Vandehey et al v. Vallario et al

Filing 153

USCA OPINION AND JUDGMENT (ORDER). The Petition for Review is granted. The case is remanded for the district court to reconsider its class certification order. USCA case no. 08-502. (Attachments: # 1 USCA Judgment, # 2 Letter)(bjrsl, )

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FILED

F e b r u a r y 4, 2009
PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT
E l i s a b e t h A. Shumaker C l e r k of Court

LOU VALLARIO, Sheriff of Garfield C o u n t y , Colorado, in his official c a p a c i t y ; SCOTT DAWSON, a C o mma n d e r in the Garfield County S h e r i f f ' s Department, in his official capacity, Petitioners, v. C L A R E N C E VANDEHEY; WILLIAM L A N G L E Y ; SAMUEL LINCOLN; J A R E D HOGUE, on behalf of t h e ms e l v e s and all others similarly situated, Respondents. PETITION FOR PERMISSION TO APPEAL A CLASS CERTIFICATION ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO ( D . C . No. 06-1405) Josh A. Marks (Melanie B. Lewis and Kim A. Tomey with him on the briefs), Berg H i l l Greenleaf & Ruscitti LLP, Boulder, Colorado, for Petitioners. M a r k Silverstein (Taylor S. Pendergrass, American Civil Liberties Union Foundation o f Colorado, J. Gregory Whitehair, Taggart Hansen, and Marisa B. Hudson-Arney, G i b s o n Dunn & Crutcher LLP, with him on the briefs), American Civil Liberties U n i o n of Colorado, Denver, Colorado, for Respondents. Before KELLY, BALDOCK, and O'BRIEN, Circuit Judges. N o . 08-502

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B A L D O C K , Circuit Judge. The Eighth Amendment, as incorporated against the states through the F o u r t e e n t h Amendment, precludes state prison officials from "knowingly and u n r e a s o n a b l y disregarding an objectively intolerable risk of harm" to inmate health o r safety. See Farmer v. Brennan, 511 U.S. 825, 846 (1994). Respondents, four p r i o r inmates, contend they were exposed to, among other things, such an u n c o n s t i t u t i o n a l risk of harm at the Garfield County Jail. 1 Accordingly, Respondents b r o u g h t an official capacity suit for equitable relief against Petitioners Lou Vallario, t h e Sheriff of Garfield County, and Scott Dawson, the commander charged with a d mi n i s t e r i n g jail operations. Respondents recite a number of jail customs and policies, or the lack thereof, t h a t contribute to the alleged violation of inmates' constitutional rights. Only five a r e relevant to this appeal. First, Respondents challenge the authorized use of c o m p l i a n c e devices; including (1) restraint chairs, (2) pepperball guns, (3) tasers, a n d (4) pepper spray; in a manner that allegedly poses an unjustifiable risk of serious h a r m to inmates. Second, Respondents contest a jail policy requiring inmates to w e a r an electroshock belt to court. 2 Third, Respondents claim deputies' authorized Respondents also raise several claims under Colorado law, which we do not d i s c u s s here. Respondents contend that the use of the belt (1) unduly terrorizes inmates, t h u s inflicting unconstitutional punishment, (2) that a lack of deputy training in (continued...) 2
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u s e of restraint chairs contravenes inmates' "liberty interest in freedom from bodily r e s t r a i n t without due process of law" and places inmates at an unjustifiable risk of s e r i o u s harm. Fourth, Respondents allege Petitioners' policies unconstitutionally d e n y indigent inmates access to psychiatric care. Fifth, Respondents contend

P e t i t i o n e r s routinely place inmates on supermax status without due process of law. T o remedy these inequities, Respondents requested the district court provide them w i t h such "declaratory and injunctive relief . . . as the Court deems just." F a c e d with the prospective mooting of their claims by their imminent release, s e e Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997), Respondents requested t h e district court certify their case as a class action. See Fed. R. Civ. P. 23. The d i s t r i c t court obliged as to all of the foregoing claims, certifying a class composed o f "[a]ll persons who, now or at any time in the future, are or will be prisoners in the c u s t o d y of the Garfield County Sheriff's Department." Petitioners now seek our p e r mi s s i o n to file an interlocutory appeal of the district court's class certification r u l i n g . We have jurisdiction under 28 U.S.C. § 1292(e) and Federal Rule of Civil P r o c e d u r e 23(f). After careful consideration, we grant the petition for review and r e ma n d for further proceedings not inconsistent with this opinion.

(...continued) r e g a r d to the belt puts inmates at an unjustifiable risk of serious harm, and (3) that r e q u i r i n g inmates to wear the belt violates inmates' liberty interest "in being free of . . . restraint and terror." 3

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I. F e d e r a l Rule of Civil Procedure 23(f) provides that a "court of appeals may p e r mi t an appeal from an order granting or denying class-action certification . . . if a petition for permission to appeal is filed with the circuit clerk within 10 days after t h e order is entered." Our circuit has not yet addressed the standard it will use in d e t e r mi n i n g whether to grant such a petition. Accordingly, we proceed to consider t h i s question as a matter of first impression. S o me historical context is in order. No appeal as of right exists from a district c o u r t ' s class certification order unless that order dismisses the action or renders a d e c i s i o n on the merits. See 7B Charles Alan Wright & Arthur R. Miller, Federal P r a c t i c e and Procedure § 1802 (3d ed. 2005) (Federal Practice and Procedure); see a l s o 5 James William Moore et al., Moore's Federal Practice § 23.88[1] (3d ed. 2 0 0 8 ) (noting that a district court's "certification decision is not immediately a p p e a l a b l e as a matter of right"). Despite courts' best efforts to discover more i mme d i a t e avenues for appellate review of class certification decisions, see 7B F e d e r a l Practice and Procedure § 1802, the traditional rule that a party must raise all c l a i me d errors "in a single appeal following" a "final judgment on the merits" g e n e r a l l y prevailed. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 ( 1 9 8 1 ) ; 7B Federal Practice and Procedure § 1802 (noting that prior to 1998 "an a p p e a l of a class-certification determination typically was available only from a d e t e r mi n a t i o n that disposed of the action"). 4

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I n 1998, the Supreme Court significantly altered the legal landscape by a d o p t i n g Federal Rule of Civil Procedure 23(f), which grants appellate courts the d i s c r e t i o n a r y power to permit interlocutory appeals of class certification orders. See F e d . R. App. P. 5 (laying out the procedural requirements for such permissive a p p e a l s ) . In so doing, the Court opened up the restrictive review practices that h i s t o r i c a l l y applied to class certification decisions. See Lienhart v. Dryvit Sys., I n c . , 255 F.3d 138, 145 (4th Cir. 2001). Appellate courts' discretion, under Rule 2 3 ( f ) , is "unfettered" and "akin to the discretion exercised by the Supreme Court in a c t i n g on a petition for certiorari." 3 Fed. R. Civ. P. 23(f) advisory committee's note. C o u r t s of appeals may, therefore, grant or deny permission to appeal a class c e r t i f i c a t i o n order based on "any consideration" they "find[] persuasive." Id. That said, courts of appeals have remained ever mindful that interlocutory a p p e a l s are traditionally disfavored and for good reason. See, e.g., Carpenter v. B o e i n g Co., 456 F.3d 1183, 1189 (10th Cir. 2006); Chamberlan v. Ford Motor Co., 4 0 2 F.3d 952, 959 (9th Cir. 2005); In re Lorazepam & Clorazepate Antitrust Litig., 2 8 9 F.3d 98, 105 (D.C. Cir. 2002). Such appeals are necessarily "disruptive, Waste Mgmt.

t i me - c o n s u mi n g , and expensive" for the parties and the courts.

As part of the general restyling of the civil rules in 2007, the rules c o mmi t t e e deleted Rule 23(f)'s explicit reference to the court of appeals' discretion i n determining whether to grant a petition for interlocutory review. See Fed. R. Civ. P . 23 2007 Amendment advisory committee note. The committee notes make clear, h o w e v e r , that this "omission does not in any way limit the unfettered discretion e s t a b l i s h e d by the original rule." Id. 5

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H o l d i n g s , Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir. 2000); see also In re L o r a z e p a m, 289 F.3d at 105. In the class action context, interlocutory appeals may a l s o serve, quite wrongfully, to discourage district courts from reconsidering their c l a s s certification orders under Federal Rule of Civil Procedure 23(c)(1)(C). See P r a d o - S t e i ma n ex rel. Prado v. Bush, 221 F.3d 1266, 1273 (11th Cir. 2000); see also i d . (recognizing that class certification determinations are "fluid and fact-sensitive"). A s a result, we join our sister circuits in recognizing that the grant of a p e t i t i o n for interlocutory review constitutes "the exception rather than the rule." C h a mb e r l a n , 402 F.3d at 959; see also Prado-Steiman, 221 F.3d at 1273; Mowbray, 2 0 8 F.3d at 294. We will exercise "restraint" in accepting Rule 23(f) petitions and w i l l not accept such petitions "as a matter of course." Prado-Steiman, 221 F.3d at 1 2 7 7 ; see also In re Lorazepam, 289 F.3d at 105 (noting that "it is understood, if not p r e s u me d , that appellate courts will act with cognizance" of the concerns associated w i t h interlocutory appeals). Parties are still generally required to raise all claims of e r r o r , in a single proceeding, after the district court renders a final judgment. See C h a mb e r l a n , 402 F.3d at 959; In re Lorazepam, 289 F.3d at 104-05. This rule r e c o g n i z e s "the limited capacity of appellate courts to consider interlocutory appeals, a s well as the institutional advantage possessed by district courts in managing the c o u r s e " of class litigation. Lienhart, 255 F.3d at 145. Certain instances exist, however, in which interlocutory review of a district c o u r t ' s class certification decision is appropriate. See Carpenter, 456 F.3d at 1189 6

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( n o t i n g that sometimes "countervailing considerations predominate"). Indeed, the S u p r e me Court enacted Rule 23(f) specifically to permit such appeals, pursuant to a n "express grant of authority by Congress to create appellate jurisdiction over nonf i n a l judgments." Lienhart, 255 F.3d at 145; see also 28 U.S.C. § 1292(e). True to t h e broad grant of authority Rule 23(f) provides the courts of appeals in this matter, n o rigid test should govern the exercise of our discretion to grant a petition for i n t e r l o c u t o r y review. See Chamberlan, 402 F.3d at 960; Newton v. Merill Lynch, P i e r c e , Fenner & Smith, Inc., 259 F.3d 154, 165 (3d Cir. 2001); Prado-Steiman, 221 F . 3 d at 1276. We, therefore, simply set forth a set of principles that may prove u s e f u l in evaluating the merits of a Rule 23(f) petition. 4 Interlocutory review of a district court's class certification order is generally a p p r o p r i a t e in three types of cases. The first such category is comprised of "death k n e l l cases," which refers to situations in which a questionable class certification o r d e r is likely to force either a plaintiff or a defendant to resolve the case based on c o n s i d e r a t i o n s independent of the merits. See Chamberlan, 402 F.3d at 959; In re L o r a z e p a m, 289 F.3d at 105; see also Fed. R. Civ. P. 23(f) advisory committee's n o t e . For example, where the high costs of litigation grossly exceed an individual p l a i n t i f f ' s potential damages, the denial of class certification sounds the death knell o f that plaintiff's claims. See Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834

Our approach to Rule23(f) relates most closely to those articulated by the D . C . Circuit in In re Lorazepam and the Ninth Circuit in Chamberlan. 7

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( 7 t h Cir. 1999). In the same vein, if class certification is granted, a defendant's p o t e n t i a l liability may be so enormous that settlement "becomes the only prudent c o u r s e . " Carpenter, 456 F.3d at 1189. A n interest in facilitating the development of the law may also justify granting a petition for interlocutory review. See Blair, 181 F.3d at 835; see also Fed. R. Civ. P . 23(f) advisory committee's note. But this second category of cases is narrow. See F e d . R. Civ. P. 23(f) advisory committee's note (recognizing that "many suits with c l a s s - a c t i o n allegations present familiar and almost routine issues that are no more w o r t h y of immediate appeal than many other interlocutory rulings"). To come within i t s bounds, a certification decision must involve an unresolved issue of law relating t o class actions that is likely to evade end-of-case review, and this issue must be s i g n i f i c a n t to the case at hand, as well as to class action cases generally. See C h a mb e r l a n , 402 F.3d at 959; In re Lorazepam, 289 F.3d at 105. Because law may d e v e l o p through affirmances as well as reversals, the merits of the district court's c e r t i f i c a t i o n ruling has not factored into our consideration of this type of i n t e r l o c u t o r y appeal. See Blair, 181 F.3d at 835. I mme d i a t e review of a district court's class certification ruling may also be f i t t i n g when that decision is manifestly erroneous. See Chamberlan, 402 F.3d at 959; I n re Lorazepam, 289 F.3d at 105. Not every error will meet this threshold. See C h a m b e r l a n , 402 F.3d at 959. To be clear, we will not use this third category of c a s e s as a vehicle to micromanage class actions as they evolve in the district court. 8

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S e e Prado-Steiman, 221 F.3d at 1273. But where the deficiencies of a certification o r d e r are both significant and readily ascertainable, taking into account the district c o u r t ' s discretion in matters of class certification, interlocutory review is appropriate t o save the parties from a long and costly trial that is potentially for naught. See C h a mb e r l a n , 402 F.3d at 959-60; Prado-Steiman, 221 F.3d at 1274-75. In most i n s t a n c e s , a manifest error will be one of law, rather than an incorrect application of t h e law to a given set of facts. See Chamberlan, 402 F.3d at 959. Although cases ripe for consideration under Rule 23(f) will normally fall into o n e of these three categories, see In re Lorazepam, 289 F.3d at 105-06, we emphasize t h a t our discretion in granting or denying a petition for interlocutory review is broad, a n d necessarily so. See Newton, 259 F.3d at 165; Mowbray, 208 F.3d at 294. The l i mi t s of human foresight simply preclude the formulation of a rule that would c l e a r l y delineate every instance in which our interlocutory review of a class c e r t i f i c a t i o n order is appropriate. See In re Lorazepam, 289 F.3d at 106; Newton, 2 5 9 F.3d at 165. Appellate courts must simply exercise their "best judgment in ma k i n g these decisions." Newton, 259 F.3d at 165; see also Blair, 181 F.3d at 834 ( n o t i n g that it would be a mistake to draw up a "list" to determine how appellate c o u r t s ' power under Rule 23(f) should be exercised). As such, special circumstances ma y lead us to deny a Rule 23(f) petition in a case that seems to fit into one of the t h r e e categories we have described. See In re Lorazepam, 289 F.3d at 103.

C o n v e r s e l y , unique circumstances may lead us to grant a Rule 23(f) petition in a case 9

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t h a t falls outside of these bounds. See Chamberlan, 402 F.3d at 960. II. W e review the standard the district court used in making its Rule 23 d e t e r mi n a t i o n de novo and the merits of that determination for an abuse of d i s c r e t i o n . See Shook v. El Paso County, 386 F.3d 963, 967 (10th Cir. 2004) (Shook I ) . Because class certification decisions are necessarily case specific, see Trevizo v . Adams, 455 F.3d 1155, 1163 (10th Cir. 2006), district courts possess significant l a t i t u d e in deciding whether or not to certify a class. See Shook v. Bd. of County C o mm' r s , 543 F.3d 597, 603 (10th Cir. 2008) (Shook II). As long as the district c o u r t applies the proper Rule 23 standard, we will defer to its class certification r u l i n g provided that decision falls within the bounds of rationally available choices g i v e n the facts and law involved in the matter at hand. See id. The abuse of discretion standard, while forgiving, is not without teeth. See I n re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 17 (1st Cir. 2 0 0 8 ) . As the Supreme Court has recognized, some boundaries exist. See Gulf Oil C o . v. Bernard, 452 U.S. 89, 100 (1981) (noting that the district court's discretion i n certifying a class is "bounded by the relevant provisions of the Federal Rules"); s e e also In re Initial Public Offering Sec. Litig., 471 F.3d 24, 40 (2d Cir. 2006). A d i s t r i c t court abuses its discretion when it bases a decision on either a clearly e r r o n e o u s finding of fact or an erroneous conclusion of law, or when its ruling ma n i f e s t s a clear error of judgment. See Kilgore v. Attorney Gen. of Co., 519 F.3d 10

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1 0 8 4 , 1086 (10th Cir. 2008). In this case, the district court committed three such e r r o r s , which are both substantial and manifestly erroneous. This matter thus falls w i t h i n the third category of cases in which interlocutory review is generally a p p r o p r i a t e . As Petitioners requested leave to appeal within the ten-day period p r e s c r i b e d by Rule 23(f), we grant the petition for review and proceed to address e a c h error in turn. See Carpenter, 456 F.3d at 1190 (acknowledging that we treat R u l e 23(f)'s timeliness requirement as jurisdictional and apply Rule 6(a) to calculate t h i s ten-day period). A. T h e district court misconstrued Respondents' allegations in regard to i n a d e q u a t e psychiatric care in determining to certify this claim for the class. R e s p o n d e n t s ' First Amended Class Action Complaint raises the unconstitutionality o f the restrictions Petitioners allegedly placed on the ability of indigent inmates to r e c e i v e mental healthcare. 5 Nonetheless, the district court rested its Rule 23 analysis

See, e.g., First Amended Class Action Complaint at 34 ("As a matter of p o l i c y , . . . Defendants restrict the ability of indigent prisoners to receive mental h e a l t h care."); id. at 51 ("Pursuant to the practice and policy of the Defendants, i n d i g e n t prisoners with serious mental health needs are regularly denied their right t o appropriate mental health care delivered by qualified mental health p r o f e s s i o n a l s . " ) ; id. at 82 (stating that the Constitution requires Petitioners to " p r o v i d e appropriate care and treatment for prisoners with serious mental health n e e d s , even when the prisoners have no money"); see also id. at 52 (noting that the j a i l has a contract with Colorado West Regional Mental Health Center "to provide me n t a l health services to prisoners at the jail"); id. (explaining that "an indigent p r i s o n e r cannot obtain care from any mental health professionals at Colorado West (continued...) 11

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o f this claim on its understanding that "there is no mental health treatment available t o any of the inmates" in the Garfield County Jail. See Order on Amended Motion t o Certify Plaintiff Class and Objection to Magistrate Judge's Recommendation ( C l a s s Certification Order) at 33. O u r precedent is clear that at the class certification stage a district court must g e n e r a l l y accept the substantive, non-conclusory allegations of the complaint as true. S e e Shook I, 386 F.3d at 968; J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 ( 1 0 t h Cir. 1999). Moreover, we have required district courts, in making a class c e r t i f i c a t i o n ruling, to conduct a "rigorous analysis" of Rule 23's requirements. T r e v i z o , 455 F.3d at 1163; J.B., 186 F.3d at 1287. The district court cannot conduct t h i s searching inquiry with a clearly erroneous view of the alleged facts. See In re I n i t i a l Public Offering, 471 F.3d at 38 (recognizing that the district court has an " o b l i g a t i o n " to make a "determination that the requirements of Rule 23 are met"). A s such, the district court abused its discretion. See Newton, 259 F.3d at 165 ( n o t i n g that a district court abuses its discretion by resting its decision on "a clearly e r r o n e o u s finding of fact, an errant conclusion of law or an improper application of l a w to fact"). B. On a broader scale, the district court applied an erroneous view of our

(...continued) u n l e s s " the jail's medical staff "determines that it is necessary"). 12

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p r e c e d e n t s governing the proper standard for class certification analysis under Rule 2 3 . Specifically, the district court viewed the scope of its Rule 23 inquiry as unduly l i m i t e d by our disposition of Shook I. In Shook I, a factually similar case, we c o n c l u d e d the district court improperly denied class certification based on an inquiry i n t o the merits of the movant's claims. See 386 F.3d at 972 (stating that the "district c o u r t erred" by "focus[ing] on whether the court could ultimately fashion a remedy" u n d e r the Prison Litigation Reform Act, rather than "specifically addressing the t r a d i t i o n a l Rule 23 factors in denying class certification"). We subsequently

c l a r i f i e d the import of this decision in Shook II, which issued after the district court f i l e d its certification order in this matter. See Williams v. W.D. Sports, N.M., Inc., 4 9 7 F.3d 1079, 1086 n.5 (recognizing that an "appellate court must apply the law in e f f e c t at the time it renders its decision"). Shook II affirmed the district court's d e n i a l of class certification because the court's reconsidered ruling comported with t h e requirements of Rule 23. See 583 F.3d at 613-14. I n this case, the district court discussed, in some detail, a portion of the Rule 2 3 ( b ) ( 2 ) analysis Judge Matsch conducted on remand after our disposition of Shook I . See Class Certification Order at 37-38. Because the district court found that J u d g e Matsch's reasoning "impermissibly considered the merits of the plaintiffs' c l a i ms , " it declined to address similar concerns raised by Petitioners here. See id. a t 38 n.18. Our decision in Shook II, however, specifically affirmed Judge Matsch's r u l i n g on the basis of his cogent Rule 23(b)(2) analysis. See 543 F.3d at 611 ("The 13

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o n l y question we pass on today is the narrow question whether the relationship b e t w e e n the class proposed and the relief sought in this suit satisfies Rule 23(b)(2)."). T h e district court's error in Shook I was fundamental in that the court c o mp l e t e l y ignored the requirements of Rule 23. See id. at 601 (noting that the " d i s t r i c t court denied class certification without providing any analysis of the factors r e l e v a n t to class certification set forth in Fed. R. Civ. P. 23"). Instead, the district c o u r t ' s decision focused solely on the merits of the movant's claims. See Shook I, 3 8 6 F.3d at 969 n.2. Given the Supreme Court's instruction that compliance with the r e q u i r e me n t s of Rule 23 "remains . . . indispensable," our reversal in that case is u n s u r p r i s i n g . See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). The S u p r e me Court has also recognized, however, that no "impermeable wall" exists b e t w e e n the merits of a case and a district court's decision whether to certify a class. S e e Shook II, 543 F.3d at 612; see also Gen. Tel. Co., 457 U.S. at 160 (stating that c l a s s certification determinations "generally involve[] considerations that are e n me s h e d in the factual and legal issues comprising the plaintiff's cause of action"); C o o p e r s & Lybrand v. Livesay, 437 U.S. 463, 469 n.12 (1978) ("Evaluation of many o f the questions entering into determination of class action questions is intimately i n v o l v e d with the merits of the claims." (quoting 15 Charles Alan Wright, Arthur R. M i l l e r , & Edward H. Cooper, Federal Practice and Procedure § 3911 (1976))). T h e district court in this case correctly noted that the merits of a movant's 14

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c l a i ms may not serve as the focal point of its class certification analysis. See Eisen v . Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). But this does not mean that a d i s t r i c t court is categorically prohibited from considering any factor, in conjunction w i t h its Rule 23 analysis, that touches upon the merits of a movant's claims. See I n i t i a l Public Offering, 471 F.3d at 41 (noting that appellate courts have generally r e q u i r e d district courts to engage in a "definitive assessment of Rule 23 r e q u i r e me n t s , notwithstanding their overlap with merits issues"). To the contrary, w e have specifically acknowledged that the "merits" of the claims at bar may be " i n t e r t w i n e d with" the "proper consideration of other issues germane to whether the c a s e should be certified as a class action." Shook I, 386 F.3d at 974 (quoting A d a ms o n v. Bowen, 855 F.2d 668, 677 n.12 (10th Cir. 1988)). P u t simply, before a district court certifies a class it must ensure that the r e q u i r e me n t s of Rule 23 are met. See In re Initial Public Offering, 471 F.3d at 41. D i s t r i c t courts ensure Rule 23's provisions are satisfied by conducting a "rigorous a n a l y s i s , " Shook I, 386 F.3d at 968, addressing the rule's requirements "through f i n d i n g s , " regardless of whether these findings necessarily "overlap with issues on t h e merits." Shook II, 543 F.3d at 612 (quoting Gariety v. Grant Thornton, LLP, 368 F . 3 d 356, 366 (4th Cir. 2004)); see also Oscar Private Equity Invs. v. Allegiance T e l e c o m, Inc., 487 F.3d 261, 268 (5th Cir. 2007). We, of course, adhere to the p r i n c i p l e that class certification does not depend on the merits of a suit. See Shook I , 386 F.3d at 971; see also In re Initial Public Offering, 471 F.3d at 41 (explaining 15

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t h a t "a district judge should not assess any aspect of the merits unrelated to a Rule 2 3 requirement"). But we will not allow this principle to be "talismanically invoked t o artificially limit" a district court's "reasoned determination" of whether Rule 23's r e q u i r e me n t s have been met. In re Initial Public Offering, 471 F.3d at 38 (quoting L o v e v. Turlington, 733 F.2d 1562, 1564 (11th Cir. 1984)). As we acknowledged in S h o o k II, "a district court "may not evaluate the strength of a cause of action at the c l a s s certification stage," but it must determine, "without passing judgment on w h e t h e r plaintiffs will prevail on the merits," whether a plaintiff has satisfied the p r o v i s i o n s of Rule 23. 543 F.3d at 612. Here, the district court was unable to profit from the additional guidance we o f f e r e d in Shook II. Consequently, the district court ­ through little fault of its own ­ based its class certification ruling on an unduly constrained view of the inquiry a u t h o r i z e d by Rule 23. Because this misconception precluded the district court from c o n d u c t i n g the rigorous analysis our precedents require, we conclude the district c o u r t abused its discretion. See Henning v. Union Pacific R.R. Co., 530 F.3d 1206, 1 2 1 7 (10th Cir. 2008) (recognizing that a "district court abuses its discretion when i t bases its ruling on an erroneous view of the law"). C. The district court also erred in failing to hold Respondents to their burden u n d e r Rule 23(b)(2). See Shook I, 386 F.3d at 968 (recognizing that "the party s e e k i n g to certify a class bears the burden of proving that all the requirements of 16

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R u l e 23 are met"). Once a district court concludes the requirements of Rule 23(a) a r e satisfied, the court may certify a class if it finds the movant has also satisfied the c o n d i t i o n s of either Rule 23(b)(1), (2), or (3). See Amchem Prods., Inc. v. Windsor, 5 2 1 U.S. 591, 614 (1997). In this case, Respondents requested certification under R u l e 23(b)(2). Rule 23(b)(2) requires the movant to show that the party opposing c l a s s certification "acted or refused to act" on grounds generally applicable to the c l a s s , such that final injunctive or declaratory relief is appropriate as to "the class a s a whole." See Shook II, 543 F.3d at 604. Ensuring the provisions of Rule 23(b)(2) are met requires the district court t a k e a close look at the "relationship between" a proposed class, "its injuries, and the r e l i e f sought." Id. Ultimately, if equitable relief is not uniformly applicable to the c l a s s , and thus time-consuming inquiry into individual circumstances or c h a r a c t e r i s t i c s is required, little is gained from the case proceeding as a class action. S e e id.; see also Gen. Tel. Co., 457 U.S. at 155 (explaining that the purpose of class a c t i o n s is to "save[] the resources of both the courts and the parties"). For the d i s t r i c t court to make this case-specific inquiry, a motion for class certification must d e s c r i b e the equitable relief sought in sufficient detail that the district court can c o n c e i v e of an injunction that comports with the requirements of Rules 23(b)(2) and 6 5 ( d ) . See Shook II, 543 F.3d at 605-06; see also id. at 605 n.4 (noting that "the d e g r e e of specificity with which plaintiffs must describe the injunctive relief r e q u e s t e d becomes more exacting as the litigation progresses"). 17

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U n d e r Rule 23(b)(2), the injuries sustained by the class must be "sufficiently s i mi l a r that they can be addressed" in a "single injunction that need not differentiate b e t w e e n class members." Id. at 604. We noted in Shook II that a "class consisting o f all present and future inmates," as Respondents request here, "introduces c o n s i d e r a b l e "variation into the class with respect to the relief sought," raising " q u e s t i o n s about whether injunctive relief is justified for the class as a whole." Id. a t 606 n.5. Moreover, Rule 65(d) mandates that every injunction order "state its t e r ms specifically" and "describe in reasonable detail" the "act or acts restrained or r e q u i r e d . " Movants may not make an end-run around this rule by requesting an i n j u n c t i o n that operates at some "stratospheric level of abstraction." Shook II, 543 F . 3 d at 604. Injunctions simply requiring a defendant "to obey the law" are

g e n e r a l l y "too vague" to satisfy Rule 65(d). Monreal v. Potter, 367 F.3d 1224, 1236 ( 1 0 t h Cir. 2004) (citing Keyes v. Sch. Dist. No. 1, 895 F.2d 659, 668 (10th Cir. 1 9 9 0 ) ) ; see also Shook II, 543 F.3d at 604. Respondents here seek to enjoin a "wide range of behavior" against the "broad c l a s s framed in the complaint." Id. at 607. At the same time, they "eschew[] any e f f o r t to give content" to the equitable relief they request. Id. at 605. Indeed, R e s p o n d e n t s ' class certification motion merely relies on the plea in their complaint f o r such "declaratory and injunctive relief . . . as the Court deems just." 6 See Class

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Respondents argue they need not give content to the equitable relief they (continued...) 18

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C e r t i f i c a t i o n Order at 6 ("[N]either the declaration sought, nor the contours of the r e q u e s t e d injunctive relief, are set forth in the Amended Complaint."). Respondents c a n n o t demonstrate, without more, that "injunctive relief ­ relative to the class ­ is c o n c e i v a b l e and manageable without embroiling" the district court "in disputes over i n d i v i d u a l i z e d situations and constantly shifting class contours." Shook II, 543 F.3d a t 608; see also id. at 606 (recognizing that seeking certification of "a single broad c l a s s . . . without explaining how injunctive relief could deal with many variations w i t h i n the class" invites "concerns about the appropriateness of class-wide relief"). I n failing to require Respondents to carry their burden of showing such relief is p l a u s i b l e , the district court abused its discretion. 7 See Elephant Butte Irr. Dist. v. (...continued) r e q u e s t , citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979), which states that " t h e scope of injunctive relief is dictated by the extent of the violation established." B u t this statement does not stand for the broad proposition Respondents suggest. In C a l i f a n o , the Court merely explained that, provided "a class action is otherwise p r o p e r , " the fact that a resulting injunction is nationwide in scope does not a u t o m a t i c a l l y establish a violation of the principle that equitable relief should "be n o more burdensome to the defendant than necessary to provide complete relief to t h e plaintiffs." 442 U.S. at 702. In the instant case, unlike in Califano, questions r e ma i n as to the propriety of class certification and the geographic scope of any r e s u l t i n g injunctive relief is not at issue. Thus, the statement on which Respondents s o heavily rely is clearly inapposite. This error is striking in light of Petitioners' repeated assertion that the d i s t r i c t court lacked the capacity to provide Respondents with their requested relief. A l t h o u g h the Prison Litigation Reform Act does not inform class certification a n a l y s i s under Rule 23, see Shook I, 386 F.3d at 971, "Rule 23's requirements must b e interpreted in keeping with Article III constraints." Amchem Prods., 521 U.S. at 6 1 3 ; see also Prado-Steiman, 221 F.3d at 1280 (noting that any "analysis of class c e r t i f i c a t i o n must begin with the issue of standing"). Redressability remains an (continued...) 19
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U . S . Dep't of Interior, 538 F.3d 1299, 1301 (10th Cir. 2008) (noting that a "district c o u r t abuses its discretion where it commits a legal error"). III. W e offer a few additional comments to guide the district court on remand. R e s p o n d e n t s ' pleadings are, in many instances, plagued by generalities. For

i n s t a n c e , Respondents rely heavily on the fact that Rule 23(b)(2) was intended to f a c i l i t a t e civil rights cases to justify class certification here. See Plaintiffs'

A me n d e d Motion to Certify Class at 13-14. No doubt exists that Rule 23(b)(2) was i n t e n d e d , in large part, "to enable civil rights class actions," Shook II, 543 F.3d at 6 1 0 , and that district courts have certified classes of prisoners "broadly challenging" t h e conditions of their confinement. Shook I, 386 F.3d at 970. But the simple fact t h a t Respondents bring such a suit does not establish that they have satisfied the p r o v i s i o n s of Rule 23. See Shook II, 543 F.3d at 610; see also E. Tex. Motor Freight S y s . Inc. v. Rodriguez, 431 U.S. 395, 405 (1977).

(...continued) i n t e g r a l part of constitutional standing. See Habecker v. Town of Estes Park, 518 F . 3 d 1217, 1224 (10th Cir. 2008). Thus, plaintiffs are always required to d e mo n s t r a t e that their alleged injuries are "apt to be redressed by a remedy the court i s prepared to give." Latino Officers Ass'n v. Safir, 170 F.3d 167, 170 (2d Cir. 1 9 9 9 ) ; see also Bd. of County Comm'rs v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2 0 0 2 ) ("[C]onstitutional standing requires a court to ask not only whether an injury h a s occurred, but whether the injury that has occurred may serve as the basis for a l e g a l remedy in the federal courts."). The district court could have addressed some o f Petitioners' remedial concerns on this basis. See Gail v. United States, 58 F.3d 5 8 0 , 583 (10th Cir. 1995) (acknowledging that notice pleading, under the rules of c i v i l procedure, emphasizes function over form). 20

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I n every case, the district court must conduct a "careful certification inquiry," U n g e r v. Amedisys Inc., 401 F.3d 316, 319 (5th Cir. 2005), to ensure "the r e q u i r e me n t s of Rule 23 are met." See Anderson v. City of Albuquerque, 690 F.2d 7 9 6 , 799 (10th Cir. 1982). For it is the district court's superior ability to deal with t h e intensely practical considerations informing class certification decisions, which j u s t i f i e s vesting it with substantial discretion to make these determinations in the f i r s t instance. See Trevizo, 455 F.3d at 1163. As such, we emphasize that the d i s t r i c t courts must decide each case "on its own facts," taking into account whatever p r a c t i c a l and "prudential considerations" apply to the matter at hand. Id. Only if the d i s t r i c t court is convinced that the requirements of the federal rules are satisfied may i t certify a class. See Fed. R. Civ. P. 23 2003 Amendment advisory committee note ( " A court that is not satisfied that the requirements of Rule 23 have been met should r e f u s e certification until they have been met."). We also caution the district court against giving undue weight to Respondents' c l a i ms that they will be unable to obtain judicial review of Petitioners' jail practices a b s e n t certification of their requested class. See Class Certification Order at 23 ( " T h e danger of mootness . . . cuts in favor of class certification here."). R e s p o n d e n t s retain the ability to institute a damages action against Petitioners for the u n c o n s t i t u t i o n a l harms they allegedly suffered in their care. See Shook II, 543 F.3d a t 610; see also Green, 108 F.3d at 1300. While not affording Respondents the w h o l e - s a l e injunctive remedy they currently request, an action for damages would 21

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a l l o w a court to review the constitutionality of Petitioners' policies. See Shook II, 5 4 3 F.3d at 610. Damages actions also provide substantial incentives for public o f f i c i a l s to modify their future conduct. See id.; Dotson v. Chester, 937 F.2d 920, 9 3 2 (4th Cir. 1991). Accordingly, the district court should view Respondents' bald a s s e r t i o n s in this regard with some skepticism. With these observations, we GRANT the petition for review and REMAND f o r the district court to reconsider its class certification order.

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No. 08-502, Lou Vallario et al., v. Clarence Vandehey et al. K E L L Y , Circuit Judge, concurring in result. I concur in the result. I agree with the court that this case requires us to r e ma n d for clarification to be sure that the district court had an accurate view of t h e facts with regard to Respondents' claims of inadequate psychiatric care. However, I write separately to indicate my understanding of how district courts s h o u l d negotiate the complex analysis required under Rule 23 for class c e r t i f i c a t i o n while avoiding a consideration of the merits under the PLRA. I n Shook v. El Paso County, we reversed a district court's denial of class c e r t i f i c a t i o n in a similar case because the court "prematurely focused on whether t h e court could ultimately fashion a remedy that satisfied the strictures of [the P L R A ], " rather than engaging in an analysis that specifically addressed the f a c t o r s required under Rule 23. 386 F.3d 963, 972 (10th Cir. 2004) (Shook I). In a second iteration of Shook v. El Paso County, which affirmed a district court's d e n i a l of class certification in an opinion issued after the district court's opinion i n this case, we further elaborated on the analysis required. 543 F.3d 597 (10th C i r . 2008) (Shook II). Specifically, we stated that, "Rule 23(b)(2) authorizes an i n q u i r y into the relationship between the class framed in the complaint and i n j u n c t i v e relief requested." Id. at 614. Essentially, a district court is "required t o consider whether the remedies the class sought applied equally to all cases p e n d i n g within the class." Shook I, 386 F.3d at 971 (citation and alterations o mi t t e d ) .

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T h i s analysis necessarily requires district courts to walk a fine line between p e r mi s s i b l y assessing whether the relief requested could alleviate the complaints o f the class as a whole and impermissibly assessing the merits of the case under t h e PLRA. "In other words, while a district court may not evaluate the strength o f a cause of action at the class certification stage, it must consider, without p a s s i n g judgment on whether plaintiffs will prevail on the merits, whether r e me d y i n g the harm alleged can be done on a class-wide basis in conformity with R u l e 23(b)(2)." Shook II, 543 F.3d at 612; see also Maj. Op. at 16. The court n o w warns against an "end-run" around Rule 65(d), and explains that " [ i ]n j u n c t i o n s simply requiring a defendant to obey the law are generally too v a g u e to satisfy Rule 65(d)." Maj. Op. at 18 (internal quotation marks and c i t a t i o n omitted). While this is no doubt correct, I am concerned by this court's s u g g e s t i o n , as well as the dicta in Shook II, 543 F.3d at 605, that apparently seeks t o impose significantly more than is called for under Rule 23(b)(2) upon those s e e k i n g class certification. The rule merely requires pleading facts that would r e f l e c t "the party opposing the class has acted or refused to act on grounds that a p p l y generally to the class, so that final injunctive relief . . . is appropriate r e s p e c t i n g the class as a whole." Fed. R. Civ. P. 23(b)(2). It is up to the district c o u r t to construct an appropriate order after hearing the evidence and neither Rule 2 3 ( b ) ( 2 ) or Rule 65(d) impose any "specificity requirement" on the moving party o t h e r than as above noted. -2-

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I n any event, as discussed, Shook II, which clarified the extent to which a d i s t r i c t court must inquire into whether the relief requested is appropriate, was d e c i d e d after the district court opinion in this case. Because the trial judge did n o t have the benefit of Shook II, it appears that he felt unnecessarily constrained f r o m making any inquiry into the mechanics of the injunction requested, and b e c a u s e the Respondents did not provide such information, I concur in the result t h a t this case be remanded for clarification as to whether the injunctive relief r e q u e s t e d would alleviate the various complaints alleged.

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