Arnold et al v. Heyns et al

Filing 157

OPINION and ORDER Granting Plaintiffs' 113 Motion for Class Certification. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GERALD ACKERMAN and
MARK SHAYKIN,
Plaintiffs,
Civil Case No. 13-14137
Honorable Linda V. Parker

v.
HEIDI WASHINGTON, 1
Defendant.
________________________________/

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION (ECF No. 113)
Michael Arnold (“Arnold”) filed 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 alleged 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
sought declaratory and injunctive relief. After Arnold was paroled, the parties

Arnold initially named several additional MDOC officials as defendants in
his complaint. However, in his amended complaint, filed June 29, 2017, Arnold
identified only Washington as a defendant. (See ECF Nos. 90-1, 106.) The Court
therefore is now dismissing the remaining officials as defendants.
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stipulated to the substitution of Gerald Ackerman and Mark Shaykin as Plaintiffs
and putative class representatives. (ECF No. 155.)
Presently before the Court is Plaintiffs’ motion for class certification, filed
October 9, 2017.2 (ECF No. 113.) In the motion, Plaintiffs proposes the following
class definition:
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.
Per the parties’ stipulation, Defendant filed a response to the motion on December
1, 2017. (ECF No. 118.) Plaintiffs filed a reply brief on December 14, 2017.
(ECF No. 123.) For the reasons set forth below, the Court is granting the 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
The motion initially was filed by Arnold. As Ackerman and Shaykin have
been substituted for Arnold, the Court will hereafter refer to the motion as if filed
by them.
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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). In their stipulation regarding the substitution of Ackerman and
Shaykin as Plaintiffs, the parties agree that their claims are typical of the claims of
the class and that they will fairly and adequately protect the interests of the class.
(See ECF No. 155 at Pg ID 1828). As such, only the first and second factors for
class certification are in dispute.
Numerosity
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.
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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.
Ill. 1996).
Relying on Defendant’s response to their discovery requests, Plaintiffs
indicate that there are 193 MDOC inmates who are similarly situated to them—that
is, they are Jewish individuals incarcerated in an MDOC facility and are designated
to receive a kosher diet. (Pl.’s Reply Br. at 2-3, ECF No. 123 at Pg ID 1407-08.)
Plaintiffs contend 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.
Defendant nevertheless argues that Plaintiffs lack proof that any of the
putative class members are dissatisfied with the content of the vegan religious
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meals or how the meals are prepared. (Def.’s Resp. Br. at 4, ECF No. 118 at Pg ID
1376.) The Court is unsure how Defendant expects Plaintiffs to know this
information at this stage of the litigation. Putative class members may not even be
aware that their right to receive meals in accordance with their religious beliefs is
allegedly being violated by Defendant. Defendant asserts that “[Ackerman’s and
Shaykin’s] desire for a kosher meal and for more stringent controls on food
preparation” may not be representative of the putative class as a whole. (Id. at 5,
Pg ID 1377.) This Court must assume at this juncture, however, that if Jewish
prisoners requested and were approved to receive Kosher meals that they, like
Plaintiffs, want their meals to comply with the laws of Kashrut. Moreover, this
Court is unaware of any precedent requiring as a prerequisite to class certification
that the named plaintiffs establish putative class members’ desire to join the class.
As such, the Court finds that Plaintiffs meet the numerosity requirement.
Commonality
The commonality requirement of Rule 23(a)(2) “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
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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)).
The relevant 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?3 Plaintiffs allege that MDOC uses non-kosher items in
preparing kosher meals and uses non-kosher equipment, utensils, and areas to
prepare and serve the meals. Plaintiffs’ RLUIPA and First Amendment claims are
typical of the claims they seek to assert on behalf of the putative class. Therefore,
Rule 23(a)’s second and third elements are satisfied.
For these reasons, the Court concludes that Rule 23(a)’s four requirements
for class certification are satisfied.
Rule 23(b)’s Requirements
In addition to satisfying the requirements of Rule 23(a), a party seeking class
certification must meet at least one of the requirements of Rule 23(b). Plaintiffs
seek certification under Rule 23(b)(2). Pursuant to this provision,
To challenge Plaintiffs’ satisfaction of the commonality requirement,
Defendant again relies on her argument that Plaintiffs fail to show that any putative
class members object to the meals they are receiving. For the same reasons set
forth above, the Court finds that this argument does not undermine the
commonality of Plaintiffs’ claims and those of the putative class.
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[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).
Plaintiffs allege 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. They seek
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).
Conclusion
For the reasons set forth above, the Court holds that Plaintiffs satisfy all of
the prerequisites for class certification under Rule 23(a) and (b)(2). Accordingly,
the Court GRANTS Plaintiffs’ motion for class certification (ECF No. 113) and

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CERTIFIES the following class with respect to the claims in Plaintiffs’ First
Amended Complaint:
All Jewish individuals confined with the Michigan Department of
Corrections who are designated by the prison system to receive kosher
meals.
The Court DESIGNATES Ackerman and Shaykin as the representative plaintiffs
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: August 21, 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, August 21, 2018, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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