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.
)
)
)
)
)
)
)
)
)
)
)
)
)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?