HOFFMAN et al v. JACOBI et al

Filing 118

REPORT AND RECOMMENDATIONS re 57 MOTION to Certify Class. The Magistrate Judge RECOMMENDS that the District Judge grant the Motion to Certify the class, IN PART. Signed by Magistrate Judge William G. Hussmann, Jr on 9/29/2015.(TMB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
DESTINY HOFFMAN, NATHAN CLIFFORD,
JOSHUA FOLEY, JESSE HASH, ASHLEIGH
SANTIAGO, JAMES BENNETT, AMY BENNETT,
LEE SPAULDING, MICHAEL CAMPBELL,
AMY TUTTLE, AMANDA CAMPBELL,
BOBBY UPTON, SHANE BRATCHER
(formerly “COUNTNEY COWHERD”),
JUSTIN LANHAM, TRENTNEY RHODES,
JOANIE WATSON, on behalf of themselves
and on behalf of others similarly situated,
Plaintiffs,
v.
JUDGE JEROME F. JACOBI, SUSAN KNOEBEL,
JEREMY SNELLING, HENRY FORD, CLARK
COUNTY SHERIFF DANNY RODDEN, DANIELLE
GRISSETT, STEPHEN MASON, JOSEPH SEYBOLD
UNKNOWN CLARK COUNTY WORK RELEASE
EMPLOYEE(S)), UNKNOWN CLARK COUNTY
CIRCUIT COURT CLERK AND CLARK
COUNTY BOARD OF COMMMISSIONERS,
Defendants.

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MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
ON MOTION FOR CLASS CERTIFICATION
An Order entered by District Judge Sarah Evans Barker on March 20,
2015 (Filing No. 89), designated me, William G. Hussmann, Jr., United States
Magistrate Judge, to conduct a hearing on Plaintiff’s Motion to Certify Class
(Filing No. 57) and issue a report and recommendation. The hearing was held on

June 9, 2015 (Filing No. 113). I now enter my report and recommendation, as
follows:
Introduction
The Plaintiffs in this case have all been participants in the Clark County
Drug Treatment Court (“DTC”). The participants allege that they were held in jail
for lengthy periods of time while awaiting placement in drug treatment facilities.
Plaintiffs allege that the decision to hold them in jail pending placement was
made without counsel, hearing, consideration of bond, or other rights of due
process. The instant motion requests certification of the following two separate
subclasses, as outlined in Plaintiffs’ First Amended Complaint:
A.

All persons who were participants in Clark County’s
DTC Program and who were incarcerated for more than 72
hours without hearing and/or other due process of law from
February 8, 2012, to the date of the order granting class
certification.

B.

All persons who are or will be subject to the jurisdiction of
Clark County’s DTC Program as a Drug Court participant and
who therefore face or will face the possibility of being alleged
or determined to be in violation of the rules, terms, and or
policies of probation or Drug Court.

Proposed Subclass “A” requests monetary damages for each class member’s loss
of freedom, while Subclass “B” requests declaratory and injunctive relief only.

2

Origins of Clark County Drug Treatment Court1
The origins of Clark County’s Drug Treatment Court (hereinafter “DTC”)
began in 1992, when the Indiana Legislature established a framework for
counties to establish alcohol and drug services programs in any county court
with criminal jurisdiction. Drug treatment courts are a particular type of
“Problem Solving Court” created and defined by Indiana Code. Ind. Code §3323-16 et seq.
Clark County established its DTC in 2002. Clark County’s DTC was
designed to target “non-violent felony offenders who are determined a high risk
to reoffend by the Indiana Risk Assessment System (IRAS) and meet the
diagnostic criteria for substance abuse or dependence.” Clark County’s DTC
obtained jurisdiction over criminal defendants either through a deferral of
prosecution or as a condition of probation.
Ind. Code § 33-23-16-14.5(c) establishes that a Problem Solving Court,
upon receiving an allegation of a program violation, “shall conduct a hearing” in
open court, with the participant entitled to written notice of the alleged violation,
disclosure of adverse evidence, right to confront and cross-examine witnesses,
and the representation by counsel.

This section is taken nearly verbatim from Plaintiffs’ Proposed Findings of Fact on
Motion for Class Certification with only minor changes made that do not alter meaning.
(Filing No. 110). These “Origins” are not disputed by Defendants, and are included as
context for further findings.
1

3

Legal Standard
1. A class action may only be certified after a rigorous examination of
whether the requirements of Federal Rule of Civil Procedure 23 have been met.
Davidson v. Citizens Gas & Coke Utility, 238 F.R.D. 225 (S.D. Ind. 2006) (citing
General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, (1982)).
2. “Furthermore, the party seeking class certification assumes the burden
of demonstrating that certification is appropriate.” Retired Chicago Police Ass’n v.
City of Chicago, 7 F.3d 584 (7th Cir. 1993) (citing Trotter v. Klincar, 748 F.2d
1177 (7th Cir. 1984).
3. The Seventh Circuit Court of Appeals in Szabo v. Bridgeport Machines,
Inc., 249 F.3d 672, 675-76 (7th Cir. 2001), held that nothing in Rule 23 requires
a district court judge to accept the allegations of the complaint as true.
The reviewing court must make whatever factual and legal inquiries it
needs to make in order to resolve the issues pertaining to certification. Id. at
676.
4. Under Rule 23 of the Federal Rules of Civil Procedure, courts
undertake a two-step analysis in determining whether class certification is
proper. Szabo v. Bridgeport Machines, Inc., 199 F.R.D. 280, 283-84 (N.D. Ind.
2001) (reversed on other grounds), citing Hoffman v. Grossinger Motor Corp., 1999
WL 184179, 1 (N.D. Ill. 1999).
In the first step:
the court determines whether the four threshold requirements of
subsection (a) of Rule 23 have been met. These requirements are as
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follows: One or more members of a class may sue or be sued as
representative parties on behalf of all only if (1) the class is so numerous
that joinder of all members is impracticable; (2) there are questions of law
or fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class;
and (4) the representative parties will fairly and adequately protect the
interest of the class.
Id. citing Fed. R. Civ. P. 23(a); see also Keele v. Wexler, 149 F.3d 589, 594 (7th
Cir. 1998).
In the second step, “the court determines whether the action qualifies for
class treatment under at least one of the subdivisions of Rule 23(b).” Szabo, 199
F.R.D. at 283-84 citing Daniels v. Fed. Reserve Bank of Chicago, 194 F.R.D. 609,
613 (7th Cir. 1977).
5. The portions of Fed. R. Civ. P. 23(b) applicable to this case are:
(b)

Types of Class Actions. A class action may be maintained if
Rule 23(a) is satisfied and if:
(1)
prosecuting separate actions by or against individual
class members would create a risk of:
(A)
inconsistent or varying adjudications with respect
to individual class members that would establish
incompatible standards of conduct for the party
opposing the class; or
(B)
adjudications with respect to individual class
members that, as a practical matter, would be
dispositive of the interests of the other members
not parties to the individual adjudications or
would substantially impair or impede their ability
to protect their interests;
(2)
the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole; or,….

6. Furthermore, “[t]here are two implied prerequisites to class certification
that also must be satisfied prior to addressing the issues raised by Rule 23(a).
5

First, the class must be sufficiently defined so that the class is
identifiable.” Harris v. Circuit City Stores, Inc., 2008 WL 400862 at 3, n.4 (N.D.
Ill. 2008), citing Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th
Cir. 1977). “Second, the named representative must fall within the proposed
class.” Id.
In examining these two implied prerequisites, the court in Ramirez v.
Palisades Collection LLC, 2007 WL 4335293 at *2 (N.D. Ill. 2007) noted that “[a]s
a threshold matter, the court must decide whether the proposed class is
sufficiently defined so as to be identifiable, and whether the named plaintiff falls
within the class definition.” Id.
Factual Findings
1. The Indiana Supreme Court provided Plaintiffs the criminal case
numbers for all court-ordered entries into the Clark County DTC program from
May of 2012 to the end of calendar year 2013. Plaintiffs’ counsel then inputted
the case numbers for the court-ordered entries into Odyssey, the Indiana Court
System’s website, and obtained the “Chronological Case Summary” (“CCS”) of 63
individuals who were detained in the Clark County Jail while participating in the
DTC.2 Each of the following individuals was (1) a participant of Clark County

2

I find that the CCSs provided to the Court were incomplete copies of those items. However, even
assuming that some CCSs are complete, these documents do not accurately reflect (a) whether a participant
was represented by previously appointed counsel during Staffing Meetings or Status Conferences, or (b)
whether previously appointed counsel was present during any Staffing Meetings or Status Conferences.

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Drug Treatment Court, and (2) incarcerated for more than 72 hours after
February 18, 2012.
Class Member

Dates of Detention

1. Destiny Hoffman

April 26-August 8, 2012
May 1-June 20, 2013
August 22-January 23, 2013-14
2. Nathan Clifford
March 13-June 4, 2013
3. Josh Foley
June 27-September 3, 2013
4. Ashleigh (Hendricks)
May 16-June 21, 2013
5. Michael Campbell
June 22-July 29, 2013
6. Amy Tuttle
April 30-June 28, 2012
May 10-July 8, 2013
7. Amanda Campbell
February 4-May 8, 2013
8. Bobby Upton
May 16-June 3, 2013
9. Justin Lanham
August 2-26, 2013
10. Tretney Rhodes
December 3-21, 2012
11. Joannie Watson
April 26-May 10, 2012
May 16-June 14, 2013
12. Jason O’Connor
April 10-May 22, 2013
June 18-January 24, 2013-14
13. Julia Joseph
January 17-March 12, 2013
April 3-May 3, 2013
October 14-21, 2013
14. Anthony Callaway
January 3-March 29, 2013
June 24-July 5, 2013
15. Katherine Tudor
August 8-November 2, 2012
July 22-August 30, 2013
16. Brandon Layton
July 11-August 15, 2013
17. James Collmann
August 15-22, 2013
18. James Hendrick
July 25-August 15, 2013
September 23-October 25, 2013
19. Jennifer Wall
December 27-March 5, 2012-13
October 14-21, 2013
20. Deanna Wilkins
May 16-21, 2013
21. Jacqueline Snelling
August 31-December 14, 2012
May 10-July 19, 2013
22. Courtney Harris
February 19-March 28, 2012
23. Heather Holden
April 4-May 24, 2012
24. Ricky Houston
March 23-April 16, 2012
July 5-23, 2012
25. Jarvis Peele
April 17-May 2, 2013
26. Christopher Klingsmith April 19-October 29, 2012
27. Christina Hamilton
January 24-30, 2013
June 26-July 24, 2013
28. Terry Gill
September 1-November 1, 2012

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# of Days
104
50
54
93
67
36
37
59
60
93
18
25
19
15
30
43
220
55
30
7
86
11
87
39
36
7
22
27
69
8
5
106
70
38
50
24
19
16
194
6
28
50

29.
30.
31.
32.

Amanda Barksdale
Jerry Houchens
LeeAnn Rager
Jessica Hobbs

33.
34.
35.
36.

Alyssa Samuels
Brandelyn Taylor
Brandy Green
Kristen Spicer

37.
38.
39.
40.
41.
42.
43.
44.

Travis Jenkins
Shawn Gilbert
Alisha Dannheiser
Adrian Anderson
Julius Johnson
Randall Cozart
Nathan Senn
Kenneth Mulliken

45. Kara Johnson
46. George McIntyre
47.
48.
49.
50.

James Cecil
Justin Clay
Anthony Crone
Andrew DeMatos

51. Meggan Dolbeare
52. Nicholas French
53. Sarah Hubbard
54. David Hyre
55. Clay Ingram
56.
57.
58.
59.
60.

William Jernigan
Tiffany Johnson
Jeremy Leavell
Lisa Masingo
Laura Payton

61. Joseph Thomas

May 22-30, 2013
October 22-November 24, 2012
October 12-November 30, 2012
May 15-June 25, 2013
July 20-30, 2013
May 16-21, 2013
August 7-13, 2013
December 20-January 9, 2014
May 16-23, 2013
June 27-July 11, 2013
October 24-November 14, 2013
May 29-July 1, 2013
February 13-March 13, 2014
September 20-27, 2012
January 10-17, 2013
August 2-September 6, 2012
November 1-8, 2012
March 1-8, 2012
March 13-April 17, 2012
August 17-September 11, 2012
October 3-25, 2012
April 5-June 14, 2012
August 2-September 6, 2012
May 20-28, 2013
August 8-14
December 9-January 9, 2014
March 21-April 4, 2013
August 15-22, 2013
September 12-26
August 29-September 27, 2012
June 13-27, 2013
September 12-26, 2013
October 21-November 7, 2013
March 14-May 8, 2013
February 22-March 7, 2013
April 25-July 29, 2013
November 7-December 13, 2013
March 7-April 4, 2013
September 19-26, 2013
April 26-May 23, 2013
July 25-August 8, 2013
November 1-December 12, 2012
September 12-26, 2013
June 14-September 27, 2012
April 25-May 23, 2013
June 27-July 5, 2013
August 1-8, 2013
January 22-February 6, 2013
April 11-22, 2013

8

9
34
50
41
10
6
6
20
7
14
21
33
28
7
7
35
8
8
35
25
22
70
35
8
6
31
14
7
14
29
14
14
17
55
13
95
36
28
7
27
14
41
14
105
28
8
8
15
11

62. Anthony Yarbrough
63. Jessica St. John

November 14-December 5, 2013
May 16-23, 2013

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3. Participation in the DTC began when a criminal defendant accepted a
plea agreement in which he/she agreed to enter DTC in consideration of a
deferred prosecution or a probated sentence. In many if not most cases, the
Court granted counsel for the defendant’s motion to withdraw shortly after the
plea was entered.
4. The defendant would then enter “Phase 1” of the program and appear
weekly before the Court to assess the participant’s continued sobriety and
compliance with the program.
5. At some point, a “case manager” received information that the DTC
participant had violated some term of his/her participation requirement and
brought this information to a “Staffing Meeting.”
6. Each DTC participant was then brought before the Staffing Meeting
based on the representation of the case manager.
7. No DTC participant was advised of a right to have counsel present at
the Staffing Meeting, nor did any of the participants receive the appointment of
counsel specifically to address the new alleged violation at the Staffing Meeting.
8. No DTC participant was given written notice of the new alleged violation
prior to appearing at the Staffing Meeting.
9. After the Staffing Meeting was held, the staff would determine what
sanction should issue for the violation. (Deposition of Susan Knoebel, at p. 43.)
The DTC participant would be advised of the sanction. (Id.)
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10. Frequently the DTC participant was taken to the Clark County Jail from
the Staffing Meeting and was held until a court “Status Conference” could be
held.
11. Based upon the decision at the Staffing Meeting, the DTC participant
would then be brought to a Status Conference before Judge Jacobi. At the
Status Conference, the DTC Case Managers (Josh Seybold and Iris Rubadoe), the
program director (Susan Knoebel), the bailiff and the correctional officers who
brought the DTC participant from the Clark County Jail.
12. Defense counsel for the participants were rarely if ever present for the
Status Conference. (Id. at 53, 98.)
13. Throughout the time period at issue, Judge Jacobi could not recall any
specific time that he made a sanction decision that was different than what was
recommended to him. (Deposition of Jerome Jacobi, at pp. 89-95.) Josh
Seybold could only recall one situation where the Judge disagreed with the
sanction imposed by the staff. (Deposition of Joshua Seybold, at p. 106.)
14. Prior to or at the Status Conference, DTC participants were not advised
of their rights to have counsel present. (Deposition of Jerome Jacobi, at pp. 107108.)
15. If a violation of DTC requirements was deemed to be very serious, a
written Petition to revoke participation in the DTC would be filed and a formal
court hearing based upon the petition would be held. Defense counsel would be
present at the revocation proceedings.

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Analysis
In order to determine whether class certification is proper in this case, the
Court first addresses the “two implied prerequisites to class certification that
also must be satisfied prior to addressing the issues raised by Rule 23(a).” (See
infra, Conclusion of Law 6.) In this particular case, I conclude that an
identifiable classes could be demonstrated by the factual findings above, as
follows:
(1)

All persons who were participants in Clark County, Indiana’s
Drug Treatment Court Program and who were incarcerated
for more than 72 hours;
(a)
(b)

who was not given written notice of the new alleged
violation prior to appearing at the Staffing Meeting;

(c)

who appeared at the Staffing Meeting without being
advised of their right to counsel during the Staffing
Meeting;

(d)

who were taken directly from the Staffing Meeting to
the Clark County Jail; and

(e)
(2)

after appearing before a Staffing Meeting;

were held greater than 72 hours prior to a Status
Conference before a judge of the court.

A second identifiable class would consist of those DTC
participants who:
(a)

were brought for a Status Conference before a judge of
the court;

(b)

were not given written notice of newly alleged violations
before the Status Conference;

(c)

were not advised of their right to counsel before the
Status Conference;
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(d)

were not represented by defense counsel at the Status
Conference;

(e)

continued to be held in custody for a period of time
greater than 72 hours awaiting placement at a
treatment facility; and

(f)

were not thereafter provided with a petition to formally
terminate their participation in the DTC.

This Court’s review of Destiny Hoffman’s CCS and dates of detention
suggests that she was subjected to the procedures to which other members of
the class seek relief. Therefore, the Court concludes that the two implied
prerequisites to class certification (a defined class and a representative who falls
within the class) have been met.
With respect to the four threshold requirements of Subsection (a) of Rule
23, I conclude that while not all of the 63 persons identified by the Plaintiffs to
date may ultimately be found to have claims, there are a sufficient number of
people likely to have claims that fit within the class to exceed 40 or more
persons. Therefore, the numerosity prong of the rule is satisfied.
Based on the descriptions of the class as amended, I conclude that there
are questions of law common to the class. Specifically, the question of law
addresses whether elements of due process are satisfied for those individuals
who were called for Staffing Meetings and were thereafter directed to jail for
greater than 72 hours without written notice of the alleged violation, the right to
have counsel to assist them, and who remain detained for greater than 72 hours
without a finding of probable cause by a judicial official. Likewise, with respect
12

to the second class, a common issue of law exists as to whether those persons
who appeared before a judicial official without a written notice of the violation
and without the assistance of counsel and who were thereafter detained by a
judicial officer for extended periods of time (often until treatment facilities were
available) have been denied due process. Therefore, there are common questions
of law that relate to both of the classes.
As previously discussed, the claims of Destiny Hoffman are representative
of the claims of the class.
Finally, there is no showing at this stage that Ms. Hoffman is not an
appropriate representative who will adequately protect the interests of the class.
As to the requirements of Fed. R. Civ. P. 23(b), I find that prosecuting
individual actions by the class members could create a risk of inconsistent
adjudications that would establish incompatible standards for those who
currently direct the Clark County DTC. I also find that prosecuting separate
actions would create a risk of adjudications with respect to individual class
members that as a practical matter would be dispositive of the interests of the
other members not parties to the individual adjudications. Finally, I find that
the Defendants have conducted their DTC procedures on grounds that apply
generally to the class so that any final injunctive or declaratory relief is
appropriate respecting the class as a whole.
It must be noted that the Defendants in this case raise a strong argument
that class certification must be denied when the Court must conduct

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individualized examinations of class members to determine whether they meet
the class definition. There is some case law from a District Count in this Circuit
to support that position. “If the court is required to conduct individual inquiries
to determine whether each potential class member falls within the class, the
court should deny certification.” Ramirez, 2007 WL 4335293 at *2 (court denied
certification because the determination of whether individual class members
would meet class definition would require onerous fact finding) (citing Pastor v.
State Farm Mutual Automobile Ins. Co., No. 05 C 1459, 2005 WL 2453900 at *2
(N.D. Ill. 2005)). However, in this case, by defining the class in the manner that I
have done, the primary relief in this case is declaratory in nature.
The Court will determine whether the procedures applicable to DTC
participants during the time at issue (and within the applicable statute of
limitations) meet the requirements of due process. A determination by this
Court that due process was met ends the litigation in its entirety. In the event
the Court should determine that due process rights were violated, the issue of
what damages a class member is entitled to can be established on an equitable
basis among the class members. The burden to the Plaintiffs in conducting this
case as a class action is that each member of the class gives up the right to
individualized consideration of his or her damage claim in order to obtain the
benefit of the uniform determination of liability. Those Plaintiffs who believe
they were damaged in an extreme manner and deserve compensation at a
greater level than others similarly situated still have—at this time—the right to

14

bring an individual claim. Until this Report and Recommendation is adopted or
rejected by the District Judge, Plaintiffs have time to consider whether the loss of
their right to seek individualized damage claims should cause them to abandon
the request for class certification.
Recommendation

I RECOMMEND that the District Judge grant the Motion to Certify the
class, in part. The Motion should be granted, but the classes certified should be
defined as follows:
(1)

The first identifiable class would consist of all persons who
were participants in Clark County, Indiana’s Drug Treatment
Court Program and who were incarcerated for more than 72
hours;
(a)
(b)

who was not given written notice of the new alleged
violation prior to appearing at the Staffing Meeting;

(c)

who appeared at the Staffing Meeting without being
advised of their right to counsel during the Staffing
Meeting;

(d)

who were taken directly from the Staffing Meeting to
the Clark County Jail; and

(e)
(2)

after appearing before a Staffing Meeting;

were held greater than 72 hours prior to a Status
Conference before a judge of the court.

A second identifiable class would consist of those DTC
participants who:
(a)

were brought for a Status Conference before a judge of
the court;

(b)

were not given written notice of newly alleged violations
before the Status Conference;
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(c)

were not advised of their right to counsel before the
Status Conference;

(d)

were not represented by defense counsel at the Status
Conference;

(e)

continued to be held in custody for a period of time
greater than 72 hours awaiting placement at a
treatment facility; and

(f)

were not thereafter provided with a petition to formally
terminate their participation in the DTC.

SO RECOMMENDED.
Dated: September 29, 2015

Served electronically on all ECF-registered counsel of record.

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