, J.) (excluding an expert report in a case about improper Medicare billing because the expert report offered opinions in binary fashion (yes or no) as to whether each of 102 incidents of care were provided with the expectation that they would result in “significant improvement,” when the legally relevant question was whether they would result in “material improvement,” a different and lower standard). In these cases, the expert reports were unhelpful to the triers of fact because they merely identified an undifferentiated category of acts (of various kinds), some of which were lawful and some of which were unlawful; a given act’s (continued...) 46 Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997) (“Each courtroom comes equipped with a ‘legal expert,’ called a judge....”). Similarly, whether the it is risk is up to the court sufficiently to “substantial” constitute an Eighth Amendment violation.18 has offered harms this she evidence has effect going described; are not to the although statistically determine Dr. Burns incidence her of statements precise, to they the to are inclusion in that category gave the factfinder no information about its status as lawful or unlawful. The equivalent report in this case would be one merely identifying policies the expert believes should be changed, without offering information that would help the court determine which of the policies created a substantial risk of serious harm and which did not. 18. Defendants also forget that an Eighth Amendment violation can be established on the basis of a combination of conditions resulting jointly in a deprivation of adequate mental-health care. Whether or not the risk of harm from any particular challenged policy or practice is sufficiently substantial on its own to establish the objective component of an Eighth Amendment violation, plaintiffs may establish that some or all of them, together, do violate the Constitution. See Laube v. Haley, 234 F. Supp. 2d 1227, 1245 (M.D. Ala. 2002) (Thompson, J.) (citing Wilson v. Seiter, 501 U.S. 294, 304 (1994)). (continued...) 47 nonetheless very helpful. For example, she relies on chart reviews, interviews with prisoners, depositions of providers, and MHM quality assurance documents to conclude that for prisoners at a number of the facilities she toured, “virtually the only treatment being provided is psychotropic medication,” that any individual psychotherapy being provided was infrequent and brief,19 and that very few or no outpatient therapy groups were being 868-2) at 38-39. offered. Burns Report (doc. no. In this instance, the incidence of 19. Defendants respond to individual prisoners’ allegations that virtually no therapy is provided by citing medical records which sometimes show frequent contacts with mental-health professionals. But what plaintiffs complain of, and what Dr. Burns found in her inspections, was that prisoners were not receiving psychotherapy, not that they were having no contact whatsoever with mental-health professionals. Although this distinction may be harder to conceptualize with respect to mental-health care than to medical care, Dr. Burns explains that it is an important one. To offer an illustrative (if certainly imperfect) analogy, no one would dispute that to a prisoner with kidney failure, there is a world of difference between being “seen” by a nurse at the cell door who asks whether he is suffering from some of the symptoms of kidney (continued...) 48 harm is in her opinion extremely high. As another example, Burns opines that mental-health staff continue to prescribe certain long-acting antipsychotic injections even when they cause serious side effects such as severe restlessness, painful muscle spasms, and irreversible movement disorders; she reached this conclusion based on chart reviews and interviews with and observations of prisoners. Although her report does not reveal exactly what percentage of mentally ill prisoners are prescribed these medications, she does helpfully inform the court that “[m]any of the inmates interviewed disorders, displayed but their these types prescriptions of movement were continued rather than changed to medications less likely to cause these problems.” six examples of particular manner. Id. at 42. prisoners In addition, she provides who Id. at 42-43. suffered in this As a third example, Dr. Burns opines that prisoners with mental illness are failure and gives him some dietary receiving dialysis treatment. 49 suggestions, and significantly underidentified; she believes that this underidentification process that relies stems on from a unqualified staff to conduct evaluations. state exactly what deficient proportion and screening unsupervised Although she does not of the prisoners with mental illness in ADOC custody she believes have not been identified, she does offer a number of statistics from other state prison systems; there is a range, but even the most conservative comparator suggest substantial underidentification. statistics Id. at 24-26. As a final iteration of this argument, defendants contend that Dr. Burns is merely opining as to what care she thinks is good care or what care should be provided, and that this is not what the Constitution requires defendants to provide. Although defendants are quite correct that expert opinions as to desirable prison conditions are insufficient to establish constitutional minima, see Rhodes v. Chapman, 452 U.S. 337, 348 n.13 (1981), their argument badly misconstrues the evidence Dr. Burns is offering. 50 Although she does express some opinions about how care should be provided (based, for example, on the fact that certain types of practitioners are “unqualified” to provide care without supervision, see Burns Report (doc. no. 868-2) at 16), she then goes on to explain how the failure to provide care in example, support this she her way causes presents harm evidence, conclusion that to prisoners. discussed these For above, unqualified to and unsupervised staff frequently fail to diagnose mental illness. The evidence court will concludes be helpful that to the Dr. Burns’s court in expert assessing whether the mental-health care provided to prisoners in Alabama falls below the constitutional floor, because she will bring to bear her experience, and the results of her investigation in this case, to help the court to understand the seriousness of the risk of harm posed by the challenged policies and practices. See Coleman, 912 F. Supp. at 1304 (rejecting a challenge that the 51 magistrate judge had “improperly relied on expert testimony to establish constitutional minima”). Lastly, defendants attack Dr. Burns’s qualifications as well as her methodology with respect to one fairly narrow issue: her ability to offer an opinion regarding staffing. the adequacy of correctional As for her qualifications, they note that she admitted that she has never been responsible for staffing a correctional facility with custody staff or received any methodology, training they note in doing that so. she As testified for her in her deposition that she did not perform (as part of her assignment in this case) any sort of staffing analysis or review for adequacy the numbers of officers in any facility for any shift. correctional The court is not convinced by the argument regarding methodology; it seems clear that an expert might reliably assess a staffing level to be too low and therefore likely to cause harm would be without determining appropriate. However, 52 what the staffing court is level more troubled by the fact that although Dr. Burns is an esteemed expert in correctional mental health, plaintiffs have not demonstrated that her experience entitles her to opine on this separate, albeit related, issue. (Plaintiffs’ involved in response, “evaluating and that she has informing been internal operations of correctional systems” through her role as a correctional convincing.) opinion on mental-health is not The court will therefore not rely on her this specific pretrial motions.20 fact administrator, offered issue for purposes of the That all said, plaintiffs have in another expert, Eldon Vail, who is an experienced correctional administrator; defendants have not raised a Daubert challenge to his qualifications to address this issue, and the court has already rejected their contention that he lacks an adequate basis for his conclusions. His opinion on the inadequacies of correctional staffing and their effects on delivery of 20. If, at trial, plaintiffs can convince the court that Dr. Burns is qualified to testify on this topic, (continued...) 53 mental-health supported than care is Dr. more Burns’s detailed opinion and this on better point, though essentially in accord; the court will therefore consider his evidence instead of hers. IV. Analysis 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 Pharm., Inc., 350 F.3d 1181, 1187 (11th Cir. bears the 2003). burden The of party seeking demonstrating requirements of Rule 23 have been met. certification that all of the Id. In order for any certification motion to succeed, the putative “(1) the class class is representatives so numerous that must show joinder of that 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 it will consider her opinion. 54 the claims or representative defenses parties of the will class; fairly protect the interests of the class.” 23(a). and and (4) the adequately Fed. R. Civ. P. In addition, a class must clear one of three additional hurdles: because the named plaintiffs in this case seek certification of a Rule 23(b)(2) class, they must also show that “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 respecting the class as a whole.” is appropriate Fed. R. Civ. P. 23(b)(2). The court’s role at the class-certification stage is not to decide the underlying claims, but rather to determine whether are met. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 the (1974). requirements “Merits for certification questions may be considered to the extent--but only to the extent--that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” 55 Amgen, 133 S. Ct. at 1194-95 (citation omitted). A party seeking class certification must “affirmatively demonstrate his compliance with the Rule”; that is, plaintiffs must offer evidence sufficient to satisfy the court that the various requirements of Rule 23 have been met. Wal-Mart, 564 U.S. at 350. Commonality, in particular, “cannot be determined without a precise understanding of the nature of the underlying claims,” and a careful consideration of the evidence offered in support of the common thread, but “[o]f course, this does not mean that the plaintiffs must show at the class certification stage that they will prevail on the merits” of those claims. v. Ryan, (citing, 754 F.3d inter 657, alia, 676 & Messner n.19 v. (9th Parsons Cir. Northshore 2014) Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (“[T]he court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits.”)). Having articulated the framework for its analysis, 56 the court will proceed to consider each requirement for certification in turn. 1. Standing “[A]ny analysis of class certification must begin with the issue of standing”; only once the court finds that the named plaintiffs have standing may it consider whether they have “representative capacity, as defined by Rule Griffin 23(a), v. 1987). to assert Dugger, To show 823 the F.2d Article rights 1476, III 1482 standing, of others.” (11th the Cir. named plaintiffs must show that they have been injured, that their injuries are fairly traceable to the defendants’ conduct, and that a judgment likely redress their injuries. in their favor would See Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1286 (11th Cir. 2010). As defendants acknowledge, their arguments that the named plaintiffs lack standing to pursue the claims for which they seek certification “directly intersect[] and coincide[] with [their argument 57 in their] pending Motion for Summary Judgment”--that is, defendants argue that they lack standing because their claims are moot, unexhausted, precluded or barred by the statute of limitations.21 Defs.’ Opp. to Class Cert. (doc. no. 807) at 104. The court has engaged in an extensive discussion of all of these arguments in the course of its opinion judgment. denying defendants’ motion for summary It rejected all of them except to the extent that it agreed that a few of the named plaintiffs’ claims have become moot as a result of their releases from prison. As these plaintiffs have been dismissed from the case, they will not be certified as class representatives. Otherwise, defendants’ arguments that the named plaintiffs lack standing to bring the claims they seek to have certified are rejected for the reasons set forth in the summary-judgment opinion. 21. Oddly, they also argue that the named plaintiffs lack standing because their claims fail on the merits. But that is simply not how standing--a preliminary inquiry into whether a litigant is in an appropriate position to raise a claim--works. 58 2. A. Rule 23(a)(1)’s satisfied if Rule 23(a) Numerosity requirement joinder--the usual of numerosity method similar claims--would be impracticable. of is combining Although there is no strict threshold, classes containing more than 40 members are certification. generally large enough to warrant See, e.g., Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986); see also Rubenstein, Newberg on Class Actions § 3.12 (5th ed.). “Moreover, the fluid nature of a plaintiff class--as in the prison-litigation context--counsels in favor of certification members.” of all present and future Henderson v. Thomas, 289 F.R.D. 506, 510 (M.D. Ala. 2012) (Thompson, J.) (citing Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) (affirming a certified class of 31 present members as well as future members who could not be identified); Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981) (Freedman, J.) (finding numerosity 59 after considering “the fact facilities that is the inmate constantly population revolving”)); at these see also Pederson v. Louisiana State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000) (“[D]istrict courts must not focus on sheer numbers alone.... [T]he fact that the class includes unknown, unnamed future members also weighs in favor of certification.”); Reid v. Donelan, 297 F.R.D. 185, 189 (D. Mass. 2014) (Ponsor, J.) (certifying a class of detained plaintiffs and explaining that the numerosity threshold may be relaxed “when a party seeks only declaratory inclusion of or injunctive future relief, members since increases the the impracticability of joinder” (citing McCuin v. Sec’y of Health & Human Servs., 817 F.2d 161, 167 (1st Cir. 1987)); (5th Rubenstein, ed.) Newberg (explaining that on the Class Actions inclusion of § 3.15 future class members “may make class certification more, not less, likely” and citing two decisions certifying classes of prisoners, Hill v. Butterworth, 170 F.R.D. 509, 514 (N.D. Fla. 1997) (Paul, J.) (“This Circuit has 60 held [that when] the alleged [members], necessarily requirement of joinder of Rule class unidentifiable[,] 23(a)(1) unknown includes is ... the met, clearly individuals future for is clearly impracticable.” (citation and internal quotation marks omitted)); Clarkson v. Coughlin, 145 F.R.D. 339, 346 (S.D.N.Y. 1993) (Sweet, J.) (“The class action device is particularly well-suited in actions brought by prisoners due to the fluid composition of the prison population. ... Class actions therefore generally tend to be the norm in actions such as this.” (citations and internal quotation marks omitted))).22 Plaintiffs have submitted evidence to show that in February 2016, mental-health there caseload were (and 3,416 prisoners argue that this on the figure 22. Recognition of prisoners’ relatively limited “access to the legal system ... has [also] led courts to certify classes in cases ... involv[ing] issues of common concern to inmates even when the potential class size is small and somewhat undefined.” Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D. Ala. 1993) (Albritton, J., adopting recommendation of Carroll, M.J.) (citation and internal quotation marks omitted). 61 significantly understates the number mentally ill prisoners in the State). customary numerosity Defendants threshold nonetheless have a by of seriously This exceeds the a bone factor to pick. of 85. They contend that “this number ... says nothing about how many individuals can claim an actual injury traceable to the State’s policies and procedures.” to Class Cert. (doc. no. 807) at 141. Defs.’ Opp. There are a number of problems with this argument. First, courts straightforward look at numerosity fashion: by in a fairly assessing the practicability of joinder, in light of the number of people who fall within the definition of the class. Movants for class certification do not need to present evidence showing--one by one, many times over--that individual putative class members can proceed on the class claims; requiring as much would largely defeat the efficiency benefits of class-wide adjudication, and is unnecessary in light of the commonality requirement. See Rubenstein, Newberg on 62 Class Actions § 3:11 (“[W]here joinder is impracticable, judicial economy weighs in favor of representative litigation of common issues for similarly situated plaintiffs.”). Instead, they need to show that the class representatives can proceed on claims which are common to the class. Plaintiffs’ mental-health evidence regarding caseload goes the size directly of the to--indeed, conclusively resolves--the question whether more than 40 or so prisoners in ADOC custody have serious mental illnesses. contains And, again, as-yet-unknown the future fact that members the also class counsels strongly in favor of finding that Rule 23(a)(1) has been satisfied. Second, even if the court were required to consider how many traceable prisoners to the “can State’s claim policies an actual and injury procedures,” rather than how many prisoners in ADOC custody have a serious mental illness, the court would reiterate that the actual exposure to injury the being claimed substantial 63 risk in of this case serious is harm stemming from those policies and procedures. If, as plaintiffs claim, defendants provide inadequate numbers of mental-health care providers and thereby subject all prisoners substantial with risk serious of mental serious harm, illnesses then all to a class members can claim an actual injury--even those who have not yet suffered serious harm. Finally, and for the sake of thoroughly responding to a thoroughly unconvincing argument, the court notes that plaintiffs have indeed presented evidence (some of it not subject to any direct rebuttal) to show that numerous individuals have in fact already suffered a range of serious harms. The reports of their experts are filled with examples of prisoners who the experts opine have suffered serious harm after receiving care that was inadequate due to the failure of defendants to provide enough funding, staffing, and oversight.23 A 23. Indeed, in light of the impracticability of joinder in a prospective-relief case involving current and future prisoners, the number of named plaintiffs (continued...) 64 selection denied of these necessary medication, being concrete treatment harms other maintained includes: being psychotropic certain on than psychotropic medications despite suffering serious side effects and the availability of alternative medications, frequently missing them doses of psychotropic inappropriately denied follow-up or care medications abruptly after or discontinued, attempting to having being commit suicide, and being held in segregation without regard to the psychological deterioration it is causing. Having addressed all of defendants’ objections, the court finds that plaintiffs have met the numerosity requirement for the Eighth Amendment class. The court also finds that the plaintiffs have met the numerosity dueprocess class. requirement for the procedural Plaintiffs have submitted undisputed evidence showing that about 70 to 80 individuals were subject to involuntary-medication orders as of March who have survived summary judgment would arguably be sufficient, on its own, to establish numerosity. 65 2016; therefore, this class--of prisoners subject to involuntary-medications orders--meets the presumptive numerosity threshold discussed above. B. i. Rule Commonality Eighth Amendment Claim 23(a)(2) requires named plaintiffs seeking class certification to show that “there are questions of law or fact common to the class.” In Wal-Mart, the Supreme Court explained that “this does not mean merely that they have all suffered a violation of the same provision of law. ... [Rather,] [t]heir claims must depend upon a common contention ... [which] must be of such a nature that it is capable of classwide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. What matters to class certification ... is not the raising of common ‘questions’--even in droves--but, rather the capacity of a classwide proceeding to generate common 66 answers apt to drive the resolution of the litigation.” 564 U.S. at 350 (citation and internal quotation marks omitted). In short, commonality requires a showing that there is “some glue” holding the claims together. Id. at 352. commonality common questions However, plaintiffs seeking to demonstrate under questions as Rule 23(a)(2) need “predominate” required under Rule not over show individual 23(b)(3); “even a single common question will do.” that indeed, Wal-Mart, 564 U.S. at 359 (citations and alterations omitted). In Wal-Mart, the plaintiffs failed to satisfy the commonality requirement because they had not offered “significant proof” of a policy of discrimination that applied across the corporation’s numerous stores.24 Id. 24. It is worth emphasizing the critical difference between the common policy the plaintiffs did have enough evidence to demonstrate in Wal-Mart--a policy of delegating discretion to supervisors--and the policies and practices at issue here. The court explained in Wal-Mart that this was a “very common and presumptively reasonable way of doing business--one that [it had] said should itself raise no inference of discriminatory conduct.” 564 U.S. at 355 (citation and internal quotation marks omitted). In contrast, the policies (continued...) 67 at 353. Here, plaintiffs have identified eight different specific policies or practices, and offered significant proof that they are common to the class of prisoners in Alabama with serious mental illnesses.25 and practices at issue here are very far from “a policy against having uniform [] practices.” Id.; see also Parsons, 754 F.3d at 681 (“[This case] involves uniform statewide practices created and overseen by two individuals who are charged by law with ultimate responsibility for health care and other conditions of confinement in all [state] facilities, not a grant of discretion to thousands of managers.”); Logory v. Cty. of Susquehanna, 277 F.R.D. 135, 143 (M.D. Pa. 2011) (“Unlike Dukes, where commonality was destroyed where there was no common mode of exercising discretion that pervade[d] the entire company, here there is a solid [prison] policy that applied directly to all potential class members” (internal citation and quotation marks omitted)). Moreover, it goes without saying that (as one example) the practice of providing prisoners with mental-health staff who are stretched far too thin and unqualified to provide the care for which they are responsible is certainly not a “presumptively reasonable” way of operating a prison system and should not be very common. 25. As another court recently explained, drawing on the imperfect but helpful analogy of what constitutes a policy or custom for purposes of municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), the common policy or practice “need not be formal or officially adopted.” Dockery v. Fischer, -F. Supp. 3d --, 2015 WL 5737608, at *8 (S.D. Miss. Sept. 29, 2015) (Barbour, J). A common policy can be (continued...) 68 This is all plaintiffs need to do for purposes of class certification; they need to show that the policies and practices they challenge are common, not (yet) that the common policies and practices are unconstitutional. Put differently, they need to demonstrate the existence of common questions with common answers, not what those common answers are. (holding that See Amgen, 133 S. Ct. at 1194-95 merits questions are only to be considered to the extent they are relevant to Rule 23 determination). “express[ly] adopt[ed]” by legislative, executive, or administrative act, but it can also be “based on the defendant’s deliberate indifference”--that is, based on a showing that the defendants have “failed to respond to a need ... in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations.” Id. at *8-10 (quoting Lightfoot v. District of Columbia, 273 F.R.D. 314, 320-21 (D.D.C. 2011) (Kollar-Kotelly, J.), and citing Young v. Nationwide Mut. Ins. Co., 693 F.3d, 532, 542-43 (6th Cir. 2012)). In this case, plaintiffs have offered evidence of common policies and practices that run the gamut from those that have been expressly adopted (such as the mental-health staffing levels defendants set by contract) to others which constitute a failure to act that evinces deliberate indifference (such as the practice of failing appropriately to (continued...) 69 The court will proceed as follows: First, it will discuss policy what or must practice be is shown to common, demonstrate generally that and in the the context of an Eighth Amendment substantial-risk-of-harm claim such as the one brought here. Second, it will discuss the evidence plaintiffs have offered to show that policies and practices they have challenged are indeed common to the class. Third and last, the court will address defendants’ arguments that dissimilarities among class members defeat commonality. As a general matter, a policy or practice need not affect every member of a class in order to be “common.” See Rubenstein, Newberg on Class Actions § 3.23 (5th ed.) (“[T]he affecting Fifth ‘most,’ Circuit ‘a has held substantial that questions number,’ or ‘a significant number’ of the class members will qualify as ‘common’ questions. This question has rarely been addressed outside the Fifth Circuit though courts that monitor or crisis). provide follow-up 70 care for prisoners in have addressed it have adopted the Fifth Circuit’s approach.”). Moreover, “class members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice.” Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (emphasis in original) (citing Hassine v. Jeffes, 846 F.2d 169, 177-78 (reversing the denial of certification of a class of prisoners challenging the risks posed by unsafe prison conditions)). recently Fifth explained Circuit, disagreed with in like the a As another district court jail-conditions the Third, proposition case, [has] that a “the expressly policy must injure each class member to provide the foundation for class wide relief.” Jones v. Gusman, 296 F.R.D. 416, 465-66 (E.D. La. 2013) (Africk, J.) (citing M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 847-48 (5th Cir. 2012)). explained that Instead, in M.D., the court of appeals a valid claim 71 for class-wide relief could be “based on an allegation that the [defendant] engages in a pattern or practice of agency action or inaction--including a failure to correct a structural deficiency within staffing--with the respect plaintiffs do class suffered has not agency, to contend an such the that actual as insufficient class,” every injury. even member of 675 F.3d if the at 847-48 (internal citation and quotation marks omitted). This case law supports a finding of commonality here, because being subjected to a substantial risk of serious harm is an actionable constitutional injury, even when a prisoner’s physical or mental condition has not yet been detrimentally impacted. See Parsons, 754 F.3d at 681-83 (citing numerous cases, both within and outside the Eighth Amendment context, in which courts have found the commonality requirement satisfied, post-Wal-Mart, based on a systemic policy or practice that allegedly exposed the members of the class to an unconstitutional risk of harm); see also Dockery, 2015 WL 5737608, at *16-17 (recognizing as common questions 72 “whether [the challenged] conditions and health care have either subjected unconstitutionally conversely, of Supp. 569, 3d unreasonable were conditions prisoners risk sufficient confinement”); 587 (W.D. to Scott Va. to of harm provide v. or, humane Clarke, 2014) an 61 (Moon, F. J.) (“Plaintiffs allege that the policies and practices at FCCW--e.g., the defective sick call process; FCCW’s refusal to refer or undue delay in referring prisoners for specialized care; the failure to maintain continuity in the provision of prescribed, potentially life-sustaining medications; etc.--reflect substandard medical care on the part of the Defendants. Whether these policies and practices place the Plaintiffs and other current substantial Defendants and risk are of future serious deliberately FCCW harm prisoners to indifferent at which a the implicates questions of fact and law common to the entire putative class.”); Jones, 296 F.R.D. at 465-67 (“Whether certain conditions at OPP either by themselves, or through a 73 mutually enforcing effect, put inmates at a substantial risk of harm is amenable to a common answer. ... Similarly, whether OPP officials have been deliberately indifferent to any such risk can be demonstrated in a manner that is applicable to all class members. Class Plaintiffs’ medical warrant and Eighth and mental-health certification. identified discrete including, for care ... and Fourteenth claims Class Amendment [likewise] Plaintiffs particularized example, medication ... and have practices suicide prevention practices, as well as staffing inadequacies, that are mutually enforcing causes of OPP's deficient conditions. ... Accordingly, a class action is an appropriate vehicle for these claims.” internal quotation marks omitted)); (citations and Hughes v. Judd, 2013 WL 1821077, at *9, *23-24 (M.D. Fla. Mar. 27, 2013) (Pizzo, M.J.) (finding commonality and certifying a class with respect to a Fourteenth Amendment risk-of-harm claim challenging a sheriff’s failure to address a high level of 74 violence among juvenile detainees and practice of using pepper spray in response to this violence), report and recommendation adopted as modified on other grounds, 2013 WL 1810806 (M.D. Fla. April 30, 2013) (Merryday, J.); M.D. v. Perry, 294 F.R.D. 7, 45 (S.D. Tex. 2013) (Jack, J.) (finding commonality and certifying a class with respect to a Fourteenth Amendment risk-of-harm claim challenging a policy or practice of allowing caseworkers in a foster care system to carry excessive caseloads that posed a risk of harm to children). The fact that not every mentally ill prisoner is subjected to precisely the same level of risk also does not defeat commonality. Indeed, the last time a judge in this court heard a “systemic attack on the way that mental health care is provided to acutely and seriously mentally ill inmates in the Alabama prison system,” it explained that “[t]hough there certainly may be some factual differences between the individual class members and the nature and severity of their illness, such individual differences do not defeat certification 75 because there is no requirement that every class member be affected by the institutional practice or condition in the same way.” Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D. Ala. 1993) (Albritton, J.); see also Parsons, 754 F.3d at 678-80 (“[A]lthough a presently existing risk may ultimately result in different future harm for different inmates--ranging from no harm at all to death--every inmate suffers exactly the same constitutional injury when he is exposed to a single statewide ADC policy or practice substantial risk of serious harm. that ... creates a Even if some inmates are exposed to a greater or idiosyncratic risk of harm by the policy and practice of not hiring enough staff to provide adequate medical care to all inmates, that single policy and practice allegedly exposes every single inmate to a serious risk of the same basic kind of harm.” (internal citations omitted)). Plaintiffs have offered more than adequate evidence to establish the existence of the common policies and 76 practices they challenge.26 This evidence, discussed in the court’s opinion on summary judgment, could not be more different evidence from offered by the indefinite and the expert Wal-Mart, in speculative of a “culture” of discrimination manifested in millions of discretionary decisions. the experts point to 564 U.S. at 353-54. very concrete Here, policies and practices--such as using unsupervised and unqualified nurses to prisoners conduct with intake serious screenings, mental illness or in placing prolonged segregation--that undisputedly occur or that plaintiffs have offered considerable evidence (often in the form of admissions by MHM administrators) to show are 26. The court notes that, in addition to the expert evidence discussed here, plaintiffs have offered evidence regarding care they and a couple of dozen putative class members have received, in order to further illustrate the commonality of the policies and practices they challenge. The evidence regarding the named plaintiffs will be discussed below, in the context of the typicality analysis. Although illustrative, the court need not and does not base its decision regarding commonality on the declarations of the unnamed class members; plaintiffs’ expert evidence is more than sufficient. 77 widespread. See Parsons, 754 F.3d at 678 (“The putative class and subclass members thus all set forth numerous common contentions whose truth or falsity can be determined in one stroke: whether the specified statewide policies and practices to which they are all subjected by ADC expose them to a substantial risk of harm. ... These policies and practices are the ‘glue’ that holds together the putative class and the putative subclass; either each of the policies and practices is unlawful as to every inmate or it is not.”). The only genuine debate in this case is as to the effects of these policies and practices--that is, whether or not they pose a substantial risk of serious harm. But this is not a question for the class-certification stage. Instead second of rehashing opinion, plaintiffs’ conclusion the expert, of his plaintiffs court Dr. report will Haney, that evidence simply note reiterates the in problems a that at that the he discussed in his reports were widespread and systemic. Unlike the expert in Wal-Mart, 78 his conclusions are based not on untethered theorizing, quantity of concrete evidence. but on a large He explains as follows: “[T]he observations that I made about various ADOC facilities were remarkably consistent throughout my tours--that is, with only minor variations, virtually the same kinds of problems surfaced in each of the facilities that I inspected. Moreover, there was remarkable consistency in what prisoner after prisoner in these separate facilities told me (as documented in [the lengthy appendix to his report]). It did not seem to matter whether the prisoners I interviewed were selected randomly for brief cell-front interviews, selected for individual, confidential interviews after having been seen cell-front, picked randomly from the facility’s prisoner roster for individual confidential interviews, or suggested by counsel for Plaintiffs--they all told essentially the same kind of grim and often tragic stories. In addition, because many of them had been housed in other ADOC facilities, they were in a position to confirm that the problems--the mistreatment and neglect--that they were encountering at their present facility were not unique to that place but rather existed in facilities throughout the ADOC. “In addition, these consistent accounts, and my own broad conclusion about systemic deficiencies throughout the Alabama prison system, are corroborated in many important respects by the candid observations and conclusions reached by an entirely different group of people--namely, mental health officials (employed by ... MHM [ADOC’s mental health contractor]) charged with system-wide 79 oversight responsibilities and the provision of mental health services in Alabama’s 15 major prisons. Their stated opinions provide strong support for my own observations about the system-wide magnitude of the very serious problems that I encountered.” Haney Report (doc. no. 868-4) at 158-59. As discussed at much greater length in the court’s opinion denying plaintiffs’ summary other judgment, mental-health Dr. expert, Burns, concurs, concluding that the “deficiencies in ADOC--inadequate staffing levels, qualifications, identification and classification, treatment and oversight of the mental health care--deny mental illness self-injury, prisoners leading suicide to and untreated mental illness. care for needless punishment their pain, for serious suffering, symptoms of These are systemic problems that can and should be addressed through changes to the mental health care delivery system.” Burns Report (doc. no. 868-2) at 52. Even Dr. Patterson, defendants’ own expert, recognizes that a number of the policies and practices being challenged are pervasive, 80 including that the “staffing of significant the facilities number of the unlicensed practitioners” documented supervision. 679-9) 47. at is insufficient mental who health had not Patterson Moreover, he and a staff are received any Report recognizes (doc. that no. other policies and practices, and concrete harms, stem from this source. For example, he observes “certain deficiencies in adequately identifying inmates during the reception and intake processes that are in need of mental health services, and therefore the numbers of inmates in need underestimated of and mental health reflect the services need for are ... increased numbers of and properly trained and credentialed mental health staff, as well as the need for supervision by registered nurses during the intake process to identify those inmates in need of further evaluation for mental health services.” Dr. Patterson Id. at 47. is not merely suggesting that he found a few--or even a lot--of prisoners who were not identified; he is explaining that there is a consistent 81 pattern of failure attributable to a very specific set of decisions about system-wide staffing. He agrees, then, that insufficiency of mental-health staffing is a pervasive problem, and that this causes prisoners not to be identified as in need of treatment, across the board. (Of course, not every mentally ill prisoner is missed; rather, every mentally ill prisoner is at risk of being missed.) It is thus undisputed--by the parties’ experts if not by the parties--that at least one of the policies or practices challenged by plaintiffs is common to the class.27 27. Indeed, a decision about system-wide staffing seems quite obviously to be a common policy or practice. It is an express policy, which applies to all prisoners in the system. The adequacy of staffing levels cannot be evaluated meaningfully with respect to any particular prisoner. See M.D., 675 F.3d at 848 n.7 (suggesting that staffing levels are the type of condition that is generally applicable to a class of plaintiffs, in noting that “it is not clear how several of the State’s alleged failures, such as its failure to ... employ a sufficient number of caseworkers, can be considered [a] ‘day-to-day, case-by-case operational failure[]’”); Parsons, 754 F.3d at 679 (“[T]he plaintiffs allege that they are placed at risk of serious harm by a policy and practice of severe under-staffing across all ADC medical care facilities. (continued...) 82 Whether this policy or practice of understaffing subjects mentally ill prisoners to a substantial risk of serious harm is one question (of a number of them) apt to drive the resolution of this litigation. in Wal-Mart, considerable the plaintiffs evidence to here show that have this Unlike offered policy or practice is one of the reasons (indeed, the primary reason) that they are inadequate care. “common pattern violation, crucial but question at serious risk of receiving This evidence is not merely of a or practice,” rather why” of a as in “common prisoners have an oft-repeated answer been to put the at a As a result of this statewide policy and practice, they allege, the quality and availability of care across all ADC facilities is constitutionally deficient. This allegation presents questions of law and fact common to all members of the putative class. ... The question whether ADC's staffing policies pose a risk of serious harm to all ADC prisoners can thus be answered as to the entire class ‘in one stroke.’ Wal-Mart, 131 S. Ct. at 2551. Either ADC employs enough nurses and doctors to provide adequate care to all of its inmates or it does not do so; there is no need for an inmate-by-inmate inquiry to determine whether all inmates in ADC custody are exposed to a substantial risk of serious harm by ADC staffing policies.”). 83 substantial risk of serious harm, Wal-Mart, 564 U.S. at 352: because ADOC provides inadequate numbers of and insufficiently qualified mental-health staff, resulting in, among recognize other the prisoners. things, acuity a of Plaintiffs here failure mental have to identify illness done in exactly defendants accuse them of failing to do. or many what Instead of attempting to distill “constellation of disparate but equally suspect practices” from varying experiences of class members, they have “identif[ied] the policy or custom they contend violated the [law] and then establish[ed] that the policy or custom is common to the class.” Lightfoot, 273 F.R.D. at 326; see also Parsons, 754 F.3d at 673 (agreeing with the district court that “the problems identified in the provision of health care are not merely isolated instances but, rather, examples of systemic deficiencies that expose all inmates to a substantial risk of serious harm,” because the evidence of the existence of a number of specific common policies and practices “suggests that 84 the root cause of the injuries and threats of injuries suffered by Plaintiffs is the systemic failures in the provision of health care generally”); Jones, 296 F.R.D. at 466 (“The facts and law also demonstrate that Class Plaintiffs’ Eighth and Fourteenth Amendment medical and mental health care claims warrant certification. These claims do not allege amorphous systemic deficiencies. Class Plaintiffs particularized have identified discrete including, for practices and example, medication and suicide prevention practices, as well as staffing inadequacies, that are mutually causes of OPP’s deficient conditions. class action claims.” is an (citations appropriate and internal enforcing Accordingly, a vehicle for these quotations marks omitted)). Rather than discussing each of the remaining policies and practices at length, the court will merely discuss another example. With respect to the policy or practice of “placing prisoners in segregation without regard to its harmful effects on their mental health,” 85 the pertinent question is whether defendants treat mentally ill prisoners alike in segregating them, not whether this creates a substantial risk of serious harm to such prisoners. Although Dr. Morgan disagrees with Dr. Haney regarding the effects of this practice, and opines that the mental-health monitoring and treatment provided to prisoners in segregation is adequate, he at no point offers any evidence to suggest that the question--whether or not these policies and practices create a substantial risk of serious harm--cannot be adjudicated on a class-wide basis.28 28. Likewise, Dr. Morgan’s opinions as to the effects of understaffing or the efficacy of the assessment and classification system go to plaintiffs’ claims on the merits--that is, whether defendants’ policies place plaintiffs and putative class members at a substantial risk of serious harm. His opinions do not, however, undermine plaintiffs’ evidence that defendants’ policies and practices pose a common question capable of class-wide resolution; nothing Dr. Morgan says runs counter to the conclusion that these policies either do or do not create a substantial risk of serious harm to seriously mentally ill prisoners throughout the system. Indeed, Dr. Morgan often relies heavily--sometimes entirely, to the exclusion of any consideration of the (continued...) 86 This distinguishes the case at bar from Sher v. Raytheon Co., wherein the Eleventh Circuit reversed a grant of class reconsideration “evaluat[ed] certification because and the and district weigh[ed] remanded court conflicting had for not expert testimony,” and “decline[d] to declare a proverbial, yet tentative winner” between class-certification stage. Cir. 2011). these experts, at the 419 F. App’x 887, 890 (11th In Sher, a case about release of toxins into groundwater, the plaintiffs attempted to show that they met the requirements for certification under Rule actual treatment provided to any particular prisoners-on the existence of a formal system-wide policy to conclude that the mental-health care being provided throughout the system is adequate. See Morgan Report (doc. no. 865-1) at 19 (“[B]ased on my review of ADOC mental health policy, it is my opinion that the ADOC has a clearly defined mental health services system applicable to all inmates, including inmates on the mental health caseload, and these policies and procedures are consistent with national standards of practice.”). Whether or not Dr. Morgan’s bald reliance on these policies supports his conclusions is a matter for trial, but it certainly reflects his view that the Eighth Amendment claim in this case can be resolved with respect to all class members in one fell swoop. 87 23(b)(3) by presenting an expert who said that he could map the underground area affected and create a mathematical model to show how much the value of each surrounding property had diminished without requiring any individualized consideration; defendants’ experts, by contrast, concluded that the identified area included properties with no contamination and that the mathematical need for individualized determinations of value diminution. Id. at 889. model would not obviate the Because the experts disagreed about whether the plaintiffs met the requirements of Rule 23, such that class-wide resolution was appropriate, necessary to “declare a ... winner.” also Ellis, 657 F.3d at 983-84 it was Id. at 890; see (holding that the district court should have resolved a dispute between the parties’ experts as to whether gender disparities in promotion existed across the country or only in certain areas, because plaintiffs would be unable to show a common policy or practice unless they could show consistent nationwide discrimination). 88 Here, Dr. Morgan does not suggest that some identifiable subset of mentally ill prisoners is not at risk of placement in segregation (if he did, the court would need to weigh his evidence to determine whether plaintiffs had shown commonality); disagrees that the instead, practice of Dr. Morgan placing simply mentally ill prisoners in segregation places them at a substantial risk of serious harm. Before concluding this discussion of commonality, the court commonality will address is defeated defendants’ by contention variations between that the conditions in different facilities and the differing mental-health needs of members of the class. Although it is true that there are some differences between the various men’s facilities,29 in terms of the populations incarcerated there and the ways that certain forms of 29. Plaintiffs’ experts did conclude that adequate mental-health care was being provided in the open residential treatment unit at Tutwiler, the only women’s prison in the State. However, as explained below, prisoners housed at Tutwiler will not be included in the class. 89 mental-health care are delivered (as an example, not all major facilities have residential treatment units), and in terms of the levels of staffing (some facilities have some psychiatrist coverage while others have none at all, and some facilities have especially severe shortages of custodial staff while others have somewhat more moderate shortages),30 this does not defeat 30. Defendants particularly press this point with respect to plaintiffs’ contention that the failure to provide adequate custodial staff interferes with the provision of mental-health care, noting that some facilities are more understaffed and some less. However, defendants’ own expert, Dr. Morgan, despite recognizing the existence of some variation in the level of understaffing by facility, states that “[custodial] understaffing remains a major concern across the ADOC. It is my opinion that correctional officer understaffing should be viewed as a correctional crisis within the ADOC, such that this crisis necessitates immediate action.” Morgan Report (doc. no. 671-1) at 11-12. He further notes that “[s]taff at all eight facilities that I visited noted understaffing.” Id. at 13. This amounts to a recognition that the practice of custodial understaffing is common across facilities. Dr. Morgan disagrees with plaintiffs’ experts as to the effect of this understaffing on the delivery of mental-health care. See id. at 31 (“The ADOC is significantly understaffed; however, this understaffing does not prohibit plaintiffs and other class members from receiving needed mental health services....”). But (continued...) 90 commonality for two principal reasons. First, plaintiffs’ experts have cited evidence showing, and concluded, that the practices at issue are fairly consistent inspected, across including the all of major the facilities major hubs they for treatment of prisoners with mental illness; although there were slight variations, they did not identify any men’s facilities as positive outliers where the system for providing different (or mental-health where adequate care was appreciably mental-health care was this question--whether the common policy or practice subjects mentally ill prisoners to a substantial risk of serious harm by interfering with the delivery of their mental-health care--is a merits question for trial. Moreover, plaintiffs have pointed to admissions by mental-health staff that the lack of security staff has resulted in recurrent delays in or cancellations of mental-health treatment in different units at at least six of the major facilities. Minutes from a meeting of MHM administrators in January 2015 noted “widespread reports among several facilities of delays in seeing inmates for appointments due to security unavailability,” and reflected a need to “[k]eep going up the chain of ADOC command” to address this problem. CQI Meeting Minutes, Pls.’ Ex. 182 (doc. no. 850-82) at 121, MHM029619. A practice which is “widespread” and which requires high-level correctional intervention to address is common to the class. 91 being provided). Second, and plaintiffs’ perhaps records more clearly important, reflect that the named they are transferred very frequently between a large number of different facilities; it is fair to presume that the other class members are too.31 In that sense, defining a subclass to include only those who are or will be housed at a subset of facilities would be a semantic distinction without much if any practical difference. The claim in this case revolves around a prospective risk of harm; even if some aspect of the mental-health care at better members a or particular worse, not it currently facility is clear housed is idiosyncratically that at numerous that class facility are likely to be exposed to it in the future. Another comparison to Wal-Mart is instructive. In 31. Specifically, seriously mentally ill prisoners are often transferred due to their need to be housed in a residential treatment unit or a stabilization unit, which are available at only a few facilities. As a result, many of the putative class members are (continued...) 92 Wal-Mart, the fact that the class members worked at thousands of stores across the country made it impossible to show the existence of a common policy of discrimination based on discrimination at a subset of the stores. employees 564 of U.S. Wal-Mart at were 356-58. not But the frequently female moved to numerous different stores in different regions of the country at the whim of the defendant corporation. As the court pointed out, a woman working in Missoula, Montana, would be totally unaffected by discriminatory promotion practices at the stores in say, New Mexico. When a prisoner is in ADOC custody, however, he is subject to involuntary transfer at any time to another facility in the system, and therefore subject to the risks of harm facilities. (holding attend placement at those other Cf. Henderson, 913 F. Supp. 2d at 1285-86 that transferred that to the a claims different of a prisoner facility were who not was moot frequently transferred back and forth between other facilities and those with these specialized units. 93 because there was “more than a reasonable basis to believe that she will be subjected to segregation in [the same facility] again”). Moreover, would not litigation preclude of these system-wide sensitivity to any issues salient differences between facilities in crafting a remedial order in the event that the court does find liability.32 The remedial order the Supreme Court affirmed in Brown v. Plata, 563 U.S. 493 (2011), for instance, ordered the California prison system to reduce overcrowding (which was resulting in unconstitutional medical care) to a certain percentage of design capacity across the State, while allowing it flexibility to adjust for the distinctive features and needs of different institutions by having some facilities be more crowded and some less. Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 970 n.64 (E.D. Cal. 2009), aff’d sub nom. Brown 32. Defendants would, subject to the court’s consideration of objections raised by plaintiffs and independent approval, have the opportunity to propose the terms of any eventual remedial order. 94 v. Plata, 563 U.S. 493 (2011). However, as noted above, the court has decided to define the class to Prison for Women. regarding the exclude prisoners at Tutwiler Although there is expert evidence mental-health care being provided at Tutwiler, and although many of the same policies and practices apply at that facility, there is no female class representative; unlike male prisoners who are frequently transferred between facilities, there are no transfers between Tutwiler and the rest of the men’s facilities, incarcerated and at no named plaintiff Tutwiler. The will court ever be therefore concludes that it would be more appropriate for the adequacy of mental-health care at Tutwiler to be litigated by way of ADAP’s associational standing.33 33. There was initially a female Phase 2A class representative, but she passed away during the pendency of this litigation. If ADAP did not have associational standing to bring this claim on behalf of the women at Tutwiler, the court would consider giving plaintiffs the opportunity to amend their complaint to add another female Phase 2A class representative. See, e.g., Diduck v. Kaszycki & Sons Contractors, Inc., 147 F.R.D. (continued...) 95 Defendants also argue that differences in the health care needs of class members preclude a finding of commonality. language from For this proposition, they rely on a Third Circuit decision, Rouse v. Plantier, 182 F.3d 192, 199 (3d Cir. 1999): “In light of the diverse medical needs of, and the different level of care owed to, each group of plaintiffs [specifically, ‘stable’ versus ‘unstable’ diabetics], the District Court erred in holding that all members of the plaintiff class alleged a violation of their Eighth Amendment rights. Based on the evidence in the summary judgment record, there may be one or more subgroups of plaintiffs as to whom particular aspects of the care allegedly provided was not consistent with Eighth Amendment requirements and other subgroups as to whom particular aspects of the care was constitutionally adequate.” But Rouse was an appeal from a denial of qualified immunity (rather class-certification than an decision)34 with appeal respect from to a class 60, 62 (S.D.N.Y. 1993) (Stewart, J.) (granting a stay of proceedings until the plaintiffs could find a new class representative following the death of a representative). 34. Although Rouse involved injunctive-relief claims as well, the court was very clear that “[t]he (continued...) 96 claims for damages stemming from inadequate treatment in the past (rather than, as here, a purely prospective injunctive-relief class action alleging substantial risk of serious harm). a current In light of the posture of the case, the court’s instruction to the district court, to focus on differences in the medical needs of different subsets of the plaintiff claims, is totally unremarkable: if the care provided in the past was adequate for, say, ‘stable’ diabetics, they would not have suffered any retrospective constitutional violation, and would not be entitled to any damages. But here, such parsing is neither necessary nor appropriate: there are no damages to be apportioned, and, more important, even if a given class member admits that he has not in the past received care that only issue in this appeal is whether the defendants are entitled to summary judgment based on qualified immunity,” a defense that applies only to individual-capacity damages claims and not to official-capacity claims for prospective injunctive relief. 182 F.3d at 196. Moreover, the court expressly stated that “[t]he question of class (continued...) 97 violated raising the a Constitution, prospective defendants are he is Eighth currently not precluded Amendment subjecting from claim him that to a substantial risk of serious harm. Also, as a factual matter, involved the allegations in Rouse much more fine-grained aspects of care for a particular disease (for example, certain whereas whether number the of monitoring times per allegations in of day blood was this sugar a sufficient), case involve overarching inadequacies of staffing which, plaintiffs’ experts have opined, contribute to a range of other systemic inadequacies that affect mentally ill prisoners irrespective of their particular diagnoses. Finally, the court certifying subclasses, mentally ill medications, segregation. notes such prisoners or a as the a it contemplated subclass receiving subclass However, that of those psychotropic of those evidence in held the in record certification ... is not before us, and we express no opinion on this issue.” Id. at 199 n.3. 98 reflects that about two-thirds of mentally ill prisoners receive such medication, and that mentally ill prisoners frequently who urged are to not do so taking (indeed, medication plaintiffs are have offered evidence to suggest that prisoners who refused medication have sometimes been threatened with removal from the mental-health caseload). The record also reflects that prisoners with mental illness regularly move into and out of these restrictive housing units. As a result, certifying such subclasses would be an exercise that, in to segregation serious legal the formalism; extent practices harm to that create prisoners the court these a is satisfied medication substantial when they risk are and of taking medication or housed in segregation, this risk extends to all seriously mentally ill prisoners, who are all fairly likely to take medication segregation at some point. 99 and be placed in ii. The court Due Process Claim also due-process class requirement. As finds that satisfies with the the the Eighth procedural commonality Amendment claims, plaintiffs presented evidence through their expert, Dr. Burns, showing that prisoners across the ADOC system have not received adequate process subjected to involuntary medication. agree that the ADOC’s before being While the parties written policy is constitutionally adequate under Washington v. Harper, 494 U.S. 2010 (1990), Bui challenges procedures are adequate in practice.35 applies to all class involuntary-medication members, orders. as The whether the This question they are all on question can be answered in one stroke--namely, by determining whether ADOC’s involuntary-medication practices adequately 35. This question largely, although imperfectly, overlaps with a very concrete one: Is there, or is there not, a practice of failing to comply with ADOC’s written policy on involuntary medication? The answer to this question is the same for every member of the class. 100 protect due-process rights. See Hightower ex rel. Dehler v. Olmstead, 959 F. Supp. 1549, 1557 (N.D. Ga. 1996) (considering procedural due-process claims, among others, brought by a certified class of patients in a state hospital), aff’d sub nom. Hightower v. Olmstead, 166 F.3d 351 (11th Cir. 1998). C. Typicality Although the commonality and typicality inquiries “tend to merge,” the typicality requirement--which is “somewhat of a low hurdle”--focuses the court’s attention on “whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982); Taylor v. Flagstar Bank, FSB, 181 F.R.D. 509, 517 (M.D. Ala. 1998) (Albritton, J.); Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. omitted). if they 2008) (citation and internal quotations A class representative’s claims are typical “arise from the same 101 event or pattern or practice and are based on the same legal theory” as the class claims; they need not be identical. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009) (citation and internal quotations omitted); see In re Healthsouth Corp. Sec. Litig., 257 F.R.D. 260, 275 (N.D. Ala. 2009) (Bowdre, J.). that plaintiffs have failed to Defendants argue identify class representatives able to challenge each of the policies and practices at issue in this case; although they frame this argument as going to adequacy, it actually sounds in typicality. For purposes of typicality, plaintiffs need to show that there are named plaintiffs who have been exposed to the policies or practices that create the substantial risk of serious harm they challenge, not that they have actually suffered the harm in the past.36 So, for example, if lack of adequate medication 36. The remaining plaintiffs must also show--and have shown, as discussed in the court’s opinion on summary judgment--that they have serious mental-health needs. 102 management creates a substantial risk of a prisoner taking psychotropic medications suffering unnecessarily from serious plaintiff side who is effects, taking there must psychotropic be a named medication; he need not necessarily prove, at the class-certification stage (or, for that matter, at trial), that he has already suffered from side effects. Hence, named from plaintiffs plaintiffs the custodial staff to to prove (1) receive mental-health mentalhealth during who need facilitate classification (3) are reviews, there mental-health staff,37 care treatment, that (2) rely their assessed and in receipt at are care upon of intake, response to referrals, (4) need or take psychotropic medications, (5) require psychotherapy, engage in self-harm or placed in segregation, (6) engage to and commit or desire suicide, (8) receive to (7) are disciplinary 37. More precisely, the question is not whether the named plaintiff does receive mental-health care, but whether he relies on the mental-health care staff for any care he does receive. 103 citations based on symptomatic behavior. serious dispute,38 plaintiffs fall though, within that all categories (1) There is no of the and named (3); that many of the named plaintiffs--including at least six who have been housed in segregation (Hartley, Jackson, Johnson, McCoy, category (2); Johnson, McCoy, Pruitt, that at Pruitt, and least Williams)--fall eight Wallace, (Braggs, and within Hartley, Williams) fall within category (4); and that at least two (in many 38. Again, defendants do argue, vehemently, that the named plaintiffs have not offered evidence to show that they, individually, have suffered past violations of the Eighth Amendment as a result of these policies and practices. (As discussed in the court’s opinion on summary judgment, this is both incorrect and irrelevant, because their claim concerns not past harm but a future risk of harm that they contend exists because they need mental-health care but can obtain it only from a seriously deficient system.) For the purpose of typicality, the named plaintiffs need only show that they are exposed to a particular policy or practice--for example, that they need mental-health care, and that they can only obtain that care from the limited number of mental-health staff defendants have provided. Whether or not that limit is unconstitutionally harmful is a question for trial and not for class certification. 104 cases, more) fall within each of the remaining categories.39 Although they need not do so, plaintiffs have in fact presented evidence that at least one of them has not only been exposed to but harmed by the risk created by each of the policies or practices at issue. than engage in an exhaustive discussion that Rather would largely rehash the extended section on individual harm in the court’s opinion on summary judgment, the court will instead mention illustrative examples.40 39. Defendants’ own expert, Dr. Patterson, recognized that at least Braggs, Hartley, Jackson, McCoy, and Wallace have required psychotherapeutic treatment; that at least Pruitt, Wallace, and Williams have engaged in self-harm (and that others have reported a desire to do so); and that at least Jackson, McCoy, Pruitt, Wallace, and Williams, have been housed in segregation. Although Dr. Patterson did mention a few disciplinary citations the named plaintiffs received, he did not discuss those citations that stemmed from symptomatic behavior (specifically, self-harm). He did opine, however, in general terms, that the “potential harm” of delays in providing mental-health treatment includes “disciplinary actions due to inadequate treatment.” Patterson Report (doc. no. 679-9) at 47. 40. The court refers the reader to this section of its summary-judgment opinion. 105 As for defendants’ policy or practice of failing to provide adequate numbers of and sufficiently qualified mental-health staff, plaintiffs have offered evidence to show that affected the inadequate Hartley’s staffing treatment: his has adversely treatment plans repeat problem statements and goals without documenting changes in his mental state, and that his treatment team meetings members. expert, In Dr. Hartley’s are not fact, attended by defendants’ Patterson, treatment agrees plans, own with and mental-health care, are inadequate. required staff mental-health plaintiffs his that resulting He further opines that “Mental Health Treatment Planning” is “seriously deficient, at least in part because of the lack of adequate staffing.” Patterson Report (doc. no. 679-9) at 52. Plaintiffs have also offered evidence to show that named plaintiffs have been exposed to and harmed by defendants’ failure to provide sufficient custodial staffing to avoid regular security-related interference 106 with the provision of mental-health care. For example, Jackson’s medical records indicate that a number of his mental-health appointments were canceled due to security issues arising from an insufficient number of ADOC officers. With respect to the failure to identify or recognize the severity of mental illnesses, plaintiffs have offered evidence to show that although staff at a state mental hospital recognized, prior to Johnson’s incarceration in 1996, that he suffered from depression and was possibly psychotic (and potentially incompetent to stand trial), he was not placed on the mental-health caseload for almost two decades, until he was placed on suicide watch; at that point, he was recognized to be suffering from paraonia and possible delusions. Furthermore, although he was at this point referred for mental-health treatment, there appears to be no evidence that the mental-health staff ever received or acted upon the referral. Moreover, Dr. Burns pointed to McCoy as an example of a prisoner who was severely 107 ill and required residential care but was not being provided it due to his classification at an inappropriately low level. Plaintiffs have offered evidence to show that named plaintiffs have defendants’ been practice exposed of to failing and to harmed by appropriately prescribe and manage psychotropic medication and its side effects. For example, Hartley’s medical records reflect that he has complained of a movement disorder caused by his antipsychotic medication, that treating this side effect has adversely affected his kidneys, and that he alternative explained has requested antipsychotic would be less and medication likely to been denied which cause Dr. a an Burns movement disorder. With respect to defendants’ failure to provide more than cursory psychotherapeutic care and counseling, plaintiffs have offered evidence to show that Braggs has not major received depressive the regular disorder, and 108 therapy--for anxiety, post-traumatic stress disorder--contemplated in his treatment plans; that Pruitt’s repeated requests to speak to counselors have been rejected; and that Wallace, despite his repeated suicide attempts and self-harm, and diagnoses of bi-polar disorder and intellectual disability, has not consistently received expert, Patterson, Dr. group therapy. agrees with Defendants’ plaintiffs that Wallace’s care has been inadequate, due in part to the lack of group therapy. Plaintiffs have offered evidence to show that named plaintiffs have been defendants’ practice of exposed to inadequately and harmed by monitoring and providing inadequate follow-up care to prisoners who are suicidal or engage in self-harm. Over the course of a six-month period, Pruitt was admitted to a crisis cell as a result of self-injurious behavior at least five times, for stretches sometimes lasting more than a week. As to inadequate monitoring of the crisis cells, Dr. Patterson recognized that there was no indication in Pruitt’s records that he was seen by a psychiatrist 109 or nurse practitioner during any of these admissions. He was attacked by other prisoners during two different admissions (disinfectant was thrown in his burning fabric was thrown onto his leg). notes that he was not placed on the face and Dr. Burns mental-health caseload after these admissions and opines that he was therefore denied adequate follow-up care. As to defendants’ placement of mentally ill prisoners in segregation without regard to its harmful effects on their mental health: McCoy has repeatedly been placed in segregation for extended periods of time, including one thirteen-month stretch, even though he was in a psychotic state and the mental-health staff had advised against prolonged isolation segregation’s effect on his stability. due to Deterioration of McCoy’s mental health during segregation was also documented in his records. Jackson was in segregation between 2007 and 2014; he was frequently transferred from one facility’s segregation unit to another’s. This extended stay in segregation has broken him down 110 mentally, according to his own testimony and the opinion of one of plaintiffs’ experts. Plaintiffs have likewise presented evidence to show that Wallace and Pruitt have been harmed by defendants’ policy or behavior practice that stems of disciplining from mental prisoners illness. for Wallace received nine disciplinary citations for instances of cutting his wrists, disciplinary tickets and Pruitt creating for has a also hazard received when he engaged in self-harm. Finally, with respect to the procedural due-process class, plaintiffs have presented evidence showing that the class representative, Bui, was exposed to and harmed by defendants’ involuntary-medication practices. He has been under an involuntary-medication order since November 2007, and the order approximately every six months. has been renewed Plaintiffs have shown that on some occasions, Bui was not present at his own involuntary-medication hearings; that many notices were given to him on the day of the hearing, or back-dated; 111 and that on several occasions, he did not have a lay advisor during the hearing to explain the purpose of the hearing or to help him present objections to the hearing panel’s findings.41 Rule 23(a)(3)’s typicality requirement has been satisfied with respect to both classes. D. Rule parties 23(a)(4) will Adequacy requires fairly and interests of the class.” two separate that inquiries: the “representative adequately protect the This analysis “encompasses (1) whether any substantial conflicts of interest exist between the representatives and the class;42 and (2) whether the representatives 41. Plaintiffs’ evidence shows at least that Bui’s own presence and that of a lay advisor should have been--and was not--documented. 42. For a conflict to defeat class certification, it must be “fundamental,” such as when “some party members claim to have been harmed by the same conduct that benefitted other members of the class.” Valley Drug Co., 350 F.3d at 1189. 112 will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted).43 “Adequate representation is usually presumed in the absence of contrary evidence,” and generally exists for injunctive-relief classes, because there is no monetary pie to be sliced up. Access Now, Inc. v. Ambulatory Surgery Ctr. Grp., Ltd., 197 F.R.D. 522, 528 (S.D. Fla. 2000) (Seitz, J.). As noted above, defendants’ argument against the adequacy of the named plaintiffs as class representatives is that the named plaintiffs have not 43. Prior to the promulgation of Rule 23(g) regarding the adequacy of class counsel, courts considered that topic in the context of Rule 23(a)(4). Since Rule 23(g) was added in 2003, courts have been “slow in shifting the analysis of counsel’s adequacy from Rule 23(a)(4) to Rule 23(g),” but the leading treatise on the topic takes the position that the drafters of the rule intended courts to “locate their entire discussion of class counsel within the 23(g) analysis and restrict their analysis under Rule 23(a)(4) to the topic of adequacy of the proposed class representative.” Rubenstein, Newberg on Class Actions § 3:80 (5th ed.). As defendants have also taken this approach, the court will adopt it here. 113 themselves raised the claims they now seek to bring on behalf of the class; this argument goes to typicality rather than adequacy. already explained, In any event, as the court has this argument fails. Defendants have also reiterated in the section of their brief on adequacy their contentions that the named plaintiffs do not have justiciable claims. This argument, too, has already been addressed in the section on standing. Defendants have not suggested that the named plaintiffs have conflicts of interest with the class, and the court concludes that no such conflict exists. As for whether action, defendants plaintiffs arguably represent understand However, they based reflecting these two statements that prisoners their adequately challenged on other will roles in they in as plaintiffs of their do this not case class have prosecute been the this named depositions intend or do to not representatives. released from custody; because their claims are now moot, they cannot serve as class representatives. 114 The remaining named plaintiffs are adequate representatives of the Eighth Amendment class, and Bui is an adequate representative of the procedural due-process class. 3. Rule 23(b)(2) A class satisfies Rule 23(b)(2) in cases in which “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final declaratory injunctive relief class as a whole.” is relief appropriate or corresponding respecting to the Fed. R. Civ. P. 23(b)(2). “Rule 23(b)(2) has been liberally applied in the area of civil conditions facilities.” and rights, including practices at suits various challenging detention Bumgarner v. NCDOC, 276 F.R.D. 452, 457 (E.D.N.C. 2011) (Boyle, J.); see also Wright & Miller, 7AA Fed. Prac. & Proc. Civ. § 1776 (3d ed.) (discussing the range of civil-rights actions certified pursuant to Rule 23(b)(2), and explaining that “the class suit is a uniquely appropriate procedure in civil-rights cases”). 115 Indeed, some courts have gone so far as to say that the rule’s requirements are “almost automatically satisfied in actions primarily seeking injunctive relief.” Baby Neal ex rel. Kanter, 43 F.3d at 59. As plaintiffs have repeatedly explained and offered evidence to demonstrate throughout the litigation of this case, and as this court has found in addressing the commonality requirement, the problems of which they complain and the remedies they seek are systemic.44 The 44. As discussed above in the commonality context, the fact that some class members may have thus far received appropriate mental-health care and therefore might not yet have been harmed by the challenged policies and procedures does not defeat certification. Additionally, even if not all of the class members were subjected to a substantial risk of serious harm--that is, even if it were sure that the risk would not materialize with respect to some mentally ill prisoners--certification would still be appropriate. See Anderson v. Garner, 22 F. Supp. 2d 1379, 1386 (N.D. Ga. 1997) (Murphy, J.) (“‘[A]ll the class members need not be aggrieved by or desire to challenge the defendant’s conduct in order for one or more of them to seek relief under Rule 23(b)(2).’ Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 532 (5th Cir. 1978); Georgia State Conference of Branches of NAACP v. State, 99 F.R.D. 16, 35-36 (S.D. Ga. 1983) (“What is necessary is that the challenged conduct or lack of (continued...) 116 Supreme Court prison has cases approved of involving system-wide “systemwide relief in violation[s]” resulting from “systemwide deficiencies.” Plata, 563 U.S. at 532. Defendants are quite right that a single injunction would not be appropriate if plaintiffs sought an order requiring that each named plaintiff be provided specific forms of treatment he has been denied. the They cite Wal-Mart for the proposition that Rule 23(b)(2) “does not individual different authorize class class member injunction or certification would be declaratory the defendant.” 564 U.S. at 360. certainly not does preclude when entitled judgment each to a against But Rule 23(b)(2) certification merely because the class members could bring separate claims regarding the adequacy of the particular treatment they have individually received--claims which, everyone agrees, could not be resolved with a single injunction conduct be premised on a ground that is applicable to the entire class.”)). 117 or declaratory judgment--when those are not the claims they actually have brought in this lawsuit. For some reason, defendants repeatedly misconstrue the claims in the case as demands for individual treatment of various kinds, and then proceed to argue that the raising action.45 individualized cannot be claims brought in plaintiffs the form of are a not class As the court explained at some length in its analysis of the applicable Eighth Amendment case law in its summary-judgment opinion, defendants’ position is unwarranted; plaintiffs are not seeking adjudication of demands for particular individualized treatment, and the challenge they are actually bringing--to systemic 45. In support of this reading of plaintiffs’ claims, defendants cite to deposition testimony wherein the named plaintiffs, when asked by defense counsel what concrete changes they would like to see in the individual care they are currently being provided, answer that question. These statements, however, are not their claims. Adequate staffing levels and adequate amounts of residential treatment space are not individual forms of treatment one can request; they are conditions that make it possible for appropriate treatment to be provided when and to the extent necessary. 118 deficiencies that create a substantial risk of serious harm--are well recognized. Defendants declare that “an alleged delay in care at St. Clair allegedly bears no insufficient allegedly insufficient relationship staffing intake of at any kind Hamilton, procedures at to or Kilby.” Defs.’ Opp. to Class Cert. (doc. no. 807) at 167. This position is controverted by the evidence in this case. Plaintiffs’ experts opine that all of these problems-and others--stem contractual directly arrangement that and ineluctably provides for from a inadequate numbers of and insufficiently qualified mental-health staff. that Fundamentally, the nature of language of defendants’ defendants Rule acts err 23(b)(2) and in forgetting focuses omissions on the and the suitability of class-wide relief, and does not require that the class-wide relief benefit each class member in precisely the same way. Here, plaintiffs seek a remedy for defendants’ decision to starve the mental-health care system in Alabama prisons of human and financial 119 resources, and relief would be appropriate for everyone subjected to the substantial risk of serious harm plaintiffs claim this creates--that is, prisoners with serious mental illness. It would, in fact, be impossible to grant any meaningful relief on this claim without granting it on a class-wide basis. See Wal-Mart, 564 U.S. at 360 (“The key to the (b)(2) class is the indivisible nature of the injunctive (citation and or declaratory internal remedy warranted.” marks omitted)). quotation Although the court could order, for example, that a particular prisoner who currently requires psychiatric care be seen by a psychiatrist, it cannot order that adequate staffing be provided to the extent necessary to address any one particular prisoner’s mental-health care needs as they develop in the future. deficiencies provided in could efficiently) be the individual potentially addressed one treatment (though by one, Although now being much less the risks defendants’ policies and practices pose to mentally ill 120 prisoners, Moreover, whose any needs order change over remedying a time, could systemic not. deficiency with respect to only one prisoner would rob Peter to pay Paul; the court would be playing a zero-sum game, shifting mental-health care resources from one prisoner to another.46 individual By remedy the same for token, the there practice exists of no filling residential treatment beds with segregation prisoners, thereby reducing the bed space available in those units and undermining the treatment provided there; the court obviously cannot order that a bed be reserved for each prisoner likely particular to require prisoner’s one, therapy in or order the that a residential treatment unit--but only his--not be disturbed. Nor could the court address inadequate intake screenings without also addressing inadequate staffing levels, when the deficiencies in screening are caused 46. Additionally, no relief other than class-wide relief could address the needs of future prisoner with mental illness. 121 by the fact that there are not enough staff members qualified to conduct the screenings or supervise others in doing so. Moreover, as discussed above in the context of commonality, even ordering adequate staffing at a particular facility would not meaningfully redress the claims of prisoners currently housed at that facility, since the chance of a prisoner being moved to another one is very high. The Rule 23(b)(2) cases to which defendants cite are all unavailing. In Lakeland Regional Medical Center, Inc. v. Astellas U.S., LLC, 763 F.3d 1280 (11th Cir. 2014), the court affirmed the denial of certification in a case where the plaintiff failed to identify the declaratory order to relief and it sought injunctive compel and compliance with law.” relief ensure other as than “such appropriate defendant[’s] in future Id. at 1291 (citation omitted).47 47. The Lakeland court also found that the undisputed evidence demonstrated both that no other member of the putative class had ever asked for the sort of license the plaintiff wanted the defendant to (continued...) 122 Here, detail they the ask engaging; by contrast, specific the to policies court the plaintiffs to extent and described in practices in which defendants order that have to stop they seek an order requiring defendants to formulate a plan for remedying unconstitutional conditions, rather than setting out the details of that plan themselves, they do so only out of appropriate deference prison administrators. to the discretion of See Parsons, 754 F.3d at 689 n. 35 (explaining that requiring plaintiffs to articulate with great precision the terms of the injunction they seek is particularly inappropriate in “prison cases, given that an injunction in any such case must closely issue, and that it was very unlikely that any other member of the putative class would want to purchase that sort of license even if it were made available. In other words, the relief that the plaintiff asked for would not address the injury (if any) to the other members of the putative class. Here, plaintiffs have offered expert evidence (with which, in many instances, defendants’ mental-health expert actually agrees) to show that the policies and practices they challenge are generally applicable to prisoners with mental illness in the ADOC, and that the relief they seek would serve (continued...) 123 track the trial, violations that [Prison any established such Litigation relief by must Reform the evidence comply Act]’s with at the extensive requirements, that prison officials must play a role in shaping injunctions, violations structure but of not a that ultimate others remedial might plan, proof easily that of change conditions some the in prisons might change over the course of litigation, and that the class certification hearing is not a dress rehearsal of the trial on the merits (let alone a dress rehearsal of the remedy proceedings)”); Morrow v. Washington, 277 F.R.D. 172, 198 (E.D. Tex. 2011) (Ward, J.) (“Plaintiffs have set forth facts suggesting that Defendants’ behavior was generally applicable to the class as a whole, making injunctive relief appropriate. The precise terms of the injunction need not be decided at this stage, only that the allegations are such that injunctive and declaratory relief are appropriate and to redress the risk these policies and practices pose to all such prisoners. 124 that the class is sufficiently cohesive that an injunction can be crafted that meets the specificity requirements of Rule 65(d).”). Defendants’ other cases fare no better. In Heffner v. Blue Cross and Blue Shield of Ala., Inc., 443 F.3d 1330, 1345 (11th Cir. 2005), certification of a Rule 23(b)(2) damages class was reversed because the court concluded that the class members were not entitled to relief (in the form of a refund of a deductible) absent an individualized showing that they had in fact relied on a summary plan description deductible would be charged. indicating that no Similarly, in Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 499 (7th Cir. 2012), the court reversed certification of a class in a case where “the thousands membership, intricate of remedial individual liability, scheme ... determinations and appropriate require[d] of class remedies,” explaining that certification under Rule 23(b)(2) is not appropriate when “the relief sought would merely initiate a process through which highly individualized 125 determinations of liability and remedy are made.” Here, by contrast, no individualized determinations are necessary or relevant. If the court grants relief, it will do so across the board, in one fell swoop. relief will ensure that the statewide This prison mental-health care system, with which all class members interact, is not operated pursuant to policies and practices that subject all prisoners to a substantial risk of serious harm. This is exactly the kind of case for which Rule 23(b)(2) was intended.48 48. It is just as clear that the procedural due-process claim certified for class-wide resolution satisfies Rule 23(b)(2), as the relief requested here (an injunction requiring the provision of certain procedural protections, not only in policy but also in practice) would clearly apply to the class as a whole. By contrast, the failure to make constitutionally appropriate substantive determinations as to whether prisoners should be involuntarily medicated is less clearly susceptible to “final injunctive relief or corresponding declaratory relief ... respecting the class as a whole” under Rule 23(b)(2). Although a consistent refusal by those who authorize involuntary medication to consider some specific, discrete factor could arguably be susceptible to class-wide relief, even if further individual determinations would need to (continued...) 126 4. Rule 23(g) In order to certify a class, the court must also appoint class counsel. In so doing, the court “must consider work ... (i) the counsel has done in identifying or investigating potential claims in the action; actions, (ii) counsel’s other complex experiences litigation, in and handling the class types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources counsel will commit to representing the class.” R. Civ. P. 23(g)(1)(a). any other matter that Fed. The court also “may consider pertinent to counsel’s ability to fairly and adequately represent the interests of the class,” Fed. R. Civ. P. 23(g)(1)(B). Lawyers affiliated with the Southern Poverty Law Center, the Alabama Disabilities Advocacy Program, and the law firm of Baker, Donelson, Bearman, Caldwell & be made, the court concludes that this issue will more appropriately be litigated by Bui and ADAP than by a class. 127 Berkowitz have represented named plaintiffs in litigating and negotiating the settlement of this case, and they now seek appointment as class counsel.49 As previously discussed for purposes of certification of the Phase 1 class in this case, the record reflects that these attorneys have substantial experience in litigating class actions and in the complex substantive areas of both prisoners’-rights and disability-rights law. Notably, defendants take issue with the adequacy of only a subset of named plaintiffs’ counsel. They argue that the Southern Poverty Law Center (SPLC) should not be appointed as class counsel, but they do not make the same argument with respect to Baker, Donelson or ADAP, both of which represent the individual named plaintiffs. 49. Anil Mujumdar of the law firm of Zarzaur, Mujumdar & Debrosse has also participated extensively in the Phase 2A litigation, in representing only ADAP, not the named plaintiffs. Neither he nor the firm has requested to be appointed as class counsel. 128 In any event, defendants’ arguments with respect to SPLC are not convincing. Although they focus on one possible in deficiency investigation--namely, medical and its mental-health SPLC’s failure records to of pre-filing review all the named plaintiffs prior to filing their complaint--they ignore the detailed and involved investigation that SPLC and plaintiffs’ other counsel conducted since) the filing of this case. prior to (and Before filing suit, plaintiffs’ counsel conducted a two-year investigation into health care in ADOC facilities, interviewed numerous prisoners, obtained some medical records, and obtained some records from defendants and their medical contractors through open records requests. They issued a lengthy report on their findings, which discussed the named plaintiffs in some detail. Especially in light of the difficulty of investigating secure institutions, this was plainly adequate.50 50. The cases defendants cite as examples of inadequate pre-filing investigation bear little (continued...) 129 In addition, defendants argue that SPLC has taken positions in conflict with its fiduciary obligations to the putative class. Essentially, defendants complain that when, earlier this year, the Alabama legislature considered a proposal to invest hundreds of millions of dollars in building four large new prison facilities in the State, the president of SPLC sent a letter to a number of legislators opposing its passage. Whether or not this letter had any effect on legislative support for, or the eventual defeat of, the bill, nothing in it was in conflict with the interests of the putative class his organization seeks to represent. resemblance to the case at bar. In these cases, counsel’s deficiencies were glaring; they had failed to conduct even the most cursory inquiry into whether the proposed class representatives even existed--in Ballan v. Upjohn Co., 159 F.R.D. 473, 488 (W.D. Mich. 1994) (Hillman, J.), one was a “phantom,” who “counsel had named ... without knowing who, let alone where, [she] was”--or had failed to speak at all to at least one of the proposed class representatives prior to the morning of his deposition, see Williams v. Balcor Pension Investors, 150 F.R.D. 109, 120 (N.D. Ill. 1993) (Zagel, J.). 130 As defendants themselves acknowledge, it was “the opinion of the Commissioner [that] inmates in the ADOC system would benefit from the [bill], because it would alleviate problems understaffing.” 807) at 171 caused by overcrowding and Defs.’ Opp. to Class Cert. (doc. no. (emphasis added). SPLC’s president expressed a different opinion, favoring a legislative approach that “demand[ed] prioritized that the management practices.” “sentencing prison reform,” and reform its system Id. Defendants’ argument incorrectly presupposes either that the Commissioner’s view was indisputably correct, or else that the only legislative alternatives were the passage of the bill as proposed, on the one hand, and no action at all on the other. case; there is a panoply of This, too, is not the possible legislative approaches to any issue as complex as prison reform. The fact that an SPLC official expressed a preference for options other than the one that happened to be on the table at a particular moment hardly reflects an 131 abandonment of his fiduciary duty to his current or prospective clients. Setting aside the fact that plaintiffs’ counsel are free to take a different position than the Commissioner, it is not entirely clear how and why-even accepting his position--the prison construction project would benefit the plaintiff class. to the statement of the Commissioner According quoted by defendants, the salient impact of the bill would be on overcrowding and understaffing.51 “transformation” of the size Moreover, as with any contemplated here, the prison construction project would presumably impact the delivery of health care in numerous ways--some positive and some negative, many hard to predict. Plaintiffs 51. Confusingly, however, it also appears to be defendants’ contention in this litigation that overcrowding and custodial understaffing do not result in constitutionally inadequate health care. If this is indeed their position, the court is uncertain why they believe that impeding the passage of a bill designed to address these issues would be adverse to the interests of a class whose sole purpose in bringing this litigation--obtaining adequate mental-health care--would be unaided by this reform. 132 note in replying to this argument that the record reflects that the Commissioner has also suggested that his proposal would allow ADOC to dramatically cut the cost of providing health care. The court certainly passes no judgment on the merits of SPLC’s perspective, but it does seem perfectly reasonable for lawyers representing clients who seek more funding for health care to oppose a bill the proponent of which says would result in less funding for health care. 5. Ascertainability Defendants argue that the Eighth Amendment class certified here is not ascertainable. serious reason to doubt that the However, there is judicially created ascertainability requirement applies to Rule 23(b)(2) classes. Even if it does, this class meets the did hold in requirement. Although the Eleventh Circuit defendants’ primary case, Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012), that a class must 133 be “clearly ascertainable”--that is, “its members can be ascertained by reference to objective criteria,” Bussey v. Macon County Greyhound Park, Inc., 563 F. App’x 782, 787 (11th Cir. 2014) (citation and internal quotation marks omitted)--it did so in the context of a Rule 23(b)(3) damages class, not, 23(b)(2) injunctive-relief class. as here, a Rule Defendants have not cited, and the court is not aware, of any cases within this circuit applying the ascertainability requirement to a Rule 23(b)(2) class, much less any binding precedent doing so. Moreover, the circuits that have squarely addressed the issue have ascertainability 23(b)(2) discussion generally requirement does injunctive-relief of this issue concluded not apply classes. by the that Third The the to Rule recent Circuit is detailed and persuasive.52 52. Notably, the Third Circuit, like the Eleventh, has split from some other circuits in applying a “heightened” ascertainability requirement to Rule 23(b)(3) class actions. See Mullins v. Direct Digital, (continued...) 134 In Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015), the court classes distinguished by noting Rule that 23(b)(2) the and latter (b)(3) “‘allows certification in a much wider set of circumstances,’ including those ‘in which class-action treatment is not as clearly called for,’” and explaining that because Rule 23(b)(3) innovation,’ safeguards,’” classes Congress such are included as opportunity to opt-out. an “‘adventuresome additional individual ‘procedural notice and an Id. at 560 (quoting Wal-Mart, 131 S. Ct. at 2558, Comcast, 133 S. Ct. at 1432). In Rule 23(b)(2) classes, on the other hand, “‘[t]he key ... is the declaratory indivisible remedy nature of warranted--the the injunctive notion that or the LLC, 795 F.3d 654, 659-72 (7th Cir. 2015) (disagreeing with Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012), and Karhu v. Vital Pharms., Inc., 621 F. App’x 945, 946 (11th Cir. 2015) (requiring that the “class definition contain[] objective criteria that allow for class members to be identified in an administratively feasible way ... [through a] manageable process that does not require much, in any, individual inquiry” (citations and internal quotation marks omitted))). 135 conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Ct. at 2557 omitted). of Id. at 561 (quoting Wal-Mart, 131 S. (citation and internal quotation In sum, the court explained, “the identities individual class members are less (b)(2) action than in a (b)(3) action.” As marks the court noted in critical in a Id. Shelton, an advisory committee note to Rule 23 describes cases which are specifically defined in terms of their unascertainability as “illustrative” examples of Rule 23(b)(2) classes: “various actions in the civil rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” P. 23 added). advisory committee’s note Fed. R. Civ. (1966) (emphasis This court therefore agrees with the Third Circuit that a requirement--directly contrary to the express language of the advisory committee--“that the members of the class be 136 capable of specific enumeration[] is inappropriate for (b)(2) classes.”53 Shelton, 775 F.3d at 561. 53. The court also adds the following observations. Requiring plaintiffs seeking certification of a Rule 23(b)(2) class to demonstrate that they could determine conclusively and a priori who would and would not be a member of it would seriously undermine some of the most important functions of this type of litigation. This is because (1) many civil rights cases involve challenges to discrimination on the basis of categories that are statutorily delineated by Congress in a legislative effort to protect the civil rights of people within them, and as discussed below, many of those categories are hard to assess in a perfectly objective fashion, and (2) other cases involve challenges to public entities’ failures to adequately assess individuals to whom they have an obligation to provide services. Concluding that the requirement that a class member have a “serious mental illness” was not a sufficiently objective one would set the court atop a dangerously slippery slope. It would undercut Congress’s efforts to protect other groups, the bounds of which it defines in statute, such as people with disabilities. Other categories that have long formed the basis of civil rights violations (and the basis of class definitions in collective actions challenging those violations), like race, are hardly “objective.” Store records can reveal who bought defective products; determining who is or is not “Hispanic” is not so simple. Although a court can engage in this inquiry, it is certainly an individualized one. (continued...) 137 As the Third Circuit recounted, two other circuits have reached the same conclusion.54 In Shook v. El Paso In addition, strict application of this standard to cases where the violation at issue is a failure to identify would create a Catch-22; it would be the height of irony for a prison system to be able to defeat certification of a class seeking to challenge its failure to identify prisoners with mental illness by arguing that that very failure made the class unascertainable. 54. As explained in the leading treatise on class action law, “early circuit cases” in the Fifth, Sixth, and Seventh Circuits applied the ascertainability requirement “without considering the unique nature of 23(b)(2) actions,” but “later district court cases in these circuits have adopted an intermediate position ... under which the requirement of ascertainability is applied less stringently in 23(b)(2) actions.” Rubenstein, Newberg on Class Actions § 3:7 (5th ed.). It also observes that “recent decisions either ... eschew the implied requirement of definiteness in Rule 23(b)(2) class actions, or follow the intermediate approach, and treat definiteness as flexible ...[,] even in circuits that have traditionally applied the definiteness requirement to such class actions.” Id. (citing, among other cases, In re Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir. 2004) (recognizing that “a precise class definition is not as critical where certification of a class for injunctive or declaratory relief is sought under [R]ule 23(b)(2),” at least so long as notice and opt-out rights are not requested), and Kenneth R. ex. rel. Tri-City CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 264 (D.N.H. 2013) (McAuliffe, J.) (holding that a Rule 23(b)(2) class defined as containing persons with “serious mental (continued...) 138 Cty., 386 F.3d 963, 972 (10th Cir. 2004), the court explained that “many courts have found Rule 23(b)(2) well suited for cases where the composition of the class is not readily ascertainable; for instance, in a case where the plaintiffs attempt to bring behalf of a shifting prison population.” Circuit has agreed. suit on The First See Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (holding that “the actual membership of [a Rule 23(b)(2)] class need not ... be precisely delimited,” because individual notice to class members is not required); see also Floyd v. City of New York, 283 F.R.D. 153, 171-72 & n.115 (S.D.N.Y. 2012) (Scheindlin, J.) (citing cases). pointed out the Court’s recent “significant” foray into fact Rule Shelton also that the Supreme 23(b)(2), Wal-Mart, “lacks any inquiry into ‘ascertainability.’” 775 F.3d at 563. illness” was omitted))). sufficiently 139 ascertainable (citation For these reasons, the court concludes that the class proposed ascertainable. alternative in this litigation need not be That said, the court concludes in the that even if the requirement did apply, plaintiffs’ proposed class definition would satisfy it. Although “serious” defendants mental complain illness is that undefined, the term defendants themselves note in their motion for summary judgment that there is case law in this circuit articulating what counts as “serious” in the arena of Eighth Amendment mental-health claims: an illness “that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the need for a doctor’s attention.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) (explaining that “[t]his standard has been acknowledged and used by other federal circuit and district courts,” and concluding that it was the “appropriate and guiding principle”). This is a rather straightforward, objective standard: a prisoner would 140 be a member of this class if he has been diagnosed as needing mental-health treatment obviously mentally ill.55 or if he is very Of course, because this is not a Rule 23(b)(2) damages class action, and class members will not be entitled to individual notice or have the right to opt out, the court need not actually conduct this inquiry to determine whether each prisoner is or is not a member of the class. To conclude, the court will briefly address the other two cases defendants cite, both of which are unreported decisions by out-of-circuit district courts: Johannes Sept. v. 25, Washington, 2015) 2015 (Michelson, WL 5634446 J.), and (E.D. Mich. Schilling v. Kenton Cty., 2011 WL 293759 (E.D. Ky. Jan. 27, 2011) (Bunning, J.). result reached They are wholly consistent with the here; indeed, Johannes actually 55. Indeed, the existence of prisoners who are very obviously mentally ill but who have not been diagnosed by prison mental-health staff as needing treatment would itself be compelling evidence of an Eighth Amendment violation. 141 recognizes applies 2015 that “less WL the ascertainability stringently” 5634446, at in *10. Rule These requirement 23(b)(2) cases cases. declined to certify or expressed concern about certifying what are known as “fail-safe” classes--classes that are defined in terms of the eventual merits adjudication. See Schilling, 2011 WL 293579, at *5 (“A class definition is ... too general where it requires the Court to determine whether an individual's constitutional rights have been violated in order to ascertain membership in the class itself.”). In this case, a fail-safe class would be one defined to consist of all prisoners who have received constitutionally inadequate mental-health care. Because plaintiffs have not proposed a fail-safe class, these cases suggest no reason not to certify.56 56. The court notes that some courts have in fact expressed a preference for fail-safe classes, in order to avoid the possibility that the class will include some members who have not been harmed by the challenged conduct. See Kenneth R., 293 F.R.D. at 264 (certifying a fail-safe class); Strouchler v. Shah, 286 F.R.D. 244, 247 (S.D.N.Y. 2012) (refining a class definition to address an overbreadth objection, and in so doing, (continued...) 142 * * * The motion for class certification filed by the remaining named denied in part. persons with plaintiffs is granted in part and The court will certify a class of all a serious mental-health disorder or illness who are now, or will in the future be, subject to defendants’ practices in mental-health ADOC facilities, care policies excluding and the work release centers and Tutwiler Prison for Women. The court will also certify a class of all persons with a serious mental-health disorder or illness who are now, or will in the future be, subject to defendants’ formal involuntary-medication policies and practices. creating a fail-safe class). The Fifth Circuit has both “rejected a rule against fail-safe classes,” In re Rodriguez, 695 F.3d 360, 370 (5th Cir. 2012), and also explained that Rule 23(b)(2) classes can be certified even when not all members of them have been harmed, see Johnson v. Am. Credit Co. of Ga., 581 F.2d 526, 532 (5th Cir. 1978). Bluntly put, this area of class-action law is a mess. See Rubenstein, Newberg on Class Actions § 3:6 (5th ed.). 143 The court will decline to certify a class for the individual plaintiffs’ due-process challenge regarding involuntary medication dangerousness, regarding or coerced for without their consent. a recent finding due-process However, the of challenge individual plaintiffs with these claims will proceed to trial, and ADAP, through its associational standing, may represent the interests of unnamed prisoners who are subject to these policies and practices. An appropriate order will be entered. DONE, this the 25th day of November, 2016. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 144

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