Lieberman, Brett v. Portage County et al

Filing 77

ORDER that defendants' motion for summary judgment, Dkt. 54 , is DENIED as to plaintiff's claim that defendants recorded his attorney phone calls. The motion for summary judgment is GRANTED as to plaintiff's claims that defendants tra nsmitted and used the recordings and that claim is DISMISSED without prejudice for plaintiff's failure to exhaust his administrative remedies. Plaintiff's motion for class certification, Dkt. 59 , is DENIED as to a class under Rule 23( b)(2). A decision on the motion is STAYED as to a class under Rule 23(b)(3). Plaintiff may have until July 11, 2019, to submit supplemental materials showing that his counsel meets the requirements of Rule 23(g)(1). If plaintiff doesn't respond by July 11, 2019 the court will deny plaintiff's motion for class certification in full. Plaintiff may have until July 11, 2019, to file a proposed class notice. Defendants may have until July 18, 2019, to file any objections to the notice. The John Doe defendants are DISMISSED. Signed by District Judge James D. Peterson on 6/27/2019. (jef),(ps) Modified text (corrected 2018 typo). (jef).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

BRETT LIEBERMAN, individually and
on behalf of all others similarly situated,
Plaintiff,
v.
PORTAGE COUNTY, MIKE LUKAS, CORY
NELSON, DALE BOETTCHER,
JOHN DOE PORTAGE COUNTY SHERIFF’S OFFICE
PERSONNEL, and JOHN DOE PORTAGE COUNTY
DISTRICT ATTORNEY’S OFFICE PERSONNEL,

OPINION and ORDER
18-cv-450-jdp

Defendants,
and
WISCONSIN COUNTY
CORPORATION,

MUTUAL

INSURANCE

Intervenor-Defendant.

Plaintiff Brett Lieberman was detained at the Portage County jail from August 2014 to
January 2016. He is proceeding on claims that defendants violated his rights under the Fourth
Amendment, the Sixth Amendment, the Fourteenth Amendment as well as the Wisconsin
Constitution and the Wisconsin Electronic Surveillance Act by recording privileged
communication he had with his lawyer and then sharing those recordings with prosecutors,
who used the recordings in court proceedings against him. Two motions are now before the
court: (1) defendants’ motion for summary judgment on the ground that Lieberman failed to
exhaust his administrative remedies, Dkt. 54, and (2) Lieberman’s motion for class certification
under Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3), Dkt. 59.

The court will grant defendants’ summary judgment motion in part and deny it in part.
The court concludes that the jail’s own rules did not require Lieberman to grieve his claim that
defendants recorded his privileged calls. But defendants have shown that Lieberman did not
exhaust his administrative remedies as to his claim that defendants shared the recordings for
use in court proceedings.
The court will deny Lieberman’s motion to certify a class under Rule 23(b)(2) because
Lieberman isn’t an adequate representative for such a class. As for the Rule 23(b)(3) class,
Lieberman has satisfied most of the relevant requirements. But the court will stay a decision
on whether to certify the class to allow Lieberman to submit supplemental materials showing
that his counsel meet the requirements under Rule 23(g)(1).

MOTION FOR SUMMARY JUDGMENT
Defendants’ summary judgment motion is directed at Lieberman rather than the class
generally and neither side asks the court to decide the motion for class certification first, so the
court will begin with the motion for summary judgment. See Costello v. BeavEx, Inc., 810 F.3d
1045, 1058 n.7 (7th Cir. 2016) (Rule 23 doesn’t require court to consider certification before
the merits). Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies as are available
are exhausted.” Generally, to comply with ' 1997e(a), a prisoner must “properly take each step
within the administrative process,” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002),
which includes following instructions for filing the initial grievance, Cannon v. Washington, 418
F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d

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282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison’s administrative rules
require.” Pozo, 286 F.3d at 1025. The purpose of these requirements is to give the prison
administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo,
548 U.S. 81, 88–89 (2006). A failure to exhaust administrative remedies under § 1997e(a) is
an affirmative defense that must be proven by the defendants. Davis v. Mason, 881 F.3d 982,
985 (7th Cir. 2018).
In this case, the parties discuss the following issues in their briefs:
(1) whether Lieberman’s claims fall outside the jail’s grievance procedure because they
are challenges to rules or policies;
(2) whether Lieberman was excused from filing a grievance because jail officials stopped
recording his attorney phone calls in November 2015;
(3) whether communications between Lieberman’s counsel and jail staff satisfied the
jail’s rule that “Inmates must first attempt to solve all grievances on an informal
basis with the Staff or Corporal,” Dkt. 58-2 and 58-3;
(4) whether Lieberman complied with the jail’s rule to submit a written grievance;
(5) if Lieberman did submit a written grievance, whether that grievance encompasses
all of his claims in this case.
For the reasons discussed below, the court concludes that Lieberman wasn’t required
under § 1997e(a) to file a grievance on his claim that defendants were recording his attorney
phone calls, but that defendants have met their burden to show that Lieberman failed to
exhaust his administrative remedies as to his claim that defendants turned the recordings over
to the district attorney’s office for use against Lieberman in court proceedings.
A. Recording
As for Lieberman’s claim that defendants monitored and recorded his attorney calls, it
is undisputed that the jail’s custody manual in effect at the relevant time states the following:
“Grievances will not be accepted if they are challenging the rules and policies themselves, state

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or local laws, court decisions and probation/parole actions.” Dkt. 60-7. Lieberman says that
this provision applies in this case because the jail had a policy of recording attorney phone calls
with inmates. Defendants do not deny that they had such a policy. In fact, in their opening
summary judgment brief, they emphasize that the inmate handbook stated in bold language
that “All telephone calls are recorded and monitored.” Dkt. 56, at 1 (citing Dkt. 58-2). An
inmate is not required to grieve an issue that the facility’s own rules say is outside the scope of
the grievance procedure. Thomas v. Reese, 787 F.3d 845, 848 (7th Cir. 2015). See also Jones v.
Bock, 549 U.S. 199, 218 (2007) (“[T]o properly exhaust administrative remedies prisoners
must complete the administrative review process in accordance with the applicable procedural
rules—rules that are defined not by the PLRA, but by the prison grievance process itself.”
(internal citations and quotation marks omitted)).
Defendants didn’t address the statement from the custody manual in their opening
brief. But in their reply brief they contend that the statement should not apply for four reasons:
(1) the grievance Lieberman says he filed didn’t invoke a particular rule or policy;
(2) Lieberman never saw the custody manual, so he couldn’t have relied on it; (3) the inmate
handbook expressly allowed inmates to file grievances about jail policies; and (4) defendants
would have accepted a grievance challenging the recording policy.
Defendants’ first argument is puzzling because it relates to a disputed grievance that
defendants deny Lieberman ever filed.1 But even if the court assumes that Lieberman did file

1

Lieberman testified that he filed a grievance in which he wrote, “Do not record my attorney
phone calls.” Dkt. 65 (Lieberman Dep. 79:1–3). There are no records that defendants received
such a grievance and defendants deny that they did. Because the court is resolving the motion
for summary judgment on other grounds, the court need not hold a hearing to determine
whether Lieberman actually filed that grievance. See Pavey v. Conley, 544 F.3d 739, 741B42
(7th Cir. 2008).

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the grievance, it wouldn’t be relevant to this argument. The question is whether Lieberman’s
claim falls within the scope of the jail’s grievance system. It simply doesn’t matter what words
Lieberman may have used in a grievance. Because Lieberman’s claim is a challenge to the jail’s
policy, it could not be grieved under the plain language of the custody manual.
As for the second argument, defendants cite no authority for the view that defendants
are not required to follow their own rules on what qualifies as a grievable issue unless an inmate
relies on that rule in deciding not to file a grievance. Although the court of appeals has held
that officials cannot require an inmate to follow grievance procedures that aren’t published,
e.g., King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015), the court has not held that jail officials
can use § 1997e(a) to require prisoners to grieve claims that the jail’s own policies say should
not be grieved. In the absence of such authority, this court declines to adopt defendants’
proposed rule.
Defendants’ last two arguments are related to the same question, which is whether the
policy shouldn’t apply because jail officials would have accepted a grievance that Lieberman
filed about the recording policy, if he had filed such a grievance. They contend that Lieberman’s
grievance would have been allowed under the inmate handbook, which says that a “grievance
must involve a rule, procedure, or complaint of oppression or misconduct by an employee in
the administration of such rules.” Dkt. 58-2. They also cite testimony of defendant Dale
Boettcher (the jail sergeant) that Boettcher “would have had a conversation” with Lieberman
if Lieberman had filed a grievance about the recording policy. Dkt. 62 (Boettcher Dep. 162:19–
163:3).
Neither of these arguments show that the jail would have accepted a grievance
challenging the recording policy. The court need not decide whether the inmate handbook

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could override the jail’s custody manual because there is no conflict between the two
documents. Lieberman’s claim in this case doesn’t simply “involve” a rule, which would be
permitted by the handbook; the claim is a challenge to the policy itself, which is prohibited by
the manual.
Boettcher’s testimony is not sufficient to support a contrary conclusion. Boettcher was
equivocal, initially stating that he would have rejected the grievance, and then stating that he
would have spoken to Lieberman about the grievance. Dkt. 62 (Boettcher Dep. 161:1–164:2).
He never testified that a grievance challenging the recording policy was permitted under the
jail’s rule. More important, after-the-fact testimony about whether a facility would have
accepted a grievance can’t trump the plain language of the policy itself. See King, 781 F.3d at
896 (rejecting testimony that officials would have accepted a grievance despite a contrary policy
because “the defendants cannot defeat the suit by retroactively amending the policy with a new
rule or policy”).
Defendants do not cite any evidence that they have ever accepted grievances about
policies in the past, either the recording policy or any other. In the absence of such evidence,
the language of the custody manual is controlling. Id. (“[N]othing in the jail’s stated policy
shows beyond reasonable dispute, that the jail would have or could have . . . otherwise relaxed
its stated rules.”). So the court will deny defendants’ motion for summary judgment on
Lieberman’s claim that defendants violated his state and federal rights by recording his attorney
phone calls.
B. Transmitting and using the recording
Lieberman alleges that defendants not only monitored and recorded his attorney phone
calls but also shared the recordings with the district attorney’s office, which then used the

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information to increase the amount of his bail. Although Lieberman alleges that defendants
were disclosing information to non-jail staff for use outside the jail, Lieberman doesn’t deny
that this claim relates to “prison conditions” and falls within the scope of § 1997e(a), so the
court doesn’t consider that issue. See Morgan v. Messenger, No. CIV. 02-319-M, 2003 WL
22023108, at *2 (D.N.H. Aug. 27, 2003) (claim that prison officials shared prisoner’s private
information with parole board and county attorney was about “prison conditions” within
meaning of § 1997e(a)). Lieberman also doesn’t contend in his brief that defendants had a
policy of sharing recording of attorney phone calls, so his argument under the custody manual
doesn’t apply.2 By failing to make an argument, Lieberman has forfeited the point.
Lieberman’s other arguments fail as well. First, Lieberman says that he was excused from
filing a grievance because jail officials stopped recording his attorney phone calls in November
2015, which would have mooted any grievance that he filed. He relies on Thornton v. Snyder,
428 F.3d 690, 697 (7th Cir. 2005), in which the court held that § 1997e(a) didn’t require a
prisoner to file an administrative appeal “after receiving the relief he requested in his
grievances.” But Thorton doesn’t apply here because this claim isn’t about recording
Lieberman’s calls.
Under Thorton, an inmate must still exhaust if “some remedy is available to the inmate
through the administrative process, even if not necessarily the relief desired.” Id. at 695

2

In his proposed findings of fact, Lieberman says that jail officials did have a policy of sharing
recordings of attorney phone calls, Dkt. 75, ¶ 12, but that allegation is not supported by the
cited evidence, which is an email that says nothing about such a policy. Rather, the email states
that in one instance jail staff sent the district attorney recordings of an inmate’s phone calls.
Dkt. 60-6, at 9. The email also states that jail staff didn’t know that attorney phone calls had
been included in the recording and that the district attorney’s office did not want such
recordings. Id.

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(emphasis added). In this case, the alleged change in policy would have granted Lieberman
some relief because defendants couldn’t transmit or use what they didn’t record. But a decision
to stop recording phone calls going forward wouldn’t stop officials from transmitting or using
calls that had already been recorded. Lieberman doesn’t allege that jail officials ever promised
not to transmit or use existing recordings. Because part of Lieberman’s claim is that defendants
stored the recordings, see Dkt. 14, at 4, there was “still the possibility of some relief that [jail]
officials could have offered” Lieberman on this claim, Thornton, 428 F.3d at 696, and he was
not excused from exhausting.
Second, Lieberman says that he exhausted this claim by filing a grievance in which he
wrote, “Do not record my attorney phone calls.” Dkt. 65 (Lieberman Dep. 79:1–3). Defendants
deny that they ever received that grievance, but the court will assume for the purpose of this
motion that Lieberman filed it. This assumption does not help Lieberman because the grievance
said nothing about sharing or using a recording. 3 “[A] grievance suffices if it alerts the prison
to the nature of the wrong for which redress is sought.” Strong v. David, 297 F.3d 646 (7th Cir.
2002). Recording a telephone call within the jail is a different “wrong” than sharing a recording
with a third party outside the jail and then using the recording in a court proceeding. Jail
officials reviewing the grievance that Lieberman says he filed would not have had notice that
he was complaining about disclosure of confidential information to the district attorney’s
office.
The court concludes that Lieberman failed to exhaust his administrative remedies as to
his claims that defendants transmitted and used recordings of his attorney phone calls.

3

Lieberman doesn’t contend that he couldn’t file a grievance because he was unaware that
defendants were transmitting or using the recordings, so the court doesn’t consider that issue.

8

Defendants are entitled to summary judgment on that claim and the court will dismiss the
claim without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (“[A]ll dismissals
under § 1997e(a) should be without prejudice.”).

MOTION FOR CLASS CERTIFICATION
The requirements for class certification under Rule 23 are well established: (1) the scope
of the class as to both its members and the asserted claims must be “defined clearly” using
“objective criteria,” Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015); (2) the
class must be sufficiently numerous, include common questions of law or fact, and be
adequately represented by plaintiffs (and counsel) who have claims typical of the class, Fed. R.
Civ. P. 23(a); and (3) the class must meet the requirements of at least one of the types of class
actions listed in Rule 23(b).
In this case, Lieberman asks for certification under both Rule 23(b)(2) and (b)(3). Rule
23(b)(2) applies when the plaintiffs are seeking injunctive or declaratory relief and “the party
opposing the class has acted or refused to act on grounds that apply generally to the class”;
Rule 23(b)(3) applies when “the questions of law or fact common to class members
predominate over any questions affecting only individual members,” and “a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.”
The court will consider below whether Lieberman has satisfied each of these
requirements.
A. Class definition
Lieberman seeks to represent the following two classes:

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(1) All Jail detainees whose phone calls to attorneys were recorded, transmitted, or used
from June 12, 2012 until the Jail’s distribution of the Inmate Orientation Booklet
dated November 24, 2015.
(2) All Jail detainees whose phone calls to attorneys were recorded, transmitted, or used
after the Jail’s distribution of the Inmate Orientation Booklet dated November 24,
2015.4
The proposed classes must be narrowed in two respects. First, the court cannot allow
Lieberman to proceed on claims that defendants “transmitted” and “used” recordings of
attorney phone calls. The court has concluded that Lieberman did not exhaust his
administrative remedies for those claims, and Lieberman cannot serve as class representative
on a claim that he doesn’t have the right to bring himself. See Arreola v. Godinez, 546 F.3d 788,
799 (7th Cir. 2008). Because Lieberman didn’t ask the court to add another class
representative in the event the court found that Lieberman couldn’t serve, the court doesn’t
consider that issue. This makes it unnecessary to consider defendants’ objections about the
transmission and use claims.5
Second, Lieberman doesn’t allege in his complaint or his motion for class certification
that defendants continued recording him after November 2015. In fact, he alleges just the
opposite in his summary judgment materials. Dkt. 67, at 14 (“Defendants did—at long last—
designate Plaintiff’s attorney phone numbers as private in November 2015 and stopped
recording his attorney calls.”). So he can’t serve as a representative for that subclass.

4

Lieberman doesn’t expressly say why the distribution of the November 2015 booklet requires
a separate subclass, but presumably it is because the booklet gave detainees the option to
designate attorney phone calls as “private” so that they would not be recorded.
5

Even if Lieberman had exhausted his administrative remedies for his “transmission” and “use”
claims, the court would not certify a class for those claims because Lieberman hasn’t identified
any other inmates who would fall into that class. And even if there were other inmates,
Lieberman hasn’t shown that the claims could be resolved on a class-wide basis.

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This leaves the following proposed class: “All Jail detainees whose phone calls to
attorneys were recorded from June 12, 2012 until the Jail’s distribution of the Inmate
Orientation Booklet dated November 24, 2015.” That definition uses objective criteria that
clearly separate class members from non-class members, as required by Mullins, 795 F.3d at
657.
Defendants object to the definition on the ground that it will be difficult for Lieberman
to determine which inmates’ calls were recorded. But the court made it clear in Mullins that
concerns about “the potential difficulty of identifying particular members of the class . . . are
better addressed by applying carefully the explicit requirements of Rule 23(a) and especially
(b)(3).” Id. at 657–58. So the court will consider this objection in the context of considering
those other requirements.
Defendants also raise an overbreadth objection, though they don’t phrase it that way.
A class definition is overbroad when it “include[s] a great number of members who . . . could
not have been harmed by the defendant’s allegedly unlawful conduct.” Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 824 (7th Cir. 2012). Defendants say that simply looking at
recorded calls with attorneys is inadequate because not all of those calls were protected by the
attorney-client privilege. Defendants allege that some of the calls at issue were with lawyers
who did not make an appearance in court for the prisoner and other calls lasted less than a
minute. But defendants haven’t cited any authority to support a contention that either of these
distinctions is relevant to the claims in this case. In any event, the court of appeals has rejected
the view that “minor overbreadth problems” require a denial of class certification. Id. at 826
n.15. Rather, “the better course is . . . to amend the class definition as needed to correct for

11

the overbreadth.” Id. If defendants show later that some members of the class were not harmed,
defendants may move at that time to narrow the scope of the class.
B. Rule 23(a) factors
1. Numerosity
Defendants say that Lieberman can’t satisfy this requirement because he hasn’t adduced
evidence regarding the specific number of calls that were recorded during the class period. But
“a class can be certified without determination of its size, so long as it’s reasonable to believe
it large enough to make joinder impracticable and thus justify a class action suit.” Arnold
Chapman & Paldo Sign & Display Co. v. Wagener Equities Inc., 747 F.3d 489, 492 (7th Cir. 2014).
That standard is met in this case.
Again, it is undisputed that defendants had a policy of recording all telephone calls
during the class period (as narrowed by the court). Lieberman has cited telephone records
showing that there were approximately 90 different inmates who made attorney phone calls
during that time. See Dkt. 61. As defendants acknowledge, “a forty–member class is often
regarded as sufficient to meet the numerosity requirement,” Mulvania v. Sheriff of Rock Island
Cty., 850 F.3d 849, 859 (7th Cir. 2017), so 90 class members is more than enough.
Defendants say that there may be fewer than 90 class members because some of the
calls at issue were with lawyers who did not make an appearance in court for the prisoner and
other calls lasted less than a minute. But the court already addressed this issue in the context
of discussing the class definition. At this point, defendants haven’t shown that those inmates
should be excluded from the class. And even if the court were to exclude inmates that
defendants say aren’t protected by the attorney-client privilege, it would still leave more than
60 inmates, which is sufficiently numerous to make joinder impractical.

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2. Commonality
An issue of fact or law is common under Rule 23 if it is capable of class-wide resolution.
Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 374 (7th Cir. 2015). In this case, the key common
question is whether the defendants had a policy of recording inmate phone calls with attorneys
that violated the inmates’ rights. See Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir.
2014) (“Where the same conduct or practice by the same defendant gives rise to the same kind
of claims from all class members, there is a common question.”). Because defendants do not
deny that there are common questions, the court need not discuss this factor further.
3. Typicality
The named plaintiff’s claims are typical of the class if they have “the same essential
characteristics as the claims of the class at large.” De La Fuente v. Stokely Van Camp, Inc., 713
F.2d 225, 232 (7th Cir. 1983). Defendants raise multiple objections to class certification on
this ground.
First, defendants say that Lieberman’s claims are not typical of the class because
Lieberman alleges that he filed an administrative grievance and a notice of claim, but he doesn’t
identify any other class member who did. “A representative might be inadequate if he is subject
to a substantial defense unique to him.” Beaton v. SpeedyPC Software, 907 F.3d 1018, 1027–28
(7th Cir. 2018).
Defendants’ argument isn’t persuasive. As for the issue of exhaustion, the court has
already held in the context of defendants’ motion for summary judgment that inmates didn’t
need to file a grievance to challenge the recording policy, so it makes no difference whether
other class members filed grievances. As for the notice of claim requirement, defendants have
already stated that they plan on seeking dismissal of all the class members’ claims on the ground

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that they didn’t comply with the notice of claim requirement, Dkt. 70, at 2 n.2, so this is not
a unique defense. The common question will be whether the notice that Lieberman filed is
adequate for all class members.
Defendants’ second argument is more convoluted. It goes something like this:
(1) Lieberman testified during his deposition that he didn’t believe that jail officials were
recording his attorney phone calls, despite warnings in the inmate handbook that all calls were
recorded; (2) this testimony suggests that Lieberman intends to argue that his belief means
that he didn’t consent to his attorney calls being recorded; (3) Lieberman hasn’t cited
testimony from any other proposed class members that they had a similar belief;
(4) Lieberman’s claims aren’t typical of the class because he is the only one relying on a
subjective belief to support his claim.
This argument fails. Lieberman hasn’t contended that he plans to make his personal
beliefs part of the basis for his claims. More important, neither side cites any authority for the
view that an inmate’s personal belief is an element of any of those claims. Although the parties
agree that the issue of inmate consent is important to Lieberman’s Fourth Amendment claim,
consent under the Fourth Amendment is determined through a review of objective facts. See
Florida. v. Jimeno, 500 U.S. 248, 251 (1991) (“The standard for measuring the scope of a
suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness.”). In this
case, it appears that a key question will be whether the inmates consented to the recording
when they decided to continue with attorney phone calls despite warnings from the jail that
all calls were recorded. Because defendants allege that they gave the same warning to all
inmates, the court should be able to resolve that issue on a class-wide basis. See Johnson v.
CoreCivic, No. 16-cv-947-srb, 2018 WL 7918162, at *10 (W.D. Mo. Sept. 18, 2018) (in class

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action about recording inmates’ phone calls with attorneys, rejecting contention that consent
was an individual issue; “the prevailing common legal question [is] whether [the defendants’]
warnings of potential recording and monitoring of communications between attorneys and
their detainee-clients rise to the level of consent, which applies to the class as a whole”).
The court concludes that Lieberman’s recording claim is typical of the class’s claims.
4. Adequacy
Adequacy has two components, one that relates to the named plaintiffs and one that
relates to class counsel. The named plaintiff must show that his claims are not in conflict with
the claims of the proposed class and that he has a sufficient interest in the outcome of the case.
Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). See also Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 625 (1997) (“The adequacy inquiry . . . serves to uncover conflicts of
interest between named parties and the class they seek to represent.”). Rule 23(g)(1) sets forth
four factors that a court must consider before appointing class counsel: the quality of counsel’s
work in the case; counsel’s experience in handling similar cases; counsel’s knowledge of the law;
and the resources that counsel can devote to the case.
As for Lieberman’s adequacy, defendants raise one issue that relates to Lieberman’s
request to serve as the representative for a class under Rule 23(b)(2) for declaratory or
injunctive relief. The court will discuss that issue in the next section. Defendants raise no
objections to Lieberman’s adequacy to serve as a representative under Rule 23(b)(3) for a class
of inmates whose attorney phone calls were recorded between June 12, 2012, and November
24, 2015. Because Lieberman alleges that defendants repeatedly recorded his attorney phone
calls during that period, he has a sufficient interest in the outcome of that claim to serve as a

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representative for that claim. Defendants have identified no conflicts of interest and the court
isn’t aware of any.
But the court cannot approve counsel’s request to represent the class because they
haven’t supported the request. They say in their brief that they meet all of the requirements
under Rule 23(g)(1), but they didn’t submit any evidence to support those conclusions.
Although the court can determine from the record in this case whether counsel are competent
and knowledgeable of the law, counsel must also show that they have the experience and
resources necessary to litigate a class action. So the court will defer a decision on whether to
appoint class counsel to give counsel an opportunity to make that showing.
C. Rule 23(b)
1. Rule 23(b)(2): injunctive class
Rule 23(b)(2) applies when the plaintiffs are seeking injunctive or declaratory relief and
“the party opposing the class has acted or refused to act on grounds that apply generally to the
class.” Defendants object to certifying a class under Rule 23(b)(2) on the ground that
Lieberman was released from the jail before he filed this lawsuit, so he doesn’t have standing
to seek an injunction to change jail policies and practices.
The court already raised this issue in the order screening Lieberman’s complaint. See.
Dkt. 7, at 4 (“Lieberman says that he has not been housed at the Portage County jail since
January 2016 and he does not allege that there is any likelihood that he will return in the
foreseeable future. Under these circumstances, Lieberman does not have standing to seek
declaratory or injunctive relief.”). In response to the court’s order to show cause, Lieberman
said that he “does not challenge the Court’s ruling that Plaintiff does not have standing to
enjoin the continued unlawful recording of attorney-client privileged calls.” Dkt. 14, at 4 n.2,

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but he said that he had standing to seek injunctive relief in the form of destruction of the
recordings. Dkt. 14, at 4–5. The court allowed Lieberman to proceed on that more limited
claim for injunctive relief. Dkt. 18, at 3.
In his motion for class certification, Lieberman doesn’t seek to certify a class under Rule
23(b)(2) for the limited purpose of destroying any recordings that defendants have retained,
so the court will not consider that issue. Instead, he asks the court to reconsider the conclusion
that he can’t get an injunction to challenge the jail’s current policy, arguing that his claim is
“inherently transitory,” so it qualifies for an exception to the mootness doctrine. Dkt. 60, at
34. Lieberman doesn’t explain why he waited until now to seek reconsideration of an order
issued in July 2018. Regardless, the doctrine he cites applies only when a claim is mooted after
the plaintiff files the lawsuit, not when the plaintiff lacks standing at the time the complaint is
filed. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991). The court of appeals made the
same point in Holmes v. Fisher, 854 F.2d 229, 232 (7th Cir. 1988), a case this court cited in the
screening order, Dkt. 7, at 4, but Lieberman ignores. Adding to the problem is that it is
undisputed that that defendants changed the recording policy in November 2015. Because
Lieberman doesn’t allege that defendants ever recorded his attorney phone calls under the new
policy, he cannot represent a subclass challenging the new policy. And any request to change
the old policy is moot as to both Lieberman and all the proposed class members.
In any event, Lieberman hasn’t shown that this case is a good fit for the “inherently
transitory” exception, which doesn’t apply unless “it is uncertain that a claim will remain live
for any individual who could be named as a plaintiff long enough for a court to certify the
class.” Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010). In Arreola, the court of appeals
rejected a similar argument to the one Lieberman is making, which is that a jail “typically serves

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only as a temporary housing facility for inmates,” so the court should allow the named plaintiff
to serve as a representative of an injunctive class despite the fact that the plaintiff had been
released from the jail before he filed the lawsuit. 546 F.3d at 799 (“[W]e cannot conclude that
it would be impossible for a more suitable representative of a Rule 23(b)(2) class to emerge.”).
In this case, Lieberman has cited no evidence that all members of the proposed class would be
unlikely to be housed in the Portage County jail long enough to obtain a class certification
decision. Lieberman himself alleges that he was housed in the jail for 17 months.
Lieberman seems to realize that the law is against him, so he asks the court to “exten[d]
. . . current law” to allow him to serve as a representative for an injunctive class. Dkt. 76, at
21–22. But that is an argument that Lieberman will have to make to the court of appeals or
the Supreme Court. This court has no authority to disregard binding precedent such as
McLaughlin, Holmes, and Arreola.
Alternatively, Lieberman asks the court to certify a class for declaratory relief. But the
court addressed this issue in the screening order as well, citing Stewart v. McGinnis, 5 F.3d 1031,
1037–39 (7th Cir. 1993), in which the court of appeals held that the same limitations on
obtaining injunctive relief apply to declaratory relief as well. Lieberman doesn’t identify any
legal interest he has in a declaration on the validity of a policy that hasn’t been in effect for
four years. Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001)
(claim for declaratory judgment is moot when “relief . . . would have no impact on the parties
to th[e] suit”).
Because Lieberman hasn’t shown that he would be an adequate class representative on
a claim for declaratory or injunctive relief, the court will deny Lieberman’s motion to certify a
class under Rule 23(b)(2).

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2. Rule 23(b)(3): damages class
Rule 23(b)(3) applies when “the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.”
Among the factors that the court may consider are:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3).
Defendants contend that certification is improper under Rule 23(b)(3) for the following
reasons: (1) neither Lieberman nor any class member is entitled to damages for “mental or
emotional injury” under 42 U.S.C. § 1997e(e) because none of them suffered a physical injury;
(2) the issue of consent requires an individualized inquiry into each class member’s state of
mind; and (3) it is too difficult to identify the members of the class.
Defendants’ first two objections don’t require extended discussion. As for the objection
under § 1997e(e), Lieberman isn’t seeking damages for mental or emotional injury, so the
objection is simply irrelevant. And even if Lieberman were seeking such damages, defendants
do not identify any reason why § 1997e(e) would apply differently to different class members.
As for the objection about consent, the court has already rejected defendants’ argument in the
context of the discussion about typicality. Again, the court is not persuaded that determining
the issue of consent will require an inquiry into each class member’s mental state.

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Defendants’ third objection is a challenge to Lieberman’s proposed method of
identifying class members, which relates to the question of “the likely difficulties in managing
a class action.” See Mullins, 795 F.3d at 658. Lieberman says that he has generated a list of
possible class members by using the jail’s “call detail records,” which identify inmates calls by
inmate name, the number called, the date and time of the call, the length of the call, and
whether the call was recorded. See Dkt. 61. Lieberman has matched phone numbers with
lawyers using Google searches to generate a list of inmates during the class period whose calls
with attorneys were recorded. Id.
Defendants say that Lieberman’s method is inadequate because it is “common” for
inmates to use each other’s “PIN” numbers to make calls, which renders the call logs unreliable.
Defendants cite testimony from both Lieberman and defendant Cory Nelson, but neither
party’s testimony supports defendants’ contention. Nelson answered “correct” when he was
asked whether there are “some occasions where an inmate may use someone else’s PIN number,
right?” Dkt. 63 (Dep. 101:4–6). Lieberman answered, “I think that did happen. Yes,” in
response to a question whether inmates used another inmate’s PIN to make phone calls.
Dkt. 65 (Dep. 53:14–17). Lieberman later said it was “probably” a “fairly common” practice,
but he immediately qualified that statement by saying, “that’s speculation.” Id. at 53:20–23.
Neither witness provided any foundation for his opinion. And defendants have not cited
evidence that a single inmate during the class period or otherwise used another inmate’s PIN
to call an attorney. See Messner, 669 F.3d at 825–26 (declining to reverse class certification
because of class members who may be subject to an individualized defense when the defendant
“has given us no indication how many such individuals actually exist”).

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If later acquired evidence shows that jail officials did not record attorney phone calls of
some of the individuals who receive class notice, defendants may move to exclude those
individuals from the class at that time. But at this point, the court declines to deny class
certification on the basis of “speculation.” Cf. CE Design Ltd. v. King Architectural Metals, Inc.,
637 F.3d 721, 728 (7th Cir. 2011) (ASerious challenges to typicality and adequacy must be
distinguished from petty issues manufactured by defendants to distract the judge from his or
her proper focus under Rule 23(a)(3) and (4) on the interests of the class.@).
The ultimate question in a Rule 23(b)(3) class is whether “judicial economy from
consolidation of separate claims outweighs any concern with possible inaccuracies from their
being lumped together in a single proceeding for decision by a single judge or jury.” Mejdrech v.
Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003). Lieberman has met that standard. He
has identified a jail policy that was applied the same way to inmates at the prison over the
course of multiple years. Under these circumstances, it makes sense to allow the claims of the
proposed class to be resolved in “one fell swoop” rather than in piecemeal fashion. See Jones v.
Cruisin’ Chubbys Gentlemen's Club, No. 17-cv-125-jdp, 2018 WL 1175412, at *3 (W.D. Wis.
Mar. 6, 2018) (“A classwide policy or practice related to a key issue of liability is one of the
most common ways for plaintiffs to show that class certification is appropriate, even when
there are some differences among the potential claims.”).
In sum, the court concludes that Lieberman has satisfied the requirements for a Rule
23(b)(3) class, with one exception, which is the adequacy of the proposed class counsel. The
court will give Lieberman an opportunity to submit supplemental materials showing that his
counsel satisfy the requirements under Rule 23(g)(1).

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D. Notice
Under Rule 23(c)(2)(B), “the court must direct to class members the best notice that is
practicable under the circumstances, including individual notice to all members who can be
identified through reasonable effort.” Generally, the plaintiff includes a proposed class notice
with his motion for certification, but Lieberman failed to do that in this case. I will give
Lieberman the opportunity to do that now. He should take care to include all the information
required under Rule 23.
Notice must clearly, concisely, and comprehensibly state: (1) the nature of the action;
(2) the class definition; (3) the class claims, issues or defenses; (4) that a class member may
enter an appearance through an attorney should he or she desire; (5) that the court will exclude
any class member requesting exclusion; (6) the time and manner for requesting exclusion; and
(7) the binding effect of a class judgment on class members. Fed. R. Civ. P. 23(c)(2)(B).6
E. John Doe defendants
One last point. Lieberman included in his complaint unnamed officials at the Portage
County jail and the Portage County District Attorney’s Office. The presumptive deadline for
amending the complaint was November 26, 2018, but Lieberman has not moved to amend the
complaint to identify any additional defendants. Because Lieberman has removed the John
Doe parties from the captions of his briefs and he doesn’t mention them in any of his new
filings, the court will assume that Lieberman has abandoned his claims against the unnamed
defendants and dismiss them from the case.

6

Lieberman may wish to review the illustrative class action forms prepared by the Federal
Judicial Center for guidance, available at https://www.fjc.gov/content/301253/illustrativeforms-class-action-notices-introduction.

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ORDER
IT IS ORDERED that:
1. Defendants’ motion for summary judgment, Dkt. 54, is DENIED as to plaintiff’s
claim that defendants recorded his attorney phone calls. The motion for summary
judgment is GRANTED as to plaintiff’s claims that defendants transmitted and used
the recordings and that claim is DISMISSED without prejudice for plaintiff’s failure
to exhaust his administrative remedies.
2. Plaintiff’s motion for class certification, Dkt. 59, is DENIED as to a class under Rule
23(b)(2). A decision on the motion is STAYED as to a class under Rule 23(b)(3).
Plaintiff may have until July 11, 2019, to submit supplemental materials showing
that his counsel meets the requirements of Rule 23(g)(1). If plaintiff doesn’t respond
by July 11, the court will deny plaintiff’s motion for class certification in full.
3. Plaintiff may have until July 11, 2019, to file a proposed class notice. Defendants
may have until July 18, 2019, to file any objections to the notice.
4. The John Doe defendants are DISMISSED.
Entered June 27, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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