Arnold et al v. Heyns et al

Filing 146

OPINION and ORDER Denying Defendant's 141 Motion for Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(1). Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL ARNOLD, individually
and on behalf of a putative class,
Plaintiff,
Civil Case No. 13-14137
Honorable Linda V. Parker

v.
HEIDI WASHINGTON,
Defendant.
________________________________/

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR
DISMISSAL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
12(b)(1)
Plaintiff Michael Arnold (“Arnold”) pursues this action against Michigan
Department of Corrections (“MDOC”) Director Heidi Washington (“Defendant”),
claiming that Jewish inmates requiring a kosher diet are receiving food not
prepared or served in a kosher manner. Arnold seeks only declaratory and
injunctive relief. The matter is presently before the Court on Defendant’s Motion
for Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(1). In the motion,
Defendant argues that the action is now moot because Arnold was paroled on
January 23, 2018. The motion has been fully briefed. Finding the facts and legal
arguments sufficiently presented in the parties’ briefs, the Court is dispensing with
oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f).

Procedural Background
This lawsuit has been pending for more than four and a half years. Arnold
initially filed the action pro se. He sought to have counsel appointed for him early
in the litigation, but his request was denied. Through his own efforts, Arnold was
able to secure representation in January 2016.
At that point—and only at that point, see Palasy v. Hawk, 15 F. App’x 197,
200 (6th Cir. 2001)—was Arnold able to pursue this action on behalf of a class,
which this Court allowed him to do on June 29, 2017. After Arnold filed his
putative class action amended complaint and Defendant answered, Arnold
promptly moved for class certification on October 9, 2017.
The Court prematurely granted the motion on November 16, 2017, having
overlooked the parties’ stipulation to extend their deadlines to respond and reply to
the motion. The Court, therefore, struck its opinion and order granting Arnold’s
motion for class certification. The motion was fully briefed and prepared for
ruling when, on January 26, 2018, Defendant moved to file its motion to dismiss
on mootness grounds based on the MDOC’s parole of Arnold three days earlier.
On February 16, 2018, the Court allowed Defendant to file the motion.
Arnold’s counsel has identified two Jewish MDOC prisoners who have been
approved to receive kosher meals and are willing to represent the putative class.

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In the interim, Defendant also filed a motion for summary judgment on
December 21, 2017—the deadline for filing dispositive motions. The case was
scheduled for final pretrial conference and trial on February 21 and March 5, 2018,
respectively.
Applicable Law and Analysis
“‘Under Article III of the Constitution, federal courts may adjudicate only
actual, ongoing cases or controversies.’” Kentucky v. U.S. ex rel. Hagel, 759 F.3d
588, 595 (6th Cir. 2014) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477
(1990)). A case may become moot “when the issues presented are no longer live
or the parties lack a legally cognizable interest in the outcome.” U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 396, 410 (1980) (internal quotation marks and
citation omitted). This latter “personal stake requirement” is a corollary to the rule
that federal courts lack the power to “decide questions that cannot affect the rights
of the litigants in the case before them.” North Carolina v. Rice, 404 U.S. 244,
246 (1971). The plaintiff must have a stake in the action from its filing through its
termination. See Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564, 567 (6th
Cir. 2013). If developments during the course of litigation eliminate the plaintiff’s
personal stake, the case generally must be dismissed as moot. Id. (citing Church of
Scientology v. United States, 506 U.S. 9, 12 (1992).

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“When class actions are involved, however, the Supreme Court has
explained that ‘the Art[icle] III mootness doctrine’ is ‘flexible.’” Wilson v.
Gordon, 822 F.3d 934, 942 (6th Cir. 2016) (quoting Geraghty, 445 U.S. at 400).
“Once a class is certified, the mooting of the named plaintiff’s claim does not moot
the action.” Brunet v. City of Columbus, 1 F.3d 390, 399 (6th Cir. 1993). “This is
because once a class is certified, ‘the class of unnamed persons described in the
certification acquires a legal status separate from the interest asserted’ by the
named plaintiff.” Wilson, 822 F.3d at 942 (quoting Sosna v. Iowa, 419 U.S. 393,
399 (1975)). In Brunet, the Sixth Circuit also recognized that “special mootness
rules exist for class actions.” 1 F.3d at 399. Particularly relevant to the current
matter is the “inherently transitory” exception.
This exception developed from the Supreme Court’s decision in Sosna,
where the Court observed:
There may be cases in which the controversy involving the named
plaintiffs is such that it becomes moot as to them before the district
court can reasonably be expected to rule on a certification motion. In
such circumstances, whether the certification can be said to “relate
back” to the filing of the complaint may depend upon the
circumstances of the particular case and especially the reality of the
claim that otherwise would evade review.
419 U.S. at 402 n.11. The Court invoked this exception in Gerstein v. Pugh, 420
U.S. 103 (1975). The named plaintiffs in Gerstein filed a lawsuit on behalf of a
putative class of pretrial detainees, alleging that Florida violated their
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constitutional rights by not providing a prompt probable cause hearing. Id. at 10507. The record before the Supreme Court did not clearly show whether any of the
named plaintiffs were still pretrial detainees when the district court certified the
class. Id. at 110 n.11. Nevertheless, the Court held that the case was not moot,
explaining:
The length of pretrial custody cannot be ascertained at the outset, and
it may be ended at any time by release on recognizance, dismissal of
the charges, or a guilty plea, as well as by acquittal or conviction after
trial. It is by no means certain that any given individual, named as
plaintiff, would be in pretrial custody long enough for a district judge
to certify the class. Moreover, in this case the constant existence of a
class of persons suffering the deprivation is certain.”
Id.
From Gerstein, courts have distilled two requirements for the “inherently
transitory” exception to apply: “(1) that the injury be so transitory that it would
likely evade review by becoming moot before the district court can rule on class
certification, and (2) that it is certain other class members are suffering the injury.”
Wilson, 822 F.3d at 945. Defendant does not dispute that the second requirement
is met. She does argue, however, that the injury is not transitory.
While Defendant does not elaborate on why she believes the injury is not
transitory, the Court presumes she means that, unlike pretrial detainees, convicted
inmates such as Arnold are likely to remain incarcerated long enough for their
claim to be decided without becoming moot. In other words, Defendant appears to
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be contending a claim raised by an inmate serving a prison sentence will not
naturally expire in a short amount of time. The Sixth Circuit has held, however,
that “the uncertainty about how long an injury caused by ongoing conduct will
persist can also render a claim inherently transitory.” Id. In reaching this decision,
the Wilson court relied upon the Seventh Circuit’s decision in Olson v. Brown, 594
F.3d 577 (7th Cir. 2010). The Olson decision is particularly instructive in the
present matter.
The Seventh Circuit held in Olson that a class action brought by an inmate
alleging constitutional violations at a county jail was not moot even though the
named plaintiff was transferred out of the jail before the class was certified. 594
F.3d at 582. The court reasoned:
While the ultimate length of confinement does affect the applicability
of the “inherently transitory” exception, the essence of the exception
is uncertainty about whether a claim will remain alive for any given
plaintiff long enough for a district court to certify the class.
Id. The Olson court emphasized that the named plaintiff “did not know when his
claim would become moot” because “[t]he duration of his claim was at the
discretion of the Indiana Department of Correction. An individual incarcerated in
a county jail may be released for a number of reasons that he cannot anticipate.”
Id. at 583.
Based on Olson and Wilson, this Court concludes that the “inherently
transitory” exception applies to the instant case. Arnold did not know how long he
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would remain an MDOC inmate and thus how long his claims for injunctive and
declaratory relief would remain live. As such, the Court holds that his parole
before the ruling on his motion for class certification did not moot the claims of the
putative class.
Accordingly,
IT IS ORDERED that Defendant’s Motion for Dismissal Pursuant to
Federal Rule of Civil Procedure 12(b)(1) is DENIED;
IT IS FURTHER ORDERED that the parties shall appear for a telephonic
status conference on March 13, 2018 at 2:00 p.m., prepared to address: (1)
Arnold’s counsel’s proposed substitution of Mark Shaykin and Gerald Ackerman
(see ECF No. 143); (2) whether the proposed substitution, if allowed, necessitates
additional discovery and amendments to the class certification briefs (specifically,
on the issues of typicality and adequacy of representation); and (3) a modified
scheduling order.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: March 5, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, March 5, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager
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