SWEENEY et al v. COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION
Filing
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ENTRY ON PLAINTIFFS' MOTION TO CERTIFY CLASS - For the foregoing reasons, the Motion to Certify Class Dkt. No. 5 is GRANTED, modifying the class definition to the following: "All prisoners confined to facilities operated by the Indiana Department of Correction or that are otherwise subject to Indiana Department of Correction executive directives and policies that restrict incoming correspondence." Moreover, the Court DESIGNATES Charles Sweeney and Anthony Delarosa as repre sentatives for the class action pursuant to Rule 23. The Court further DESIGNATES Kenneth J. Falk as lead class counsel pursuant to Fed. R. Civ. P. 23(g). Within 21 days, the Plaintiffs shall file a motion to approve notice to the class. Signed by Judge William T. Lawrence on 5/2/2018. (JDC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHARLES SWEENEY, ANTHONY
DELAROSA, on their own behalf and
on behalf of those similarly situated,
Plaintiffs,
vs.
COMMISSIONER, INDIANA
DEPARTMENT OF CORRECTION,
Defendant.
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ENTRY ON PLAINTIFFS’ MOTION TO CERTIFY CLASS
This cause is before the Court on the Plaintiffs’ Motion to Certify Class (Dkt. No. 5). The
motion is fully briefed, and the Court, being duly advised, GRANTS the motion for the reasons
set forth below.1
I. RULE 23 STANDARD
Federal Rule of Civil Procedure 23 governs class actions. Rule 23 requires a two-step
analysis to determine whether it is appropriate to certify a particular class. First, the plaintiffs
must satisfy all four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality;
and (4) adequacy of representation. Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760
(7th Cir. 2000). Second, the action must satisfy one of the conditions of Rule 23(b). Id. The
The DOC’s motion to file a sur-reply is GRANTED (Dkt. No. 20). The Clerk is
instructed to docket Dkt. No. 20-1 as a sur-reply to the Plaintiffs’ Motion to Certify Class as
Class Action (Dkt. No. 5).
The Plaintiffs’ motion to accept declarations in support of the motion for class
certification (Dkt. No. 29) is DENIED. The Court finds that additional evidence in support of the
Plaintiffs’ motion is unnecessary to the Court’s determination.
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Court has “broad discretion to determine whether certification of a class-action lawsuit is
appropriate.” Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001) (citation and
quotation omitted).
II. BACKGROUND
The named plaintiffs in this case, Charles Sweeney and Anthony Delarosa, are adult
residents of Indiana who are committed to the Defendant Indiana Department of Corrections
(“DOC”) and are confined at Wabash Valley Correctional Facility. On April 1, 2017, the DOC
implemented Executive Directive #17-13. The Directive provides, in relevant part:
The purpose of this Executive Directive is to direct all Department Facilities to
disallow incoming offender correspondence with colored envelopes, colored
paper, and greeting cards mailed to offenders through the United States Postal
System (USPS). This Executive Directive is applicable to all Department facilities
and is effective April 1, 2017.
In order to impede the introduction of narcotics and synthetic narcotics into the
Department’s facilities, greeting cards, colored envelopes, and colored paper shall
no longer be considered allowable correspondence. On the effective date, greeting
cards, colored paper, and colored envelopes entering the facility via the USPS
shall be processed in accordance with Section XII, “Disposition of Incoming
Correspondence,” and Section XIII, “Report of Action Taken on
Correspondence,” of Policy and Administrative Procedure 02-01-103, “Offender
Correspondence.”
Incoming correspondence to offenders must be in a plain white envelope and the
letter/correspondence inside the envelope must be on originally purchased, plain
white, lined paper (no photocopies).
This Executive Directive does not affect the electronic greeting cards available
through JPay. Facilities are directed to notify the offender population, in their
customary manner, of this change. Offenders shall be encouraged to notify their
family, friends, and other correspondents of this change.
Dkt. No. 1 at 9.
The Plaintiffs’ Complaint alleges that Executive Directive #17-13 violates the First
Amendment, as applied to the DOC by the Fourteenth Amendment. The Plaintiffs seek a
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declaration to that effect and also seek injunctive relief enjoining the application and use of
Directive #17-13.
The DOC has filed an Amended Notice of Suggestion of Mootness (Dkt. No. 23),
indicating that Executive Directive #17-13 has been rescinded. As such, the DOC argues, the
relief sought by the Plaintiffs is no longer possible.
The Plaintiffs have responded, arguing that because the relevant portions of the new
directive, Executive Directive #17-66, are virtually identical to the prior directive, Plaintiffs’
claims that the restrictions on incoming mail violate the First Amendment are not moot.
Executive Directive #17-66 provides, in relevant part:
The purpose of this Executive Directive is to update and clarify the directions,
outlined in Executive Directive # 17-13, to disallow incoming offender
correspondence with colored envelopes, colored paper, and greeting cards mailed
to offenders through the United States Postal System (USPS). This Executive
Directive is applicable to all Department facilities and is effective immediately.
Effective November 2, 2017 Executive Directive # 17-13 is rescinded, replaced by
this Executive Directive.
In order to impede the introduction of narcotics and synthetic narcotics into the
Department’s facilities, greeting cards, colored envelopes, colored paper,
newspaper clippings, and any personal correspondence printed/written on any
paper other than originally purchased plain white, lined paper shall no longer be
considered allowable correspondence. On the effective date, greeting cards,
colored paper, colored envelopes, and any personal correspondence
printed/written on any paper other than originally purchased plain white, lined
paper (no printer paper) entering the facility via the USPS shall be processed
in accordance with Section XII, “Disposition of Incoming Correspondence,” and
Section XIII, "Report of Action Taken on Correspondence," of Policy and
Administrative Procedure 02-01-103, “Offender Correspondence.” Staff shall
return any such correspondence to the sender, if known, that cannot be
delivered to the offender.
Incoming correspondence to offenders must be in a plain white envelope and the
letter/correspondence inside the envelope must be on originally purchased,
plain white, lined paper. All stamps shall be removed from the envelope prior
to the offender receiving his/her mail. This Executive Directive does not prohibit
correspondence on originally purchased plain white, lined paper and plain white
envelopes that have text printed on them manually or electronically; newspaper
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articles, if printed on plain white, lined paper; or drawings/artwork, if included as
a photograph on photography paper.
Legal mail is exempt from this Executive Directive and shall be processed in
accordance with Policy and Administrative Procedure 02-01-103, “Offender
Correspondence,” and Policy and Administrative Procedure 00-01-102,
“Offender Access to the Courts.”
Religious correspondence mailed by a religious organization, not an individual,
may be exempt from this Executive Directive provided that the facility
Chaplain or Warden/designee approves the correspondence prior to issuing the
correspondence to the offender. This Executive Directive does not affect the
electronic greeting cards available through JPay. Facilities are directed to notify
the offender population, in their customary manner, of this change. Offenders
shall be encouraged to notify their family, friends, and other correspondents of this
change.
Dkt. No. 24-2 at 1-2.
While a case becomes moot if the government repeals, revises, or replaces the challenged
law and removes the complained-of defect, see Ozinga v. Price, 855 F.3d 730, 734 (7th Cir.
2017), here, the new directive still contains the prohibitions about which the Plaintiffs complain.
As such, the case is not moot, and the Court retains jurisdiction.
In response to the replacement of Executive Order #17-13 with Executive Order #17-66,
the Plaintiffs have revised their proposed class definition to the following: “All prisoners
confined to facilities operated by the Indiana Department of Correction or that are otherwise
subject to Indiana Department of Correction executive directives and policies.” Dkt. No. 16 at 23.
III.
DISCUSSION
Before the express requirements of Rule 23 can be addressed, and before the class can be
certified, the Plaintiffs must show that the class is “sufficiently definite to warrant class
certification.” Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). “An identifiable
class exists if its members can be ascertained by reference to objective criteria.” Gomez v. Ill.
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State Bd. of Educ., 117 F.R.D. 394, 397 (N.D. Ill. 1987). The Seventh Circuit has emphasized
that classes “defined by the activities of the defendants” are generally sufficiently definite to
satisfy this requirement. Alliance to End Repression v. Rochford, 565 F.2d 975, 987 (7th Cir.
1977).
In the instant case, the proposed class has been defined as “All prisoners confined to
facilities operated by the Indiana Department of Correction or that are otherwise subject to
Indiana Department of Correction executive directives and policies.” Dkt. No. 16 at 2-3.
The DOC argues that the proposed class is a fail-safe:
Plaintiffs’ proposed class definition requires significant individualized
determination of each member of the putative class, given that Plaintiffs have
failed to allege any Constitutional violations in their Complaint. That factor being
sufficient alone for Plaintiffs’ definition to fail, the result of that significant
individualized inquiry results in an impermissible fail-safe class as those putative
members who would fail the inquiry would, by definition, not fit within the class.
Dkt. No. 15 at 7.
A fail-safe class is “one that is defined so that whether a person qualifies as a member
depends on whether the person has a valid claim. Such a class definition is improper because a
class member either wins or, by virtue of losing, is defined out of the class and is therefore not
bound by the judgment.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir.
2012). Here, the proposed class includes all prisoners who are subject to the policy, and the
proposed class definition is not defined in terms of the DOC’s liability or in terms of success on
the merits. As such, the proposed class is not a fail-safe class.2
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Further, if the class is certified and the Plaintiffs lose, res judicata will bar all DOC
prisoners from relitigating the claim. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 661 (7th
Cir. 2015).
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The DOC also argues that the Plaintiffs do not yet meet the putative class definition
because there has been no determination as to whether they suffered the alleged harm. According
to the DOC, the Court must first determine whether the Plaintiffs’ First Amendment rights were
actually violated. The Court is perplexed by this argument, for which the DOC has not provided
any legal support. In assessing whether a class should be certified, the Court is not to address the
merits of the case. See Driver v. Marion Co. Sheriff, 859 F.3d 489, 492 (7th Cir. 2017).
Turning to the first express requirement of Rule 23, numerosity, the Plaintiffs must show
that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P.
23(a)(1). Although Rule 23 does not identify a threshold number to establish numerosity, classes
as few as forty have been found sufficient, but not necessarily so. See Pruitt v. City of Chicago,
472 F.3d 925 (7th Cir. 2006). The Defendant has conceded that the proposed class of more than
25,000 individuals satisfies the numerosity requirement.
The second requirement of Rule 23(a) is the presence of “questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). To demonstrate commonality for the purposes
of Rule 23(a)(2), a prospective class must show that its claims “depend upon a common
contention . . . 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 Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The
Plaintiffs’ allegation that the Executive Directive restricting incoming correspondence violates
the First Amendment poses a question of law that is common to the class. The determination of
that contention “will resolve an issue that is central to the validity of each one of the claims in
one stroke.” Id.; see also Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir.
2014) (“Where the same conduct or practice by the same defendant gives rise to the same kind of
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claims from all class members, there is a common question.”). As such, the Plaintiffs meet the
second requirement.
The third requirement is typicality: “the claim or defenses of the representative parties are
typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “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). The Seventh Circuit has stated that 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. Stokley-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). The DOC
makes the following argument:
Not only has it been clearly shown that Plaintiffs failed to meet the
commonality burden under Rule 23(a)(2), Plaintiffs’ claims as the class
representatives clearly fail as they are atypical from the broader claims attempting
to be certified. Plaintiffs allege violations of their preferences, but never allege an
actual restriction or violation of any Constitutional rights. Whether other members
of the putative class faced the same, or any alleged violation of such rights, is
simply unknown, but the preferences of two individuals cannot be imputed to
25,000 others.
Dkt. No. 15 at 11. The Court disagrees that the Plaintiffs have not alleged a Constitutional
violation. See, e.g., Dkt. No. 1 at 2 (“This expansive burden on the ability of the prisoners being
able to receive information violates the First Amendment to the United States Constitution as
applied to the DOC by the Fourteenth Amendment to the United States Constitution.”); Dkt. No.
1 at 8 (“Executive Directive 17-13 violates the First Amendment to the United States
Constitution as applied to DOC by the Fourteenth Amendment.”).
The issue in this case—whether the Executive Directive restricting incoming mail to
prisoners is constitutional—affects all prisoners who are subject to it. While different prisoners
may be affected by the policy in different ways, all class members need not suffer the same
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injury as the named class representatives. Rosario, 963 F.2d at 1018. Thus, the Plaintiffs’ claims
are typical of the class because they arise from the same course of conduct and are based on the
same general legal theory. As such, the Plaintiffs meet the third requirement.
The fourth and final requirement of Rule 23(a) is that “the representative parties will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “A class is not
fairly and adequately represented if class members have antagonistic or conflicting claims.”
Rosario, 963 F.2d at 1018. In Retired Chicago Police Association v. City of Chicago, 7 F.3d 584,
598 (7th Cir. 1993) (internal quotation and citation omitted), the court noted that “adequacy of
representation is composed of two parts: the adequacy of the named plaintiff’s counsel, and the
adequacy of representation provided in protecting the different, separate, and distinct interest of
the class members.” Here, the Court finds the Plaintiffs to be adequate representatives without
any conflicts or antagonistic claims to the proposed class members. All members of the putative
class are subject to the Executive Directive restricting incoming correspondence. The Plaintiffs
have a sufficient stake in the outcome and will be zealous advocates of the class. In addition, the
DOC does not dispute that counsel for the Plaintiffs is experienced in class actions and other
complex litigation and thus satisfies that requirement. Accordingly, the Court finds that the
Plaintiffs meet the fourth requirement.
Having satisfied the four requirements of Rule 23(a), the Plaintiffs have not yet met their
burden. They must also satisfy one of the requirements of Rule 23(b). Here, the Plaintiffs
claim—and the DOC does not dispute—that they satisfy Rule 23(b)(2), which allows a class
action to be maintained if the party who opposes the class “acted or refused to act on grounds
generally applicable to the class, thereby making appropriate final injunctive or corresponding
declaratory relief with respect to the class as a whole.” As the Seventh Circuit has found, Rule
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“23(b)(2) is the appropriate rule to enlist when the plaintiffs’ primary goal is not monetary relief,
but rather to require the defendant to do or not do something that would benefit the whole class.”
Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426, 441 (7th
Cir. 2015). As the Plaintiffs seek to obtain declaratory and injunctive relief that is designed to
benefit the entire class, the Court finds that the requirement for Rule 23(b)(2) is met.
IV. CONCLUSION
For the foregoing reasons, the Motion to Certify Class (Dkt. No. 5) is GRANTED,
modifying the class definition to the following: “All prisoners confined to facilities operated by
the Indiana Department of Correction or that are otherwise subject to Indiana Department of
Correction executive directives and policies that restrict incoming correspondence.” Moreover,
the Court DESIGNATES Charles Sweeney and Anthony Delarosa as representatives for the
class action pursuant to Rule 23. The Court further DESIGNATES Kenneth J. Falk as lead class
counsel pursuant to Fed. R. Civ. P. 23(g). Within 21 days, the Plaintiffs shall file a motion to
approve notice to the class.
SO ORDERED: 5/2/18
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copies to all counsel of record via electronic communication.
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