Parish v. Sheriff of Cook County et al

Filing 314

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/31/16Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL PARISH, CURTIS L. OATS,
LEILA KHOURY, SEAN DRISCOLL,
CARLA LOFTON, ROY CLEAVES,
LISA BROWN, DAN TAYLOR,
DEAN MILLER, KEVIN SANDERS,
STACEY CLARK and CARLOTTE
WILSON, on behalf of themselves and
all others similarly situated,
Plaintiffs,
v.
SHERIFF OF COOK COUNTY and
COOK COUNTY,
Defendants.

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07 C 4369
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
In this class action brought pursuant to 42 U.S.C. § 1983, Plaintiffs have sued the Sheriff
of Cook County and Cook County alleging that Cook County Jail (CCJ) has policies and
practices of deliberate indifference to their serious medical needs in violation of their due process
rights under the Fourteenth Amendment. Judge Matthew F. Kennelly certified, under Fed. R.
Civ. P. 23(b)(3), a class of “all persons confined at the Cook County Jail on and after August 3,
2005 who provided notice that he or she had been taking prescription medication for a serious
health need and who was not provided with appropriate medication within 24 hours thereafter.”
Parish v. Sheriff of Cook Cty., No. 07 C 4369, 2008 WL 4812875, at *6 (N.D. Ill. Oct. 24, 2008).
The parties then conducted discovery, and fact and expert discovery has concluded. Defendants
have moved to decertify the class. After holding several hearings on the motion and receiving
supplemental briefing, the Court denies the motion to decertify the class.

Facts
The facts as alleged in the Second Amended Complaint were set forth in Judge
Kennelly’s Memorandum Opinion and Order granting the motion for class certification, and the
Court need not repeat them in detail here. In August 2007, Plaintiffs filed suit, alleging that
Defendants implemented various categorical policies that denied or delayed the dispensing of
necessary prescription medication to detainees at CCJ. 2d Am. Compl., ¶¶ A.c., B.c. Such
policies, according to Plaintiffs, constitute deliberate indifference to their serious medical needs
in violation of their Fourteenth Amendment rights.
Judge Kennelly certified the following class under Rule 23(b)(3): “all persons confined at
the Cook County Jail on and after August 3, 2005 who provided notice that he or she had been
taking prescription medication for a serious health need and who was not provided with
appropriate medication within 24 hours thereafter.” Parish, 2008 WL 4812875, at *6. In doing
so, he stated that Plaintiffs based their theory of liability on Defendants’ alleged policy of
allowing unqualified personnel to usurp decisions made by medical doctors and other categorical
policies. Id. at *3. Defendants did not seek appellate review under Federal Rule of Civil
Procedure 26(f).
The case was then reassigned to Judge Gary Feinerman upon appointment to the bench.
The parties conducted and completed fact and expert discovery.

The case has since been

reassigned to this Court’s docket.
Defendants subsequently moved to decertify the class arguing that Judge Kennelly erred
in certifying the class and that certain facts revealed during discovery require decertification.
Because the Court had several questions regarding the nature and scope of Plaintiffs’ claims, the
Court held a number of hearings and ordered supplemental briefing on the motion to decertify.

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This enabled the parties to clarify their positions in their statements to the Court and written
submissions.
Discussion
Pursuant to Rule 23(c)(1)(C), “[a]n order that grants or denies class certification may be
altered or amended before final judgment.”

Fed. R. Civ. P. 23(c)(1)(C).

“Even after a

certification order is entered, the judge remains free to modify it in the light of subsequent
developments in the litigation.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982).
However, “[i]n the absence of materially changed or clarified circumstances, or the occurrence
of a condition on which the initial class ruling was expressly contingent, courts should not
condone a series of rearguments on the class issues by . . . the opponent of the class . . . .” 3 W.
Rubenstein, A. Conte & H. Newberg, Newberg on Class Actions § 7:47 (4th ed. 2011). 1
In addition, the scope of review of Judge Kennelly’s ruling is further limited because
“law-of-the-case principles are applicable when a case is transferred to a new judge midway
through litigation; in general, the successor judge is discouraged from reconsidering the
decisions of the transferor judge.” Gilbert v. Ill. State Bd. of Educ., 591 F.3d 896, 902 (7th Cir.
2010); see Brengettcy v. Horton, 423 F.3d 674, 680 (7th Cir. 2005). “The successor judge
should depart from the transferor judge’s decision only ‘if he has a conviction at once strong and
reasonable that the earlier ruling was wrong, and if rescinding it would not cause undue harm to
the party that had benefitted from it.’” Gilbert, 591 F.3d at 902 (quoting HK Sys., Inc. v. Eaton
Corp., 553 F.3d 1086, 1089 (7th Cir. 2009)).

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Defendants rely on Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007), as persuasive
authority for the proposition that, on a motion to decertify, the Court must stringently examine whether
Plaintiffs have established they are similarly situated. See Defs.’ Reply Supp. Mot. Decertify Class 2.
Unlike the facts of this case, however, the Anderson court discussed the similarly situated requirement in
the context of denying a motion to decertify at the second stage of an FLSA class action alleging classwide age discrimination. Thus, the Court does not find Anderson applicable here.

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With these principles in mind, the Court concludes that there are no materially changed
or clarified circumstances or changes in the law requiring decertification. Furthermore, the
Court does not have a strong and reasonable conviction that Judge Kennelly’s ruling was
incorrect. Accordingly, the Court denies the motion to decertify.
I. Asserted Policies
After Defendants moved to decertify the class, the Court asked Plaintiffs to clarify the
various categorical policies upon which they base their deliberate indifference claim. Plaintiffs
assert that CCJ had several unconstitutional policies. Pls.’ Mem. Resp. Defs.’ Suppl. Br. Supp.
Mot. Decertify at 6–7; ECF No. 308. These categorical policies were alleged in Plaintiffs’
Second Amended Complaint:
A. Policy 1 (“Psychotropic Medication Screening Policy”)
Plaintiffs assert that, after a cursory review, an unqualified intake screener, without
consulting a physician, would discontinue psychotropic medication after a detainee provided
notice that it had been prescribed by the detainee’s psychologist or psychiatrist. 2d Am. Compl.
¶¶ 4.A.b, 4.A.c, 4.A.d. For example, Parish alleges that, although he arrived at the jail with the
medication in 2005, the intake screener exercised his or her discretion and concluded that Parish
should no longer receive the psychotropic medication. Id. ¶¶ 8–9. Only after Parish attempted
suicide did CCJ provide him with the psychotropic medication. Id. ¶ 11. When Parish returned
to the CCJ in 2007, he notified the intake screener that he had been prescribed psychotropic
medication, but he did not receive the medication until after he attempted suicide again. Id. ¶¶
12–16.

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B. Policy 2 (“Anti-Depressant Swap Screening Policy”)
According to Plaintiffs, in those instances when CCJ screeners did not discontinue
treatment of the detainee’s mental health issues altogether, they regularly would replace
previously prescribed psychotropic medications with less-costly anti-depressants that were
ineffective in treating detainees’ psychoses. Id. ¶ 4.A.f; see Parish, 2008 WL 4812875, at *1.
Under this theory, Plaintiffs assert that, even if intake screeners determined that some treatment
for mental disorders is necessary, the screeners then would have no choice but to swap the
medications for cheaper alternatives.
Plaintiffs further assert that the Anti-Depressant Swap Policy is not limited to intake
screeners, but also applied to physicians, who treat detainees at CCJ throughout their stay. But
the only paragraph in the Second Amended Complaint that even arguably could be construed to
allege that this policy extended beyond the intake process is Paragraph A.f. When viewed in
context, however, it is apparent that this claim too is limited to the intake process. Indeed, all of
Plaintiffs’ allegations regarding the other policies, including a similar allegation made with
respect to non-psychotropic medications, are limited to the intake process. And the entire focus
of the Second Amended Complaint, when read as a whole, is on the intake process. See, e.g., 2d
Am. Compl. ¶¶ 4.A.a; 4.B.a, b, f, h, i.; see also id. ¶ 5 (stating that “plaintiffs bring this action
pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure for all persons confined at the
Cook County Jail on and after August 3, 2005, who provided notice that he or she had been
taking prescription medication for a serious health need and who was not provided with
appropriate medication within 24 hours thereafter”).
These are the allegations that framed Judge Kennelly’s certification of a class consisting
of “all persons confined at the Cook County Jail on and after August 3, 2005 who provided

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notice that he or she had been taking prescription medication for a serious health need and who
was not provided with appropriate medication within 24 hours thereafter.” Parish, 2008 WL
4812875, at *6. As such, his certification of the class clearly was based on the policies allegedly
employed at CCJ during the intake process, rather than policies that may have applied to the rest
of a detainee’s stay. That said, to the extent that Plaintiffs contend that physicians also were
involved in implementing these intake policies, such conduct would fall within the allegations of
the Second Amended Complaint and Judge Kennelly’s certification order. Accordingly, the
Court views the Anti-Depressant Swap Screening Policy as applying to screeners and physicians
involved in the initial intake process.
C. Policy 3 (“Nonpsychotropic Medication Screening Policy”)
Plaintiff also allege that an unqualified intake screener, without consulting a physician,
would discontinue nonpsychotropic medication after a detainee provided notice that it had been
prescribed by the detainee’s physician. Id. ¶¶ 4.B.b–4.B.i. Examples of these medications
included those prescribed to treat the detainee’s asthma, diabetes, congestive heart failure,
infection, pain, enlarged prostate, acid reflux, and hepatitis C. Id. ¶¶ 53, 63, 69, 73, 79. 2
D. Policy 4 (“Post-Screener-Denial Policy”)
According to Plaintiffs, after an intake screener discontinued prescribed nonpsychotropic
medication, CCJ would not provide a speedy procedure that allowed a detainee to see a physician
in order to override the intake screener’s determination. Id. ¶ 4.B.g.

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Although Plaintiffs had asserted in open court that they based their deliberate indifference claim
on CCJ’s methadone tapering policy, they have since conceded that they are only asserting that
methadone is one of the medications under the Nonpsychotropic Screen Policy that was not provided
within 24 hours after the detainee notified the intake screener that the detainee had been prescribed a
particular dosage of methadone. Pls.’ Mem. Resp. Defs.’ Suppl. Br. Supp. Mot. Decertify at 12–13.

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E. Policy 5 (“Hospital-to-CCJ Transfer Policy”)
Plaintiffs also assert that CCJ had a policy of discontinuing prescribed nonpsychotropic
medication even when a detainee was transferred from a hospital to CCJ with prescribed
medications relating to the conditions for which the detainee was hospitalized. 2d Am. Compl. ¶
4.B.e. This policy is based on the presumption that detainees who arrive at CCJ in this manner
were required to go through a different intake process than all other detainees such that this
policy was not redundant of the Nonpsychotropic Screening Policy. Furthermore, the class
description includes class members who could assert a deliberate indifference claim based on the
Hospital-to-CCJ Transfer Policy.
F. Policy 6 (“No Privacy Policy”)
Lastly, Plaintiffs allege that CCJ conducted intake evaluations in overcrowded areas with
little privacy. Id. ¶ 4.B.a; see Pls.’ Reply Mem. Supp. Mot. Class Cert. at 3–4, ECF No. 40
(arguing that a detainees are disinclined to divulge information about being HIV-positive in such
an environment). Because Judge Kennelly certified the class as including only those detainees
who provided notice that he or she had been taking prescription medication for a serious health
need, however, detainees who did not tell the intake screener that they had been prescribed a
particular medication for a serious health need are not members of the class.

Moreover,

Plaintiffs have not asserted that Judge Kennelly erred in adopting the class definition that they
themselves proposed. Accordingly, because no one that fits within the class definition could
assert the No Privacy Policy, it cannot form the basis for the class’s deliberate indifference
claim.
The Court therefore views Judge Kennelly’s class certification ruling as recognizing five
policies as they are alleged by Plaintiffs: (1) the Psychotropic Medication Screening Policy; (2)

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the Anti-Depressant Swap Screening Policy; (3) the Nonpsychotropic Medication Screening
Policy; (4) the Post-Screener-Denial Policy; and (5) the Hospital-to-CCJ Transfer Policy.
Plaintiffs assert that, although there have been some improvements, these policies have
continued to exist throughout the entire class period, i.e., from August 3, 2005, to present. See
Pls.’ Mem. Resp. Defs.’ Suppl. Br. Supp. Mot. Decertify at 15–19. And Defendants simply have
not conclusively established that any changes made to CCJ’s intake screening over the years
have mooted the five categorical intake policies on which Plaintiffs’ deliberate indifference
claim is based. See Defs.’ Mem. Supp. Mot. Decertify at 1–25; Defs.’ Suppl. Mem. Supp. Defs.’
Mot. Decertify at 9–12. 3 With these policies in mind, the Court proceeds to the Rule 23 analysis.
II. Class Prerequisite
As an implicit prerequisite to class certification, courts require “ascertainability,” or, in
other words, “that classes be defined clearly and based on objective criteria.” Mullins v. Direct
Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).

Three typical problems arise as to

ascertainability: (1) the class definition is so vague, amorphous, or imprecise that a court cannot
determine who should receive notice; (2) the class definition is based on subjective criteria such
as a person’s state of mind; and (3) the class is defined in terms of success on the merits so that a
class member either wins or by losing, falls out of the class and is not bound by the judgment (a
“fail-safe class”). Id. at 659–660.
Here, Defendants argue that the class definition presents an impermissible “fail-safe
class.” See Defs.’ Mem. Supp. Mot. Decertify at 22–23. Again, a fail-safe class is “a class
which would be bound only by a judgment favorable to plaintiffs but not by an adverse
judgment.” Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980). In other words, a fail-safe
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Of course, whether Plaintiffs have raised a genuine issue as to a material fact regarding whether
the five policies existed throughout the class period and whether the policies have violated their
constitutional rights will be assessed on summary judgment.

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class is “defined in a way that precludes membership unless the liability of the defendant is
established. When the class is so defined, once it is determined that a person, who is a possible
class member, cannot prevail against the defendant, that member drops out of the class.” Kamar
v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010) (stating that a fail-safe class “is
palpably unfair to the defendant, and is also unmanageable—for example, to whom should the
class notice be sent?”).
The Court notes that, prior to their motion to decertify the class, Defendants did not
object to the class definition and failed to even mention this issue anywhere in their brief in
opposition to class certification. See Defs.’ Resp. Pls.’ Mot. Class Certification at 1–15; Defs.’
Mem. Supp. Mot. Decertify Class at 22–23. The class definition has not changed since Plaintiffs
first proposed it in their motion to certify the class years ago. See Pls.’ Mot. Certify Class Action
at 1. Defendants did not seek appellate review of Judge Kennelly’s class certification under
Federal Rule of Civil Procedure 26(f). Judge Kennelly adopted Defendants’ proposal with
regard to how class members should be notified and Plaintiffs have provided notice of the
pendency of the case to 105,168 potential class members. Because Defendants have not met
their burden in establishing that it is proper to revisit the issue at this late date, the Court denies
the motion to decertify on this basis.
In any event, Defendants’ argument is unpersuasive. The class definition in this case is
not a circular one that determines the scope of the class only after liability attaches. Defendants
rely on Adashunas, 626 F.2d at 603, but that case is distinguishable. There, plaintiffs proposed a
class consisting of “children entitled to a public education who have learning disabilities and
who are not properly identified and/or who are not receiving a special education.” Id. The court
held that such a definition constituted a fail-safe class because only those class members who

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proved they had a learning disability would be bound by any judgment, while those who were
unable to prove they had a learning disability would be free to sue defendants anew because they
were not members of the class. Id. at 604.
In contrast to the class definition in Adashunas, here if it is determined that Defendants
did not maintain any of the asserted categorical policies or that a certain policy did not create a
substantial risk of harm to detainees, such a judgment would bind all persons confined on or after
August 3, 2005, who had provided notice that he or she had been taking prescription medication
for a serious health need and who had not been provided with appropriate medication within 24
hours thereafter. Membership in the class is not dispositive of liability. Furthermore, because
any prescription medication notification is indicated on intake or transfer records, the parties are
able to determine who is a member of the class. Thus, even if the Court were to reach the merits
of whether the class definition creates a fail-safe class, the Court would deny the motion to
decertify on this ground.
Defendants’ argument regarding the threshold prerequisites that must be considered prior
to engaging in a Rule 23 analysis does not leave the Court with a strong and reasonable
conviction that class certification was improvidently granted. The Court therefore proceeds to
the Rule 23 analysis.
III. Rule 23(a) Requirements
“A plaintiff who moves for class certification must satisfy the numerosity, commonality,
typicality, and adequacy of representation requirements of Rule 23(a), as well as at least one
subsection of Rule 23(b).” Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012); see
Amgen Inc. v. Conn. Retirement Plans & Trust Funds, ___ U.S. ____, 133 S. Ct. 1184, 1191
(2013). Defendants argue that Judge Kennelly erred in holding that Plaintiffs had satisfied Rule

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23(a)’s requirements of numerosity, commonality, and typicality. Defendants also contend that a
change in the law and newly uncovered facts undermine the finding that these requirements have
been met.
A. Numerosity
Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). A class with as few as forty members has been held to
satisfy the numerosity requirement. See Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326,
1333 n.9 (7th Cir. 1969); see also Pruitt v. City of Chi., 472 F.3d 925, 926–27 (7th Cir. 2006)
(“Sometimes even 40 plaintiffs would be unmanageable.”).
Judge Kennelly held that Plaintiffs satisfied numerosity after reviewing 180 affidavits
executed by putative class members in Duran v. Sheehan, No. 74 C 2949. Defendants argue that
the affidavits were unsworn and thus do not constitute evidence of numerosity. Defs.’ Reply Br.
Supp. Mot. Decertify at 3–4. An affidavit is properly sworn under oath if it declares under
penalty of perjury that the statements contained in an affidavit are true. Dale v. Lappin, 376 F.3d
652, 655 (7th Cir. 2004). Because each of the 180 affidavits contains such a declaration, Judge
Kennelly properly considered them. Parish, 2008 WL 4812875, at *3; see Defs.’ Reply Supp.
Mot. Decertify, Ex. A, Sworn Declarations. Furthermore, in each affidavit the detainee states
that the intake personnel was told that he or she was taking prescription medication to treat a
particular condition and that the detainee never received the medication. See, e.g., Defs.’ Reply
Supp. Mot. Decertify, Ex. A, Sworn Declarations. Accordingly, the Court denies Defendants’
motion to decertify on this ground.

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B. Commonality
Next, Defendants argue Judge Kennelly erred in holding that there are questions of law or
fact common to the class because, at the time of his ruling, he did not have the guidance of WalMart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011). See Defs.’ Reply Supp. Mot. Decertify
Class at 2. The Court disagrees.
Commonality requires “questions of law or fact common to the class,” Fed. R. Civ. P.
23(a)(2), although “even a single common question will do,” Wal-Mart, 131 S. Ct. at 2556
(alterations and quotation marks omitted). “[T]he Supreme Court explained in Wal-Mart that
superficial common questions—like . . . whether each class member ‘suffered a violation of the
same provision of law’—are not enough.” Jamie S., 668 F.3d at 497 (quoting Wal-Mart, 131 S.
Ct. at 2551). Rather, putative class plaintiffs’ “claims must depend upon a common contention
. . . [t]hat . . . must be of such a nature that it is capable of classwide resolution—which means
that determination of its truth or falsity will resolve an issue that is central to the validity of each
one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551.
Thus, “the raising of common ‘questions’—even in droves,” is not enough; the key to
commonality is whether a classwide proceeding can “generate common answers apt to drive the
resolution of the litigation. Dissimilarities within the proposed class are what have the potential
to impede the generation of common answers.” Id. (quotation marks omitted). Because this has
always been a part of the Rule 23 inquiry, numerous courts have held that Wal-Mart did not
change the law regarding class certification. See N.B. ex rel. Buchanan v. Hamos, No. 11 C
6866, 2012 WL 1953146, at *9 (N.D. Ill. May 30, 2012) (Pallmeyer, J.) (stating that Wal-Mart
does not change the analysis of class certification issues and “the Seventh Circuit has recognized
. . . the holding in [Wal-Mart] does not apply where [injury] results from a defendant’s

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standardized conduct toward proposed class members, such as generalized policies that affect all
class members in the same way”); Corey H. v. Bd. of Educ. of City of Chi., No. 92 C 3409, 2012
WL 2953217, at *5 (N.D. Ill. July 19, 2012) (Gettleman, J.) (“[I]t hardly needs stating that
neither [Wal-Mart] nor Jamie S. ‘changed’ the law on class certification.”); see also McReynolds
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 487–90 (7th Cir. 2012) (allowing,
post-Wal-Mart, class certification for a disparate impact claim challenging company-wide
policies allowing brokers to form their own teams and distributing accounts based on broker
performance).
Because Wal-Mart does not represent a change in the law, that case, in and of itself, does
not provide a basis for revisiting Judge Kennelly’s ruling as to commonality. Moreover, Judge
Kennelly’s ruling was correct. Judge Kennelly held that a class-wide proceeding would generate
a common answer as to whether Defendants had policies of allowing intake screeners to
discontinue a detainee’s prescription medication or to swap out previously prescribed medication
with an ineffective substitute without consulting a physician. This common answer will resolve
an issue that is central to the validity of each one of the claims of over 100,000 putative class
members in one fell swoop. Accordingly, the Court is not left with a strong conviction that
Judge Kennelly erred in holding that Plaintiffs satisfied the commonality requirement.
The Court notes that, in support of their motion to decertify the class, Defendants
primarily argue that discovery has revealed that Plaintiffs are unable to prove that the categorical
policies on which they base their deliberate indifference claim existed or, if they existed, that the
policies violated Plaintiffs’ constitutional rights. Defs.’ Mem. Supp. Mot. Decertify at 8–11;
Defs.’ Suppl. Mem. Supp. Mot. Decertify at 2–3. But such questions go to the heart of the merits
of Plaintiffs’ claim and are more appropriately left for summary judgment. See Tyson Foods,

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Inc. v. Bouaphakeo, ___ S. Ct. ____, No. 14-1146, 2016 WL 1092414, at * 9 (Mar. 22, 2016)
(“[T]he concern about the proposed class is not that it exhibits some fatal dissimilarity but,
rather, a fatal similarity—[an alleged] failure of proof as to an element of the plaintiffs’ cause of
action—courts should engage that question as a matter of summary judgment, not class
certification.”); Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 677 (7th Cir. 2001) (“A court
may not say something like ‘let’s resolve the merits first and worry about the class later’ . . . or
‘I’m not going to certify a class unless I think that the plaintiffs will prevail.’”). The Court
therefore denies Defendants’ motion to decertify on these grounds.
C. Typicality
“The question of typicality in Rule 23(a)(3) is closely related to the preceding question of
commonality.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). A “plaintiff’s claim is
typical if it arises from the same event or practice or course of conduct that gives rise to the
claims of other class members and his or her claims are based on the same legal theory.” De La
Fuente v. Stokeley–Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983).

Although “[t]he

typicality requirement may be satisfied even if there are factual distinctions between the claims
of the named plaintiffs and those of other class members,” the requirement “primarily directs the
district court to focus on whether the named representatives’ claims have the same essential
characteristics as the claims of the class at large.” Id.
In support of their motion for class certification, Plaintiffs provided over a hundred
putative class members’ sworn affidavits stating that intake screeners were notified that the
detainee’s physician had prescribed medication to treat a medical condition, but the detainee
never received the prescription or received it days, weeks, or even months later. See 2d Am.
Compl. ¶¶ 7–83; Pls.’ Mem. Supp. Mot. Certify Class, Ex. 1, Affidavits. Plaintiffs aver that they

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all were impacted by Defendants’ categorical intake policies of allowing untrained intake
screeners to usurp decisions made by medical doctors. Furthermore some detainees provide
sworn affidavits recounting how CCJ refused to provide prescribed psychotropic medications
only to replace them with ineffective, less costly anti-depressants. Because each class member’s
claim arises from the same policies of Defendants, the named Plaintiffs’ claims satisfy the
typicality requirement.
In response, Defendants assert that Plaintiffs “have no common experiences save
incarceration and this lawsuit.” See Defs.’ Reply Supp. Mot. Decertify Class at 6. Defendants
point to inconsistencies between the named Plaintiffs’ allegations regarding the denial of
psychotropic medication and Dr. Lynn Sanders’ seventy-one page summary of Plaintiffs’
medical records in order to show that no such policy exists or that class members were not
harmed. See Defs.’ Mem. Supp. Mot. Decertify Class at 14–18, 23–25. Defendants also argue
that discovery has revealed that certain of the putative class members have not suffered a
substantial risk of harm, such that the named plaintiffs’ claims are not typical of the class. See
Defs.’ Mem. Supp. Mot. Decertify Class at 23–25. But, again, such arguments strike at the
merits of Plaintiffs’ case and are more properly addressed on summary judgment. See Messner
v. Northshore Univ. HealthSystem, 669 F.3d 802, 823 (7th Cir. 2012) (“All of this is at best an
argument that some class members’ claims will fail on the merits if and when damages are
decided, a fact generally irrelevant to the district court’s decision on class certification.”); see
also Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009) (“[A] class will often
include persons who have not been injured by the defendant’s conduct; indeed this is almost
inevitable because at the outset of the case many of the members of the class may be unknown,
or if they are known still the facts bearing on their claims may be unknown. Such a possibility or

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indeed inevitability does not preclude class certification . . . .”). In sum, Defendants have failed
to establish that typicality is an issue that should be revisited at this time or that Plaintiffs have
not satisfied the requirement.
D. Adequacy of Named Class Members’ Representation
“The final subdivision of Rule 23 requires that the representative parties fairly and
adequately represent the class.” Rosario, 963 F.2d at 1018. “A class is not fairly and adequately
represented if class members have antagonistic or conflicting claims.” Id. Further, the named
representative must have a “sufficient interest in the outcome to assure that she will adequately
and fairly represent the class.” Movement for Opportunity & Equality v. Gen. Motors Corp., 622
F.2d 1235, 1253 (7th Cir. 1980).
Defendants do not claim that the named Plaintiffs have antagonistic or conflicting claims.
Instead, they argue that the ultimate treatment received by each Plaintiff differed. Although the
length of delay in providing medication may affect damages, it does not render the named
Plaintiffs inadequate representatives of the class claims. Each class member’s claim is based on
Defendants’ purported policy of permitting unqualified persons to discontinue medication
previously prescribed by a detainee’s physician upon Plaintiffs’ arrival at CCJ, or the policy of
swapping out psychotropic medication with cheaper, ineffective anti-depressants upon intake at
CCJ. Whether Plaintiffs will be able to create a triable issue as to the existence of such policies
is an issue for summary judgment or trial, and whether each Plaintiff will ultimately be able to
prove damages resulting from the policies can be addressed at a subsequent stage of this
litigation.

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IV. Rule 23(b)(3) Requirements
“To qualify for certification under Rule 23(b)(3), a class must meet two requirements
beyond the Rule 23(a) prerequisites: Common questions must ‘predominate over any questions
affecting only individual members’; and class resolution must be ‘superior to other available
methods for the fair and efficient adjudication of the controversy.’” Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 615 (1997) (quoting Fed. R. Civ. P. 23(b)(3)). “The matters pertinent to
these findings include:

(A) the class members’ interests in individually controlling the

prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning
the controversy already begun by or against class members; (C) the desirability or undesirability
of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties
in managing a class action.” Fed. R. Civ. P. 23(b)(3).
“Rule 23(b)(3)’s predominance requirement is satisfied when common questions
represent a significant aspect of [a] case and . . . can be resolved for all members of [a] class in a
single adjudication.” Messner, 669 F.3d at 815 (quotation omitted). In other words, “common
questions can predominate if a common nucleus of operative facts and issues underlies the
claims brought by the proposed class.” Id. (quotation marks omitted). Rule 23(b)(3) merely
requires that individual questions “not predominate over the common questions affecting the
class as a whole.” Id. “Considering whether questions of law or fact common to class members
predominate begins, of course, with the elements of the underlying cause of action.” Erica P.
John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184 (2011).
“The Eighth Amendment’s ban on cruel and unusual punishment includes a proscription
against deliberately indifferent treatment towards prisoners.” Rosario v. Brawn, 670 F.3d 816,
820 (7th Cir. 2012). “Although the Eighth Amendment applies only to convicted persons,

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pretrial detainees . . . are entitled to the same basic protections under the Fourteenth
Amendment’s due process clause.” Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010).
Therefore, courts “apply the same legal standards to deliberate indifference claims brought under
either the Eighth or Fourteenth Amendment.” Id.
To state such a claim, a plaintiff must show that “(1) he had a serious medical need, and
(2) the defendants were deliberately indifferent to it.” Wynn v. Southward, 251 F.3d 588, 593
(7th Cir. 2001). As for the first element, “[a]n objectively serious medical need is one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.” Id. (quotation marks
omitted). With regard to the second element, “[i]t is enough to show that the defendants actually
knew of a substantial risk of harm to the inmate and acted or failed to act in disregard of that
risk.” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002).
Defendants argue that because the deliberate indifference standard requires a factintensive inquiry, individual issues will predominate over any issues common to the class and a
class action is not superior to individual lawsuits. See Defs.’ Mem. Supp. Mot. Decertify Class
at 8–10, 20–21. Specifically, Defendants contend that Plaintiffs’ claims will require individual
inquiries regarding whether any delay in obtaining prescribed medication proximately caused the
detainee’s injury.
When Judge Kennelly granted the motion to certify the class, he was keenly aware that
“individual stories of particular detainees may be illustrative.” Parish, 2008 WL 4812875, at *5.
He held, however, that “[t]he predominant issues in the litigation, at least with regard to liability,
will be the existence and constitutionality of the defendants’ alleged policies.” Id. Consistent
with Judge Kennelly’s ruling, the Seventh Circuit has since stated that “the need for individual

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proof [of proximate causation] alone does not necessarily preclude class certification” and a
“district court has the discretion to . . . certify[] a class for liability alone where damages or
causation may require individualized assessments.” Pella Corp. v. Saltzman, 606 F.3d 391, 394
(7th Cir. 2010).
Numerous district courts throughout this circuit have certified class actions in which
detainees have challenged a specific jail policy that applied equally to all class members on the
theory that the policy constituted deliberate indifference in violation of the Fourteenth
Amendment. See, e.g., Smentek v. Sheriff of Cook Cty., No. 09 C 529, 2010 WL 4791509, at *8
(N.D. Ill. Nov. 18, 2010) (CCJ policy of denial of adequate dental care to detainees as violation
of Fourteenth Amendment), aff’d, Smentek v. Dart, 683 F.3d 373, 377 (7th Cir. 2012); see also
Flood v. Dominguez, 270 F.R.D. 413, 422 (N.D. Ind. 2010) (policy of depriving detainees of
bedding, heat, personal hygiene items, exercise, and adequate meal portions as violation of
Fourteenth Amendment); Young v. Cty. of Cook, No. 06 C 552, 2007 WL 1238920, at *9 (N.D.
Ill. Apr. 25, 2007) (CCJ policy of subjecting detainees to strip search and cavity search as
violation of Fourth and Fourteenth Amendments); Jackson v. Sheriff of Cook Cty., No. 06 C 493,
2006 WL 3718041, at *7 (N.D. Ill. Dec. 14, 2006) (CCJ policy of urethral swabbing of detainees
for sexually transmitted diseases without consent as violation of Fourth and Fourteenth
Amendments); cf. Arreola v. Godinez, 546 F.3d 788, 800 (7th Cir. 2008) (remanding denial of
Rule 23(b)(3) class certification for detainees challenging policy of denying crutches where CCJ
argued that each prisoner’s case would be different and noting, “even if each damages
calculation will be fact-bound to some degree, many of the issues involved in this case . . . would
be common among all potential class members”); Mejdrech v. Met-Coil Sys. Corp., 319 F.3d
910, 911–12 (7th Cir. 2003) (affirming Rule 23(b)(3) class certification in mass environmental

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tort case in which the district court “reserved for individual hearings if and when Met-Coil is
determined to have contaminated the soil and water under the class members’ homes in violation
of federal or state law”). Defendants have not pointed to any development in the litigation or
change in the law that would require the Court to revisit Judge Kennelly’s ruling in this regard.
Moreover, even if the Court were to revisit Judge Kennelly’s ruling, it is not left with the
strong conviction that predominance and superiority have not been satisfied in this case. As for
predominance, Plaintiffs challenge the purported policies of (1) allowing unqualified persons,
upon a detainee’s initial appearance at CCJ, to override the decisions of medical doctors by
denying doctor-prescribed psychotropic and/or nonpsychotropic medication and (2) mandating
that intake screeners swap previously prescribed psychotropic medications with ineffective antidepressants. These policies affect every class member regardless of how he or she enters CCJ.
As noted by Judge Kennelly, whether CCJ’s policy exists and is constitutional will be the
primary focus of this litigation. As Judge Kennelly recognized, the necessity of follow-up
proceedings to determine claimant-specific issues with regard to causation and damages does not
preclude certification in this case.
Defendants argue that common issues do not predominate because Plaintiffs must prove
causation of injury as to each individual class member at the liability stage. But this is not the
case. Rather, to establish liability, Plaintiffs must prove that (1) Defendants knew that failing to
provide detainees with their prescribed medications within 24 hours of intake created a
substantial risk of harm 4 and (2) Defendants disregarded that risk by implementing the five
policies in question.

4

Plaintiffs point to eleven medications and contend that there is a substantial risk of injury if the
provision of each of these medications is delayed by 24 hours. Plaintiffs, however, have not yet moved to
create subclasses of detainees with regard to these medications for trial purposes.

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As for superiority, Defendants assert that, because an individualized follow-up
assessment of causation and damages is required, litigating Plaintiffs’ deliberate indifference
claims as a class is not superior to litigating them individually. Once again, Defendants have not
alerted the Court to any development in the litigation or a change in the law that would warrant
revisiting Judge Kennelly’s determination as to this issue.
In any event, the Court does not have a strong conviction that Judge Kennelly was wrong
when he determined that litigating this case as a class action would be superior to litigating each
Plaintiff’s claim individually.

Judicial economy is best served by a single class action

challenging the constitutionality of CCJ’s purported policies rather than a multiplicity of
individual lawsuits premised upon essentially the same issues. Because many of the potential
class members would not recover enough in damages to justify bringing their own claim, for
them, a class action represents the only viable method for vindicating any constitutional violation
that may have occurred. Nor have potential class members shown an interest in pursuing such
actions individually, and Defendants have not informed the Court of any litigation brought by
individual class members indicating such interest.

The fact that there will be follow-up

proceedings with regard to claimant-specific issues does not necessarily mean that a class action
is not the superior method for determining the existence and legality of the alleged policies in
one proceeding. See Mejdrech, 319 F.3d at 911 (“If there are genuinely common issues, issues
identical across all the claimants, issues moreover the accuracy of the resolution of which is
unlikely to be enhanced by repeated proceedings, then it makes good sense, especially when the
class is large, to resolve those issues in one fell swoop while leaving the remaining, claimantspecific issues to individual follow-on proceedings.”); see also Arreola, 546 F.3d at 801
(“Although the extent of each class member’s personal damages might vary, district judges can

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devise solutions to address that problem if there are substantial common issues that outweigh the
single variable of damages amounts.”). Thus, the Court concludes that a class action is the
superior method for litigating Plaintiffs’ claims.
Conclusion
For the reasons set forth herein, the Court denies Defendants’ motion and supplemental
motion to decertify the class action [177, 300].
SO ORDERED

ENTER: 3/31/16

______________________________________
JOHN Z. LEE
U.S. District Judge

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