Covington v. White et al
ORDER granting in part and denying in part 74 Motion for Class Certification. Class certified on the first-appearance claim and denied with prejudice on the conditions claim. Covington's individual conditions claim is set for trial on 20 Jan uary 2015. Motion for status conference, 110 , granted. The Court will hold the conference on a mutually convenient date the week of October 27. Scheduling issues in companion case 2:13-cv-84 will be covered at the conference as well. Signed by Judge D. P. Marshall Jr. on 10/15/2014. (jak) (Docket text modified on 10/15/2014 to correct the trial date).(jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
GARY COVINGTON, on behalf of
himself and all others similarly situated
ULESS WALLACE, HERMAN HALL, and
NEAL BYRD, all in their official capacities
1. Background. Covington says his rights were violated when he was
held in jail, under unconstitutional conditions, for thirty-nine days without an
initial appearance. He sues, on behalf of himself and others similarly situated,
under § 1983 and the Arkansas Civil Rights Act. Covington now proposes
certification of two classes of pretrial detainees-those who were denied a
prompt first appearance and those who were subjected to unconstitutional
conditions of confinement. Covington has the burden of showing that each
proposed class satisfies Federal Rule of Civil Procedure 23(a)'s
requirements-numerosity, commonality, typicality, and adequacy of
representation. Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011).
Covington must also show that each proposed class falls within one of the
three Rule 23(b) categories. Rattrayv. Woodbury County, Iowa, 614 F.3d 831,835
(8th Cir. 2010).
2. First Appearance. The Court certifies the first-appearance class: all
pretrial detainees who were denied a prompt first appearance in the three
years before this case was filed on 22 June 2012.
It's undisputed that Covington was denied a prompt first appearance.
NQ 70 at 3. And he has recently provided the Court with a list of at least fiftytwo persons allegedly denied the same right. The City contends that the list
fails to adequately show the delay or denial of Rule 8 prompt first
appearances because it reflects arraignment dates, not Rule 8 hearing dates.
The Court concludes, though, that the list satisfies numerosity. Arkansas
Education Association v. Board ofEducation, Portland Arkansas School District,446
F.2d 763, 765-66 (8th Cir. 1971). Although there may have been occasions
where the Rule 8 hearings were performed without documentation,
Covington is left with the documents provided by the City, which indicate
that the first appearance before a judge occurred at arraignment.
Covington has also showed commonality; he "and potential class
members were victims of a common decision, policy, or plan of the
[defendants] that affected all class members in a similar fashion." Resendiz-
Ramirez v. P&H Forestry, LLC, 515 F. Supp. 2d 937, 941 (W.D. Ark. 2007).
No one disputes the County's hand in the matter. One district judge testified
that the City is primarily responsible for making sure a person arrested by the
City gets a prompt first appearance. NQ 104-1 at 19 & 24-25 (deposition
pagination). The other district judge testified that the City and the County
were jointly responsible for the prompt first appearance of City prisoners in
County custody. NQ 104-2 at 29-32 (deposition pagination). Then there are the
purported admissions by Defendant Wallace, which imply the City has some
responsibility for misdemeanor detainees regardless of their jail location. NQ
111 at 2. Material issues of fact exist about the City's standard practices and
Typicality "requires a demonstration that there are other members of
the class who have the same or similar grievances as the plaintiff." Paxton v.
Union National Bank,688 F.2d 552,562 (8th Cir. 1982). There appears to be no
dispute that Covington has the same grievance- no prompt first appearance
after an arrest due to the practice or policy of the County and City-as each
of the proposed first-appearance class members. Covington has met the
Covington satisfies the adequate-representation requirement too. He
shares common interests with the members of the class; and he will
vigorously prosecute the interests of the class through his qualified and
experienced lawyer. Paxton, 688 F .2d at 562-63. Covington and his lawyer will
fairly and adequately represent the class.
Finally, Covington's first-appearance class action fits comfortably
within Rule 23(b)' s third category. Questions of law and fact common to class
members predominate over any questions affecting only individuals; and a
class is the best way to fairly and efficiently adjudicate the controversy. FED.
R. CIV. P. 23(b)(3). The core of the predominance requirement is whether
common evidence would prove a defendant's liability to all class members.
Avritt v. Reliastar Life Insurance Company, 615 F.3d 1023, 1029 (8th Cir. 2010).
The City argues that the different amounts of time each of the class members
were detained will require the Court to analyze each class member's claim
separately to determine whether there was an unnecessary delay. The City
also argues that the Court may have to consider separate defenses the City
may have for each alleged violation. For example, the City may prove that a
delay was due to the County's failure to produce the detainee for court.
The City's contra-predominance arguments lack merit. If the jury finds
the City partly responsible for ensuring class members' prompt appearance
under the alleged will-call policy, then it will make no legal difference
whether the County failed to produce a particular detainee at the appropriate
time. The Eighth Circuit has rejected attempts by those who hold the keys to
delegate the responsibility for bringing detainees to court for a first
appearance. Hayes v. Faulkner County, Arkansas, 388 F.3d 669, 674 (8th Cir.
2004). We know that the County held the keys. And we know that the
material facts about whether the City did too are genuinely disputed.
Whether the City had a will-call custom or practice can be resolved once for
all. Common evidence, moreover, will prove whether, in general, pretrial
detainees were brought to Court within 72 hours of arrest, which both district
judges testified was the rule of thumb for avoiding unnecessary delay under
Arkansas Rule of Criminal Procedure 8.1. If Covington proves that the custom
and practice of the County and city was otherwise, based on a will-call policy,
then he will"make out a prima facie case for class." In re Zurn Pex Plumbing
Products Liability Litigation, 644 F.3d 604, 618 (8th Cir. 2011). In terms of
damages, Covington is right that Moffitt v. Johnson, No. 4:05cv963 JLH/HDY
may well provide a useful roadmap. If liability exists, a per diem standard,
which measures damages by the number of days each class member was
unlawfully detained, appears both fair and legally adequate. If Defendants
agree with this kind of measure, then this per-day amount could be fixed by
the jury as a common issue too. Or the parties can stipulate to an amount. The
rest is mostly math. Common questions of law and fact predominate.
The Court knows of only one other case that was filed individually
against Defendants on this same issue. And litigation in this district of similar
claims involving a much larger class demonstrates manageability. Litigating
as a class is the fairest and most efficient way of resolving this case.
3. Conditions. Covington's record on a proposed conditions class is just
too thin. The Phillips County jail was, indeed, in poor condition. NQ 84 at
11-15. But each putative class member's claim will rise or fall depending upon
the specific conditions he or she encountered and the length of confinement.
The constitutional inquiry is a nuanced and highly particularized one. Owens
v. Scott County Jain,328F.3d 1026 (8thCir. 2003) (per curiam). Covington hasn't
sufficiently shown commonality under Rule 23(a), predominance under Rule
23(b)(3), or applicability of Rule 23(b)(l) or (2) on his conditions claim.
Motion for class certification, NQ 74, granted in part and denied in part.
Class certified on the first-appearance claim and denied with prejudice on the
conditions claim. Covington's individual conditions claim is set for trial on 20
January 2015. Motion for status conference, NQ 110, granted. The Court will
hold the conference on a mutually convenient date the week of October 27th.
There are some scheduling issues in the companion case, NQ 2:13-cv-84, that
need attention. We'll cover those at the conference too.
D.P. Marshall Jr.
United States District Judge
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