Anderson et al v. Wisconsin Department of Corrections et al

Filing 53

DECISION AND ORDER signed by Magistrate Judge William E Duffin on 6/4/2024. The plaintiffs' motion for a preliminary injunction (ECF No. 28 ) is denied. The plaintiffs' motion for class certification (ECF No. 34 ) is denied. (cc: all counsel)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASON NATCONE, and
KEVIN L. BURKES,
Plaintiffs,
v.

Case No. 23-CV-1430

WISCONSIN DEPARTMENT OF CORRECTIONS, et al.,
Defendants.
DECISION AND ORDER
1. Background
The plaintiffs are current or former inmates of Waupun Correctional Institution
(WCI). (ECF No. 1, ¶ 1.) They filed this proposed class action on October 26, 2023, seeking
declaratory and injunctive relief with respect to the Wisconsin Department of Corrections
(DOC) and various DOC officials. (ECF No. 1.) They allege, in part, that “the system
under which Defendants provide, or do not provide, medical, mental health, and dental
care (collectively, ‘health care’) to prisoners is grossly inadequate and subjects all
prisoners to a substantial risk of serious harm, including unnecessary pain and suffering,
preventable injury, amputation, disfigurement, and death.” (ECF No. 1, ¶ 1.)

The plaintiffs filed an amended complaint on November 21, 2023 (ECF No. 14),
which the court screened in accordance with 28 U.S.C. § 1915A (ECF No. 15). The
defendants answered the amended complaint on December 28, 2023. (ECF No. 18.)
Following a scheduling conference (ECF No. 25), the court on January 24, 2024, issued a
scheduling order (ECF No. 26).
On March 22, 2024, the plaintiffs moved for a preliminary injunction. (ECF No. 28.)
The defendants responded (see ECF No. 35), but the plaintiffs did not reply.
On March 25, 2024, the defendants moved for partial summary judgment on
exhaustion grounds. (ECF No. 29.) The plaintiffs responded (ECF No. 36), and the
defendants replied (ECF No. 40).
On March 28, 2024, the plaintiffs moved to certify a class. (ECF No. 34.) The
defendants responded (ECF No. 39), and, again, the plaintiffs did not reply.
On May 23, 2024, the court granted the defendants’ motion for partial summary
judgment. Anderson v. Wis. Dep’t of Corr., No. 23-CV-1430, 2024 U.S. Dist. LEXIS 92406
(E.D. Wis. May 23, 2024). The court dismissed Patrick Kurkowski, Kenneth Dalberg,
Edgar Salinas-Leal, Bradley Schmitt, Justin Welch, Ashton Dreiling, John Anderson, and
Jayvon Flemming as plaintiffs, and dismissed the plaintiffs’ mental health and isolationrelated claims. Only Jason Natcone and Kevin L. Burkes remain as plaintiffs. Nactone
presents a claim regarding access to routine dental care. Id. at *9. Burkes presents a claim
regarding access to medical care—specifically, care for pain in his eyes. Id. at *9-*10.

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2. Plaintiffs’ Motion for a Preliminary Injunction
“A preliminary injunction is ‘an exercise of a very far-reaching power, never to be
indulged in except in a case clearly demanding it.’” Finch v. Treto, 82 F.4th 572, 578 (7th
Cir. 2023) (quoting Cassell v. Snyders, 990 F.3d 539, 544 (7th Cir. 2021)). “For a preliminary
injunction to issue, a plaintiff ‘must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.’” A.C.
v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760, 766-67 (7th Cir. 2023) (quoting Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)); see also Finch, 82 F.4th at 578
(“To obtain a preliminary injunction, a plaintiff must show that (1) he has some likelihood
of success on the merits of his claim; (2) traditional legal remedies are inadequate; and (3)
he would suffer irreparable harm without preliminary injunctive relief.”) (citing Speech
First, Inc. v. Killeen, 968 F.3d 628, 637 (7th Cir. 2020)). “The party seeking a preliminary
injunction bears the burden of showing that it is warranted.” Finch, 82 F.4th at 578
(quoting Speech First, 968 F.3d at 637).
The Prison Litigation Reform Act further restricts the availability of prospective
relief like preliminary injunctions. “[P]rospective remedies must be ‘narrowly drawn,
extend[] no further than necessary to correct the violation of the Federal right, and [be]
the least intrusive means necessary to correct the violation of the Federal right.’” Rasho v.
Jeffreys, 22 F.4th 703, 706 (7th Cir. 2022) (quoting 18 U.S.C. § 3626(a)(1)(A)).

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The plaintiffs allege that, “[a]t the end of March 2023, WCI went into an
unexplained lockdown where recreational services and visitation was all but stopped.”
(ECF No. 28 at 6.) “During this lockdown, WCI inmates were exposed to rodent feces,
birds living in their common areas, poor sanitation, poor dietary provisions, limited
medical treatment, and limited mental health services. Additionally, visitation was
denied, creating more isolation to all impacted Plaintiffs and Members of the Plaintiff
Class.” (ECF No. 28 at 6.)
Following the court’s decision on the defendants’ motion for summary judgment,
the plaintiffs’ claims are much narrower than the sweeping and systemic allegations they
offer in support of their motion for a preliminary injunction. Only two plaintiffs, each
with a single discrete claim, remain. The plaintiffs’ motion does not address these specific
claims vis-à-vis the relevant factors for granting preliminary injunctive relief.
Neither Natcone nor Burkes has sustained his burden to show that traditional
remedies are inadequate or that he would suffer irreparable harm without preliminary
injunctive relief. Therefore, the motion for a preliminary injunction must be denied.
3. Plaintiffs’ Motion to Certify Class
The plaintiffs also filed a motion to certify this action as a class action. (ECF No.
34.)
“The class action is ‘an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564

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U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). “A plaintiff
seeking to certify a class must satisfy the four requirements of Rule 23(a)—numerosity,
typicality, commonality, and adequacy of representation—as well as one of the categories
in Rule 23(b).” Scott v. Dart, ___ F.4th ___, 2024 U.S. App. LEXIS 10305, *25 (7th Cir. Apr.
29, 2024).
Because the Rule 23(a) elements often intersect and overlap, analysis of one
element may be relevant to another. The court’s analysis is “rigorous.” Lacy v. Cook Cnty.,
Illinois, 897 F.3d 847, 863 (7th Cir. 2018) (quoting Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d
360, 373 (7th Cir. 2015)). Unlike at the motion to dismiss stage, at the class certification
stage the court does not assume the truth of the plaintiffs’ allegations. Priddy v. Health
Care Serv. Corp., 870 F.3d 657, 660 (7th Cir. 2017) (quoting Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012)). The plaintiffs generally must present facts
to satisfy each element, Eddlemon v. Bradley Univ., 65 F.4th 335, 339 (7th Cir. 2023) (quoting
Wal-Mart, 564 U.S. at 350), and they have “the burden of demonstrating that certification
is proper by a preponderance of the evidence,” Eddlemon, 65 F.4th at 338 (quoting Gorss
Motels, Inc. v. Brigadoon Fitness, Inc., 29 F.4th 839, 843 (7th Cir. 2022)).
The plaintiffs seek to certify a class which they refer to as the Prisoner Class, which
they propose to define as:
All prisoner Plaintiffs bring this action on their own behalf and, pursuant
to all applicable Rules of Federal Civil Procedure, and on behalf of the class
of all prisoners who are now, have been, or will in the future be, subjected
to the medical, mental health, and dental care policies and practices of both
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the Wisconsin Department of Corrections (WIDOC) and WCI. Additionally,
members of the above class seek declaratory and injunctive relief regarding
the actions of all Defendants.
(ECF No. 34 at 4.) The plaintiffs also seek to certify subclasses that they refer to as the
Medical, Dental, Mental Health, and Isolation subclasses that similarly encompass “all
prisoners [who] are now, have been, or will in the future be, subjected to the [relevant]
policies and practices of WIDOC and WCI.” (ECF No. 34 at 4-5.)
“It is axiomatic that for a class action to be certified a ‘class’ must exist.” Simer v.
Rios, 661 F.2d 655, 669 (7th Cir. 1981). The class must be defined clearly and objectively.
Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015). It also must be “sufficiently
definite that its members are ascertainable.” Lacy, 897 F.3d at 864 (quoting Jamie S. v.
Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th Cir. 2012)); cf. Mullins, 795 F.3d at 659 (stating
the Seventh Circuit follows the “‘weak’ version of ascertainability”).
“[A] class should not be certified if ‘it sweeps within it persons who could not have
been injured by the defendant’s conduct or if it is apparent that it contains a great many
persons who have suffered no injury.’” Lacy, 897 F.3d at 864 (brackets and ellipses
omitted) (quoting Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009)). But that
is not to say that a class is sufficient only if it is limited to those who were injured by the
defendants’ conduct. Lacy, 897 F.3d at 864 (citing Kohen, 571 F.3d at 677). A class is defined
as encompassing only those whose valid claims would likely constitute an impermissible
“fail-safe” class. See McCaster v. Darden Restaurants, Inc., 845 F.3d 794, 799 (7th Cir. 2017).

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“There is no precise tipping point at which a class includes too many people who
have not been harmed. ‘Such determinations are a matter of degree, and will turn on the
facts as they appear from case to case.’” Lacy, 897 F.3d at 864 (quoting Messner, 669 F.3d
at 825).
Every prisoner is subject to some sort of medical, mental health, or dental care
policy. Therefore, in defining the class as “all prisoners who are now, have been, or will
in the future be, subjected to the medical, mental health, and dental care policies and
practices of both the Wisconsin Department of Corrections (WIDOC) and WCI,” the
plaintiffs are attempting to define a class comprised of every person who ever has been
or ever will be incarcerated at WCI.
A class that encompasses every past, present or future prisoner is not necessarily
improper if there is a specific policy that injured or, in the context of injunctive relief,
stands to injure every inmate. See, e.g., Flynn v. Doyle, 630 F. Supp. 2d 987, 989 (E.D. Wis.
2009). But without specifying which particular policies are at issue, the plaintiffs cannot
define the limits of the class. Nor can the court determine to what extent the class may
encompass persons who were not injured by the defendants’ conduct.
Moreover, without specifying a time period during which the unnamed policies
at issue have been in place, the plaintiffs would seem to be attempting to assert claims on
behalf of every person who has passed through the gates of WCI any time in its roughly
170-year history. The court need not belabor these foundational defects because, as

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discussed below, the plaintiffs’ motion otherwise fails at every step under Rule 23(a) and
(b).
3.1. Commonality
“The Supreme Court has explained that ‘[c]ommonality requires the plaintiff to
demonstrate that the class members have suffered the same injury’” at the hands of the
same defendant. McCaster, 845 F.3d at 800 (quoting Wal-Mart, 564 U.S. at 349–50). “[T]hey
must show that ‘the same conduct or practice by the same defendant gives rise to the
same kind of claims from all class members.’” Id. (quoting Suchanek v. Sturm Foods, Inc.,
764 F.3d 750, 756 (7th Cir. 2014)); see also Simpson v. Dart, 23 F.4th 706, 711 (7th Cir. 2022).
That does not mean that all class members’ claims must be identical. Class actions
routinely require findings specific to each member. The commonality element requires
merely that there exists a question the determination of which “will resolve an issue that
is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350.
In support of their motion for class certification the plaintiffs do not point to any
specific WCI medical, mental health, and dental care policies and practices as the
common thread that ties the proposed class together. Although systemic failures in care
afforded inmates may be sufficient under Rule 23(a)(2), see Scott, 2024 U.S. App. LEXIS
10305, at *34; Parsons v. Ryan, 754 F.3d 657, 676 (9th Cir. 2014), the plaintiffs do not so
much as articulate any relevant policy, much less present the requisite “significant proof,”
that WCI had policies to unlawfully deprive inmates of healthcare, see Wal-Mart, 564 U.S.

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at 353 (discussing plaintiffs’ burden to show that a policy of discrimination existed).
Rather, the plaintiffs attempt to satisfy the commonality element by asserting,
“Defendants’ deliberate indifference is such a system-wide practice that it has created a
significant risk of serious harm to all members of the Class.” (ECF No. 34 at 8.)
An assertion that the defendants had a policy of deliberate indifference is nothing
more than a legal conclusion that all inmates allegedly suffered violations of the Eighth
Amendment. “But it’s not enough for the plaintiffs to show that class members ‘have all
suffered a violation of the same provision of law.’” McCaster, 845 F.3d at 800 (quoting
Wal-Mart, 564 U.S. at 350). All prisoners who suffered violations of the Eighth
Amendment can no more be joined together in a single class action than all employees
who suffered employment discrimination could be joined together in a class action. See
Wal-Mart, 564 U.S. at 350 (“Quite obviously, the mere claim by employees of the same
company that they have suffered a Title VII injury, or even a disparate-impact Title VII
injury, gives no cause to believe that all their claims can productively be litigated at
once.”).
Plaintiffs generally must identify a policy, practice, or action by a defendant that
gives rise to the common claim; the fact of a superficially similar claim, standing alone, is
insufficient. See McCaster, 845 F.3d at 800 (“Instead they must show that ‘the same
conduct or practice by the same defendant gives rise to the same kind of claims from all
class members.’” (quoting Messner, 669 F.3d at 814). The plaintiffs do not point to any

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specific policy, practice, or action by any defendant that allegedly violated the Eighth
Amendment. Cf. Postawko v. Missouri Dep’t of Corr., 910 F.3d 1030, 1035 (8th Cir. 2018)
(identifying prison’s treatment protocol for Hepatitis C); Olson v. Brown, 284 F.R.D. 398,
402 (N.D. Ind. 2012) (identifying jail’s grievance, law library, and mail policies as
constitutionally deficient). That all WCI inmates are subject to the same policies (ECF No.
34 at 8) is not enough if none of those policies plausibly gives rise to a claim.
Claims tied together only by the element of deliberate indifference are not
“capable of classwide resolution.” McCaster, 845 F.3d at 800 (quoting Wal–Mart, 564 U.S.
at 350). There are countless actions that may give rise to deliberate indifference vis-à-vis
prison life, and resolving such claims requires evaluating the individual facts of each
claim. They “would not involve any classwide proof.” Id. at 801. Because claims of
whether an inmate was subject to deliberate indifference is “highly individualized and
vastly diverse,” they are “unsuitable for class-action treatment under Rule 23 of the
Federal Rules of Civil Procedure.” Jamie S., 668 F.3d at 486.
The plaintiffs have failed to sustain their burden under Fed. R. Civ. P. 23(a)(2).
3.2. Numerosity
Without identifying a thread that ties the claims together, the court cannot
adequately assess whether the “class is so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). In an attempt to meet their burden with respect
to numerosity, the plaintiffs point only to the fact that WCI is home to roughly 950

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inmates. (ECF No. 34 at 5.) But that figure grossly overstates the number of plaintiffs that
would have to be joined for this action to proceed as a traditional action. Only inmates
with viable Eighth Amendment claims would be subject to joinder, and then only those
who exhausted their administrative remedies prior to the filing of this action. See
Anderson, 2024 U.S. Dist. LEXIS 92406, at *13 (citing Chambers v. Sood, 956 F.3d 979, 984
(7th Cir. 2020)); 42 U.S.C. § 1997e. Taking into consideration the three-year statute of
limitations, Wis. Stat. § 893.53, and the fact that those with viable lawsuits may have
already started their own suits, joinder of all class members’ claims may be practical.
Thus, the plaintiffs have failed to sustain their burden under Fed. R. Civ. P. 23(a)(1).
3.3. Typicality
Although distinct, the typicality and commonality elements often merge. Scott,
2024 U.S. App. LEXIS 10305, at *34 (quoting Priddy, 870 F.3d at 660). “Generally, a class
representative’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 her claims are based on
the same legal theory.’” McFields v. Dart, 982 F.3d 511, 517-18 (7th Cir. 2020) (quoting
Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006)). This does not mean that
representative’s claims must be factually identical to those of the class. Id. at 518 (quoting
Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009)). But the representative’s claims
must “have the same essential characteristics as the claims of the class at large.” Id.
(quoting Muro, 580 F.3d at 492).

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The plaintiffs argue:
Several factual questions concerning Defendants’ actions are common to
the members of each class as each Plaintiff relies solely on Defendants for
their daily necessities, medical treatment, mental health treatment, and
dental treatment. The resolution of these common legal and factual issues
will determine if the members of each class are entitled to relief.
Here, the named Plaintiffs’ claims, along with that of each class, have the
same interests in this case. Each of the named Plaintiffs, along with each
member of the classes, suffered injuries from the policies and practices of
the Defendants’ failure to comply with their duties to provide adequate
food, living conditions, medical treatment, mental health treatment, and
dental treatment.
Additionally, all named Plaintiffs and members of the classes have had their
Constitutional rights violated by the policies and practices of all
Defendants.
In conclusion, because the named Plaintiffs suffered from the same harm,
and continue to suffer from the same harm, as members of the class, and
because their legal arguments and claims for relief are the same as those of
their classmates, Plaintiffs satisfy the typicality requirement of Rule
23(a)(3).
(ECF No. 34 at 9.)
These superficial and conclusory assertions are not enough to satisfy Rule 23(a)(3).
The two remaining plaintiffs have failed to show that their two narrow claims that remain
after the court’s summary judgment decision are typical of the expansive claims the
plaintiffs attempt to advance on behalf of the class. For example, neither plaintiff has
presented a claim relevant to the proposed Mental Health or Isolation subclasses. They
have not even shown that their claims are typical of the Medical or Dental subclasses into
which their claims would fall.
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Natcone alleges that he was unable to timely receive a semi-annual dental
checkup. (ECF No. 32-13.) The record indicates that this was attributable to a shortage of
staff to provide dental care. (ECF No. 32-13 at 4.) Whether Natcone’s claim is typical of
other inmates’ dental claims would seem to depend on the extent to which the staffing
shortage delayed dental care. If all dental care was delayed, Natcone’s claim may be
sufficiently typical of all inmates’ dental claims. Cf. Smentek v. Sheriff of Cook Cty., No. 09
C 529, 2010 U.S. Dist. LEXIS 122145, at *20 (N.D. Ill. Nov. 18, 2010) (noting that jail’s
reduction of dentists allegedly delayed dental care to all inmates). However, if Natcone’s
semi-annual checkup was delayed so that the prison could prioritize acute dental needs,
Natcone’s claim may be typical only of inmates’ claims regarding delayed routine care.
Cf. McFields, 982 F.3d at 513 (noting jail’s “paper triage” system of prioritizing requests
for dental care).
Similarly, Burkes has failed to demonstrate that his claim is typical of all inmates’
claims regarding medical care. Burkes’s claim relates to an alleged delay in getting in to
see an eye doctor. (ECF No. 32-20 at 1.) The prison’s response states that the delay was
attributable to the unavailability of a provider to come to the prison. (ECF No. 32-20 at 2.)
Thus, Burkes’s complaint may, at best, be typical of claims of other inmates whose
ophthalmologic care was delayed. However, if there was evidence that all manner of
specialists were unavailable to care for prisoners, Burkes’s claim then might be typical of
claims of all inmates who sought care by outside providers. The plaintiffs have failed to

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show that Burkes’s claim is typical of those he seeks to represent—every inmate’s claim
regarding delayed or deficient medical care.
3.4.Adequacy of Representation
At a minimum, a representative must be a member of the class and have the same
interests as the class members. Santiago v. City of Chicago, 19 F.4th 1010, 1018 (7th Cir.
2021). The existence of defenses particular to the representative may make him an
inadequate representative of the class. Id. at 1019. A plaintiff with serious credibility
problems also may be an inadequate class representative. CE Design Ltd. v. King
Architectural Metals, Inc., 637 F.3d 721, 726 (7th Cir. 2011). However, “[f]or an assault on
the class representative’s credibility to succeed, the party mounting the assault must
demonstrate that there exists admissible evidence so severely undermining plaintiff’s
credibility that a fact finder might reasonably focus on plaintiff’s credibility, to the
detriment of the absent class members’ claims.” Id. at 728 (quoting Dubin v. Miller, 132
F.R.D. 269, 272 (D.Colo.1990)); see also Lacy, 897 F.3d at 866.
The plaintiffs’ only attempt to demonstrate that they will adequately represent the
class is to assert that they “have reached out to Plaintiff’s counsel to represent them in
this matter,” they “do not appear to have any conflicting interests,” and they “have
suffered the same alleged injury(ies) as the members of the class.” (ECF No. 34 at 10.)
Burkes and Natcone are not adequate representatives of the proposed Mental
Health and Isolation subclasses. They are not members of those proposed subclasses.

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Burkes could plausibly represent a class comprised of inmates whose medical care was
delayed, and Natcone could plausibly represent a class of inmates whose dental care was
delayed. The defendants do not argue otherwise. (ECF No. 39 at 14.) However, without a
sufficiently defined class, it is mere speculation as to whether Burkes and Natcone are
adequate representatives of any class.
Also included in the court’s adequacy of representation analysis under Rule
23(a)(4) is whether counsel is able to adequately represent the class. Gomez v. St. Vincent
Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011); see also Fed. R. Civ. P. 23(c)(1)(B), (g). In many
respects, the adequacy of class counsel is more important than the adequacy of the class
representatives. The role of a class representative is often nominal, while it is class counsel
that manages and directs the litigation. See Phillips v. Asset Acceptance, LLC, 736 F.3d 1076,
1080 (7th Cir. 2013). The court must carefully scrutinize the adequacy of class counsel
because, by representing the class, he becomes the attorney for clients who never hired
him, have little ability to fire him, and stand to be bound by the decisions he makes and
the outcome he obtains. See 7A Fed. Prac. & Proc. Civ. § 1769.1 (4th ed.); Committee Note
to the 2003 amendments to Rule 23.
Lonnie D. Story, plaintiffs’ counsel and proposed class counsel, has failed to
demonstrate that he would adequately represent the class if appointed class counsel. He
states merely that he worked to investigate the claims, will dedicate resources to the case,
and will hire staff if necessary. (ECF No. 34 at 12.)

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The fact that Story investigated this case “does not equate to adequacy; it is only a
part of the analysis.” Gomez, 649 F.3d at 592-93. Although he states he will dedicate
necessary resources to the case, he provides no indication of his ability to do so. Class
actions are frequently expensive and time consuming. They may take years to resolve,
require extensive costs in the form of investigators and experts, and in the interim leave
counsel with little time to devote to other matters. Story provides no information as to
the size of his practice, but a small firm could easily find itself bankrupt long before the
finish line in even the strongest of class actions.
Nor does Story offer any details regarding his “experience in handling class
actions, other complex litigation, and the types of claims asserted in the action,” Fed. R.
Civ. P. 23(g)(1)(A)(ii), or his “knowledge of the applicable law,” Fed. R. Civ. P.
23(g)(1)(A)(iii). In the absence of proof from counsel, the court must presume that he has
no such relevant experience and minimal knowledge of the applicable law.
Notably, the plaintiffs’ case has been marked by significant legal and procedural
errors inconsistent with the sort of expertise generally demanded of an attorney
appointed class counsel. The initial complaint improperly sought compensatory and
punitive damages against state officials named in their official capacities. Anderson v. Wis.
Dep’t of Corr., No. 23-CV-1430, 2023 U.S. Dist. LEXIS 207266, at *3 (E.D. Wis. Nov. 20,
2023). The majority of the claims in the plaintiffs’ amended complaint were improper
because their claims had not been administratively exhausted. Anderson, 2024 U.S. Dist.

16

LEXIS 92406, at *12-13. In responding to the defendants’ motion for partial summary
judgment, Story failed to comply with the court’s Local Rules, resulting in the court
disregarding the proposed findings of fact submitted by the plaintiffs and finding that
the plaintiffs had admitted all the proposed facts presented by the defendants. Anderson,
2024 U.S. Dist. LEXIS 92406, at *4-5; see also Ferguson v. McMartin, No. 21-cv-593-wmc,
2024 U.S. Dist. LEXIS 16958, at *1 n.1 (W.D. Wis. Jan. 30, 2024) (admonishing counsel for
repeatedly failing to comply with the court’s summary judgment procedures). Story has
failed to reply to any response of the defendants relating to the pending motions.
Anderson, 2024 U.S. Dist. LEXIS 92406, at *3; see also Ferguson v. McMartin, No. 21-cv-593wmc, 2024 U.S. Dist. LEXIS 45646, at *1 n.1 (W.D. Wis. Mar. 14, 2024) (noting counsel
failed to respond to defendants’ motions in limine). Nor has Story adequately supported
the factual assertions contained in his briefs. See, e.g., Anderson, 2024 U.S. Dist. LEXIS
92406, at *11-12. Counsel’s arguments have tended to be superficial, incomplete, and
occasionally misguided.
3.5.Rule 23(b)
The plaintiffs seek certification under Rule 23(b)(2) (ECF No. 34 at 10-11), which
relates to classes seeking injunctive relief. Yet the plaintiffs in their amended complaint
seek damages for the class. (ECF No. 14, ¶ 81 and p. 41, ¶ G.)
“[I]ndividualized monetary claims belong in Rule 23(b)(3).” Wal-Mart, 564 U.S. at
362. “[O]nly injunctive and declaratory relief can be sought under Rule 23(b)(2), because

17

the

unitary

nature

of

those

remedies—unlike

with

money damages—makes

predominance and the superiority of the class action ‘self-evident,’ and thereby renders
the procedural protections of Rule 23(b)(3) superfluous with respect to them.” City of
Rockford v. Mallinckrodt ARD, Inc., No. 3:17-cv-50107, 2024 U.S. Dist. LEXIS 58878, at *1213 (N.D. Ill. Mar. 29, 2024) (citing Wal-Mart, 564 U.S. at 363). Although there is a narrow
exception for when “monetary relief is ‘incidental to the injunctive or declaratory relief’”
and “it appears that the calculation of monetary relief will be mechanical, formulaic, a
task not for a trier of fact but for a computer program,” Chi. Teachers Union, Local No. 1 v.
Bd. of Educ. of Chi., 797 F.3d 426, 441 n.8 (7th Cir. 2015) (brackets omitted) (quoting Johnson
v. Meriter Health Servs. Emple. Ret. Plan, 702 F.3d 364, 372 (7th Cir. 2012)), the plaintiffs do
not argue that this exception applies.
Because the plaintiffs have not abandoned their claim for individualized classwide damages, they have failed to sustain their burden to show that certification under
Rule 23(b)(2) would be appropriate.
4. Conclusion
For the reasons set forth above,
IT IS THEREFORE ORDERED that the plaintiffs’ motion for a preliminary
injunction (ECF No. 28) is denied.

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IT IS FURTHER ORDERED that the plaintiffs’ motion for class certification (ECF
No. 34) is denied.
Dated at Milwaukee, Wisconsin this 4th day of June, 2024.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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