Arnold et al v. Heyns et al
OPINION and ORDER Granting Plaintiff's 113 Motion for Class Certification. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Case No. 13-14137
Honorable Linda V. Parker
HEIDI WASHINGTON, 1
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
CLASS CERTIFICATION (ECF No. 113)
Plaintiff Michael Arnold (“Arnold”) brings this action against Michigan
Department of Corrections (“MDOC”) Director Heidi Washington, claiming that
Jewish inmates requiring a kosher diet are receiving food not prepared or served in
a kosher manner. Arnold alleges that this conduct violates the putative class
members’ First Amendment rights and their rights under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. Arnold
seeks declaratory and injunctive relief.
Arnold initially named several additional MDOC officials as defendants in
his complaint. However, in his amended complaint, filed June 29, 2017, Arnold
identifies only Washington as a defendant. (See ECF Nos. 90-1, 106.) The Court
therefore is now dismissing the remaining officials as defendants.
Presently before the Court is his motion for class certification, filed October
9, 2017. (ECF No. 113.) In the motion, Arnold proposes the following class
Jewish prisoners who are designated to receive religious meals and
have been served Vegan meals prepared in a non-Kosher manner,
including, but not limited to, where the utensils used in the
preparation of the Vegan meals are not certified as being Kosher;
where all the area where the Vegan meals are prepared is not Kosher;
and where all the equipment used to clean the utensils is not Kosher
are included within this class.
The deadline for Defendants to respond to the motion was October 30, 2017. See
E.D. Mich. LR 7.1(e). No response has been filed. For the reasons set forth
below, the Court is granting Arnold’s motion.
Applicable Law and Analysis
A party seeking class certification must meet the requirements of Federal
Rule of Civil Procedure 23(a) and 23(b)(1), (2), or (3). The movant bears the
burden of “establish[ing] his right” to class certification. Beattie v. Centurytel.,
Inc., 511 F.3d 554, 560 (6th Cir. 2007). A proposed class must meet four
prerequisites before being certified as a class, namely: (1) it must be “so numerous
that joinder of all members is impractical;” (2) there must be “questions of law or
fact common to the class;” (3) “the claims … of the representative parties” must be
“typical of the claims … of the class;” and (4) “the representative parties” must be
capable of “fairly and adequately protect[ing] the interests of the class.” Fed. R.
Civ. P. 23(a).
As to the first requirement, there is no “strict numerical test” that must be
met for class certification. Senter v. Gen. Motors Corp., 532 F.2d 511, 523 n.24
(6th Cir. 1976). The requirement can be satisfied with a class size as low as 35
people. See Afro Am. Patrolmen’s League v. Duck, 503 F.2d 294, 298 (6th Cir.
1974) (finding class sufficiently numerous at 35); Ham v. Swift Transp. Co., 275
F.R.D. 475, 483 (W.D. Tenn. 2011) (“Where the number of class members exceeds
forty, Rule 23(a)(1) is generally deemed satisfied.”). Rather, numerosity “requires
examination of the specific facts of each case . . ..” Gen. Tel. Co. of the N.W., Inc.
v. EEOC, 446 U.S. 318, 330 (1980). In addition to the number of proposed
members, then, courts commonly consider such factors as the ability of the
members to bring individual lawsuits and whether class certification would
promote judicial economy. See Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.
Arnold believes that there are at least 50 to 100 MDOC inmates who are
similarly situated to him—that is, they are Jewish individuals incarcerated in an
MDOC facility and are designated to receive a kosher diet. Arnold contends that
their joinder is impractical. This Court agrees, particularly because these
individuals are prisoners housed at various MDOC facilities throughout the State
of Michigan. The ability of these inmates to bring individual lawsuits is unlikely,
particularly in light of the filing fee, which is not waived for indigent prisoners
(although it can be paid incrementally). See 28 U.S.C. § 1915. Moreover, these
individuals are unlikely able to afford counsel to represent them and finding pro
bono counsel is difficult. Judicial economy therefore is promoted by joining their
claims in one action. As such, the Court finds that Arnold meets the numerosity
Commonality and Typicality
Rule 23(a)(2)’s commonality requirement “simply requires a common
question of law or fact.” Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th
Cir. 1997). As the Sixth Circuit subsequently explained: “‘The interests and
claims of the various plaintiffs need not be identical. Rather, the commonality test
is met when there is at least one issue whose resolution will affect all or a
significant number of the putative class members.’” Fallick v. Nationwide Mut. Ins.
Co., 162 F.3d 410, 424 (6th Cir. 1998) (quoting Forbush v. J.C. Penney Co., Inc.,
994 F.2d 1101, 1106 (5th Cir. 1993)).
Meanwhile, Rule 23(a)(3)’s typicality requirement demands that the
representative be a member of the class and share at least a common element of
fact or law with the class. Senter, 532 F.2d at 525. Like the test for commonality,
the test for typicality is not demanding and the interests and claims of the various
plaintiffs need not be identical.2 Bittinger, 123 F.3d at 884. The Sixth Circuit has
explained the typicality requirement as follows:
“Typicality determines whether a sufficient relationship exists
between the injury to the named plaintiff and the conduct affecting the
class, so that the court may properly attribute a collective nature to the
challenged conduct. In other words, when such a relationship is
shown, a plaintiff’s injury arises from or is directly related to a wrong
to a class, and that wrong includes the wrong to the plaintiff. Thus, 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 if his or her claims are based on the same legal theory.”
In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996) (quoting 1 Herbert B.
Newberg & Alba Conte, Newberg On Class Actions, § 3-13, at 3-76). A
representative’s claim remains typical, then, even where the evidence relevant to
his or her claim varies from other class members, some class members are subject
The Sixth Circuit has recognized that the commonality and typicality
requirements “‘tend to merge,’” and that “‘[b]oth serve as guideposts for
determining whether . . . maintenance of a class action is economical and whether
the named plaintiff’s claim and the class claims are so interrelated that the interests
of the class members will be fairly and adequately protected in their absence.’”
Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir. 1998) (quoting Gen.
Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 157 n.13 (1982)).
to different defenses, and the members suffer varying levels of injury. See
Bittinger, 123 F.3d at 884-85.
The common question for all members of the proposed class is the same:
Does MDOC provide meals that in fact are kosher to Jewish prisoners designated
to receive kosher meals? Arnold alleges that MDOC uses non-kosher items in
preparing kosher meals and uses non-kosher equipment, utensils, and areas to
prepare and serve the meals. Arnold’s RLUIPA and First Amendment claims are
typical of the claims he seeks to assert on behalf of the putative class. Therefore,
Rule 23(a)’s second and third elements are satisfied.
Adequacy of Representation
To satisfy the fourth, and final, class-action prerequisite, the Court must find
that “the representative parties will fairly and adequately protect the interests of the
class.” Fed. R. Civ. P. 23(a)(4). This is a two-pronged inquiry: “1) [t]he
representative must have common interests with unnamed members of the class,
and 2) it must appear that the representatives will vigorously prosecute interests of
the class through qualified counsel.” Senter, 532 F.2d at 525 (citation omitted).
As discussed above, the Court finds that Arnold has common interests with the
members of the proposed class. With respect to the second criteria, Defendant has
not challenged the competency or desire of Arnold or his counsel to prosecute the
interests of the class, nor does the Court believe that it would have any basis to do
In short, Rule 23(a)’s four requirements for class certification are satisfied.
Rule 23(b)’s Requirements
In addition to satisfying Rule 23(a)’s requirements, a party seeking class
certification must meet at least one of Rule 23(b)’s requirements. Arnold seeks
certification under Rule 23(b)(2). Pursuant to this provision,
[a] class action may be maintained if Rule 23(a) is satisfied and if: …
(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 ….
Fed. R. Civ. P. 23(b)(2).
Arnold alleges that Defendant fails to provide kosher-certified meals to
Jewish prisoners throughout MDOC’s facilities, resulting in the systemic violation
of their religious rights pursuant to RLUIPA and the First Amendment. He seeks
injunctive relief against any such future violations. This is a “prime example” of a
case properly certified as a class under Rule 23(b)(2). Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2557-58 (2011) (quoting Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 614 (1997)) (“‘Civil rights cases against parties charged with
unlawful, class-based discrimination are prime examples’ of what (b)(2) is meant
to capture.”). The Court concludes that the proposed class meets the standard
imposed by Rule 23(b)(2).
For the reasons set forth above, the Court holds that Arnold satisfies all of
the prerequisites for class certification under Rule 23(a) and (b)(2). Accordingly,
the Court GRANTS Arnold’s motion for class certification (ECF No. 113) and
CERTIFIES the following class with respect to the claims in Arnold’s First
All Jewish individuals confined with the Michigan Department of
Corrections who are designated by the prison system to receive kosher
The Court DESIGNATES Arnold as the representative plaintiff for that certified
class and, pursuant to Federal Rule of Civil Procedure 23(g), Daniel E. Manville
and Michael Steinberg as lead class counsel.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 16, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, November 16, 2017, by electronic and/or
U.S. First Class mail.
s/ R. Loury
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