Hernandez et al v. County of Monterey et al

Filing 431

ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKEgranting 48 ; denying 181 . (psglc1S, COURT STAFF) (Filed on 1/29/2015)

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JESSE HERNANDEZ et al.,
Plaintiffs,

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v.
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COUNTY OF MONTEREY, et al.,
Defendants.

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Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO
CERTIFY CLASS AND DENYING
MOTION TO STRIKE
(Re: Docket Nos. 48, 181)

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On any given day, approximately 1000 adult men and women find themselves in the

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Monterey County Jail.1 This is a case about their custody and care at the hands of Defendants

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County of Monterey, Monterey County Sheriff’s Office and California Forensic Medical Group,

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Inc.

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Plaintiffs are current or former inmates who allege that a variety of jail policies and
practices regarding inmate safety, medical care, mental health care and disabilities expose them to

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Unless otherwise cited, all facts come from Plaintiffs’ second amended complaint at Docket No.
41.
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a substantial risk of serious harm to which Defendants are deliberately indifferent. The inmates
seek declaratory and injunctive relief from the alleged constitutional violations.

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After reviewing the substantial record compiled by the parties, which includes four neutral

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expert reports, two outside expert reports commissioned at the County’s request, declarations from

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two experts retained by Plaintiffs and various inmates, the court finds that Plaintiffs meet the
standard for class certification set forth in Federal Rule of Civil Procedure 23 and as construed by

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United States District Court
For the Northern District of California

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the Ninth Circuit. It therefore certifies a class of inmates challenging jail safety and health care
policies and practices, and a subclass of inmates challenging jail disability policies and practices.2
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The court may take judicial notice of a “fact that is not subject to reasonable dispute because it is
generally known” or “can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b). If the fact is not in dispute and may be
verified by resort to the public record, see id., the court takes judicial notice as requested.
Plaintiffs first request that the court take judicial notice of 55 applications made by the
Sheriff’s Office to the Monterey Superior Court in an attempt to relieve overcrowding, and
subsequent orders. See Docket No. 49-11, Ex. Z; Docket No. 54 at 1. The court takes judicial
notice of these applications and orders because they were filed in state court. Second, Plaintiffs ask
the court to take judicial notice of County charts documenting the jail’s average daily population.
See Docket No. 49-13, Ex. AA and BB; Docket No. 54 at 2. As the daily inmate population is
verifiable and not in dispute, the court takes judicial notice. Third, Plaintiffs seek judicial notice of
minutes of the Monterey County Board of Supervisors in which the Board approved legislation to
“accept the Jail Facility Needs Assessment Report.” See Docket No. 49-16, Ex. FF; Docket No. 54
at 3. The court takes judicial notice of this legislative enactment. Fourth, Plaintiffs request judicial
notice of the Monterey County Correction Facility Information Manual and certain sections of the
Custody Operations Bureau’s Policies and Procedures. See Docket Nos. 49-1, Ex. E; Docket No.
49-2; Ex. F; Docket No. 54 at 3-4. The court takes judicial notice of these agency manuals, rules
and policies not subject to a reasonable dispute. Fifth, Plaintiffs ask for judicial notice of the
United States Census Bureau Report on Americans with Disabilities. See Docket No. 49-17; Ex.
II; Docket No. 54 at 4. The accuracy of these facts are verifiable and certain, and so the court again
takes judicial notice.
The County first seeks judicial notice of Monterey County Board Orders: approving
Amendment #1 to Agreement A-1083, see Docket No. 140-1, Ex. A; Docket No. 133-1 at 2;
designating the Monterey County Sheriff’s Office as the authorized representative on Medi-Cal
applications, see id., Ex. B; Docket No. 133-1 at 2; authorizing $4,032,778 in County funds to be
used for the County of Monterey Jail Housing Addition, see id., Ex. C; Docket No. 133-1 at 2;
authorizing an additional $4,867,222 in County funds to be used for the Jail Housing Addition
Project, see id., Ex. D; Docket No. 133-1 at 2; and authorizing Sheriff Scott Miller to submit an
application for a local adult detention facility construction grant and expenditure of $200,000. See
id., Ex. E; Docket No. 133-1 at 2. The court takes judicial notice that these board orders occurred.
Second, the County seeks judicial notice of affidavits and minute orders of conflict as to Glenda
Hunter, Angel Perez, Ha Ngoc Tran, Dennis Guyot, Albert Key and Brandon Mefford. See id., Ex.
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Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

I.

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The United States and California Constitutions require California’s counties to provide for

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the safety and well-being of inmates housed in county jails.3 To meet these obligations, as well as

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those imposed by federal and state statutes,4 Monterey County has promulgated extensive policies

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governing health care and conditions of confinement. These policies apply to all of the inmates in
its custody and all of its staff throughout its main jail in Salinas.

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Since 1984, Monterey County has contracted with CFMG, a private health care provider, to

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provide medical, dental and mental-health care services to inmates. Under the terms of its contract,

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For the Northern District of California

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CFMG agreed to follow all County policies and to work with the County to implement additional

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policies governing such matters as health care staffing, access to prescriptions, emergency care,

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and mental health services. Monterey County regularly monitors CFMG’s compliance with these

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policies.

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Twenty-one current or former inmates brought this suit. Plaintiffs allege a variety of jail
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policies and practices “fail to keep [inmates] safe from violence, to deliver adequate medical and

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mental health care or to provide required assistance to [inmates] with disabilities.”5 Plaintiffs

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support these general allegations with detailed references to dozens of specific jail policies and

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practices, including inadequate staffing, training, space, inmate classification, intake health

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H-N; Docket No. 133-1 at 3. The court takes judicial notice of the Public Defenders’ declarations
of conflict.
CFMG requests the court take judicial notice of a judicial order at Exhibit G to the Bertling
Declaration. See Docket Nos. 243, 184-2, Ex. G. The court does not do so because Exhibit G to
the Bertling Declaration is actually a deposition.
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See U.S. CONST. amend. VIII; U.S. CONST. amend. XIV; CA Const. art. I, § 7; CA Const. art. I, §
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See, e.g. Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; Rehabilitation Act
of 1973, 29 U.S.C. § 701; Cal. Gov’t Code § 11135.
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Docket No. 56 at 1. While Plaintiffs refer to jail residents as “prisoners,” the court will adhere to
the alternative reference of “inmates.”
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ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

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screening, care scheduling, medication, infection control, emergency response and suicidal inmate
segregation.

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Plaintiffs also claim that inmates are routinely denied reasonable accommodation for their

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disabilities. They allege, for example, that inmates who cannot climb stairs spend months without

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going outside because the exercise yard can only be accessed up a flight of stairs. Inmates who use
sign language to communicate are not provided interpreters for the intake process, doctor’s

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appointments and disciplinary hearings. Defendants are further alleged not to maintain any central
list, electronic or otherwise, of inmates with disabilities and the accommodations they require. The

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For the Northern District of California

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result, say Plaintiffs, is that “because Defendants completely lack policies and practices for

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evacuating and communicating with [inmates] with disabilities in case of emergencies, including

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natural disasters and security incidents, [inmates] with disabilities are at increased risk of injury in

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such circumstances.”6

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With respect to all these claims, Plaintiffs allege that Defendants are aware of these
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constitutionally defective conditions and tolerate the resulting risk to which inmates are exposed.

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For example, Plaintiffs allege that in 2007, the County commissioned a third-party evaluation of

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the jail, which resulted in a June 19, 2007 report called “County of Monterey, Office of the Sheriff,

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Needs Assessment.” The 2007 report concluded that “[t]he current combination of insufficient

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beds, an inadequate detention facility and understaffing has resulted in an almost untenable

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situation. In 2011, the County asked the third-party consultant to update the 2007 report to reflect

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amendments to state law and changes within the Sheriff’s Office and the jail population. This
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updated report, dated December 30, 2011, reached the exact same, word-for-word conclusion:

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Id. at 19.

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ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

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“The current combination of insufficient beds, an inadequate detention facility and understaffing
has resulted in an almost untenable situation.”7
Plaintiffs seek a declaration that Defendants are violating federal and state law and an

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injunction compelling Defendants to provide inmates with adequate protection from violence from
other inmates, to provide inmates with adequate medical and mental health care, and to provide
reasonable accommodations to and cease discriminating against inmates with disabilities.8

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II.

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Shortly after filing their second amended complaint,9 Plaintiffs moved for class

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For the Northern District of California

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certification. In addition to the detailed allegations of their complaint, Plaintiffs cite thousands of

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pages of documents that they secured by investigation and from public records requests, expert

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reports by four neutral specialists in prison medical care and conditions of confinement retained by

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mutual agreement of the parties, two reports on conditions at the jail commissioned by the County

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in 2007 and 2011, two declarations from experts they retained and their own declarations. The
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investigation and records requests produced (1) more than one hundred interviews of former and

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current inmates in the jail; (2) tens of thousands of pages of medical and custody records for

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current and former inmates in the jail; (3) documents produced by the County in response to three

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requests for information pursuant to the California Public Records Act and (4) hundreds of

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Sheriff’s Office reports of incidents that occurred in the jail.

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In their responses, Defendants submit declarations from attorneys, jail staff and medical

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experts, news articles, depositions, declarations, grievance and medical records of Plaintiffs, board
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orders for improvements and a letter from Monterey County Public Defender James Egar praising
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See Docket No. 41 at 3:9-22.

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See id. at 132-35.

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On September 29, 2014, the court denied Defendants’ motions to dismiss the second amended
complaint. See Docket No. 128.
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CFMG’s work.10 They claim conditions have improved, despite difficulties due to inmate
realignment resulting from the enactment of Assembly Bill 109.11
A.

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The 135-page second amended complaint in this case sets out detailed factual allegations
concerning the existence of jail policies and practices impacting the safety, health and disability
accommodations of all inmates. According to Plaintiffs, these policies and practices expose all jail

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inmates to a substantial risk of harm.
Regarding their safety claims, Plaintiffs allege the following policies and practices: (1)

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For the Northern District of California

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insufficient custody staffing; (2) inadequate inmate classification system; (3) dangerous and

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inadequate jail facilities that are difficult to safely monitor; (4) housing more inmates in the jail

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than the jail’s rated capacity and (5) inadequate training of custody staff.

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Regarding their medical care claims, Plaintiffs allege the following policies and practices:

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(1) failure to provide timely access to health care; (2) insufficient custody staffing to ensure
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inmates receive necessary health care; (3) insufficient health care staff to ensure the timely and

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appropriate treatment of inmates’ serious medical needs; (4) failure to adequately supervise health

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care staff; (5) failure to provide adequate, clean and confidential clinical spaces;(6) inadequate or

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non-existent written policies for intake health screening, health care requests, emergency response,

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continuity of medications, care for inmates with chronic illness, housing of inmates in segregation,

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care for developmentally disabled inmates, care for patients on dialysis, care for elderly patients,

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care for patients with dementia, care for patients requiring wheelchairs, care for inmates who have
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physical disabilities, housing for pregnant women, persons with communicable diseases, the
mentally ill and the terminally ill; (7) failure to adequately identify inmates in need of health care,
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See Docket Nos. 133-179; 299, 369, 368.

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See, e.g., Docket No. 169 at 17, 19, 29; Docket No. 369 at 2-3.

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including inmates with chronic illness, during the intake process and thereafter; (8) use of

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inadequately trained custody staff to conduct intake health screening; (9) failure to provide

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adequate treatment to inmates with chronic diseases; (10) failure to provide adequate treatment to

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inmates with infectious diseases; (11) failure to provide timely and appropriately treatment by

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outside medical providers and specialists when necessary; (12) failure to provide timely and
adequate treatment for inmates experiencing withdrawal; (13) failure to provide necessary

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medication and medical devices; (14) failure to timely and adequately respond to requests for
health care; (15) failure to provide a confidential means for inmates to request health care; (16)

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For the Northern District of California

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failure to timely and adequately respond to health care emergencies; (17) failure to provide

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appropriate and timely post-operative and post-hospital discharge care; (18) failure to maintain

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adequate health care records; (17) failure to operate an adequate quality improvement program;

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(18) failure to adequately train medical and custody staff regarding the provision of health care to

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inmates and (19) failure to provide timely and appropriate dental care.
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Regarding their mental health claims, Plaintiffs allege the following policies and practices:

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(1) failure to provide mentally ill inmates medically necessary mental health treatment such as

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psychotropic medication, therapy and inpatient treatment; (2) failure to provide inmates access to

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timely and appropriate inpatient mental health care; (3) inadequate suicide prevention policies and

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practices; (4) failure to provide suicidal and self-harming inmates adequate mental health care; (5)

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housing inmates with mental illness in administrative segregation because they have mental

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illnesses; (6) failure to provide a clean, safe and therapeutic location for the housing of inmates at
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risk for suicide; (7) inappropriate use of safety cells, restraints and restraint chairs; (8) failure to

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adequately monitor inmates at risk of suicide and (9) failure to eliminate suicide hazards in

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administrative segregation.

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Regarding their disability accommodation claims, Plaintiffs allege the following policies

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and practices: (1) failure to identify and track inmates with disabilities; (2) failure to identify and

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track the accommodations that inmates with disabilities require; (3) failure to ensure that inmates

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with disabilities receive and retain needed assistive devices and auxiliary aids; (4) failure to ensure

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that inmates with disabilities that require accommodations in housing receive and retain
appropriate housing assignments; (5) housing inmates with disabilities in administrative

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segregation, where inmates have less access to programs, services, activities and privileges; (6)
failure to provide sufficient housing for inmates in wheelchairs; (7) failure to ensure that each

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For the Northern District of California

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program, service or activity offered to inmates in the jail, when viewed in its entirety, is readily

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accessible to and usable by individuals with disabilities; (8) failure to ensure that each part of the

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facilities at the jail altered after January 26, 1992, in a manner that affects or could affect the

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usability of all or part of the jail, complies with relevant accessibility standards, including the

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Uniform Federal Accessibility Standards, the Americans with Disabilities Act Accessibility
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Guidelines and the 2010 Americans with Disability Act Standard for Accessible Design; (9) failure

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to provide effective communication to inmates with disabilities that affect communication; (10)

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failure to adequately take disabilities into account in the disciplinary process; (11) failure to

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provide sign language interpreters to inmates who use sign language as their primary method of

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communication; (12) failure to ensure the safe evacuation of inmates with disabilities in an

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emergency and (13) failure to operate an effective and prompt grievance system for inmates to

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request accommodations for their disabilities.
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For each of these alleged policies and practices, the second amended complaint sets out

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multiple paragraphs or pages of particularized factual allegations. For example, regarding

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Defendants’ alleged safety policies and practices, Plaintiffs allege roughly 150 separate instances

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of violence were reported from (presumably January) 2011 to September 2012, occurring in nearly

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every area of the jail, and most requiring medical attention at the jail or the local hospital.

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Weapons such as shanks and Tomahawks are “readily available” in the jail.12 Surveillance is

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inadequate, as many assailants remain unidentified, most cameras do not have recording

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capabilities, and the jail’s understaffing means officers are rarely positioned to visually identify the

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attackers. Reporting is inadequate for fear of retaliation given the lax conditions. Undertraining of
staff means inadequate intervention and confiscation of weapons. Plaintiffs say that despite

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incident reports and the 2007 and 2011 Jail Needs Assessments, Defendants lack policies and
practices for regularly reviewing incident reports to identify systemic problems.13
As another example, regarding the alleged medical care policies and practices, Plaintiffs

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For the Northern District of California

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claim that “[t]hough Defendants have a policy that all [inmates] are supposed to be seen by medical

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staff on the next available sick call day after submitting a sick call slip, in practice, Defendants use

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Licensed Vocational Nurses (LVNs) to screen the sick call slips and determine whether the

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[inmate] should actually be seen by medical or mental health care staff. No standardized protocols
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exist to guide LVNs’ exercise of discretion in determining when [inmates] should receive a face-to-

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face appointment with a nurse or other medical or mental health care clinician.”14 Plaintiffs further

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allege that “[c]onsequently, LVNs arbitrarily determine whether the content of a sick call slip,

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often written by [an inmate] who can barely read or write, warrants an appointment with a nurse or

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physician.” Plaintiffs also detail the harm that members of the proposed class suffer as a result of

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these policies.15

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See Docket No. 41 at 36.

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See id. at 35-37.

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Id. at 44.

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Plaintiffs allege that during “Plaintiff Hernandez’s term of incarceration from April 28, 2012 to
September 27, 2013, he required significant medical attention for his ileostomy and, after the
ileostomy was removed, for his post-surgical care. On many occasions, Plaintiff Hernandez
submitted sick call slips complaining of abdominal pain or other related symptoms. He frequently
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ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

As still another example of Plaintiffs’ medical care claims, Plaintiffs allege that

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“Defendants have failed to implement appropriate triage procedures to ensure that non-emergency

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medical needs are attended to before they develop into emergencies.” According to the complaint,

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Methicillin-resistant Staphylococcus aureus (commonly known as “staph”) infections are

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frequently reported at the jail. Many inmates report filing multiple sick call slips for emerging and
beginning staph-related wounds, but are not seen until their wounds develop into serious and
emergency conditions requiring intense treatment.16 The complaint explains that “one [inmate]
was not seen for a staph-infection-caused wound until it developed into cellulitis and a necrotizing

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For the Northern District of California

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soft tissue infection, requiring intensive and invasive treatment. Another [inmate] had a staph

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infection-caused abscess that required the insertion of a surgical drain into the wound, which

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Defendants then failed to properly monitor and cleanse following the procedure.”17

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Yet another example of Plaintiffs’ medical care claims concern Defendants’ alleged

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policies and practices for medical screening. Plaintiffs allege “Defendants fail to adequately train
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custody and medical staff in how to timely and appropriately identify medical problems during the
screening and intake process. When [an inmate] is newly booked into the jail, medical staff may

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experienced significant delays before he was seen by medical staff. As one example, he submitted
a sick call slip on October 2, 2012, complaining of not receiving certain medications for his
stomach and was experiencing strong cramping pains; he was not fully evaluated by appropriate
medical staff until October 26, 2012—24 days later.” Id. at 44:12-24. As another example,
Plaintiff Hernandez submitted sick call slips related to pain in his abdomen on November 18, 25,
and December 2, 2012. He was not evaluated by an appropriate provider prior to being transferred
to the hospital on or around December 11, 2013 for his ileostomy reversal surgery, a period of 23
days.” Plaintiffs similarly allege that “[w]hen Plaintiff Sarabi complained about intense pain in his
right foot/ankle, and voiced concern about a broken ankle and a possible concussion one hour after
he was attacked by another inmate, one of the guards outside his room said, “You’re a tough guy,
suck it up, if you had broken your ankle you would be in more pain.” Id. at 46:12-17.
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See id. at 45.

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See id.

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not even play a role in screening the [inmate].”18 Plaintiffs further allege that “[c]ustody staff (who

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are not sufficiently trained to identify medical needs) complete a brief one-page health screening

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form during a cursory interview with the [inmate] in a non-confidential space. Medical staff only

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evaluate [inmates] at intake if the custody staff note a problem on the screening form. The

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screening form used by custody fails to capture critical and basic information necessary to identify
[inmates] in need of medical attention.”19

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Regarding Defendants’ alleged mental health policies and practices, in addition to intake

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and tracking problems, Plaintiffs allege that “Defendants sometimes place [inmates] who arrive at

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For the Northern District of California

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the jail and who are prescribed psychotropic medications on what Defendants call a detoxification

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treatment. The detoxification treatment involves refusing, for up to 90 days, to provide [inmates]

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with the psychotropic medications they were taking before they were booked into the Jail. . . .

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[Inmates] placed on the detoxification treatment and removed from psychotropic medications

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experience unnecessary pain and increases in psychiatric symptoms including paranoia,
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hallucinations, and suicidality. . . . They are also at heightened risk of failing to respond to

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medications once they are restarted.”20 As one example, Plaintiff Murphy’s January 18, 2013

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Intake Health Screening Form (completed by custody staff) and his Intake Triage Assessment form

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(completed by medical staff of CFMG) indicated self-reported mental health problems. Further,

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medical records in CFMG’s possession from a prior term Murphy had spent in the jail indicated he

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suffered from mental illness and had received psychiatric medications. Only four days after intake

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did Murphy have an appointment with a Licensed Psychiatric Technician who lacked authority to
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prescribe treatment or medication. Murphy submitted several sick slips from that day on, stating:
See Docket No. 41 at 42.

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Id. at 42:6-14.

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Docket No. 41 at 69-70.

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“need psych meds – seeing and hearing things”; “need psych meds or psych hospital, Attn: head

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psych please”; “I take varies physch medication . . . for hearing voices and seeing demons coming

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out of the walls driving me crazy, can’t sleep or eat right at all. Ive been trying to see a physch

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doctor, PLEASE help if possible”; “placing my life in serious danger and possible death after many

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attempts to receive my medications during and after intake. I’m a disabled vet who served my
country with honorable discharge and should not be treated like trash over a officers attitude.” On

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January 28, 2013 he informed staff that he was hearing demonic voices that were telling him to kill
himself. Consequently, Defendants placed Murphy in a rubber room, from which he was not

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For the Northern District of California

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released until three days later. Murphy was not seen by mental health care staff with authority to

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prescribe treatment until January 29, 2013.

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As another example, Plaintiffs allege that Defendants house inmates with mental illness in
administrative segregation units in such a way that inmates suffer substantial risk of serious harm.21

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Plaintiffs describe how “Jessie Crow and Daniel Lariviere committed suicide by hanging in
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administrative segregation in 2010 and 2011 respectively. . . . [I]f Defendants had conducted safety

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checks every half hour at intermittent and unpredictable times, they may have been able to prevent

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Mr. Crow or Mr. Lariviere from committing suicide.”22

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Plaintiffs allege inmates with mental illnesses are punished and discriminated against. For
example, after engaging in self-harming behavior, Plaintiff Mefford has been placed on suicide
watch and put in an “unsanitary” rubber room at least five separate times for varying lengths of

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time since entering the jail. Mefford “was able to continue engaging in self-harming behavior
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inside the rubber room, by banging his head repeatedly against the door until he was bleeding.”23
See id. at 88.

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See id. at 90.

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See id. at 78.

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Custody staff responded by placing Mefford in a restraint chair. Mefford freed himself from the

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restraint chair at least once, and began again hurting himself. “Custody staff has routinely failed to

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conduct safety checks twice every thirty minutes as required by the Jail’s own policies. The Jail has

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also failed to provide him with adequate food and water during these periods of time. Plaintiff

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MEFFORD has informed the Jail medical and custody staff repeatedly that sensory deprivation and
particularly a lack of light make his anxiety and other psychiatric conditions much worse. He has

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also stated a reluctance to express his true level of suicidality to staff because of fear of being
placed in a rubber room. Despite this, custody staff continues to place him in rubber rooms.”24

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These experiences show inadequate training, identification, tracking, treatment, suicide-watch,

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facilities, housing, prescription, monitoring, evaluation, records, as well as apparent discrimination

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and punishment of inmates with mental illnesses.25

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Regarding Defendants’ alleged disabilities accommodation policies and practices, Plaintiffs

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claim Defendants’ failures to accurately identify new inmates’ disabilities and needed
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accommodations during the intake process result in the denial of accommodations mandated by the

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ADA, Rehabilitation Act, and California disability rights law, placing inmates at risk of

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discrimination, injury, and exploitation. For example, during booking into the jail in August 2012

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and again in December 2012, custody staff completed Monterey County Sheriff’s Office Intake

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Health Screening forms for Plaintiff Yancey. Despite Yancey’s complete hearing impairment, staff

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did not indicate on the forms that he had a hearing disability. Accordingly, staff throughout the jail

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were unable to identify Yancey as hearing impaired, and he received no accommodations for his
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disability.26 Yancey was not provided with a sign language interpreter for his communications
See id.

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See id. at 67-88.

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See Docket No. 41 at 99.

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1

with jail staff, including at medical appointments, at a disciplinary hearing, during the booking and

2

classification process27 or for church services.28 Yancey submitted a grievance, requesting

3

accommodations relating to his hearing impairment, but he received no response.29

4
5
6

Another inmate who was booked into the jail in January 2012 with a mobility impairment
required a cane to help him safely ambulate and access his housing unit and required safe access to
a bed. During the intake process, the jail failed to identify him as having a mobility impairment

7
8
9

requiring those accommodations; he was not provided with a cane and he was placed in the only
available bed in his housing unit on the upper bunk of a triple bunk. Without a cane, the inmate

United States District Court
For the Northern District of California

10

fell and injured himself on a number of occasions. He slept on the floor because it was too difficult

11

to access his bunk.30

12
13

The sum total of all this is that Plaintiffs allege a variety of jail policies and practices
applying to all inmates and staff dealing with safety, health care and disabilities, and that these

14
policies and practices expose all members of the proposed class and subclass to a substantial risk of
15
16

harm.

17

B.

18

Plaintiffs also support their motion for class certification with documents obtained by

19

investigation and various requests pursuant to California’s Public Records Act. For example, they

20

submit Sheriff’s Office’s incident reports of the 2011 and 2012 incidents of violence between

21

inmates alleged in the complaint.31 Over 100 of these incidents led to at least one inmate requiring

22
23

27

See id. at 101.

24

28

See Docket No. 52 at ¶¶ 4, 6-8, 11-13, 23.

25

29

See Docket No. 41 at 103.

30

See id. at 100.

31

See Docket No. 49 at ¶¶ 45-47.

26
27
28

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1

medical treatment.32 Widespread violent incidents were reported in 26 out of 29 housing units.33

2

Highlighting the impact of jail overcrowding on inmate safety, Plaintiffs also submit Defendants’

3

regular applications to the Superior Court for the County of Monterey for orders to release inmates

4

on an accelerated basis pursuant to California Penal Code § 4024.1.34 To support these

5
6
7
8
9

applications, jail administrators repeatedly swore that unless the court authorized inmate releases,
the overcrowding in the jail would make it impossible for staff to “adequately supervise inmates
and to properly house them in accordance with the approved classification plan.”35 In these
applications, CFMG Director Dr. Taylor Fithian also repeatedly “advised that the excessive

United States District Court
For the Northern District of California

10

number of inmates housed in the jail compromises the health of the inmates and the staff working

11

at the facility.”36 Jail administrators, including the Sheriff, also have addressed the impact of

12

overcrowding in other public forums.37

13

C.

14
Plaintiffs submit a total of eight reports from different experts on the policies and practices
15
16

in dispute. Four of these experts are independent of the parties, and were jointly retained by the

17

parties in 2013. At the parties’ request, the court ordered “a process of mutually agreeing to

18

experts who will review and analyze the conditions at the Monterey County Jail and issue

19

reports”38 in four areas: medical care, mental health care, corrections and security and disability

20
32

See id. ¶ 47.

33

See id.

23

34

Docket Nos. 49-9, 49-10, 49-11, 49-12.

24

35

Id.

25

36

Id.

37

See Docket No. 49-3 at ¶¶ 25-33; Docket Nos. 49-7, 49-8.

38

See Docket No. 348 at 2-3; Docket No. 9 at 1; Docket No. 348-1 at ¶ 2; Docket No. 349 at ¶¶ 2-

21
22

26
27
28

3.
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1

accommodations and access.39 The parties agreed that the resulting reports and recommendations

2

would provide the framework for negotiating a remedial plan and consent decree. If settlement

3

negotiations were unsuccessful, the parties agreed that the reports would be admissible evidence in

4

the litigation.40 The parties exchanged nominations and conferred to identify mutually acceptable

5

neutral experts.41 Two other reports were prepared in 2007 and 2011 by TRG Consulting, a private

6

consulting firm, at the County’s request.42

7
The parties jointly retained Michael Hackett as a neutral expert to evaluate “whether

8
9

Defendants adequately protect [inmates] from injury and violence in the Jail.”43 Hackett reported

United States District Court
For the Northern District of California

10

that staffing and housing is inadequate, the jail population is overcrowded and the old physical

11

plant is not adequate for safety monitoring, therefore inciting violence. He concluded that

12

Defendants operate the jail in a dangerous manner, placing all inmates at serious risk of harm.

13
14

The parties jointly retained Dr. Michael Puisis, D.O. as a neutral expert to evaluate
“whether Defendants’ system for providing medical care at the jail is adequate.”44 Puisis wrote

15
16

that the jail’s medical staffing is 40-70% less than it should be at all levels, leading to inadequate

17

intake, evaluation, care, management and surveillance. Puisis also found the spaces of care

18

delivery were unhygienic, inadequate and small, discouraging proper examinations. Almost every

19

important policy governing medical care suffered from serious infirmities: intake, requests,

20

emergency services, continuing medications, scheduling care, segregation and special needs.

21
39

See Docket No. 349 at ¶ 2.

23

40

See id.

24

41

See Docket No. 348-1 at ¶¶ 3-4.

25

42

See Docket No. 41 at ¶¶ 39-41; Docket Nos. 41-1, 41-2, 41-3, 41-4.

43

See Docket No. 56 at 3.

44

See Docket No. 49 at ¶ 8; Docket No. 49-1 Ex. B.

22

26
27
28

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1

Puisis concluded Defendants’ system-wide policies and practices for providing medical care

2

harmed inmates or placed them at great risk of serious harm due to inadequate diagnosis, treatment

3

infection control, drug and alcohol withdrawal policies, and medical records.45

4
5
6
7
8

The parties jointly retained Dr. Richard Hayward, Ph.D. as a neutral expert to evaluate
“whether Defendants’ system for providing mental health care in the jail is adequate.”46 Hayward
produced a draft report finding that Defendants’ system-wide policies and practices for providing
mental health care place inmates at risk of serious harm.47
The parties jointly retained SZS Consulting as a neutral expert to evaluate Defendants’

9

United States District Court
For the Northern District of California

10

compliance with the ADA and other disability rights laws.48 SZS Consulting’s detailed report

11

found that Defendants operate the jail in violation of the rights and needs of inmates with

12

disabilities.49 SZS identified 119 architectural elements that did not comply with the relevant

13

guidelines.50 Some of these barriers violated the requirements of federal and state law in multiple

14

ways.51 The problems SZS identified include the following: the jail has far fewer housing areas

15
16
17
18
19
20
21

45

CFMG’s motion to strike the report of Puisis is DENIED. Puisis is a neutral expert. Contrary to
CFMG’s assertions, Puisis did not violate HIPAA or the federal privaicy rights of any person. In
providing the names of the patients whose charts he reviewed to Plaintiffs’ counsel, Puisis acted
under the protective order entered in this case. Finally, Puisis is a well-qualified expert in
correctional medical services. Puisis used methodology and reasoning in support of his opinions
that are scientifically valid, and his credentials and experience qualify him as an expert in this
action. See Daubert v. Merril Dow Farms, Inc., 509 U.S. 59, 597 (1993); Ralston v. Mortgage
Investors Grop., Inc., Case No. 08-cv-536-JF, 2011 WL 6002640, at *3 (N.D. Cal. Nov. 30, 2011).

46

Docket No. 49 at ¶ 9; Docket No. 49-1 Ex. C.

23

47

Docket No. 49-7 Ex. M.

24

48

Docket No. 49 at ¶ 10; Docket No. 49-1 Ex. D.

25

49

See Docket Nos. 49-4, 49-5, 49-6 Ex. K.

50

See id. at 98-691.

51

See id.

22

26
27
28

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1

and cells available to inmates in wheelchairs than required by the relevant state and federal laws.52

2

None of the areas in which inmates are housed, either temporarily (e.g., holding cells, isolation

3

cells, and safety cells) or more permanently (housing units), are fully accessible to inmates in

4

wheelchairs.53 Many areas of the jail in which Defendants offer programs, including housing,

5
6
7
8
9

health care and exercise, are partially or completely inaccessible to inmates with mobility
impairments, including those in wheelchairs. Not one medical exam room has adequate clearances
for inmates in wheelchairs.54 Moreover, the exercise facilities for all inmates housed in Pods AJ,
K-Pod, the Women’s Section, the Rotunda, and the Infirmary, were at least for some inmates

United States District Court
For the Northern District of California

10

located on the roof of the jail, up a long flight of stairs; “[t]he result is that no accessible exercise

11

areas are provided in the facility for female inmates and male inmates have access to exercise areas

12

only if they are housed in dorms A, B, C, or D.”55

13

TRG Consulting drafted the 2007 and 2011 reports at the County’s request.56 The 2007 and

14
2011 Jail Needs Assessments both concluded that, “[t]he current combination of insufficient beds,
15
16
17

an inadequate detention facility and understaffing has resulted in an almost untenable situation [at
the jail].”57
Plaintiffs also retained expert Dr. Pablo Stewart, M.D., a psychiatrist with decades of

18
19

experience evaluating correctional mental health care systems.58 Stewart based his conclusions on

20
52

See id. at 7-10.

53

See id. at 8, 9; see Docket No. 50 at ¶¶ 18-19; Docket No. 49-1, Ex. D at 49-56.

23

54

See Docket No. 49-4 at 9.

24

55

Id. at 9.

25

56

See Docket No. 41-1 at ¶¶ 39-40, Ex. A; Docket No. 41-4 Ex. B; Docket No. 49 at ¶ 41.

57

Docket No. 41-1, Ex. A, at EX. 1-2; Docket No. 41-4 Ex. B, at EX.2.

58

See Docket No. 355 at 11.

21
22

26
27
28

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1

reviews of the reports of the joint experts, the relevant policies and procedures and other materials.

2

Stewart concluded that in nearly every respect, Defendants’ policies and practices for delivering

3

mental health care to inmates in the jail places all inmates, especially those with serious mental

4

illness, at a substantial risk of serious harm.59 Dr. Robert Cohen, M.D., a second medical expert

5

with experience as a director of medical services at Riker’s Island,60 found a variety of policies and

6

practices placed inmates at an unreasonable risk of harm, such as to do with tuberculosis,

7
8

medication continuity, withdrawal and staffing.
D.

9

Beyond the allegations in the second amended complaint, the investigation and public

United States District Court
For the Northern District of California

10
11

records documents, and the expert reports, Plaintiffs also submitted declarations describing their

12

own experiences with jail policies and practices governing safety, medical care, mental health care

13

and disabilities. Plaintiffs did not submit these declarations in support of individual constitutional

14
and statutory claims, which they do not bring, but instead offer these declarations as evidence of
15
16

the defendants’ unlawful policies and practices, and as examples of the serious harm to which all

17

inmates in jail custody are allegedly exposed. For example, Plaintiff Dilley, who suffers from

18

multiple sclerosis, describes how she cannot walk up the stairs to access the exercise yard without

19

experiencing excruciating pain.61 Since she was booked into the jail in June 2013, she has only

20

been outside to go to court or medical appointments at outside facilities—she has not been outside

21

at all since mid-December 2013.62 Plaintiff Miller has vision loss, and Defendants fail to ensure

22
that vision-impaired inmates are adequately informed of, among other things, administered
23
24

59

See Docket No. 52 at ¶¶ 6-7, 69, 72, 76.

25

60

See Docket No. 355 at 11.

61

Docket No. 52-7 at ¶ 4.

62

Id. ¶ 12-13.

26
27
28

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1

medications. This was the case when Defendants provided Miller with an improper insulin

2

injection and he lapsed into unconsciousness.63 Each of the other named Plaintiffs submitted a

3

sworn declaration attesting to his or her experiences with jail safety, medical, mental health or

4

disabilities policies.64

5

III.

6

This court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. The parties further

7
8
9

consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and
Fed. R. Civ. P. 72(a).65
Defendants again object to the Plaintiffs’ standing.66 The court declines to deviate from its

United States District Court
For the Northern District of California

10
11

previous order denying Defendants’ motions to dismiss for lack of standing.67 As the court

12

previously explained, simply because an inmate does not use medical care, receives adequate care

13
14

once, or does not or get attacked does not mean they are not at an unreasonable risk when policies
and practices are deficient.68 A transitional group of individuals suffer “injury in fact” if exposed

15
16
17
18

to unreasonable risk.69 In any event, the claims at issue are current for at least one named
Plaintiff.70
63

See Docket No. 41 at 52.

19
64

20
21

See, e.g., Docket No. 52-3 at ¶ 23; Docket No. 52-11 at ¶ 27; Docket No. 52-13 at ¶¶ 3-15;
Docket No. 52-15 at ¶¶ 7-10; Docket No. 52-17 at ¶¶ 4-12, 14-17; Docket No. 52-21 at ¶ 23;
Docket No. 52-23 at ¶¶ 7-15, 17-20, 22-25, 28-37; Docket No. 52-27 at ¶ 28.
65

See Docket Nos. 8, 34.

23

66

See Docket No. 133 at 17; Docket No. 169 at 13-14.

24

67

See Docket No. 128 at 14.

25

68

See Docket No. 133 at 18.

22

26
27
28

69

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Amchem Prods. v. Windsor, 521 U.S.
591, 613 (1997) (“Rule 23’s requirements must be interpreted in keeping with Article III
constraints”); Mazda v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012) (“no class may
be certified that contains members lacking Article III standing”).
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ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

IV.

1

Plaintiffs request that the court certify an inmate class of “all [inmates] who are now or will

2
3

be in the future in the Jail” and an inmates with disabilities subclass of “all individuals who are

4

now or will be in the future in the Jail and who have a disability, as defined by federal and

5

California law.”71 Plaintiffs also request that the court appoint Michael Bien and Gay Crosthwait

6

Grunfeld of Rosen Bien Glavan & Grunfeld, LLP, James Egar of the Office of the Public

7
8
9

United States District Court
For the Northern District of California

10

Defender, County of Monterey, Alan Schlosser of the American Civil Liberties Union Foundation
of Northern California, and Eric Balaban of the ACLU National Prison Project to represent the
certified class and subclass pursuant to Rule 23(g).72

11

“An order that certifies a class action must define the class and the class claims, issues, or

12

defenses.”73 Clearly delineating the contours of the class provides the parties with clarity and

13

assists class members in understanding their rights and making informed opt-out decisions.74 If

14
15
16
17
18
19
20

70

See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc) (holding that
“[i]n a class action, standing is satisfied if at least one named plaintiff meets the requirements.”);
see also Warth v. Seldin, 422 U.S. 490, 502 (1975) (finding named plaintiffs need not show “that
injury has been suffered by other, unidentified members of the class to which they belong and
which they purport to represent”); Lewis v. Casey, 518 U.S. 343, 395 (1996) (Souter, J.,
concurring); Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir. 2011); Arnott v. U.S.
Citizenship and Immigration Servs., 290 F.R.D. 579, 584 (C.D. Cal. 2012) (explaining why Mazza
v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), a case about damages, is not binding).
71

21
22

See Docket No. 56 at 2. Claim arise under the Eighth and Fourteenth Amendments to the U.S.
Constitution and Article I, Sections 7 and 17 of the California Constitution; the Americans with
Disabilities Act, Section 504 of the Rehabilitation Act, and California Government Code § 11135.

23

72

24

73

25
26

See Docket No. 48 at 2; 355-1 at 7.

Fed. R. Civ. P. 23(c)(1)(B); Wachtel v. Guardian Life Ins. Co., 453 F.3d 179, 187 (3d Cir. 2006)
(“[T]he text of the order or an incorporated opinion must include (1) a readily discernible, clear,
and precise statement of the parameters defining the class or classes to be certified, and (2) a
readily discernible, clear, and complete list of the claims, issues or defenses to be treated on a class
basis”).

27
74

28

Wachtel, 453 F.3d at 187.

21
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1
2

class members are impossible to identify without extensive and individualized fact-finding or
“mini-trials,” then a class action is inappropriate.75

3

“The class action is ‘an exception to the usual rule that litigation is conducted by and on

4

behalf of the individual named parties only.’”76 To satisfy class certification requirements, such

5

claims must be capable of satisfaction in “one stroke.”77 To satisfy the four threshold requirements

6

of Fed. R. Civ. P. 23(a), (1) the class must be “so numerous that joinder of all members is

7
8
9

impracticable” (numerosity); (2) there must be “questions of law or fact common to the class”
(commonality); (3) “the claims or defenses of the representative parties” must be “typical of the

United States District Court
For the Northern District of California

10

claims or defenses of the class” (typicality); and (4) the named plaintiffs must “fairly and

11

adequately protect the interests of the class” (adequacy).78 Plaintiffs seeking class certification

12

must also satisfy the requirements of Rule 23(b), subdivisions 1, 2 or 3, which define three

13

different types of classes.79

14
In evaluating whether a party has met the requirements of Rule 23, “Rule 23 does not set
15
16
17

forth a mere pleading standard.”80 A party seeking class certification must “affirmatively
demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in

18
19
20

75

See Bradford v. Union Pac. R.R. Co., Case No. 05-cv-4075, 2007 LEXIS 72951, at *25 (9th Cir.
2007).

76

21
22

Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442
U.S. 682, 700-01 (1979)).

77

Id. at 2551.

23
78

24
25
26

In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010) (quoting Fed. R. Civ. P. 23); Levya
v. Medline Indus., Inc., 716 F.3d 510, 512 (9th Cir. 2013); Zinser v. Accufix Research Inst., Inc.,
253 F.3d 1180 (9th Cir. 2001).
79

See Fed. R. Civ. P. 23(a)-(b); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998);
Leyva, 716 F.3d at 512.

27
80

28

Wal–Mart, 131 S. Ct. at 2551.

22
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1

fact sufficiently numerous parties, common questions of law or fact, etc.”81 Similarly a party must

2

affirmatively prove that he or she complies with one of the three subsections of Rule 23(b). This is

3

a “rigorous analysis”82 that must “‘entail some overlap with the merits of the plaintiff’s underlying

4

claim.’”83 Rule 23(b) is “unquestionably satisfied when members of a putative class seek uniform

5
6

injunctive or declaratory relief from policies or practices that are generally applicable to the class
as a whole.”84

7
Rule 23(b)(1) allows a class action if “prosecuting separate actions by or against individual

8
9

class members would create a risk of (A) inconsistent or varying adjudications with respect to

United States District Court
For the Northern District of California

10

individual class members that would establish incompatible standards of conduct for the party

11

opposing the class; or (B) adjudications with respect to individual class members that, as a practical

12

matter, would be dispositive of the interests of the other members not parties to the individual

13
14
15
16
17
18
19
20
21
22
23
24
25
26

81

Id.

82

E.g. Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542-543 (9th Cir. 2013); Wal-Mart Stores,
Inc., 131 S. Ct. at 2551; Mazza, 666 F.3d at 588 (“Before certifying a class, the trial court must
conduct a ‘rigorous analysis’ to determine whether the party seeking certification has met the
prerequisites of Rule 23”).
83

See In re Google Inc. Gmail Litig.,Case No. 5:13-md-02430-LHK, 2014 U.S. Dist. LEXIS 36957
(N.D. Cal. March 18, 2014) (citing Amgen Inc. v. Conn. Ret. Plans and Trust Funds, 133 S. Ct.
1184, 1194 (2013)); Wal-Mart Stores, Inc., 131 S. Ct. at 2551 (“Rule 23 does not set forth a mere
pleading standard. A party seeking class certification must 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 or fact, etc. We recognized in Falcon that “sometimes
it may be necessary for the court to probe behind the pleadings before coming to rest on the
certification question”); General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982)
(“[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable.”).

27
84

28

Parsons v. Ryan, 754 F.3d 657, 688 (9th Cir. 2013) (quoting Fed. R. Civ. P. 23(b)(2)).

23
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1
2

adjudications or would substantially impair or impede their ability to protect their interests.”85
Prison condition cases have been certified under both 23(b)(1)(A)86 and (B).87
Rule 23(b)(2) allows a class action if “the party opposing the class has acted or refused to

3
4

act on grounds that apply generally to the class, so that final injunctive relief or corresponding

5

declaratory relief is appropriate respecting the class as a whole.”88 Rule 23(b)(2) is “‘almost

6

automatically satisfied in actions primarily seeking injunctive relief.’”89 “The key to the (b)(2)

7
8
9

class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that
the conduct is such that it can be enjoined or declared unlawful only as to all of the class members

United States District Court
For the Northern District of California

10

or as to none of them.’”90 Rule 23(b)(2) requires a single injunction or declaratory judgment to

11

provide relief to each member of the class. It does not authorize class certification when each

12

individual class member would be entitled to a different injunction or declaratory judgment against

13

the defendant.91 Rule 23(b) is “unquestionably satisfied when members of a putative class seek

14
15

85

16

86

17
18

Fed. R. Civ. P. 23(b)(1).

See Ashker v. Governor of State of Cal., Case No. 4:09-cv-5796-CW, 2014 WL 2465191 at *7
(N.D. Cal. June 2, 2014) (prison conditions case certified under Rule 23(b)(1)(A) for class actions
that create a risk of inconsistent adjudications).
87

20

See Docket No. 358-4, Ex. VV at 107-10; Gray v. County of Riverside, Case No. 13-cv-0444VAP, Docket No. 131 at 107-10 (C.D. Cal., Sept. 2, 2014) (Order Granting Plaintiffs’ Motion for
Class Certification, Denying Defendant’s Motion to Dismiss, certifying jail conditions class action
under both Rule 23(b)(1)(A) and (B)).

21

88

19

22
23
24
25
26

Fed. R. Civ. P. 23(b)(2).

89

Gray v. Golden Gate Nat’l Recreational Area, 279 F.R.D. 501, 520 (N.D. Cal. 2011) (quoting
Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 58 (3rd Cir. 1994)); see also Rodriguez v.
Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010); Californians for Disability Rights, Inc. v. Cal. Dep’t
of Transp., 249 F.R.D. 334, 345 (N.D. Cal. 2008) (“Cases challenging an entity’s policies and
practices regarding access for the disabled represent the mine run of disability rights class actions
certified under Rule 23(b)(2).”).

90

Wal-Mart, 131 S. Ct. at 2557 (citation omitted).

91

Id.

27
28

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ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

uniform injunctive or declaratory relief from policies or practices that are generally applicable to

2

the class as a whole. . . . [A]s the text of the rule makes clear, . . . [the rule] asks only whether ‘the

3

party opposing the class has acted or refused to act on grounds that apply generally to the class.’”92
In Parsons v. Ryan,93 the Ninth Circuit held inmates challenging the constitutionality of

4
5
6

health care in the Arizona correctional system satisfied the requirements of Rule 23.94 Such
“systemic, future oriented Eighth Amendment claim[s]” 95 claims were the “kind . . . firmly

7
8
9

established in our constitutional law,” in which inmates allege that “policies and practices of
[system-]wide application expose all inmates in . . . custody to a substantial risk of serious harm.”96

United States District Court
For the Northern District of California

10

The plaintiffs in Parsons relied “on system-wide deficiencies in the provision of [safety and]

11

medical and mental health care that, taken as a whole, subject . . . [inmates] . . . to ‘substantial risk

12

of serious harm.’”97 Disability discrimination claims under the Americans with Disabilities Act,

13

Rehabilitation Act, and California Government Code section 11135 are of the same type: requiring

14
injunctive relief from system-wide policies and practices, which institutionalize a failure to provide
15
16

necessary accommodations to inmates with all types of disabilities.98
Because Plaintiffs seek certification under Rule 23(b)(1) and (2), they need not show “that

17
18

the issues common to the class satisfy a Rule 23(b)(3)-like predominance test.”99

19
92

Parsons, 754 F.3d at 688 (quoting Fed. R. Civ. P. 23(b)(2)).

93

See id. at 657.

94

Id. at 676 (emphasis added).

23

95

Id. at 677 (citing Brown v. Plata, 131 S. Ct. 1910, 1925 n.3 (2011)).

24

96

Id. at 676 (emphasis added).

25

97

Plata, 131 S. Ct. at 1925 n.3.

20
21
22

26

98

27

See Armstrong v. Davis, 275 F.3d 849, 868-69 (9th Cir. 2001); Pierce v. County of Orange, 526
F.3d 1190, 1218-23 (9th Cir. 2008).

28

99

See Parsons, 754 F.3d at 688.

25
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

A.

1

As a preliminary matter, under the ascertainability doctrine, the class must be sufficiently

2
3

definite so that it is feasible for the court to determine membership by reference to objective

4

criteria.100 Thus, a class is generally not ascertainable if membership in the class is based on

5
6

subjective criteria, such as states of mind, or if the court would have to “make a determination
about the merits of each claim in deciding whether a particular individual is a class member.”101

7
8
9

The requirement helps to eliminate “serious administrative burdens that are incongruous with the
efficiencies expected in a class action” by compelling easy identification of class members.102 It

United States District Court
For the Northern District of California

10

also protects defendants by ensuring the identification of those bound by the final judgment.103 But

11

as a general matter, less precision is required of class definitions under Rule 23(b)(2) than

12

under Rule 23(b)(3), where mandatory notice is required by due process.104

13
14
15
16
17
18
19
20

100

See Williams v. Oberon Media, Inc., 468 Fed. Appx. 768, 771 (9th Cir. 2012) (class motion was
properly denied because the proposed members are not “precise, objective or presently
ascertainable”); Khalif L. v. City of Union City, Case No. 4:09-cv-2723-PJH, 2012 U.S. Dist.
LEXIS 64567, *15 (N.D. Cal. May 8, 2012) (finding a class of students “subjected to violence or
threats of violence, by ‘Latino gangs’” cannot be ascertained).
101

Velazquez v. HSBC Finance Corp., Case No. 3:08-4592, 2009 WL 112919, at *4 (N.D. Cal. Jan.
16, 2009) (defining a “fail-safe class” as (by the merits of [the plaintiffs] legal claims, and [is]
therefore unascertainable prior to a finding of liability in the plaintiffs’ favor.”); Kamar v. Radio
Shack Corp., 375 F. App’x 734, 735 (9th Cir. 2010).
102

21
22
23
24
25
26
27
28

Sanneman v. Chrysler Corp., 191 F.R.D. 441, 446 (E.D. Pa. 2000).

103

See Xavier v. Philip Morris USA, Inc., 787 F. Supp. 2d 1075, 1089 (N.D. Cal. 2011)
(“Ascertainability is needed for properly enforcing the preclusive effect of final judgment. The
class definition must be clear in its applicability so that it will be clear later on whose rights are
merged into the judgment, that is, who gets the benefit of any relief and who gets the burden of any
loss. If the definition is not clear in its applicability, then satellite litigation will be invited over
who was in the class in the first place”); 1 William B. Rubenstein et al., Newberg on Class Actions,
§ 3:1 (5th ed.).

104

See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S. Ct. 2965, 86 L.Ed.2d 628
(holding that notice of right to opt-out of suit for money damages is required by the Due Process
Clause); Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir.1972) (stating that in contrast to
certification of a subdivision (b)(3) class, “notice to the members of a(b)(2) class is not required
26
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

Defendants dispute the breadth of Plaintiffs’ class and subclass definitions.105 They

1
2

contend the class and subclass are not ascertainable because the definitions are vague, require mini-

3

trials and do not precisely identify future members.106 But classes like the class and subclass here

4

have been routinely certified.107 Class and subclass membership can “be ascertained by reference

5
6
7
8
9

to objective criteria,” and the class definitions “avoid subjective standards (e.g. a plaintiff’s state of
mind) or terms that depend on resolution of the merits (e.g., persons who were discriminated
against).”108 The proposed class and subclass are sufficiently narrow: class members are those in
the jail, and subclass members are those with disabilities, as defined by federal and state law.109
B.

United States District Court
For the Northern District of California

10
11
12

Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is
impracticable.” The Rule ensures judicial economy110 and creates greater access to judicial relief,

13
14
15
16
17

and the actual membership of the class need not therefore be precisely delimited.”). Manageability
is not as important a concern for injunctive classes as for damages classes. See Elliott v.
Weinberger, 564 F.2d 1219, 1229 (9th Cir.1977) (“by its terms, Rule 23 makes manageability an
issue important only in determining the propriety of certifying an action as a(b)(3), not a(b)(2),
class action.”), aff’d in pertinent part sub nom. Califano, 442 U.S. at 701.
105

See Docket No. 133 at 9.

19

106

See id. at 34; Docket No. 169 at 17.

20

107

18

21
22
23
24

See, e.g., Parsons, 754 F.3d at 672 (class of “[a]ll [inmates] who are now, or will in the future
be, subjected to the medical, mental health, and dental care policies and practices” in Arizona
prisons); Armstrong v. Davis, 275 F.3d at 856-57 (certifying class of “all present and future
California state [inmates] and parolees with mobility, sight, hearing, learning, developmental and
kidney disabilities that substantially limit one or more of their major life activities”) (quotation
marks omitted); Rodriguez, 591 F.3d at 1118 (“the inclusion of future class members in a class is
not itself unusual or objectionable”).
108

25
26

Lyon v. U.S. Immigration & Customs Enforcement, Case No. 3:13-5878, 2014 WL 1493846, at
*5 (N.D. Cal. Apr. 16, 2014) (citations and internal quotation marks omitted).

109

See Docket No. 355 at 5.

110

See 1 Rubenstein, supra, §§ 1:12; 3:11.

27
28

27
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

particularly for those persons with claims that would be uneconomical to litigate individually,111

2

including for injunctive relief. A class or subclass with more than 40 members “raises a

3

presumption of impracticability based on numbers alone.”112 This is especially true where, as here,

4

the class and subclass include future, unknowable class members.113

5
6
7
8
9

CFMG concedes and stipulates that Plaintiffs meet the numerosity element, and joinder of
all class members would be impracticable.114 The County similarly does not argue against
numerosity.115 Because the class and subclass are each over 40 members, and Defendants provide
no real opposition on this point, the court finds Plaintiffs meet the numerosity requirement.
C.

United States District Court
For the Northern District of California

10

As to commonality, there must be “questions of law and fact common to the class,”116 and

11
12

class members must “‘have suffered the same injury,’” and not merely violations of “the same

13

provision of law.”117 “[T]he class members’ claims ‘depend upon a common contention’ such that

14
‘determination of its truth or falsity will resolve an issue that is central to the validity of each claim
15
16
17
18
19

in one stroke.’”118 “Put another way, the key inquiry is not whether the plaintiffs have raised
111

See Phillips Petroleum Co., 472 U.S. at 809; 7A Charles Alan Wright, et al., Federal Practice
and Procedure § 1762 (3d ed. 2005).

112

20

1 William Rubenstein, Newberg on Class Actions § 3:12, at 198 (5th ed. 2011); see also Rannis
v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010); Gen. Tel. Co. of the N.W. v. EEOC, 446 U.S.
318, 330 (1980).

21

113

See Nat’l Ass’n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986).

114

See Docket No. 169 at 15.

115

See Docket No. 133 at 19-21; Docket No. 355 at 6.

116

Fed. R. Civ. P. 23(a)(2).

117

Wal-Mart Stores, Inc., 131 S. Ct. at 2551.

22
23
24
25
26
27
28

118

Parsons, 754 F.3d at 675; Mazza, 666 F.3d at 588 (quoting Wal–Mart, 131 S. Ct. at 2551)
(internal alteration omitted).
28
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1
2

common questions, ‘even in droves,’ but rather whether class treatment will ‘generate common
answers apt to drive the resolution of the litigation.’”119

3

Dissimilarities between class members must be considered in determining whether a

4

common question will generate a common answer because dissimilarities within the proposed class

5

can “impede the generation of common answers.”120 Thus commonality may be determined based

6

on substantive law121 and an understanding of the nature and merit of the underlying claims.122

7
8
9

Plaintiffs need not show, however, that “every question in the case, or even a preponderance of
questions, is capable of class-wide resolution. So long as there is ‘even a single common

United States District Court
For the Northern District of California

10

question,’ a would be class can satisfy the commonality requirement of Rule 23(a)(2).”123 Thus,

11

“[w]here the circumstances of each particular class member vary but retain a common core of

12

factual or legal issues with the rest of the class, commonality exists.”124

13
14

In civil rights cases, “commonality is satisfied where the lawsuit challenges a system-wide
practice or policy that affects all of the putative class members.”125 Where such a policy exists,

15
16

“individual factual differences among the individual litigants or groups of litigants will not

17
18

119

Abdullah v. U.S. Sec. Ass., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Wal-Mart, 131 S.
Ct. at 2551 (emphasis in original)).

19
120

Id. at 2551, 2556.

121

Stearns, 655 F.3d at 1012.

20
21
22

122

Amgen, 133 S. Ct. at 1194-95; Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir.
2011).

23
123

24
25
26

Wang, 737 F.3d at 544 (quoting Wal–Mart, 131 S. Ct. at 2556); see also Mazza, 666 F.3d at 589
(9th Cir. 2012) (noting that “commonality only requires a single significant question of law or
fact”).
124

Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir.2012) (quotation marks
and citation omitted).

27
125

28

Armstrong v. Davis, 275 F.3d at 868.

29
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

preclude a finding of commonality.”126 The Supreme Court’s Wal-Mart decision reaffirmed that

2

where a system-wide policy or practice is the cause of class members’ injuries, plaintiffs satisfy the

3

commonality requirement.127

4
5
6

Post-Wal-Mart, courts continue to find the commonality requirement satisfied in cases
challenging correctional facility conditions similar to those at issue here.128 Recently, in
Parsons,129 the defendants’ argument against commonality was that “a systemic constitutional

7
8
9

violation [of the sort alleged here] is a collection of individual constitutional violations, each of
which hinges on the particular facts and circumstances of each case.”130 But the Ninth Circuit

United States District Court
For the Northern District of California

10

affirmed class certification, holding that “[t]he putative class and subclass members . . . all set forth

11

numerous common contentions whose truth or falsity can be determined in one stroke: whether the

12

specified [system-]wide policies and practices to which they are all subjected . . . expose them to a

13
14
15

126

16

127

17
18
19
20
21
22
23
24
25
26

Id.

See Wal-Mart, 131 S. Ct. at 2553; Stockwell v. City & County of San Francisco, 749 F.3d 1107,
1111-13 (9th Cir. 2014).
128

See Parsons v. Ryan, 289 F.R.D. 513, 516-23 (D. Ariz. 2013) (commonality in case challenging
medical and mental healthcare provided to 33,000 inmates in Arizona); Jones v. Gusman, 296
F.R.D. 416, 465-66 (E.D. La. 2013) (commonality for claims by pre- and post-trial detainees
regarding failures to protect inmates from violence and inadequacies in medical and mental health
care at jails in New Orleans Parish); Butler v. Suffolk County, 289 F.R.D. 80, 97-98 (E.D.N.Y.
2013) (commonality for claims that unsanitary conditions in jail constituted cruel and unusual
punishment); Henderson v. Thomas, 289 F.R.D. 506, 511 (M.D. Ala. 2012) (commonality for ADA
claims challenging Alabama prison policy of segregating HIV positive inmates from general prison
population); Olson v. Brown, 284 F.R.D. 398, 410-12 (N.D. Ind. 2012) (commonality for class
claims regarding, among other things, constitutionality of jail mail policy); Hughes v. Judd, Case
No. 8:12-cv-568-MAP, 2013 WL 1821077, at *23-24 (M.D. Fla. Mar. 27, 2013) (commonality for
claims regarding constitutionality of jail’s policies for protecting juvenile inmates from violence)
(report and recommendation adopted as modified, 8:12-cv-568-SDM, 2013 WL 1810806 at *2
(M.D. Fla. Apr. 30, 2013)).
129

See Parsons, 754 F.3d at 662, 683.

130

Id. at 675 (alteration in original) (internal quotation marks omitted).

27
28

30
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

substantial risk of harm.”131 Because of the nature of the plaintiffs’ system-wide challenge, “either

2

each of the policies and practices is unlawful as to every inmate or it is not.”132 Any determination

3

of the merits would “not require [the court] to determine the effect of those policies and practices

4

upon any individual class member (or class members) or to undertake any other kind of

5

individualized determination.”133

6
7
8
9

United States District Court
For the Northern District of California

10

“Commonality cannot be determined without a precise understanding of the nature of the
underlying claims.”134 “To assess whether the putative class members share a common question,
the answer to which ‘will resolve an issue that is central to the validity of each one of the [class
members’s] claims,’ we must identify the elements of the class members’[] case-in-chief.”135

11
12
13
14
15
16
17
18
19
20
21

131

Id. at 678 (citing Wal-Mart, 131 S. Ct. at 2551) (“What all members of the putative class and
subclass have in common is their alleged exposure, as a result of specified statewide ADC policies
and practices that govern the overall conditions of health care services and confinement, to a
substantial risk of serious future harm to which the defendants are allegedly deliberately
indifferent. . . .[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 . . . policy or practice that creates a
substantial risk of serious harm”); id. at 678-79 (holding that since “every inmate . . . is necessarily
subject to the same medical, mental health, and dental care policies and practices” and because
“any one of them could easily fall ill, be injured, need to fill a prescription, require emergency or
specialist care, crack a tooth, or require mental health treatment . . . [,] every single ADC inmate
faces a substantial risk of serious harm if ADC policies and practices provide constitutionally
deficient care for treatment”); Plata, 131 S. Ct. at 1940 (“[Inmates] who are not sick or mentally ill
do not yet have a claim that they have been subjected to care that violates the Eighth Amendment,
but in no sense are they remote bystanders in California’s medical care system. They are that
system’s next potential victims”).

132

Parsons, 754 F.3d at 678.

23

133

Id. at 679.

24

134

22

25
26

Id. at 676; see Amgen Inc., 133 S. Ct. at 1194–95 (“Merits 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.” (citation omitted)); Ellis, 657 F.3d at 981 (“[T]he
merits of the class members’ substantive claims are often highly relevant when determining
whether to certify a class.”).

27
135

28

Stockwell, 749 F.3d at 1114, (quoting Wal–Mart, 131 S. Ct. at 2551).

31
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

Here, a central question of injury is whether Defendants’ policies and practices reflect

1
2

deliberate indifference as to Plaintiffs’ medical care, mental health care, and safety needs.136 The

3

court’s broad yes-or-no answer to that question is “apt to drive the resolution of the litigation”

4

because it determines whether Plaintiffs’ constitutional rights have been violated and whether an

5

injunction directing Defendants to remedy the constitutional violations is appropriate.137 The

6
7
8

deliberate indifference standard focuses on the risk of future illness or injury to which defendants
expose inmates.138 “This kind of claim is firmly established in our constitutional law.”139

9

United States District Court
For the Northern District of California

10
136

15

See Wilson v. Seiter, 501 U.S. 294 298 (1991) (constitutional violation occurs where deprivation
was “sufficiently serious” and the official has acted with “deliberate indifference” to inmate health
or safety); Farmer v. Brennan, 511 U.S. 825, 828, 833 (1994) (deliberate indifference to inmates’
safety from “violence at the hands of other [inmates]” (internal quotation marks omitted)); Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (deliberate indifference to inmates’ serious medical
needs); Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (deliberate indifference to
inmates’ serious mental health care needs); Coleman v. Brown, 938 F. Supp. 2d 955, 970 n.24
(E.D. Cal. 2013) (elements of a constitutional correctional mental health system).

16

137

17

138

11
12
13
14

18
19
20
21
22
23
24
25
26

Wal-Mart, 131 S. Ct. at 2551.

See Helling v. McKinney, 509 U.S. 25, 33 (1993) (holding that prison officials may not “ignore
a condition of confinement that is sure or very likely to cause serious illness and needless suffering
the next week or month or year”); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Technologies v.
Miller, 104 F.3d 1133 (9th Cir. 1997). A plaintiff establishes deliberate indifference by showing
that a public entity “(1) had a policy that posed a substantial risk of serious harm . . . ; and (2)
kn[ew] that its policy posed this risk.”138 In class actions challenging a jail facility’s healthcare
systems or safety practices, liability may also be premised on a showing of “systematic or gross
deficiencies in staffing, facilities, equipment or procedures.” Ramos v. Lamm, 639 F.2d 559, 575
(10th Cir. 1980); see also Plata, 131 S. Ct. at 1925 n.3; (upholding, in case against California
prison system, sweeping injunctive relief to remedy “system-wide deficiencies in the provision of
medical and mental health care that, taken as a whole, subject sick and mentally ill [inmates] in
California to [a] substantial risk of serious harm” (internal quotation marks omitted)); Madrid v.
Gomez, 889 F. Supp. 1146, 1256 (N.D. Cal. 1995) (“In class actions challenging the entire system
of mental or medical health care, courts have traditionally held that deliberate indifference can be
shown by proving either a pattern of negligent acts or serious systemic deficiencies in the prison’s
health care program.”).

27
139

28

Parsons, 754 F.3d at 676.

32
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

Defendants argue that what is reasonable treatment to one inmate may not be appropriate or

1
2

reasonable treatment to another140—and whether Defendants have acted with deliberate

3

indifference—will require distinct legal questions, burdens of proof and “mini-trials” for each

4

Plaintiff.141 System-wide allegations require proof of either an official policy or admissible and

5
6

convincing proof rather than just allegations that a constitutional violation persists systemwide142—something Plaintiffs cannot show, according to Defendants.143

7
But Plaintiffs have produced adequate evidence of specific system-wide policies and

8
9

practices exposing inmates to a substantial risk of serious harm, violating their constitutional or

United States District Court
For the Northern District of California

10

statutory rights; and they have clearly defined the class claims.144 “That the Eighth Amendment

11

protects against future harm to inmates is not a novel proposition.”145 Noting that it “would be odd

12

to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their

13

prison on the ground that nothing yet had happened to them,” Helling rejected a proposition like

14
the Defendants’ here that “only deliberate indifference to current serious health problems of
15
16
17
140

See Docket No. 21-22.

19

141

See Docket No. 133 at 17.

20

142

18

21
22
23
24
25

See Armstrong v. Davis, 275 F.3d at 870; Armstrong v. Schwarzenegger, 622 F.3d 1058, 107374 (9th Cir. 2010); Lewis, 518 U.S. at 359-60 (stressing, regarding inmate access to a law library,
that a system wide injunction can only be issued upon proof of system wide, not isolated,
problems); Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 417 (1977) (“Instead of tailoring a
remedy commensurate with the three specific violations, the Court of Appeals imposed a system
wide remedy going beyond their scope”); id., at 420 (“Only if there has been a system wide impact
may there be a system wide remedy”); Califano, 442 U.S. at 702 (“The scope of injunctive relief is
dictated by the extent of the violation established.”).
See Docket No. 133 at 30; Docket No. 169 at 9-10, 16-17.

144

Fed. R. Civ. P. 23(c)(1)(B); Parsons, 754 F.3d at 683; Docket No. 355 at 8-21.

145

26

143

Helling, 509 U.S. at 33.

27
28

33
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

inmates is actionable under the Eighth Amendment.”146 In Farmer v. Brennan, the Court

2

elaborated on Helling’s recognition that a “remedy for unsafe conditions need not await a tragic

3

event”147 by holding that “[a] prison official's ‘deliberate indifference’ to a substantial risk of

4

serious harm to an inmate violates the Eighth Amendment.”148 Prison officials are definitively

5
6

constitutionally prohibited from being deliberately indifferent to policies and practices that expose
inmates to a substantial risk of serious harm.149

7
In Brown v. Plata, the Supreme Court distinguished the kind of systemic, future-oriented

8
9

United States District Court
For the Northern District of California

10

constitutional and statutory claims at issue here from claims in which a past instance of
mistreatment is alleged to have violated the Constitution:

11

Because plaintiffs do not base their case on deficiencies in care provided on any one
occasion, this Court has no occasion to consider whether these instances of delay—or any
other particular deficiency in medical care complained of by the plaintiffs—would violate
the Constitution under Estelle v. Gamble, 429 U.S. 97, 104–105 . . . (1976), if considered in
isolation. Plaintiffs rely on system-wide deficiencies in the provision of medical and mental
health care that, taken as a whole, subject sick and mentally ill [inmates] in California to
“substantial risk of serious harm” and cause the delivery of care in the prisons to fall below
the evolving standards of decency that mark the progress of a maturing society.150

12
13
14
15
16
17

146

19

Id. at 33, 34, 113 S. Ct. 2475; see also id. at 33, 113 S. Ct. 2475 (“We have great difficulty
agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health
problems but may ignore a condition of confinement that is sure or very likely to cause serious
illness and needless suffering the next week or month or year.”).

20

147

Id.

21

148

511 U.S. 825, 828, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994).

18

22
23
24
25
26

149

See, e.g., Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir.2010) (substantial risk of harm from
exposure of pretrial detainees on psychotropic medication to extreme heat); Wallis v. Baldwin, 70
F.3d 1074, 1076 (9th Cir.1995) (substantial risk of harm from sustained exposure to asbestos). See
Thomas v. Ponder, 611 F.3d 1144, 1151 n. 5 (9th Cir.2010) (“In its order, the district court
erroneously considers whether the prison officials were aware that Thomas was ‘suffering serious
harm from the deprivation’ of exercise. The correct issue for consideration is, however, whether
the prison officials were subjectively aware of a ‘serious risk of substantial harm.’” (citing Farmer,
511 U.S. at 837, 114 S. Ct. 1970; Helling, 509 U.S. at 32)).

27
150

28

Farmer, 511 U.S. at 834; Plata, 131 S. Ct. at 925 n.3.

34
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

Thus, “[i]ndividual claims for injunctive relief related to medical treatment are discrete

1
2

from the claims for systemic reform addressed in Plata”151 and here. The constitutional and

3

statutory claims in this case are of the same basic kind as the claims in Helling, Farmer, Plata,

4

Graves, Wallis, and Parsons. In those cases, courts have asked only whether the plaintiffs were

5
6

exposed to a substantial risk of harm to which prison officials were deliberately indifferent—and
have recognized that many inmates can simultaneously be endangered by a single policy.152

7
Here, all members of the putative class and subclass have in common their alleged exposure

8
9

to a substantial risk of serious future harm to which Defendants are allegedly deliberately

United States District Court
For the Northern District of California

10

indifferent, as a result of policies and practices that govern the overall conditions of health care

11

services and confinement.153 While results of exposure may vary, ranging from no harm to death,

12

each inmate suffers the same constitutional or statutory injury when exposed to a policy or practice

13

that creates a substantial risk of serious harm.154 For example, inadequate health care in a prison

14
system endangers every inmate: “[e]ven [inmates] with no present physical or mental illness may
15
16

become afflicted, and all [inmates] in California are at risk so long as the State continues to provide

17

inadequate care. . . . [Inmates] who are not sick or mentally ill . . . [are] in no sense [ ] remote

18

bystanders in California's medical care system. They are that system's next potential victims.”155

19
20

151

21

152

22

Pride v. Correa, 719 F.3d 1130, 1137 (9th Cir.2013).

See Helling, 509 U.S. at 33 (unsafe drinking water); Graves, 623 F.3d at 1049 (heat exposure);
Wallis, 70 F.3d at 1076 (asbestos); Hoptowit v. Spellman, 753 F.2d 779, 783–84 (9th Cir.1985)
(substandard fire prevention).

23
153

24

See Parsons, 754 F.3d at 678.

154

25
26

See, e.g., Farmer, 511 U.S. at 834, 114 S. Ct. 1970; Helling, 509 U.S. at 33; cf. Plata, 131 S. Ct.
at 1923 (“For years the medical and mental health care provided by California’s prisons has fallen
short of minimum constitutional requirements and has failed to meet [inmates’] basic health needs.
Needless suffering and death have been the well-documented result.”).

27
155

28

131 S. Ct. at 1940.

35
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

The court need only determine if it can answer the question “whether [Defendants’] staffing

1
2

policies pose a risk of serious harm to . . . the entire class ‘in one stroke.’”156 The identified 37

3

policies and practices to which all members are exposed hold together the putative class and

4

subclass.157

5
6

Defendants’ proffered changes in intake health screening and the future hiring of more
medical staff, even if successful, cannot defeat commonality.158 “Either [Defendants] employ[]

7
8
9

enough nurses and doctors [and custody staff] to provide adequate care to all . . . inmates or [they]
do[] not; there is no need for an inmate-by-inmate inquiry to determine whether all inmates in [the

United States District Court
For the Northern District of California

10

Jail] are exposed to a substantial risk of serious harm by [Defendants’] staffing policies.”159

11

CFMG and the County admit to mistakes in care and treatment, and their knowledge of the risks to

12

which their acknowledged system-wide policies and practices expose Plaintiffs can be evaluated on

13

a class-wide basis.160 The County also admits to system-wide, insufficient accommodations for

14

persons with disabilities,161 and whether Defendants had knowledge of any insufficiencies can also

15
16

be evaluated in “one-stroke” for the entire sub-class. No individualized inquiry into the

17

experiences of any particular inmate or Plaintiff is necessary. The claims of the inmates with

18

disabilities sub-class also satisfy the commonality requirement: either the Plaintiffs are housed in a

19
20
21
22

156

Parsons, 754 F.3d at 679 (citing Wal-Mart, 131 S. Ct. at 2551).

157

See id. at 678.

23
158

24

See id. at 680; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000); Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013).

25

159

Parsons, 754 F.3d at 680; see Docket No. 356 at ¶ 53.

160

See Docket No. 355 at 16-17.

161

See Docket No. 371.

26
27
28

36
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

facility that comports with the ADA or they are not.162 As exemplified by Plata, claims of this

2

kind, involving detailed factual and legal allegations of specified systemic deficiencies in prison

3

conditions giving rise to a substantial risk of serious harm, have long been brought in the form of

4

class actions lawsuits.163 “In fact, without such a means of challenging unconstitutional prison

5
6

conditions, it is unlikely that a state's maintenance of prison conditions that violate the Eighth
Amendment could ever be corrected by legal action.”164

7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

162

A public entity must take steps, including altering existing or constructing new facilities, to
accommodate inmates with disabilities unless to do so would fundamentally alter a program or
create an undue financial or administrative burden. See 28 C.F.R. §§ 35.150, 35.152. Whether a
facility was constructed prior to 1992 only determines whether the structure itself must comply
fully with the ADA’s architectural guidelines. See 28 C.F.R. § 35.151(a) & (b). That the jail was
constructed prior to 1992 does not vitiate Defendants’ obligation to accommodate inmates with
disabilities or alter the reasonableness of an accommodation in any way.
163

See also, e.g., Armstrong v. Davis, 275 F.3d at 849.

164

Parsons, 754 F.3d at 680; see, e.g., Chief Goes Out v. Missoula Cnty., Case No. 12-cv-155DWM, 2013 WL 139938, at *5 (D. Mont. Jan. 10, 2013) (“[C]ourts have long recognized that, in
prison condition cases like this one, the injury is the [deprivation] itself, not just the negative
effects resulting from the [deprivation]. . . . [O]ther courts have certified classes of inmates
claiming unconstitutional deprivation of outdoor exercise, and scores of courts have certified
classes of [inmates] claiming other unconstitutional prison conditions.”); Butler, 289 F.R.D. at 98
(“Whether the County was aware of and deliberately indifferent to the conditions at the [prison] is
a common question subject to class-wide resolution.”); Hughes, 2013 WL 1821077, at *23
(“Plaintiffs’ claims related to these [prison] conditions are capable of class-wide resolution:
Plaintiffs seek permanent injunctive and declaratory relief that would enjoin allegedly
unconstitutional behavior as applied to the entire class. Importantly, the questions of law are
applicable in the same manner to each potential class member . . . . Each class member, if
proceeding separately against Defendants, would need to meet the same test under the Eighth and
Fourteenth Amendments to prevail.”); Rosas v. Baca, Case No. 12-cv-428-DDP, 2012 WL
2061694, at *3 (C.D. Cal. June 7, 2012) (“In a civil rights suit such as this one ... commonality is
satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the
putative class members. Under such circumstances, individual factual differences among class
members pose no obstacle to commonality.”); Indiana Prot. & Advocacy Servs. Comm’n v.
Comm’r, Indiana Dep’t of Correction, Case No. 08-cv-1317-TWP, 2012 WL 6738517, at *18
(S.D. Ind. Dec. 31, 2012) (“The mentally ill [inmates] here, have demonstrated through a wealth of
evidence, that the class is united by the common question of whether the lack of treatment and
isolated living conditions in IDOC facilities violate the Eighth Amendment.”); see also Armstrong
v. Davis, 275 F.3d at 868.
37
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

Here, as in Parsons, Plaintiffs have met or exceeded Wal-Mart’s requirement of proof that

1
2

there are “in fact . . . common questions of law or fact.”165 The materials that they submitted

3

include six thorough and neutral or County-appointed expert reports, two Plaintiff-retained expert

4

declarations, the detailed allegations in the 135-page complaint, hundreds of internal documents,

5
6

and declarations by the named Plaintiffs—constituting more than sufficient evidence at this stage
in the litigation of the existence of policies and practices that allegedly expose all members of the

7
8
9

putative class and subclass to a substantial risk of serious harm. These policies and practices are
defined with sufficient precision and specificity; they involve particular and readily identifiable

United States District Court
For the Northern District of California

10

conduct on the part of the defendants, such as failing to hire enough medical staff, failing to fill

11

prescriptions, denying inmates access to medical specialists, depriving suicidal and mentally ill

12

inmates access to basic mental health care, and failure to accommodate disabilities that affect

13

communication and mobility.166 The evidence submitted by the plaintiffs adequately demonstrates

14
the existence of the challenged statewide policies and practices.
15
“A clear line of precedent, stretching back long before Wal–Mart and unquestionably

16
17

continuing past it, firmly establishes that when inmates provide sufficient evidence of systemic and

18

centralized policies or practices in a prison system that allegedly expose all inmates in that system

19

to a substantial risk of serious future harm, Rule 23(a)(2) is satisfied.”167 Here, Plaintiffs’

20
165

21
22
23
24
25
26

131 S. Ct. at 2551; see also Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (noting
that “it may be necessary for the court to probe behind the pleadings before coming to rest on the
certification question” (quotation marks and citations omitted)); DL v. District of Columbia, 713
F.3d 120, 126 (D.C. Cir. 2013) (concluding that commonality had not been shown where the
plaintiffs in a putative IDEA class action had not identified a “single or uniform policy or practice
that bridges all their claims”); M.D. v. Perry, 675 F.3d 832, 844 (5th Cir. 2012) (cautioning that
“mere allegations of systemic violations of the law . . . will not automatically satisfy Rule 23(a)’s
commonality requirement” (quotation marks and citations omitted)).
166

Compare M.D., 675 F.3d at 844 (noting that commonality is not shown when plaintiffs allege an
amorphous claim of undefined and unspecified systemic misconduct).

27
167

28

Parsons, 754 F.3d at 684.

38
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

constitutional and statutory claims satisfy all of those criteria. The factual and legal questions that

2

they present can be answered “yes” or “no” in one stroke as to the entire class, dissimilarities

3

among class members do not impede the generation of common answers to those questions, and the

4

capacity of class-wide proceedings to drive the resolution of this litigation is not in doubt.168 The

5
6

claims, defenses, relevant facts, and substantive law are all common across the class and
subclass.169

7
D.

8

The question of typicality170 “refers to the nature of the claim or defense of the class

9

United States District Court
For the Northern District of California

10

representative, and not to the specific facts from which it arose or the relief sought.”171 “[T]he

11

typicality inquiry involves comparing the injury asserted in the claims raised by the named

12

plaintiffs with those of the rest of the class.”172 “Under the rule’s permissive standards,

13
14

representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class
members; they need not be substantially identical.”173 The test of typicality is “whether other

15
16
17

members have the same or similar injury, whether the action is based on conduct which is not
unique to the named plaintiffs and whether other class members have been injured by the same

18
19
168

See Wal–Mart, 131 S. Ct. at 2551–52.

169

See, e.g., Parsons, 754 F.3d at 684-86.

170

See Fed. R. Civ. P. 23(a)(3).

23

171

Parsons, 754 F.3d at 686 (internal quotation marks omitted).

24

172

20
21
22

Armstrong v. Davis, 275 F.3d at 869.
See Fed. R. Civ. P. 23(a)(3); Parsons, 754 F.3d at 686 (“Rule 23(a)(3) requires only that their
claims be ‘typical’ of the class, not that they be identically positioned to each other or to every
class member.”); Armstrong v. Davis, 275 F.3d at 869; Hanlon, 150 F.3d at 1020; Hanon v.
Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (typicality analysis “refers to the nature of
the claim or defense of the class representative, and not to the specific facts from which it arose or
the relief sought” (internal quotation marks omitted)).
173

25
26
27
28

39
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1
2

course of conduct.”174 “Typicality refers to the nature of the claim or defense of the class
representative, and not to the specific facts from which it arose or the relief sought.”175

3

While typicality and commonality occasionally merge,176 typicality derives its independent

4

legal significance from its ability to “screen out class actions in which the legal or factual position

5
6

of the representatives is markedly different from that of other members of the class even though
common issues of law or fact are present.”177 But it is not necessary “that the named plaintiffs’

7
8
9

United States District Court
For the Northern District of California

10

injuries be identical to those of other class members, only that the unnamed class members have
injuries similar to those of the named plaintiffs and that the injuries result from the same, injurious
course of conduct.”178

11

To the County, the typical grievances and complaints named Plaintiffs make in this case are

12

adequacy or timely care, which Defendants believe are individual, unique issues, requiring

13

individual, unique responses and assessments of specific inquiries on an individual level.179 The

14
determination of deliberate indifference, the County asserts, would require individual analysis,
15
16

undermining any judicial economy found in certifying a class.180 Using the same defenses as for

17

commonality, CFMG attempts to discount any problems any named Plaintiff has had with any

18

aspect of CFMG’s medical and mental care, but the medical records show otherwise.181

19
174

Hanon, 976 F.2d at 508.

175

Id.

176

See Wal-Mart, 131 S. Ct. at 2551 n. 5; Armstrong v. Davis, 275 F.3d at 868–69.

23

177

7A Wright, § 1764 (emphasis added).

24

178

Armstrong v. Davis, 275 F.3d at 869.

25

179

See Docket No. 133 at 24.

180

See id.

181

See Docket No. 355 at 25; Docket Nos. 52-3 to 52-30.

20
21
22

26
27
28

40
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

Here, the transitory putative class and subclass members are all inmates in the jail. Each

1
2

named Plaintiff declares exposure, like all other members of the putative class and subclass, to a

3

substantial risk of serious harm due to the challenged policies and practices. The named Plaintiffs

4

allege “the same or [a] similar injury” as the rest of the putative class; they allege that this injury is

5
6
7
8
9

a result of a course of conduct that is not unique to any of them; and they allege that this injury
follows from the “same, injurious course of conduct” at the center of the class claims.182 Relief for
one individual would provide relief to everyone.183 “[G]iven that every inmate in [the Jail] is
highly likely to require medical, mental health, and dental care, each of the named plaintiffs is

United States District Court
For the Northern District of California

10

similarly positioned to all other [Jail] inmates with respect to a substantial risk of serious harm

11

resulting from exposure to defendants’ policies and practices.”184 This applies as well for the

12

subclass. “It does not matter that the named plaintiffs may have in the past suffered varying

13

injuries or that they may currently have different health care needs; Rule 23(a)(3) requires only that

14
their claims be ‘typical’ of the class, not that they be identically positioned to each other or to every
15
16

class member.”185
E.

17

As to adequacy of representation,186 class representatives are adequate if they do not have

18
19

“any conflicts of interest with other class members” and if they will “prosecute the action

20
21
22
23
24

182

183

See Parsons, 754 F.3d at 689 n.35 (rejecting Shook v. Bd. of County Comm’rs, 543 F.3d 597
(10th Cir. 2008)).

184

25
26

See Fed. R. Civ. P. 23(a)(3); Armstrong v. Davis, 275 F.3d at 869.

Id.; see also Plata, 131 S. Ct. at 1940; Armstrong, 275 F.3d at 869.

185

Parsons, 754 F.3d at 686; see Ellis, 657 F.3d at 985 n.9 (“Differing factual scenarios resulting
in a claim of the same nature as other class members does not defeat typicality.”).

27
186

28

See Fed. R. Civ. P. 23(a)(4).

41
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

vigorously on behalf of the class.”187 Class representatives have less risk of conflict with unnamed

2

class members when they seek only declaratory and injunctive relief. With regard to claims, the

3

honesty and credibility of a class representative is a relevant consideration into adequacy, because

4

an untrustworthy plaintiff could reduce the likelihood of prevailing on the class action188 and may

5

be considered to have interests antagonistic to the class.189 But a plaintiff is inadequate only “when

6

attacks on the [plaintiff’s] credibility . . . are so sharp as to jeopardize the interests of absent class

7
8
9

members” and “where the representative’s credibility is questioned on issues directly relevant to
the litigation.”190
The County argues that the named Plaintiffs are inadequate because, among other things,

United States District Court
For the Northern District of California

10
11

they request conflicting relief. For example, some Plaintiffs wish to see mentally ill inmates

12

segregated from the rest of the inmates, and others admonish Defendants for failure to “ensure that

13
14

inmates or detainees with disabilities are housed in the most integrated setting appropriate to the
needs of the individuals.”191 Citing certain deposition testimony and counsel’s role in preparing

15
16

defendants, CFMG contends the named Plaintiffs are not adequate representatives because they are

17

not credible and because they can establish neither the requisite case or controversy nor personal

18

injury from being subjected to the alleged risks.192 As to this latter point, CFMG disputes that any

19

named Plaintiffs were exposed to the inadequate conditions they challenge relating to in screening,

20

187

21

188

22

Hanlon, 150 F.3d at 1020.

See Harris v. Vector Marketing Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal. 2010)); Feske v.
MHC Thousand Trails L.P., Case No. 5:11-cv-4124-PSG, 2013 U.S. Dist. LEXIS 37232, at *3641(N.D. Cal. 2013).

23
189

Harris, 753 F. Supp. 2d at 1015.

190

Id. (internal quotation marks and citations omitted); see also Feske, 2013 WL 1120816, at *13.

191

See Docket No. 133 at 27.

24
25
26
27
28

192

See Docket No. 169 at 18, Lewis, 518 U.S. at 357; Berger v. Home Depot USA, Inc. 741 F.3d
1061, 1067 (9th Cir. 2014).
42
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

staffing, facilities, requests for care, care, treatment quality management, training, suicide

2

prevention and use of safety cells.193 CFMG also questions whether certain Plaintiffs suffering

3

from mental illness can adequately represent a class.194

4
5
6

Any minor disagreements between various class representatives’ individual beliefs
regarding appropriate remedies do not render the class representatives inadequate. Rather than
personal relief, Plaintiffs ask for relief from Defendants’ problematic system-wide policies and

7
8
9

practices. For example, while opinions may differ about housing inmates with mental illness in
general population or in special housing units, all plaintiffs agree inmates with mental illnesses

United States District Court
For the Northern District of California

10

should not be housed in administrative segregation, and this is part of the relief they request.195

11

And “[i]nconsistent deposition testimony in and of itself will not serve as a ground for denial of

12

class certification.”196 While lack of credibility is an issue for Plaintiffs to consider in constructing

13
14

their case, the court does not consider the named Plaintiffs inadequate. Nor are alleged cognitive
impairments a valid reason to deem Plaintiffs inadequate.197

15
F.

16

Counsel may be appointed under Fed. R. Civ. P. 23(g)(1) and (4) if they are adequate; that

17
18

is, if counsel does not have “any conflicts of interest with other class members” and if they will

19

193

See Docket No. 169 at 18-19.

20

194

See id. at 21-22, 24-25, 26-29.

21

195

See Docket No. 355 at 29-30.

22

196

23

Savino v. Computer Credit, Inc., 173 F.R.D. 346, 357 (E.D.N.Y. 1997) aff’d, 164 F.3d 81 (2d
Cir. 1998).

24

197

25
26
27
28

See Ingles v. City of New York, Case No. 01-cv-8279-DC, 2003 WL 402565, at *1, *7
(S.D.N.Y. Feb. 20, 2003) (ruling that class representative who was currently on psychiatric
medication and had a “psychiatric condition” was an adequate class representative); Hill v. Priority
Fin. Servs., Inc., Case No. 98-cv-1319-SEB, 2000 WL 1876582, at *1 (S.D. Ind. Dec. 22, 2000)
(noting that even if the class representative were “currently undergoing treatment for mental
illness,” that would not disqualify him if it did not “affect his understanding of the case, his
processing of information, or his ability to perform his duties as class representative”).
43
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

1

“prosecute the action vigorously on behalf of the class.”198 Here, appointment is sought by the

2

following counsel: Rosen Bien Galvan & Grunfeld LLP, Monterey County Public Defender James

3

Egar and the American Civil Liberties Union.

4
5
6

Under Fed. R. Civ. P. 23(g)(1) and (4), class counsel with experience with class action
lawsuits, class action lawsuits regarding conditions in correctional facilities, criminal justice issues
and commitment of resources are likely to adequately represent the class.199

7
The County posits that the Rosen Bien firm may be financially interested in keeping

8
9

inmates in jail, while the Office of the Public Defender’s incentives may aim to keep inmates out of

United States District Court
For the Northern District of California

10

jail.200 The County further argues the Office of the Public Defender has declared conflict in

11

representing six of the named Plaintiffs.201 The County also claims that because Egar filed a

12

declaration in support of Plaintiffs’ motion for class certification in which he testified to his

13
14

personal knowledge of the conditions at the jail, he is a witness in this lawsuit, disqualifying him
from representation in this lawsuit.202 CFMG focuses on a letter Egar once wrote lauding Fithian’s

15
16
17

work.203
Hanlon, 150 F.3d at 1020.

199

See Fed. R. Civ. P. 23(g)(1)(A)(i), (ii), (iii), and (iv); Fed. R. Civ. P. 23(g)(4).

200

See Docket No. 133 at 27.

201

18

198

See id. at 4.

19
20
21
202

27

Reich v. Club Universe, 125 Cal. App. 3d 965, 970-972 (1981) (“The reasons for the rule
prohibiting such a dual role by an attorney-potential witness are (1) an attorney who attempts to be
both advocate and witness impairs his credibility as a witness and diminishes his effectiveness as
an advocate, and (2) such conduct may diminish the public’s respect and confidence toward the
profession”); see also Sicinski v. Reliance Funding Corp., 82 F.R.D. 730, 734 (S.D.N.Y. 1979)
(“As stated in Ethical Consideration 5-9 of the Code of Professional Responsibility, ‘(t)he roles of
an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the
cause of another, while that of a witness is to state facts objectively;’); Arthur v. Zearley, 320 Ark.
273, 279-82 (1995) (finding attorney for plaintiffs in prospective class action who testified at class
certification hearing improperly testified and acted as advocate in same proceeding).

28

203

22
23
24
25
26

See Docket No. 169 at 1-2.

44
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

Defendants’ arguments as to plaintiffs’ counsel’s conflicting incentives are unpersuasive,

1
2

especially where the class is transitory204 and where Rosen Bien advocates for reducing jail and

3

prison overcrowding.205 Pursuant to Cal. Gov. Code § 27706(g), conflicts in criminal cases do not

4

carry over into civil cases,206 and Egar’s representation does not implicate California ethics

5

rules.207 An attorney may be both counsel and witness in a single action, although Plaintiffs have

6

stated they do not intend to call Egar to testify.208 The letter Egar once sent to Fithian also does not

7
8
9

United States District Court
For the Northern District of California

10

undermine his ability to represent the plaintiffs adequately. Rosen Bien Galvan & Grunfeld LLP,
Egar and the ACLU all have the necessary experience and resources to litigate cases such as this
one.

11

G.

12

Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on

13

grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory

14
relief is appropriate respecting the class as a whole.” Wal-Mart summarized Rule 23(b)(2)’s
15
16

requirements as follows:
the key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy
warranted—the notion that the 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.” In other words, Rule 23(b)(2)

17
18
19
204

See Docket No. 128 at 13-16.

205

See Docket No. 355 at 32; Docket No. 358 at ¶ 2; Docket No 358-1, Ex. A.

20
21
22

206

See also State v. Lucas, 123 Ariz. 39, 41 (1979) (no conflict between prosecutor prosecuting
man while simultaneously defending the county against the man’s civil lawsuit).

23
207

24

Cal. R. Prof. Conduct 3-100(C).

208

25
26
27
28

See Colyer v. Smith, 50 F. Supp. 2d 966, 974 (C.D. Cal. 1999) (finding that attorneys are not
necessarily disqualified even if they are compelled to be fact witnesses at trial); cf. Cal. R. Prof.
Conduct 5-210 (allowing attorneys to act as witnesses in jury trials under certain circumstances);
Yaman v. Galipo, Case No. 12-cv-7908-GW, 2014 WL 2566129, at *3 (C.D. Cal. June 3, 2014);
McLellan v. McLellan, 23 Cal. App. 3d 343, 360 (Cal. Ct. App. 1972) (allowing attorney
declaration).
45
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

applies only when a single injunction or declaratory judgment would provide relief to each
member of the class. It does not authorize class certification when each individual class
member would be entitled to a different injunction or declaratory judgment against the
defendant.209

1
2
3

These requirements unquestionably are satisfied when putative class members seek uniform
4
5

injunctive or declaratory relief from policies or practices generally applicable to the class as a

6

whole.210 Such an inquiry “does not require an examination of the viability or bases of the class

7

members’ claims for relief, does not require that the issues common to the class satisfy a Rule

8

23(b)(3)-like predominance test, and does not require a finding that all members of the class have

9

suffered identical injuries.”211 Rather, as the rule’s text makes clear, this inquiry asks only whether

United States District Court
For the Northern District of California

10

“the party opposing the class has acted or refused to act on grounds that apply generally to the

11
12

class.”212
The primary role of this provision is the certification of civil rights class actions.213

13
14
15

Following Rule 23(b)(2)’s text and purpose, courts have repeatedly invoked it to certify classes of
209

131 S. Ct at 2557 (citation omitted).

210

See Rodriguez, 591 F.3d at 1125.

16
17
18

211

Parsons, 754 F.3d at 688 (citing Rodriguez, 591 F.3d at 1125; Walters v. Reno, 145 F.3d 1032,
1047 (9th Cir. 1998)).

19
212

20
213

21
22
23
24
25
26
27
28

Fed. R. Civ. P. 23(b)(2).

See Amchem Products, Inc., 521 U.S. at 614 (“Rule 23(b)(2) permits class actions for
declaratory or injunctive relief where ‘the party opposing the class has acted or refused to act on
grounds generally applicable to the class.’ Civil rights cases against parties charged with unlawful,
class-based discrimination are prime examples.” (citations omitted)); Walters, 145 F.3d at 1047
(“Rule 23(b)(2) was adopted in order to permit the prosecution of civil rights actions.”); Baby Neal
for & by Kanter, 43 F.3d at 63 (“The writers of Rule 23 intended that subsection (b)(2) foster
institutional reform by facilitating suits that challenge widespread rights violations of people who
are individually unable to vindicate their own rights.” (citations omitted)); Wright & Miller, 7AA
Fed. Prac. & Proc. Civ. § 1776 (3d ed.) (“[S]ubdivision (b)(2) was added to Rule 23 in 1966 in part
to make it clear that civil-rights suits for injunctive or declaratory relief can be brought as class
actions ... [T]he class suit is a uniquely appropriate procedure in civil-rights cases, which generally
involve an allegation of discrimination against a group as well as the violation of rights of
particular individuals. By their very nature, civil-rights class actions almost invariably involve a
plaintiff class, although they may also be brought against a defendant class.”
46
Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

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inmates seeking declaratory and injunctive relief for alleged widespread constitutional and
statutory violations in prison systems.214
As in Parsons, here Plaintiffs “seek uniform injunctive or declaratory relief from policies or

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practices that are generally applicable to the class as a whole.”215 In their prayer for relief,
Plaintiffs request that Defendants be ordered “to protect [inmates] from substantial risk of harm
from other [inmates], to provide minimally adequate medical [and mental] care to [inmates], and to

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cease discriminating against and failing to provide accommodations to [inmates] with disabilities; .
. . from continuing the unlawful acts, conditions, and practices described in this Complaint; . . . to

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develop and implement, as soon as practical, a plan to eliminate the substantial risk of harm,

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discrimination, and statutory violations that Plaintiffs and members of the class and subclass they

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represent suffer due to the unlawful acts, omissions, conditions and practices described in this

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Complaint [detailing needs for population, staffing, physical plant, protection from harm, training,

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classification and housing, medical care, access to care, medical staffing, emergency care, chronic
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care, medical records, specialist and outside treatment, mental health care, quality assurance, and

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accommodation for inmates with disabilities]; . . . the costs of this suit and reasonable attorneys’

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fees and litigation expenses; . . . retaining jurisdiction . . . until Defendants have fully complied

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with the orders of this Court, and there is reasonable assurance that Defendants will continue to

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comply in the future absent continuing jurisdiction; and [a]n award to Plaintiffs of such other and

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214

Id. at § 1776.1 “[I]t should be noted that a common use of Rule 23(b)(2) is in [inmate] actions
brought to challenge various practices or rules in the prisons on the ground that they violate the
constitution. For example, Rule 23(b)(2) class actions have been utilized to challenge prison
policies or procedures alleged to . . . violate the [inmates’] Eighth Amendment rights to be free
from cruel and unusual punishment.” see also, e.g., Butler, 289 F.R.D. at 101 (certifying Rule
23(b)(2) class of inmates alleging systemic Eighth Amendment violations); Hughes, 2013 WL
1821077, at *20 (same); Rosas, 2012 WL 2061694, at *5 (same); Indiana Prot. & Advocacy Servs.
Comm’n, 2012 WL 6738517 at *18 (same).

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215

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Parsons, 754 F.3d at 688 (quoting Fed. R. Civ. P. 23(b)(2)).

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Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

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further relief as the Court deems just and proper.”216 Plaintiffs’ expert reports also include

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descriptions of the kinds of court-ordered changes in the jail’s policy and practices that could

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alleviate the alleged systemic constitutional and statutory violations, as well as affirmations by all

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experts that court-ordered injunctive relief could effectively alleviate the deficiencies in the jail’s

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policies and practices identified in their reports.

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The County argues Plaintiffs’ requests are too vague regarding constitutional adequacy and
deficiency.217 But the civil rights claims of the inmate class and the inmates with disabilities
subclass “are precisely the sorts of claims that Rule 23(b)(2) was designed to facilitate.”218

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Defendants “ha[ve] acted or refused to act on grounds that apply generally to the class, so that final

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injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

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whole.”219 Plaintiffs satisfy Rule 23(b)(2) because “class members seek uniform relief from a

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practice applicable to all of them.”220 “Contrary to the [D]efendants’ assertion that each inmate's

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alleged injury is amenable only to individualized remedy, every inmate in the proposed class is
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allegedly suffering the same (or at least a similar) injury and that injury can be alleviated for every

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class member by uniform changes in [jail] policy and practice.”221 Plaintiffs request no damages or

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relief for any specific Plaintiff.222 Instead, Plaintiffs seek injunctive and declaratory relief from a

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216

See Docket No. 41 at 132-35.

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See Docket No. 133 at 33-34.

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218

Walters, 145 F.3d at 1047.

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219

Fed. R. Civ. P. 23(b)(2).

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220

Rodriguez, 591 F.3d at 1125; Parsons, 754 F.3d at 688.

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Parsons, 754 F.3d at 689.

222

Docket No. 41 at ¶¶ 410-17.

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ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

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specific set of Defendants’ policies and practices,223 and while each may not affect every member

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of the proposed class and subclass in exactly the same way, they constitute shared grounds for all

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inmates in the proposed classes.224 “For example, every inmate in [jail] custody is allegedly placed

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at risk of harm by [the jail’s] policy and practice of failing to employ enough doctors—an injury

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that can be remedied on a class-wide basis by an injunction that requires [the jail] to hire more
doctors, with the exact number of necessary additional hires to be determined by the district court
if, after a trial, it ultimately concludes that the defendants engaged in unlawful conduct.”225
Because Defendants allegedly established systemic policies and practices that place every inmate

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in the jail in peril, and by allegedly doing so with deliberate indifference to the resulting risk of

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serious harm to them, Defendants have acted on grounds that apply generally to the proposed class

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and subclass, such that Plaintiffs’ prayer for relief would provide an appropriate remedy for

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both.226 Accordingly, Plaintiffs satisfy Rule 23(b)(2).

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V.
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The court GRANTS Plaintiffs’ motion for class certification under Rule 23(b)(2), and

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appoints named Plaintiffs as class representatives. The court also designates as class counsel under

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Rule 23(g) Michael Bien and Gay Crosthwait Grunfeld of Rosen Bien Galvan & Grunfeld LLP,

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223

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See Docket No. 355 at 33; Docket No. 41 at ¶¶ 410-17; Docket No. 108-2 at 2-5; see Parsons,
754 F.3d at 687.
224

See Rodriguez, 591 F.3d at 1125–26; Walters, 145 F.3d at 1047.

225

Parsons, 754 F.3d at 689.

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226

See Fed. R. Civ. P. 23(b)(2). Plaintiffs also claim the class and subclass can also be certified
under Rule 23(b)(1)(A) and (B). See Docket No. 355 at 35; Ashker, 2014 WL 2465191 at *7
(prison conditions case certified under Rule 23(b)(1)(A) for class actions that create a risk of
inconsistent adjudications); Docket No. 358-4, Ex. VV at 107-10; Gray v. County of Riverside,
Case No. 13-cv-0444-VAP, Docket No. 131 at 107-10 (C.D. Cal., Sept. 2, 2014) (Order Granting
Plaintiffs’ Motion for Class Certification, Denying Defendant’s Motion to Dismiss, certifying jail
conditions class action under both Rule 23(b)(1)(A) and (B)). Because the court has found for
certification appropriate under Rule 23(b)(2), the court does not address whether Plaintiffs also
satisfy Rule 23(b)(1).
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Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE

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Monterey County Public Defender James Egar, Alan Schlosser of the American Civil Liberties

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Union of Northern California and Eric Balaban of the American Civil Liberties Union-National

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Prison Project. The class and subclass are defined as follows: “all adult men and women who are

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now, or will be in the future, incarcerated in Monterey County Jail” and “all qualified individuals

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with a disability, as that term is defined in 42 U.S.C. § 12102, 29 U.S.C. § 705(9)(B), and
California Government Code § 12926(j) and (m), and who are now, or will be in the future,

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United States District Court
For the Northern District of California

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incarcerated in Monterey County Jail.”
SO ORDERED.
Dated: January 29, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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Case No.: 5:13-cv-2354-PSG
ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION TO STRIKE