Redmond et al v. Bigelow et al

Filing 56

MEMORANDUM DECISION granting 31 Motion to Certify Class. The court certifies two subclasses-a Damages Class and an Injunctive Class. The court also certifies the named Plaintiffs as class representatives, and certifies Plaintiffs' counsel as Class Counsel. Signed by Judge Dale A. Kimball on 6/17/14. (jlw)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

TIMOTHY REDMOND, et al.,
MEMORANDUM DECISION
AND ORDER

Plaintiffs,
vs.

Case No. 2:13CV393DAK

ALFRED BIGELOW, et al.,

Judge Dale A. Kimball

Defendants.

This matter is before the court on Plaintiffs Timothy Redomond, Nick Watson, Justin
Strong, George Montfort, Daniel Lassche, and Kraig Canfield’s Motion for Class Certification
pursuant to Rule 23 of the Federal Rules of Civil Procedure. The court held a hearing on the
motion on April 2, 2014. At the hearing, Plaintiffs were represented by Karra Porter and John
Mejia, and Defendants were represented by Joni J. Jones and Kyle J. Kaiser. The court has
carefully considered the materials submitted by the parties, as well as the facts and law relevant
to the motion. Now being fully advised, the court renders the following Memorandum Decision
and Order.
BACKGROUND
This potential class action arose out of an incident on August 3, 2011, at the Olympus
Facility at the Utah State Prison, in which prison guards used ochlorobenzylidenemalononitrile
(“CS gas”) against an inmate who refused to leave one of the recreation yards and return to his
cell. The guards released the CS gas grenade near two air vents which distributed the gas to

several cell blocks within the Olympus Facility. Plaintiffs are inmates who were in their cells at
the time the CS gas was released. The Olympus Facility is a self-contained housing unit on the
grounds of the Utah State Prison. It houses up to a maximum of 168 medically fragile inmates
and inmates with serious mental health issues.
Plaintiffs seek to certify the following two classes: (1) the Injunctive Class, defined as
“all prisoners currently incarcerated in the Olympus wing of the Utah State Prison,” and (2) the
Damages Class, defined as “all prisoners and former prisoners who were in their cells in the
Olympus Wing of the Utah State Prison on August 3, 2011, and were thereby exposed to noxious
ochlorobenzylidenemalononitrile (“CS gas”).”
The Injunctive Class seeks an injunction requiring Defendants to adopt and comply with
written policies regarding the deployment of chemical agents in the Olympus Facility of the Utah
State Prison. The Damages Class seeks damages for harm suffered by the class from the incident
on August 3, 2011.
DISCUSSION
Plaintiffs’ Motion for Class Certification
Plaintiffs ask this court to certify two subclasses, to certify the named inmates as class
representatives, and to certify their counsel as Class Counsel. There is no dispute that the ACLU
and Christensen & Jensen are adequate class counsel. Therefore, the only dispute is whether the
two proposed subclasses meet the requirements for certification and whether the named inmates
are adequate class representatives.
Rule 23 of the Federal Rules of Civil Procedure governs class certification. Rule 23(a)
provides four prerequisites that must be met for a representative party to bring an action on
behalf of all members of a class: “(1) the class is so numerous that joinder of all members is
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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 interests of the class.” Fed. R. Civ. P.
23(a); see also Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988).
If the prerequisites of Rule 23(a) are met, then one of the requirements of Rule 23(b) must
also be satisfied in order to maintain a class action. Id. R. 23(b). The three requirements in Rule
23(b) include (1) whether the prosecution of separate actions by members of the class would
produce inconsistent or dispositive results, (2) whether the defendant has acted or refused to act
on grounds that apply generally to the class, and (3) whether the court finds that questions of law
or fact common to class members predominates over questions affecting only individual
members and that a class action is superior to other methods of adjudicating the controversy.
The party seeking certification bears the burden of establishing that certification is proper.
Ditty v. Check Rite Ltd., 182 F.R.D. 639, 641 (D. Utah 1998). For purposes of class certification,
the well-pleaded facts of the Complaint are taken as true. In re Playmobil Antitrust Litigation,
35 F. Supp. 2d 231, 236 (E.D.N.Y. 1998). Furthermore, “[w]hen there is a question as to
whether certification is appropriate, the Court should give the benefit of the doubt to approving
the class.” In re Workers’ Compensation, 130 F.R.D. 99, 103 (D. Minn. 1990).
The parties dispute whether Plaintiffs have met both Rule 23(a)’s and Rule 23(b)’s
requirements. The court, therefore, will address each requirement in turn.
1. Rule 23(a) Requirements
A. Numerosity
Plaintiffs argue that the joining every member of the proposed classes, or litigating
individual suits, would be impracticable. The Tenth Circuit has not adopted a specific numerical
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threshold for class certification and has stated that the inquiry must be made based on the
particular circumstances of the case. Rex v. Owens, 585 F.2d 432, 436 (10th Cir. 1978).
“Satisfaction of the numerosity requirement does not require that joinder is impossible, but only
that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.”
Lowery v. City of Albuquerque, 273 F.R.D. 668, 678 (D.N.M. 2011).
“Rule 23(a)(1) is an impracticability of joinder rule, not a strict numerosity rule. It is
based on considerations of due process, judicial economy, and the ability of claimants to institute
suits.” 1 William R. Rubenstein, Alba Conte, Herbert Newberg, Newberg on Class Actions §
3:11 (5th ed. 2011). Factors relevant in determining whether Plaintiffs have proven numerosity
include “the class size, the geographic diversity of the class members, the relative ease or
difficulty in identifying members of the class for joinder, the financial resources of the class
members, and the ability of class members to institute individual lawsuits.” Pueblo of Zuni v.
United States, 243 F.R.D. 436, 445 (D.N.M. 2007).
The parties dispute the number of inmates at issue. The Injunctive Class is defined as all
prisoners currently incarcerated in the Olympus Wing of the Utah State Prison. The facility can
house a maximum of 169 inmates. Defendants question whether the current prisoners within the
class would even have standing to bring this claim unless they were incarcerated on August 3,
2011. A class has standing to request injunctive relief where they complain of “officially
endorsed policies” and where “there is a likelihood of recurring injury” as a result of those
policies. Deshaen E. v. Safir, 156 F.3d 340, 345 (2d Cir. 1998). Plaintiffs allege that the
policies, practices, and/or customs of the Utah State Prison allow the use of CS gas in a manner
that poses a threat to the Injunctive Class. Plaintiffs allege that the gassing event occurred
pursuant to prison policy and that it is substantially likely that this incident will not be an isolated
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event in the Olympus Facility. As such, the proposed Injunctive Class has standing in this case.

Defendants also argue that joinder of class members is not impracticable because all the
current inmates are in the same geographic area, their identifies are easily ascertainable, and they
can be contacted. Plaintiffs admit that the Injunctive Class is in the same geographic area and
their identities are easily ascertainable, but Plaintiffs point out that those are not the only
considerations that apply. Numerosity looks at whether the Plaintiffs would suffer “a strong
litigational hardship or inconvenience” if joinder is required. Lowery v. City of Albuquerque,
273 F.R.D. 668, 678 (D.N.M. 2011). Plaintiffs are prisoners who enjoy very little freedom in
their daily lives. They are not at liberty to meet and confer with counsel without permission from
Defendants. The fact that Plaintiffs are all in one place does not mean that individual suits would
not be difficult.
Whether there are fifty or one hundred and fifty members of the class, the logistics of
representing a large number of inmates is unquestionably difficult. Plaintiffs cannot easily
communicate with counsel by email or telephone. Communication with each Plaintiff must be
done through visits. In addition, Plaintiffs are not in control of their housing assignments and
can be moved or released at any time. Joining each member of the proposed Injunctive Class
individually is impracticable.
Moreover, the remedy requested by the Injunctive Class is requiring the prison to adhere
to written policies regarding the deployment of chemical agents near ventilation systems. The
nature of this remedy does not allow for the prosecution of separate claims. Such an injunction
must be effective as to all of the class or none of the class. Individual remedies are not available.

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The Damages Class is limited to all prisoners and former prisoners who were in their
cells in the Olympus Wing of the Utah State Prison on August 3, 2011, and were thereby exposed
to CS gas. Plaintiffs’ alleged Eighth Amendment violations require an analysis of whether the
inmate was confined under conditions posing a substantial risk of serious harm to which prison
officials were deliberately indifferent, or whether force was excessive. See DeSpain v. Uphoff,
264 F.3d 965, 977-78 (10th Cir. 2001). DeSpain does not require serious harm to be shown in
cases when the use of chemical agents, such as pepper spray, can be considered the use of
excessive force. Id. at 978. In reviewing the pepper spray claim, the court expressly refused to
apply the Farmer test and its serious harm requirement. Id. The court noted that the plaintiff had
not alleged “any significant physical harm from the pepper spray,” and instead of adopting a
significant physical harm requirement, noted that “the ultimate constitutional inquiry is directed
at whether an unnecessary and wanton infliction of pain has occurred.” Id.
This case is similar to the pepper spray in DeSpain. The issue is whether an unnecessary
and wanton infliction of pain has occurred. The members of the Damages Class did not pose any
security threat when they were gassed while locked in their cells. In any event, Plaintiffs have
alleged various serious injuries as a result of the gas exposure. Moreover, at this stage of the
litigation, the court is looking only at Plaintiffs’ allegations. The court is not weighing the merits
or considering whether the claims can or will survive a qualified immunity analysis.
Defendants further contend that the named Plaintiffs indicate a wide degree of variation
in the effects of the CS gas from inmate to inmate and section to section. However, there is no
legal support for Defendants’ contention that Plaintiffs have the burden to show that the CS gas
affected inmates in each section similarly. To the extent that some prisoners in certain sections
may have been exposed to higher levels of gas than others, Defendants may simply be
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responsible for a greater amount of damages to those class members. The potential differences in
damages do not prevent class certification. Classes certified under Rule 23(b)(3) may have
“highly individualized claims or require an individualized plaintiff-by-plaintiff determination of
monetary damages.” J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999). The
important issue for class certification is that there is a common legal grievance shared by the
Damages Class.
Defendants also claim that it is not impracticable to join each member of the Damages
Class because Plaintiffs know each of the inmates affected, many are still in the prison system,
and others are likely still on probation. However, as stated above, Defendants ignore the
difficulties inherent in representing inmates. Their lack of freedom, restrictions on contact, and
inability to control their location all present significant difficulties that make joinder of each
member of the class impracticable. Accordingly, the court finds that Plaintiffs have
demonstrated the numerosity requirement.
B. Commonality
“A finding of commonality requires only a single question of law or fact common to the
entire class.” Miller v. Basic Research LLC, 285 F.R.D. 647, 654 (D. Utah 2010). “A common
nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule
23(a)(2).” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).
In this case, both of the proposed classes’ claims arise from the same event – the inmates’
exposure to CS gas in the Olympus Facility. For the Damages Class, common issues of fact
include the circumstances under which the CS gas was deployed, Plaintiffs’ inability to exit their
cells despite the gas exposure, delayed responses to emergency calls, and the actions taken
toward the inmates. The common questions of law for the Damages Class include the proper
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standard of review to apply to the claims, whether Defendants’ conduct rose to the level of a
deprivation of constitutional rights, and how to measure of damages.
The common issues of fact for the Injunctive Class include the current policies, practices,
and customs regarding the deployment of chemical agents in the Olympus Facility and whether it
is policy, practice, or custom to refuse to answer emergency calls when CS gas is deployed, to
wait 20-30 minutes to allow affected prisoners to leave their cells, to refrain from providing
medical treatment after exposure to CS gas, to refuse to provide medical treatment to inmates
who have been harmed by the CS gas, and/or to discourage inmates from filing grievances.
Common questions of law for the Injunctive Class include: whether Defendants’ current policies,
practices, and customs regarding the deployment of chemical agents in the Olympus Facility
comply with constitutional standards and whether those policies, practices and customs create a
risk of future harm to the Injunctive Class. All of the members of the Injunctive Class face the
risk of future gassing if the prison’s policy is not changed. Therefore, the court concludes that
Plaintiffs have met the commonality requirement.
C. Typicality
To satisfy the typicality requirement, the named Plaintiffs must show that they “possess
the same interests and suffered the same injuries as the proposed class members.” Swisher v.
United States, 189 F.R.D. 638, 640 (D. Kansas 1999). The named Plaintiffs’ claims need not be
identical to those of the other class members, but “must resemble the class’s claims to an extent
that adequate representation can be expected.” Id. A claim is typical if it arises from the same
event or course of conduct and is based on the same legal theory. Rosario, 963 F.2d 1013, 1018
(7th Cir. 1993).
For the Damages Class, the named Plaintiffs’ claims arose from the exact same event as
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the rest of the proposed class – they were locked in their cells when the CS gas went through the
ventilation system. The named Plaintiffs were treated the same as the other inmates and seek
damages under the same legal theories. To defeat a finding of typicality, Defendants mention the
inmate who caused the gassing, however, he is explicitly not a member of the class. In addition,
as stated above, slight variances on the effect of the gas on class members may be relevant for
damages but they are not significant enough to defeat class certification.
For the Injunctive Class, four of the named Plaintiffs remain housed in the Olympus
Facility and have claims that are exactly representative of the Injunctive Class. The named
Plaintiffs face the likelihood of future harm if Defendants continue their current policies,
practices, and/or customs regarding the deployment of chemical agents. The named Plaintiffs
have the same interest in obtaining injunctive relief requiring Defendants to adopt and adhere to
policies and procedures that would prevent unwarranted CS gas exposure.
With respect to the Injunctive Class, Defendants contend that Plaintiffs have provided no
representatives who have exhausted their administrative remedies. This defense creates an
irreconcilable conflict. Vicarious exhaustion has not been explicitly adopted by the Tenth
Circuit. However, it requires at least one member of the class to have exhausted his or her
administrative remedies. McGoldrick v. Werhotlz, 185 F. Appx. 741, 743 (10th Cir. June 22,
2006).
However, Plaintiff George Montfort has exhausted his administrative remedies. Thus, the
exhaustion requirement is satisfied for the rest of the class. Goldrick v. Werhotlz, 185 Fed. Appx.
741, 743 (10th Cir. 2006). Montfort filled out a grievance form the day after the gassing
incident. He gave the form to Lieutenant Zorn, who threw it away. As such, Montfort attempted
to exhaust his administrative remedies but was prevented from doing so. By law, he has

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exhausted his remedies. Baughman v. Harless, 142 Fed. Appx. 354, 358-59 (10th Cir. 2005) (“If
prison officials prevent a prisoner from proceeding with exhaustion of administrative remedies,
prison officials render that remedy unavailable such that a court will deem the procedure
exhausted.”).
Accordingly, the court concludes that Plaintiffs have met the typicality requirement for
both proposed classes.
D. Adequacy of Representation
The adequate representation requirement of Rule 23(a)(4) requires that “the representative
parties will fairly and adequately protect the interests of the class.” Rutter, 314 F.3d at 1188-89.
“Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their
counsel have any conflicts of interest with other class members? and (2) will the named plaintiffs
and their counsel prosecute the action vigorously on behalf of the class?” Id.
In this case, there is no reason to believe that the interests or goals of the named Plaintiffs
and the class will diverge at any point. The named Plaintiffs and members of the class were
harmed by the same event or face the possibility of similar harm by the same actions taken by the
Utah State Prison guards and policies. The named Plaintiffs and classes share the same interest
in procuring declaratory and injunctive relief.
Again, Defendants assert that the class representatives for the Injunctive Class are
inadequate because they have failed to exhaust their administrative remedies. However, George
Montfort has exhausted his administrative remedies. Defendants also argue that George
Montfort is not an adequate representative because they did not like the answers he gave in his
deposition and Defendants doubt that his current mental condition makes him capable of acting
in the best interest of the class. Plaintiffs dispute Defendants’ characterization that Monfort did

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not answer questions appropriately at his deposition. The court does not believe that his mental
illness disqualifies him or that specific answers call his role into question. Therefore, Montfort
can adequately represent the Injunctive Class.
With respect to the Damages Class, Defendants state that several of the named Plaintiffs
are not adequate representatives for their class because in their depositions they indicated that
they do not expect to get any damages. However, testimony that a prisoner does not expect to get
money out of this lawsuit does not create an irreconcilable conflict between the class
representative and class members. An indication as to expectations does not indicate that the
prisoner will not seek damages or believe that he is legally entitled to damages. The testimony
merely states an expectation and could have been an attempt to not look greedy. The testimony
shows no real conflict between the representatives and the class. Therefore, the court concludes
that the named Plaintiffs are adequate representatives of the Damages Class.
2. Rule 23(b) Requirements
Having determined that Plaintiffs meet the prerequisites of Rule 23(a), the court must
analyze whether Plaintiffs have demonstrated that they also meet one of the requirements under
Rule 23(b). Plaintiffs seek certification for the Injunctive Class under Rule 23(b)(2) and
certification for the Damages Class under Rule 23(b)(3).
A. Injunctive Class
Rule 23(b)(2) requires that “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.” Rule 23(b)(2) certification is
appropriate when “a single injunction or declaratory judgment would provide relief to each
member of the class.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011). Rule

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23(b)(2) certification “is an especially appropriate vehicle for civil rights actions.” Coley v.
Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980).
The Injunctive Class seeks an injunction that would benefit each member of the class by
requiring the Utah State Prison to adopt and adhere to policies regarding the deployment and
response to CS gas. The members of the Injunctive Class are inmates currently incarcerated in
the Olympus Facility. The lack of action by Defendants with respect to a CS gas policy makes
certification appropriate. Individual remedies are not at issue. Moreover, due to the change in
the population of the Olympus Facility, which is outside of any of the named Plaintiffs’ control,
could make an individual Plaintiff’s claim moot. However, a class defined as the current inmates
of the Olympus Facility allows the action to avoid mootness concerns.
Defendants argue that the claims in this case related to the deployment of CS gas to
restrain a mentally challenged prisoner is extremely fact-specific and each inmate’s particular
reaction to CS gas is also unique. But, the Injunctive Class seeks an injunction that would apply
to each member of the class without reference to individual circumstances.
Defendants also attack certification by arguing that Plaintiffs seek an injunction directing
Defendants to adopt and comply with written policies regarding the deployment of chemical
agents in the Olympus Facility but they do not spell out what these polices are or how they would
prevent any unconstitutional conditions. Defendants attack class certification on the grounds that
the requested injunction is too vague. However, the Tenth Circuit has specifically held that
plaintiffs are not required to “come forward with a finished injunction at the class certification
stage.” Shook v. Bd. of County Comm’rs of El Paso, 543 F.3d 597, 603 (10th Cir. 2008). The
court concludes that Plaintiffs in this case have been sufficiently specific about the policy they
seek to meet the requirements of Shook and Rule 65. Accordingly, the court finds that Plaintiffs

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have met the requirements of Rule 23(b)(2) for certification of the Injunctive Class.
B. Damages Class
Rule 23(b)(3) requires a showing that (1) issues common to the class predominate over
those affecting individual class members; and (2) prosecuting the litigation as a class action is
superior to other available methods of adjudicating the controversy.
In this case, while all of the members of the Damages Class were exposed to CS gas,
there is a variance between the length of exposure and harm. Although those variance are
individual differences, the vast majority of facts and law at issue in the case are common to all
members of the class.
In addition, “[t]he superiority requirement is grounded in the idea that the litigation is to
be carried out as efficiently and as fairly as possible for all parties.” Hillis, 237 at 504. This
requirement “directs the court’s attention to ‘the relative advantages of a class action suit over
whatever other forms of litigation might be realistically available to plaintiffs.” Id. (citation
omitted). “The matters pertinent to the findings [of predominance and superiority] include: (A)
the interest of members of the class in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation concerning the controversy already
commenced by or against the members of the class; (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be
encountered in the management of a class action.” Amchem, 521 U.S. at 615.
A class action is the fairest and most efficient manner of litigating the claims at issue in
the present case. A class action eliminates the possibility of inconsistent verdicts or results for
individual plaintiffs. It also eliminates the logistical problems that would arise if all of the class
members were to file individual suits or were individually joined to the present case.

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Defendants improperly conflate the issues of liability and damages. The predominance
requirement focuses on the issue of liability. The questions of liability in this case are common
to the entire class. Damages may be individualized but that does not raise predominance
concerns. In an effort to show differences, Defendants also improperly refer to the inmate who
refused to go to his cell and caused the gassing incident to occur. However, as stated above that
inmate is explicitly not a part of the class. The class is defined as inmates in their cells at the
time. Despite individual variances, the court concludes that common liability issues predominate
and a class action is the superior means for prosecuting Plaintiffs claims. Accordingly, the court
concludes that Plaintiffs have met the requirements of Rule 23(b)(3) for certification of the
Damages Class.
CONCLUSION
Based on the above reasoning, Plaintiffs’ Motion for Class Certification is GRANTED.
The court certifies two subclasses–a Damages Class and an Injunctive Class, as defined above.
The court also certifies the named Plaintiffs as class representatives, and certifies Plaintiffs’
counsel as Class Counsel.
DATED this 17th day of June, 2014.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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