Dunn et al v. Thomas et al

Filing 258

OPINION AND ORDER: It is ORDERED as follows: (1) The defendants' 127 Partial Motion to Dismiss is denied as to standing. (2) As to mootness, the motion is reserved and set for a Motion Hearing on 12/16/2015 at 10:00 AM in Courtroom 2FMJ in Montgomery, AL before Honorable Judge Myron H. Thompson. (3) The plaintiffs are to submit a pre-hearing brief outlining the evidence they intend to present and explaining why that evidence supports their positions on mootness no later than 21 days be fore the hearing; the defendants are to respond no later than 14 days before the hearing; and the plaintiffs may reply no later than seven days before the hearing. Signed by Honorable Judge Myron H. Thompson on 10/6/2015. Copies furnished to calendar group, AG. (dmn, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION JOSHUA DUNN, 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) OPINION AND ORDER The more plaintiffs than 40 in this state class-action prisoners Disabilities Advocacy Program. represent a putative state system. class of and lawsuit the are Alabama The prisoners intend to all prisoners in the If a class is certified, the litigation could affect over 25,000 prisoners in approximately 29 facilities. of The defendants are the Alabama Department Corrections (ADOC), its Commissioner, Associate Commissioner of Health Services. and its The plaintiffs inadequate assert medical and the following mental-health claims: treatment in Alabama prison facilities; denial of due process for involuntary accommodate retaliation mental-health treatment; prisoners against the with failure to disabilities; plaintiffs for and communicating with counsel in order to challenge these conditions of their confinement. They rely on the First, Eighth, and Fourteenth Amendments (as enforced through 42 U.S.C. § 1983); the Americans with Disabilities Act (42 U.S.C. §§ 12101 et seq.); and § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794). injunctive relief. They seek declaratory and Jurisdiction is proper under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights). This litigation is before the court on the defendants’ partial motion to dismiss. The defendants seek of the plaintiffs, have been dismissal Zerrick released of the Naylor from claims and Bradley prison since 2 two named Pearson, the case who was filed. The defendants argue that these two plaintiffs lack standing and, alternatively, that their claims are moot. For the reasons set forth below, the defendants’ motion will be denied with respect to standing. With respect to mootness, the motion will be reserved, and a hearing will be set to take additional evidence and hear further argument. I. BACKGROUND Plaintiffs Naylor and Pearson are both disabled: Naylor is blind, and Pearson is hearing-impaired and communicates by sign language. They claim that they have been denied reasonable accommodations for their disabilities. Both also claim that, because of their disabilities, they have been denied access to certain programs, benefits, prisoners. plaintiffs contend, no and services available to other Other blind and deaf prisoners are also in this other suit, but, plaintiffs 3 Naylor were and denied Pearson reasonable accommodations or programming in the same ways as they were. This lawsuit was filed in June 2014. At that time, Naylor and Pearson were both in prison based on ‘split’ sentences. Under Alabama law, excepted, a court may ‘split’ a with certain crimes sentence of 20 years or less by requiring the defendant to serve a period of time in prison, suspending the remainder of the sentence, and requiring the defendant to serve a term of probation. See 1975 Ala. Code § 15-18-8(a)(1). Upon finding a violation of probation, the court may revoke the probation and require the defendant to serve the remainder of his original sentence in prison, less any time already served, or, depending upon the circumstances, impose a lesser prison sentence, modify the conditions of probation, or continue the defendant on probation. Dixon v. See generally 1975 Ala. Code § 15-18-8; Alabama, 912 So. 2005). 4 2d 292 (Ala. Crim. App. In February 2015, more than seven months after this lawsuit was filed, Naylor and Pearson were released from ADOC custody and began to serve probation on split sentences. and Naylor had served three years in prison, Pearson, probation three and years; two years. subject Pearson to Naylor conditions will remain probation for, at least, five years.1 will of on remain release on for supervised If they do not meet their conditions of probation, they could face a return to prison. Since filing the original complaint, the plaintiffs have amended their pleadings several times. Naylor and Pearson were the amended complaint released was from prison filed; the after second first amended 1. Although Naylor and Pearson submitted a court order from Naylor’s case purporting to place him on unsupervised probation for the remainder of his 15-year sentence, Alabama law provides that the maximum period of probation is five years. See 1975 Ala. Code § 15-22-54(a) (“[I]n no case ... shall the maximum probation period of a defendant guilty of a felony exceed five years.”). Accordingly, it is unclear whether he will actually remain on probation for more than five years. 5 complaint, which added a new named plaintiff and some more-detailed factual allegations,2 reflected these changes in their status. II. DISCUSSION After the second amended complaint was filed, the defendants moved to have Naylor and Pearson dismissed. The defendants argue that, because these two plaintiffs had been released from custody, their claims are now moot and based on the second amended complaint, they no longer have standing to proceed. Standing issues. and mootness are related but separate “[T]he emphasis in standing problems is on whether the party invoking federal court jurisdiction has a personal stake in the outcome of the controversy 2. The factual allegations regarding Naylor’s treatment remained identical; the factual allegations regarding Pearson’s treatment remained identical except for a new allegation that he suffered the discrimination he had experienced in other arenas of prison life in a class he was required to attend shortly before his release. 6 and whether the dispute touches upon the legal relations of parties having adverse legal interests.” U.S. Parole (1980) Comm’n v. (citations Geraghty, and 445 internal U.S. 388, quotation 397 marks omitted). Once a party has established standing to invoke jurisdiction the of the court, the claim he asserts must remain “live” throughout the pendency of the lawsuit--that is, it cannot become moot. See Powell v. McCormack, 395 U.S. 486, 496 (1969). Although the Supreme Court famously described mootness as “standing set in a time frame,” it has emphasized that “there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct standing, mootness.” but may be not too Friends of too speculative speculative the Earth, to to Inc. v. support overcome Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Therefore, the fact that a plaintiff would not now have standing to initiate a challenge to a given practice 7 does not necessarily mean that a previously filed challenge has become moot. Here, there is no dispute that Naylor and Pearson both had standing to bring suit when they filed their original complaint in June 2014.; that, since then, they have both been released; and that, when the plaintiffs filed an amended complaint, they updated it to reflect that change. Whether Naylor and Pearson retain their personal stake in the lawsuit thus comes down to two questions: Did amending their complaint to reflect their release defeat their standing? And did their release moot their claims? Because standing is typically a preliminary determination, the court will begin with it. A. Standing As explained above, Naylor’s and Pearson’s claims concern the alleged denial of reasonable accommodations for their disabilities while in prison and the alleged denial of access to certain programs, benefits, and 8 services on account of their disabilities. There is no dispute that they had standing when the first complaint was filed. Instead, the defendants argue that, because they had been released by the time the first amended complaint was filed, they no longer have standing. The court disagrees. The standing inquiry asks whether such a dispute exists at the beginning of the litigation, as compared to the mootness inquiry, which asks whether dispute remains throughout the litigation. such a See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003) (standing is assessed "at the outset of the litigation" (citation omitted)); see also Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001) ("[S]tanding does not have to be maintained .... Instead, it is to be determined as of the time the complaint is filed."); Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir. matter 1991) ("As jurisdiction with except 9 all questions mootness, of subject standing is determined as of the date of the filing of the complaint, and subsequent events do not deprive the court of jurisdiction."). Normally, a case begins, for standing when the initial complaint is filed. purposes, However, in a case which the defendants rely on, the Eleventh Circuit Court of Appeals has recognized an exception to this rule of thumb, apparently in order to prevent litigants from trying to shoehorn standing for expired claims by amending them onto unrelated complaints. F.3d at 1275, it concluded that, In Focus, 344 when an amended complaint raises new allegations which do not relate back to a transaction or occurrence identified in the original complaint, standing (at least with respect to claims based on these new allegations) must be assessed as of the date of the amendment. In that case, the plaintiff initially alleged that it would suffer First Amendment injury because it was not permitted to advertise for a conference to be held on a certain future date; an amended complaint 10 making the same allegation was not filed until after the date of the conference had past. “identical” Fed. R. and Civ. Id. thus P. Because the allegations were "plainly 15(c), relate[d] the court back" held that under the plaintiff needed to show standing only as of the date its original complaint was filed. Id. Neither Focus nor any other precedent holds that standing complaint is to is be reassessed filed. every Litigants time an amended routinely amend complaints for a wide variety of reasons, many of them not particularly substantive. Absent an amendment which effectively begins the case anew by adding in unrelated allegations (or new plaintiffs), once established need not be reconsidered.3 standing This does 3. The court also notes that, with respect to Naylor and Pearson, the second amended complaint functioned as a ‘supplemental’ rather than an ‘amended’ pleading. Formal styling aside, the portion of the filing relevant to them did not add “facts or legal claims in existence at the time the original pleading was filed,” as appropriate in an amendment, Manning v. City of Auburn, 953 F.2d 1355, 1360 n.8 (11th Cir. 1992) (citing Fed. R. Civ. P. 15(a)); rather, it “set (footnote continued) 11 not, of course, leave defendants without recourse when a dispute evaporates after a case against them has begun; they can argue, just as defendants do here, that the plaintiffs' claims have become moot. Here, Naylor and Pearson's allegations regarding the conditions of confinement in the defendants' prison facilities have likewise remained essentially the same; they certainly concern the same “conduct, transaction, or occurrence." Fed. R. Civ. P. 15(c)(1)(B). Just as forth new facts in order to update the earlier pleading,” as appropriate in a supplement, id. at 1359-60 (citing Fed. R. Civ. P. 15(d), other citations omitted); see also C. Wright & A. Miller, 3 Fed. Prac. & Proc. § 1504 (“[Amended pleadings] relate to matters that occurred prior to the filing of the original pleading and entirely replace the earlier pleading; [supplemental pleadings] deal with events subsequent to the pleading to be altered and represent additions to or continuations of the earlier pleadings.”). In substance, Naylor and Pearson’s filing was an update as to the newly arisen fact of their release. Presumably, this supplement was folded for convenience into an amended pleading that had to be filed in order to add a new named plaintiff. Standing requirements imposed on amended complaints are inapposite where, as here, it would have been appropriate for the plaintiffs at issue--Naylor and Pearson--to instead file a supplemental pleading. 12 in Focus, the fact that their amended complaint reveals that they were subjected to these conditions in the past is irrelevant to the standing analysis. Because their allegations plainly relate back to their original complaint, they need show standing only as of the date it was filed. This they have done. The defendants' contention that Naylor and Pearson no longer present a justiciable case or controversy is properly considered not as a question of standing, but rather as one of mootness. B. Mootness Having standing established to invoke the that Naylor court’s and Pearson jurisdiction in had the first place and that they maintain that standing now, the court turns to a distinct, and more fact-intensive question: Are their claims now moot? do Naylor and Pearson maintain a In other words, personal, legally cognizable interest in the litigation, or must these plaintiffs and their claims be dismissed from the case? 13 Because resolve more evidence this evidentiary is issue, it hearing; required is for the reserved nevertheless, court pending this opinion to an will set out analytical guideposts. “Attacks on subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)[, such as in motions to dismiss on mootness grounds,] come in two forms. Facial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony considered.” Lawrence 1528-29 Cir. (11th v. 1990) quotation marks omitted). motion is brought, and Dunbar, affidavits, 919 (citations F.2d and are 1525, internal When a factual Rule 12(b)(1) “no presumptive truthfulness attaches to plaintiff’s allegations, and the existence 14 of disputed material facts will not preclude the trial court from evaluating jurisdictional claims.” Although the for itself the motion to merits of Id. defendants’ dismiss was based in significant part on an undisputed fact that appeared on the face of the amended complaint--that is, that Naylor prison--it and also Pearson took had issue been with released the from plaintiffs’ allegation regarding another critical fact, on which mootness might turn: whether Naylor and Pearson in fact “have a high risk of being readmitted to ADOC custody and facing faced the prior to same discriminatory [their] release.” practices See [they] Defendants’ Partial Motion to Dismiss Plaintiffs’ Second Amended Class Action Complaint (doc. no. 127) at 8. The motion argued that the plaintiffs had offered “no specific support ... [for this] pessimistic assertion[,]” and “ignore[d] the practical reality that they complain of will not evade review.” the practices Id. Naylor and Pearson responded, attempting to answer with some 15 additional evidence, including statistics about the overall reincarceration rates of Alabama probationers on split sentences and Pearson’s criminal record. Therefore, this court will treat the motion to dismiss as a factual attack. “Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction--its very power to hear the case--there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. May 20, 1981).4 In considering such a factual attack, it is within “[t]he unique power of district courts to make factual findings jurisdiction ....” which Id. at 413. are decisive of The court will hold a hearing to inform its exercise of that power. 4. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 16 Somewhat different mootness analyses apply to individual claims and to claims brought on behalf of a putative class; hence, this discussion will proceed to consider both in turn, though the individual and class claims are substantively the same. 1. Plaintiffs’ Contentions In opposing the motion to dismiss, Naylor and Pearson suggest that, because there is a significant chance that they will be reincarcerated (more on this below), none of their claims has been mooted by their release and they remain free to proceed just as if they were still in prison. But this broad assertion is without support in relevant case law. They rely on an out-of-circuit case, Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005), that does not go so far as they suggest, and a district court decision, Hernandez v. Monterey, 70 F. Supp. 3d 963 (N.D. Cal. 17 2014) (Grewal, J.), that is inconsistent with Eleventh Circuit precedent. In Armstrong, 275 F.3d at 860-61, 865-67, the Ninth Circuit held that disabled parolees had standing to challenge on behalf of a class discrimination during parole-revocation hearings. As a preliminary matter, this is a standing case, not a mootness case. In any event, the appeals court based its conclusion regarding standing on district court plaintiffs proceedings extensive factual regarding would be (though the placed not, findings likelihood into it made by the that the parole-revocation appears, regarding the likelihood that their parole would in fact be revoked). The court allowed pursue nowhere claims the already paroled regarding suggested that those they plaintiffs hearings; would have to however, it standing to challenge any form of discrimination they might suffer 18 in prison if their parole were actually revoked.5 Compare McAlpine v. Thompson, 187 F.3d 1213, 1217-18 (10th Cir. 1999) (“[O]ther than (arguably) the Seventh Circuit, our research indicates that every circuit to consider the issue has decided that release to parole moots a claim regulations, as regarding opposed to prison parole conditions procedures and or conditions and regulations that affect parole.” (citing opinions of the First, Third, Fourth, Fifth, Sixth, Eighth, and D.C. Circuits)). Naylor and Pearson also cite Hernandez, 70 F. Supp. 3d at 969-72, 974-76, a jail-conditions suit seeking prospective relief. There, the court held that several inmate plaintiffs who were not in incarcerated in the 5. Notably, the Armstrong plaintiffs’ claims regarding parole-revocation hearings (as distinct from claims regarding conditions of confinement more generally) likely would have qualified for a mootness exception--either the ‘capable of repetition, yet evading review’ exception for individual claims, or the ‘inherently transitory’ exception for class claims--due to the district court’s findings regarding the likelihood of recurrence and the brevity of such hearings. 19 jail when the complaint was filed had standing to seek prospective relief. Id. at 976. The court based its holding on Armstrong v. Davis, reading the case to hold that, because these plaintiffs were under supervision and therefore “still subject to the disputed conditions of the jail,” they had standing. However, as discussed above, Armstrong actually did not go so far as the Hernandez court said. Hernandez conflicts Further, this binding Eleventh with precedent, which will be discussed below. holding of Circuit Accordingly, this court cannot rely on it. 2. Individual Claims “The general rule is that a prisoner’s transfer or release from a jail moots his individual claim for declaratory and injunctive relief” regarding conditions of confinement. McKinnon v. Talladega Cnty., 745 F.2d 1360, 1363 (11th Cir. 1984). This is because “[p]ast exposure to illegal conduct does not in itself show a pending case or controversy regarding injunctive relief 20 if unaccompanied by any continuing, present injury or real and immediate threat of repeated injury.” Cotterall v. Paul, 755 F.2d 777, 780 (11th Cir. 1985) (citation omitted). See also McAlpine, 187 F.3d at 1215 (“[W]hen an inmate’s claim for prospective relief regarding conditions of confinement becomes moot due to the inmate-plaintiff’s release from confinement, the inmate’s parole or supervised release status does not, absent some exceptional showing, bring that claim under the narrow ‘capable of repetition, yet evading review’ exception to the mootness doctrine.”). However, when a prisoner brings a claim that is ‘capable of repetition, but evading review,’ that claim is not moot even when the injury has, for now, ended, such as due to his or her release from custody. For individual yet claims, “the ‘capable of repetition, evading review’ doctrine [is] limited to the situation where two elements combine[]: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there 21 [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (citations omitted). To meet this second threshold, a plaintiff must allege more than a “mere physical or theoretical possibility” of recurrence; rather there must be a “reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party.” Id. (citation and internal quotation marks omitted); see also Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (explaining that the likelihood of recurrence need not be “established with mathematical precision” as long as the expectation of recurrence is reasonable, and that the question is “whether the controversy was capable of repetition and not ... whether the claimant had demonstrated that a recurrence of the dispute was more probable than not). The court will require additional evidence as to both prongs of the test. briefing and Naylor and Pearson should identify any specific claims that they 22 believe will evade review because they challenge conditions to which a prisoner is subjected for a brief period of time. They should submit evidence as to the durations of these conditions. They should also submit individualized evidence substantiating their assertions that, due to the conditions of their release, their disabilities, or any other reasons, they are especially likely to have reincarcerated. their probation revoked and be See, e.g., id. at 320 (“[T]he record is replete with evidence that Smith is unable to govern his aggressive, impulsive behavior. ... In the absence of any suggestion that earlier difficulties, expect, based problems, that on he respondent it his will has is certainly prior history again engage overcome reasonable of in his to behavioral classroom misconduct.”); Armstrong, 275 F.3d at 867 (basing the conclusion that “a person with disabilities is more likely to be suspected of conduct that results in the revocation of parole than other parolees” on specific factual findings of the district court). 23 To the extent they allege experienced that has the very discrimination increased their they likelihood have of reincarceration, Naylor and Pearson should explain how it has done so. court why their Finally, they should explain to the reincarceration would necessarily result in the reimposition of the conditions they have identified as ‘evading review.’ The defendants should submit any evidence to the contrary. 3. Class Claims Of course, Naylor and Pearson do not distinguish in their substantive allegations between ‘individual’ and ‘class’ claims--they make the same allegations on behalf of themselves as they do on behalf of unnamed putative class members who are similarly disabled and are alleged to suffer similar discrimination. However, the mootness analysis differs depending on whether the court is considering the claims as brought on behalf of individual plaintiffs or on behalf of a class. Because these claims have been litigated as class claims from 24 the outset of the case, but no class has yet been certified, the court must consider them under both frameworks. When a named plaintiff’s claim becomes moot after certification of the class, the claim justiciable for Article III purposes. remains Geraghty, 445 U.S. at 403-04; Franks v. Bowman Transp. Co., 424 U.S. 747, 753-54 (1976). By contrast, when a named plaintiff’s individual claim becomes moot prior to the certification of a class, the class claim is normally mooted. Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir. 1987) (citing Geraghty, 445 U.S. at 404 & n.11). However, a well-recognized exception exists: “where a named plaintiff’s claim is ‘inherently transitory,’ and becomes moot prior to certification, a motion for certification may ‘relate back’ to the filing of the complaint.” Genesis Healthcare Corp., v. Symczyk, 133 S. Ct. 1523, 1528 n.2 (2013) (citation omitted). See also Kremens v. Bartley, 431 U.S. 119, 131 (1977) (explaining that the Court had “adjudicated the merits 25 of [] class claims notwithstanding the mootness of the claims of the named parties” when “mootness was due to the inexorable passage of time”); Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1045 (5th Cir. 1981) (explaining that while “a suit brought as a class action must as a general rule be dismissed for mootness when the personal claims of the named plaintiffs are satisfied and no class has properly been certified,” “this general rule must yield when the district court is unable reasonably to rule on a motion for class certification before the individual claims of the named plaintiffs become moot”). The Supreme Court established this exception to mootness for ‘inherently transitory’ pre-certification class claims in a line of cases beginning with Sosna v. Iowa, 419 U.S. 393, 395-403 (1975). concerns post-certification mootness. Sosna itself Sosna, an Iowa resident who wanted a divorce but had resided in the state for less than a year, brought a class action challenging an Iowa durational-residency 26 requirement that limited state-court divorce jurisdiction to persons who had resided in the State for at least one year. The district court certified the class, but by the time her case was on appeal at the Supreme Court, Sosna had both resided in Iowa for more than a year and had already procured the divorce elsewhere. the Court noticed that Sosna’s individual Although claim was moot, it did not dismiss her action and ruled on the merits of the class claims. The Supreme Court’s reasoning rested in part, and as relevant here, on the transitory nature of Sosna’s claim. full When “the issue sought to be litigated escapes appellate review at the behest of any single challenger,” the Court explained, the case “does not inexorably become moot by the intervening resolution of the controversy as to the named plaintiffs.” 401. Id. at Rather, while the Court took care to “in no way detract[] from the firmly established requirement that the judicial power of Art. III courts extends only to ‘cases and controversies,’” id. at 402, it set out a 27 flexible, case-specific approach to assessing mootness. “In cases in which the alleged harm would not dissipate during the normal time required for resolution of the controversy, the jurisdiction require stake in the general principles that the litigation Art. plaintiff’s continue entirety of the litigation.” of Id. III personal throughout the On the other hand, in cases such as the one brought by Sosna (where, due to the transitory nature of the claim, no particular “spokesman ... could retain a personal adversary position throughout the course of the litigation”), the Court shifted its focus to the ongoing controversy still “very much alive for the class of persons she has been certified to represent.” Id. at 401 & n.9. In keeping with this practical approach, the Court also issued holding a relied further firmly instruction. on “the fact While that a Sosna’s putative class acquires an independent legal status once it is certified under Rule 23,” Symczyk, 133 S. Ct. at 1530, the Court noted that, “There may be cases in which the 28 controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion.” Sosna, 419 U.S. at 402 n.11 (emphasis added). “In such instances, whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the otherwise the issue would evade review.” claim that Id. Since then, the Court has affirmed and developed this pre-certification analysis. Court expressly McLaughlin that held the in In particular, the County ‘relation-back’ of Riverside doctrine v. applied even though “the class was not certified until after the named plaintiffs’ claims had become moot” because the claims raised were inherently transitory.6 500 U.S. 6. Indeed, this is true even before a formal motion for certification has been made. As the Eleventh Circuit recently explained, “There is nothing in the [relevant caselaw] that suggests the relation-back doctrine turns on whether the named plaintiffs’ (footnote continued) 29 44, 52 (1991) (citations omitted). As the Court has more recently explained, the “‘inherently transitory’ rationale which was the developed challenged to address conduct circumstances was in effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.” Symczyk, 133 S. Ct. at 1531. A claim is inherently transitory not only if there exists no plaintiff who could both establish standing at the outset of litigation and retain an active stake by the time class certification is decided, but also if individual claims become moot before or after the plaintiffs move to certify a class. Quite the contrary. ... [A] motion to certify, without more, does nothing that is significant on this issue. The motion indicates that the named plaintiff intends to represent a class if allowed to do so, but the complaint itself announces that same intent; the motion is not needed for that purpose. ... The assertion that a motion fundamentally changes the legal landscape--indeed, that it impacts the constitutional prerequisites to jurisdiction under Article III--makes no sense. What matters is that the named plaintiff acts diligently to pursue the class claims.” Stein, 772 F.3d at 707. This case has been litigated by both parties and treated by the court as a putative class action from the outset. 30 it would be difficult to identify which prospective plaintiff that would be at the time of filing. As the Court explained in Gerstein v. Pugh, a claim should be considered inherently transitory when “[i]t is by no means certain that any given individual, named as plaintiff, would be in ... custody long enough for a district judge to certify the class.” 420 U.S. 103, 110 n.11 (1975) (emphasis added). Both the Second and Seventh Circuits have held that, although “the ultimate length of confinement does affect the applicability of the ‘inherently transitory’ exception, the essence of the exception is uncertainty about whether a claim will remain alive for any given plaintiff long enough for a district court to certify the class.” Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010) (emphasis added); accord Zurak v. Regan, 550 F.2d 86, 90-92 (2d Cir. 1977); Thorpe v. District of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C. 2013) (Huvelle, J.). Claims release that from derive custody from are “a 31 potentially classic imminent example of a transitory claim.” Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997). However, it is not clear whether Naylor and Pearson are raising such claims. See id. (reversing and remanding for the district court to take evidence on the average length of detention in a county jail in order to determine whether the claims brought on behalf of a class of inmates were “in fact ‘inherently transitory’”). Again, the court requires additional briefing and evidence.7 Should they seek to argue that their claims are inherently transitory, Naylor and Pearson should identify any inherently specific transitory claims as that defined they in believe the case are law 7. Although Sosna and its progeny have recognized the existence of the ‘inherently transitory’ exception to class claims, its application in this circuit has at times been confusing. In particular, in Tucker, 819 F.2d at 1035, the Eleventh Circuit considered putative class claims brought by a named plaintiff who had aged out of the class he was attempting to represent (juveniles confined in the county jail), but discussed the applicability of the ‘capable of repetition, yet evading review’ exception, not the ‘inherently transitory’ exception. The parties may wish to address the relevance of Tucker’s analysis to this case. 32 discussed here. average They should submit evidence as to the durations uncertainty of regarding these those conditions, durations. and They any should also submit evidence demonstrating that it is certain that other persons similarly situated will be subjected to these conditions. The defendants should submit argument and evidence to the contrary. * For the foregoing * * reasons, it is ORDERED as follows: (1) The defendants’ partial motion to dismiss (doc. no. 127) is denied as to standing. (2) As to mootness, the motion is reserved and set for a hearing at 10:00 a.m. on December 16, 2015, in Courtroom States 2FMJ of Courthouse the Frank M. Complex, Johnson One Jr. Church United Street, Montgomery, Alabama. (3) The plaintiffs are to submit a pre-hearing brief outlining the evidence they intend to present and explaining why that evidence supports their positions 33 on mootness no later than 21 days before the hearing; the defendants are to respond no later than 14 days before the hearing; and the plaintiffs may reply no later than seven days before the hearing. DONE, this the 6th day of October, 2015. ___/s/ Myron H. Thompson____ UNITED STATES DISTRICT JUDGE 34

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