Jackson et al v. Ash
Filing
26
MEMORANDUM AND ORDER granting 3 Motion to Certify Class. Signed by District Judge Eric F. Melgren on 3/25/2014. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TYRELL JACKSON and RANDALL
CHAPMAN, on behalf of themselves and all
others similarly situated, and MABEL
ESTES, on behalf of herself and on behalf of
a class of persons similarly situated,
Plaintiff,
vs.
Case No. 13-CV-2504-EFM
DONALD ASH,
In his official capacity as Sheriff for
Wyandotte County, Kansas,
Defendant.
MEMORANDUM AND ORDER
Plaintiffs Tyrell Jackson (“Plaintiff Jackson”) and Randall Chapman (“Plaintiff
Chapman”), individually and on behalf of others similarly situated, and Plaintiff Mabel Estes
(“Plaintiff Estes”), on behalf of herself and on behalf of a class of persons similarly situated,
assert claims against Defendant Donald Ash (“Defendant”), in his official capacity as Sheriff of
Wyandotte County, Kansas, alleging violations of the First and Fourteenth Amendments to the
United States Constitution. This matter comes before the Court on Plaintiffs’ Motion for Class
Certification (Doc. 3), filed September 30, 2013, pursuant to FED. R. CIV. P. 23. For the reasons
set forth below, the Court grants the motion.
I.
Factual and Procedural Background
At all times relevant to this action, Defendant has been the Sheriff of Wyandotte County,
Kansas. As such, Defendant is charged not only with the care and custody of the inmates of the
Wyandotte County Adult Detention Center (the “Jail”), but also with creating and enforcing all
policies and practices of the Jail. Located in Kansas City, Kansas, the Jail houses convicted
prisoners, pretrial detainees, and civilly committed individuals. Its capacity, at any given time, is
approximately 327 inmates. Plaintiffs Jackson and Chapman are current inmates of the Jail.
Plaintiff Estes is a private citizen and the girlfriend of Plaintiff Chapman.
Effective on or about June 9, 2009, Defendant instituted a policy requiring all outgoing
and incoming mail, with the exception of legal or privileged mail,1 to be written on a postcard no
larger than five inches by seven inches (“Postcard-Only Mail Policy” or “the Policy”).
Prior to
implementation of the Policy, Jail inmates were allowed to send correspondence in typical letter
form, on multiple sheets of paper.
Jail inmates enclosed all outgoing non-privileged
correspondence in unsealed, open envelopes, and placed those envelopes in a mailbox within
their Jail pod. An assigned Sheriff’s deputy collected this non-privileged mail, screened its
content for violations of the Jail’s mail policy, sealed the envelopes, and placed the
correspondence in the possession of the United States Postal Service.
Likewise, prior to
implementation of the Policy, outside correspondents were allowed to send correspondence to
inmates in typical fashion, on one or more sheets of paper.
1
Legal or privileged mail includes mail to and from: (1) attorneys; (2) courts; (3) officials of the confining
authority; (4) state and local chief executive officers; (5) administrators of grievance systems; (6) members of the
paroling authority; (7) civil officials; and (8) local, state, and federal governments. Pl. Compl., Doc. 1, at 3-4.
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Under the Policy, Jail officials provide inmates with two postcards per week, as part of
the inmates’ weekly indigent supply packet. Inmates may purchase extra postcards from the
Jail’s commissary. The Policy allows for substantive content on only one side of the postcard;
the front is reserved solely for the addressee’s name and address, the sender’s name and return
address, and postage.
Plaintiffs Jackson, Chapman, and Estes now allege that the Policy not only limits the
amount of correspondence inmates may generate and receive, but it also curtails the type of
information contained within that correspondence. For example, Plaintiffs claim that the Policy
restricts their ability to write about family and romantic relationships, health and medical
treatment, finances, and legal matters, given that, when written on postcards, the information
may be easily read by a whole host of people, both inside and outside the Jail. While Plaintiffs
admit that they have other options for communication, including in-person visits and telephone
calls, they argue that mail correspondence is the most economical and efficient means through
which inmates and their chosen correspondents can stay in touch.
While Defendant admits that he is responsible for all Jail policies and practices, including
the Postcard-Only Mail Policy, he denies that the Policy infringes upon Plaintiffs’ First or
Fourteenth Amendment rights.
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III.
Analysis
A. Class Certification Under Rule 23
1. General Standards Governing Class Certification
Whether to certify a class is a matter committed to the broad discretion of the trial court.2
In exercising this discretion, the Court should err on the side of class certification, given its
authority to later redefine or even decertify the class if necessary.3 In deciding whether to
certify, the Court must perform a “rigorous analysis” as to whether the proposed class satisfies
the requirements of Rule 23 of the Federal Rules of Civil Procedure.4 While Rule 23 does not
provide the Court with the authority to conduct a preliminary inquiry into the merits of the
lawsuit,5 the Tenth Circuit has emphasized that the question of class certification necessarily
involves considerations that are “enmeshed in the factual and legal issues comprising the
plaintiff’s cause of action.”6 Therefore, it is the responsibility of the court to consider, “without
passing judgment on whether plaintiffs will prevail on the merits,” whether the requirements of
Rule 23 are met.7
2
See Shook v. El Paso County, 386 F.3d 963, 967 (10th Cir. 2004) (hereinafter Shook I).
3
Sibley v. Sprint Nextel Corp., et al., 254 F.R.D. 662, 670 (D. Kan. 2008) (citing Esplin v. Hirschi, 402
F.2d 94, 99 (10th Cir. 1968); Heartland Commc’ns, Inc. v. Sprint Corp., 161 F.R.D. 111, 115 (D. Kan. 1995)); see
also FED. R. CIV. P. 23(c)(1)(C) (“An order that grants or denies class certification may be altered or amended
before final judgment.”).
4
Gen. Tel. Co. v. Falcon, 457 U.S. 147, 155 (1982); see Nat’l Union Fire Ins. Co. v. Midland Bancor, Inc.,
158 F.R.D. 681, 685 (D. Kan. 1994).
5
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974); Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.
1988); Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982).
6
Shook v. Bd. Of County Comm’rs, 543 F.3d 597, 612 (10th Cir. 2008) (hereinafter Shook II) (quoting
Falcon, 457 U.S. at 160); see also J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999); Reed v. Bowen,
849 F.2d 1307, 1309 (10th Cir. 1988).
7
Shook II, 543 F.3d at 612; see Eisen, 417 U.S. at 178 (stating that in determining propriety of a class
action, the question is not whether plaintiffs state a cause of action or will prevail on the merits but whether the
requirements of Rule 23 are met).
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As the parties seeking class certification, Plaintiffs have the burden of demonstrating,
under a strict burden of proof, that the requirements of Rule 23 are clearly satisfied.8 To do so,
Plaintiffs must establish the prerequisites of Rule 23(a) by demonstrating: (1) the class is so
numerous that joinder of all members is impracticable; (2) questions of law or fact are common
to the class; (3) the claims of the representative parties are typical of the claims of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.9 Upon
meeting these requirements, Plaintiffs must demonstrate that the proposed class falls under one
of the categories described in Rule 23(b).
2. Class Definition
Prior to determining whether a plaintiff has met the prerequisites of Rule 23(a), the Court
must first address the proposed class definition.10 “Defining the class is of critical importance
because it identifies the persons (1) entitled to relief, (2) bound by a final judgment, and (3)
entitled . . . to . . . notice.”11
The definition must be “precise, objective, and presently
ascertainable.”12 Here, Plaintiffs Jackson and Chapman seek certification of the following class:
“all current and future detainees in the Wyandotte County Adult Detention Center who are
subject to or affected by the Postcard-Only Mail Policy.”13 Plaintiff Estes seeks certification of a
class comprised of “all current and future outside correspondents who wish to write letters to
8
Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006).
9
FED. R. CIV. P. 23(a).
10
Eatinger v. BP Am. Prod. Co., 271 F.R.D. 253, 257-58 (D. Kan. 2010).
11
In re Urethane Antitrust Litig., 237 F.R.D. 440, 444 (D. Kan. 2006) (citing Manual for Complex
Litigation, § 21.222, at 270 (4th ed. 2005)).
12
Id.
13
Mot. For Class Cert., Doc 4, at 1. For ease of discussion, this class will be collectively referred to as the
“Jail Inmate Class.”
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inmates in the Wyandotte County Adult Detention Center and who are subject to or affected by
the Postcard-Only Mail Policy.”14
Defendant sets forth no objection to Plaintiffs’ proposed class definition. Therefore, the
Court presumes that Defendant concedes this preliminary issue and finds that Plaintiffs’
proposed class definitions are sufficient.
3. Prerequisites under Rule 23(a)
a. Numerosity
To establish that the proposed class is so numerous so as to make joinder impracticable,
Plaintiffs must produce some evidence, or otherwise establish by reasonable estimate, the
number of class members who may be involved.15 While there is no set formula for determining
whether a plaintiff meets this requirement, courts have found that classes as small as twenty
members can satisfy the numerosity requirement, and a “good faith estimate of at least 50
members” is a sufficient size to maintain a class action.16
Here, Plaintiffs establish that the Jail holds, at any given time, approximately 327
inmates. While Plaintiffs acknowledge that the Jail’s average daily population is in constant
flux, they assert that “there can be little doubt that at least 50” of those inmates desire to write
letters.17 Plaintiffs further contend that the fluid nature of the proposed class, “and the inclusion
in the classes of future inmates and their correspondents whose identities obviously cannot now
14
Mot. for Class Cert., Doc. 4, at 2. For ease of discussion, this class will be collectively referred to as the
“Outside Correspondent Class.”
15
Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir. 1978).
16
See id.; In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609, 613 (D. Kan. 1995).
17
Mot. for Class Cert., Doc. 4, at 4.
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be ascertained, makes joinder of all class members not just impracticable, but literally
impossible.”18
Acknowledging the lack of a set formula for determining whether a plaintiff has satisfied
the numerosity requirement, Defendant argues that Plaintiffs’ proffered number of fifty affected
inmates is nevertheless merely arbitrary and not based on any affirmative evidence. To this
point, Defendant notes that the Policy has been in effect for more than four years and Plaintiffs
can only affirmatively identify two inmates and one outside correspondent who feel that they
have been harmed by the Policy. This, Defendant argues, is true despite Plaintiffs’ assertion that
“thousands of persons are arrested and booked annually as inmates and made subject” to the
Policy.19
Despite Defendant’s concern, this Court cannot help but agree with Plaintiffs. The
number of persons affected by the Policy, at any given time, is, at a minimum, 327, the Jail’s
inmate capacity. This is true because the Policy applies to all inmates, not to mention their
family, friends, and other chosen outside correspondents, regardless of whether these individuals
use the Jail’s mail system. What Plaintiffs allege is not just a potential constitutional violation
against one or any given number of inmates, but rather a policy implemented against all inmates,
such that all inmates face its allegedly chilling effects. Whether Plaintiffs can prove this effect is
not for this Court to now say. Rather, this Court may only determine whether the number of
inmates and outside correspondents who are subject to the Policy is so numerous as to render
joinder impracticable. Other courts in this Circuit have held that “numerosity is met where . . .
the class includes individuals who will become members in the future. As members in futuro,
18
Mot. for Class Cert., Doc. 4, at 4.
19
Opp. to Class Cert., Doc. 15, at 3 (citing Mot. for Class Cert., Doc. 4, at 4).
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they are necessarily unidentifiable, and therefore joinder is clearly impracticable.”20 Based on
the fluid and ever-changing nature of the putative classes, the Court finds the requirement of
numerosity of Rule 23(a)(1) to be satisfied.
b. Commonality
Rule 23(a)(2) requires Plaintiffs to show that there are questions of law or fact common
to the class, or, in other words, that members of the putative class “possess the same interest and
suffer the same injury.”21 Here, Plaintiffs allege that the commonality requirement is satisfied
because all members of the Jail are housed in the same facility and are thus all subject to
Defendant’s Postcard-Only Mail Policy. As such, Plaintiffs set forth the following common
material questions of fact and law:
1. the scope and nature of Defendant’s Postcard-Only Mail Policy;
2. the scope, criteria, and process for invoking the alleged “privileged mail”
exception to Defendant’s Postcard-Only Mail Policy;
3. the scope and nature of Defendant’s interests and/or justifications in
instituting and maintaining the Postcard-Only Mail Policy;
4. whether the application of Defendant’s Postcard-Only Mail Policy violates the
rights of the members of the Jail Inmate Class under the First and Fourteenth
Amendments to the United States Constitution; and
20
Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002) (citing Phillips v. Joint Legislative Committee,
637 F.2d 1014, 1022 (5th Cir. 1981) (holding that
[t]he proper focus is not on numbers alone, but on whether joinder of all members is practicable in
view of the numerosity of the class and all other relevant factors. Here, neither party can even
count how many black applicants there are, let alone identify all of them. Moreover, the alleged
class includes future and deterred applicants, necessarily unidentifiable. In such a case the
requirement of Rule 23(a)(1) is clearly met, for ‘joinder of unknown individuals is certainly
impracticable.
(quoting Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974)).
21
Falcon, 457 U.S. at 156.
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5. whether the application of Defendant’s Postcard-Only Mail Policy violates the
rights of the members of the Outside Correspondents Class under the First and
Fourteenth Amendments to the United States Constitution.22
In contrast, Defendant argues that this list alone does not satisfy the commonality requirement;
rather, it is whether these common questions will generate common answers that prompt class
certification. Defendant further alleges that the numerous dissimilarities within the proposed
classes prevent Plaintiffs from meeting the commonality requirements as Plaintiffs cannot show:
(1) that other proposed class members feel the same way Plaintiffs do about the Policy; and (2)
that other proposed class members have the same difficulty with regard to travel and health
concerns that Plaintiffs do.
While it is clear that each inmate may be affected differently by the Policy based on his
or her communication preferences, it is also clear that a finding of commonality “does not
require that class members share every factual and legal predicate. A single common issue of
fact or law shared by the class will satisfy the requirement of Rule 23(a)(2).”23 “A common
question is one that can be resolved for each class member in a single hearing . . . .”24 Given the
liberal nature of the commonality requirement, the Court finds that Plaintiffs have demonstrated
that this case revolves around a common question, namely, the constitutionality of the PostcardOnly Mail Policy. As such, the Court finds that Plaintiffs have satisfied the Rule 23(a)(2)
commonality requirement.
22
Mot. for Class Cert., Doc. 4, at 5-6.
23
Thompson v. Jiffy Lube Int’l, Inc., 250 F.R.D. 607, 620 (D. Kan. 2008).
24
Id. (quoting Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006)).
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c. Typicality
Rule 23(a)(3) requires that the representative plaintiffs possess the same interests and
suffer the same injuries as the proposed class members.25 “It is well established that differing
fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the
claims of the class representative[s] and class members are based on the same legal or remedial
theory.”26 The representative plaintiffs’ interests need not be identical to those of the class
members, but they must not be “significantly antagonistic” to the claims of the proposed class.27
Here, as Plaintiffs argue, the claims, legal theories, interests, and suffered injury of
Plaintiffs and all members of the proposed classes are identical: Plaintiffs and the Proposed
Plaintiffs are all currently subject to – or will be subject to – Defendant’s Policy. Defendant
alleges that Plaintiffs’ individual fact situations, namely the inability of Plaintiffs’ Jackson and
Chapman’s family and friends to visit, Plaintiff Chapman’s mental health issues, and Plaintiff
Estes’ inability to regularly travel to the Jail, prevent a finding of typicality. However, the Tenth
Circuit has stated that “every member of the class need not be in a situation identical to that of
the named plaintiff to meet Rule 23(a)’s . . . typicality requirements.’”28
Therefore, the Court finds that Plaintiffs have satisfied the typicality requirement under
Rule 23(a)(3).
25
FED. R. CIV. P. 23(a)(3); see also DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1198 (10th Cir.
2010).
26
Garcia v. Tyson Foods, Inc., 255 F.R.D. 678, 689 (D. Kan. 2009) (citing Adamson v. Bowen, 855 F.2d
668, 676 (10th Cir. 1988)).
27
Olenhouse, 136 F.R.D. at 680; see also Stricklin, 594 F.3d at 1198-99 (“Provided the named Plaintiffs
and class members are based on the same legal or remedial theory, differing fact situations of the class members do
not defeat typicality.”).
28
DG, 594 F.3d at 1195 (quoting Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982) (citing Rich v.
Martin Marietta Corp., 522 F.2d 333, 340 (10th Cir. 1975)).
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d. Adequacy of Representation
Pursuant to Rule 23(a)(4), a representative plaintiff must show that he or she will fairly
and adequately protect the interests of the class.29 To satisfy this requirement, representative
plaintiffs must be a member of the class they seek to represent and must show that: (1) their
interests do not conflict with those of the class members; and (2) they will be able to prosecute
the action vigorously through qualified counsel.30 To defeat class certification, a conflict must
be fundamental and go to the specific issues in controversy.31 A fundamental conflict exists
where some members of the class claim harm through a representative plaintiff’s conduct that
resulted in benefit to other class members.32 Minor conflicts will not defeat class certification.33
Here, there is no evidence that Plaintiffs Jackson, Chapman, or Estes have any potential
conflict with other members of the proposed classes. Defendant does not dispute that Plaintiffs’
counsel is experienced and able to manage class litigation. In fact, Defendant does not contest
this requirement at all. Accordingly, the Court finds that Plaintiffs have satisfied the requirement
of Rule 23(a)(4) concerning adequacy of representation.
4. Prerequisites under Rule 23(b)
After satisfying the prerequisites under Rule 23(a), Plaintiffs must demonstrate that the
proposed class action fits within one of the three categories described in Rule 23(b). In this case,
Plaintiffs seek to proceed under Rule 23(b)(2), which states “[a] class action may be maintained
29
FED. R. CIV. P. 23(a)(4).
30
E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977); Rutter & Wilbanks Corp. v.
Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002).
31
Eatinger v. BP Am. Prod. Co., 271 F.R.D. 253, 260 (D. Kan. 2010).
32
Id.
33
Id.
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if Rule 23(a) is satisfied and if . . . 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.”
The Tenth Circuit has
interpreted this to “require that a class must be amenable to uniform group remedies.”34 The
Circuit has further stated
[a] class action may not be certified under Rule 23(b)(2) if relief specifically
tailored to each class member would be necessary to correct the allegedly
wrongful conduct of the defendant. So, if redressing the class members’ injuries
requires time-consuming inquiry into individual circumstances or characteristics
of class members or groups of class members, the suit could become
unmanageable and little value would be gained in proceeding as a class action . . .
In short, under Rule 23(b)(2) the class members’ injuries must be sufficiently
similar that they can be addressed in a[] single injunction that need not
differentiate between class members.35
Here, it is clear, despite Defendant’s objection to the contrary, that Plaintiffs seek only
one remedy on behalf of themselves and all Proposed Class Members: an order enjoining
Defendant, his officers, agents, affiliates, subsidiaries, servants, employees, and successors from
continuing the Postcard-Only Mail Policy. Therefore, the Court finds that Plaintiffs satisfy the
requirements of Rule 23(b).
B. Need for Class Certification
Defendant argues that class certification is unnecessary given that “[i]f the postcard
policy is found to be unconstitutional and Plaintiffs are granted the requested relief, the proposed
class will receive the same remedy regardless of whether class certification is granted or not.”36
While this Court is aware of the Tenth Circuit’s prior holding that “class certification is
34
Shook II, 543 F.3d at 604.
35
Id.
36
Opp. to Class Cert., Doc. 15, at 7.
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unnecessary if all the class members will benefit from an injunction issued on behalf of the
named plaintiffs,”37 it is not convinced that the guideline is applicable here.
In a more recent case brought in the District of Colorado, the plaintiffs, much like
Plaintiffs in the case at hand, were prisoners in the Boulder County Jail who sought, on behalf of
themselves and a putative class of other inmates, to challenge a jail policy under which certain
outgoing mail sent by prisoners was required to be written on postcards supplied by the jail.38
The plaintiffs sought to certify a class defined as “all current and future prisoners in the Boulder
County Jail who are subject to or affected by the defendants’ postcard-only policy.”39 The
defendants argued that class certification was unnecessary because, if the plaintiffs prevailed,
“the benefits [would] inure to all prisoners.”40
The Colorado court disagreed, granting
certification, and held as follows:
Because the practice alleged to be occurring at the Boulder County Jail continues
to affect members of the putative class who have a live stake in the controversy, if
a class is certified, the claims are not mooted should the named Plaintiffs be
transferred or released from the jail. Whereas an individual prisoner’s claim for
injunctive relief may become moot before the court can grant relief, class
certification, where proper under Rule 23, ensures the presence of a continuing
class of plaintiffs with a live dispute against prison authorities. Plaintiffs seek
system-wide declaratory and injunctive relief that may be unattainable once
Plaintiffs are released from the Boulder County Jail.41
37
Kan. Health Care Ass’n, Inc. v. Kan. Dept. of Social and Rehab. Servs., 31 F.3d 1536, 1548 (10th Cir.
1994) (citing Everhart v. Bowen, 853 F.2d 1532, 1538-39 n.6 (10th Cir. 1988) (rev’d on other grounds 494 U.S. 83
(1990)).
38
Clay v. Pelle, 2011 U.S. Dist. LEXIS 27630 (D. Col. 2011); see also Martinez v. Maketa, 2011 U.S. Dist.
LEXIS 60711 (D. Col. 2011) (certifying a class of all current and future inmates of the El Paso County Jail who
were subject to the defendant’s postcard-only mail policy).
39
Clay, 2011 U.S. Dist. LEXIS at *2.
40
Id. at *17-18.
41
Id. at *19-20.
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While class certification is surely not appropriate in every case in which it is sought,
courts have generally held that claims involving an ever-changing jail or prison population are
prime candidates for certification.42 And, again, as stated above, when determining whether to
certify a class, a court should err on the side of class certification, given its ability to later
redefine or decertify the class.43 Therefore, the Court finds, given Plaintiffs’ satisfaction of the
Rule 23 requirements, that certification is appropriate.
Based on the foregoing, the Court concludes that class certification is necessary and that
Plaintiffs’ proposed classes satisfy the requirements of Rule 23. Accordingly, the class will be
certified with respect to Plaintiffs’ constitutional claims. Plaintiffs Jackson and Chapman are
appointed as class representatives for the Jail Inmate Class. Plaintiff Estes is appointed as class
representative of the Outside Correspondent Class.
C. Appointment of Counsel Under Rule 23(g)
“An order certifying a class must also appoint class counsel that will adequately represent
the interests of the class.”44 In appointing class counsel, the court must consider: (1) the work
counsel has done in identifying or investigating potential claims in the action; (2) counsel’s
experience in handling class actions, other complex litigation, and the types of claims asserted in
42
See Clay, 2011 U.S. Dist. LEXIS 27630 at *19-20 (agreeing with the plaintiffs that “given the rapid
turnover in jail populations, class certification is essential if injunctive and declaratory relief is ever to be
available.”); see also Shook I, 386 F.3d at 972 (“In fact, many courts have found Rule 23(b)(2) well suited for cases
where the composition of a class is not readily ascertainable; for instance, in a case where the plaintiffs attempt to
bring suit on behalf of a shifting prison population.”).
43
Sibley, 254 F.R.D. at 670; Heartland, 161 F.R.D. at 115; see also FED. R. CIV. P. 23(c)(1)(C).
44
Amchem Prods., 521 U.S. at 615.
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the action; (3) counsel’s knowledge of the applicable law; and (4) the resources that counsel will
commit to representing the class.45
Plaintiffs are presently represented by both the American Civil Liberties Union
(“ACLU”) Foundation of Kansas and the Social Justice Law Collective. Defendant does not
oppose Plaintiffs’ motion for their current attorneys to serve as co-lead class counsel. After
reviewing the record, the Court is satisfied that Plaintiffs’ attorneys meet the criteria of Rule
23(g) and will adequately represent the interests of the class as counsel. Plaintiffs’ counsel has
significant experience in handling class actions involving jail and prison inmates. Accordingly,
the Court appoints Plaintiffs’ current attorneys as co-lead class counsel for this action.
D. Notice Pursuant to Rule 23(c)(2)(B)
Under Rule 23(c)(2)(A), when a court certifies a class under Rule 23(b)(2), the Court
“may direct appropriate notice to the class.”46 Plaintiffs have not come forward with any
potential notice options. Given that the proposed classes are, by Plaintiffs’ own admission,
constantly changing and rotating, the Court finds that notice in this case is impracticable, if not
impossible. As such, no particular notice requirements are needed.
45
FED. R. CIV. P. 23(g)(1)(A).
46
FED. R. CIV. P. 23(c)(2)(A) (emphasis added)
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IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Class Certification of First
and Fourteenth Amendment claims (Doc. 3) is hereby GRANTED.
IT IS SO ORDERED.
Dated this 25th day of March, 2014.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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