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, )

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.

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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