Opinion
Civil Action No. 00-2318, c/w 00-3055, Section "R" (2)
August 2, 2001
REPORT AND RECOMMENDATION
I. PROCEDURAL BACKGROUND
Plaintiffs' motion to certify Class I, as described in their Second Amended Complaint, as a class under Fed.R.Civ.P. 23(b)(3) in Civil Action No. 00-2318 has been referred to me for findings and recommendation. Record Doc. No. 23. Plaintiffs seek to certify a class described as:
All persons who have been detained by the Criminal Sheriff of Orleans Parish, due to a policy of intentionally detaining persons in their custody and delaying their release, after the requisite bail or bond has been delivered, and/or an order for release has been issued by a Court of competent jurisdiction, and/or an order of parole has been issued from competent public official.
Record Doc. No. 41, Plaintiffs' Second Amended Complaint, ¶ 4; Record Doc. No. 89, Plaintiffs' Motion to Maintain Class I Proposed in 00-2318 as a Class Action. Plaintiffs bring one claim under 42 U.S.C. § 1983, alleging that defendant Sheriff Charles Foti, Jr. was deliberately indifferent to plaintiffs' rights to be released timely, and one claim under Louisiana law for false imprisonment. Record Doc. No. 41, Plaintiffs' Second Amended Complaint, ¶ I.
Sheriff Foti filed a timely opposition memorandum. Record Doc. No. 96. A hearing was conducted on July 25, 2001. Participating were Malcolm R. Petal, representing plaintiffs, and Lambert J. Hassinger, Jr., representing Sheriff Foti.
After plaintiffs' request for class certification was referred to me in December 2000, I conducted a telephone status conference on January 9, 2001, in which counsel participated, to schedule the progress of the class certification motion. By minute entry entered the same day, I ordered plaintiffs to file their motion to certify a class by June 1, 2001. Record Doc. No. 32. They did so.
The January 9th order further provided: "The motion must state whether plaintiffs request a live evidentiary hearing and, if so, must include a list of all exhibits and witnesses who may or will be called to testify at the class certification hearing." Id. at 2-3. In addition, the January 9th order set oral argument on plaintiffs' certification motion for July 25, 2001 at 10:30 a.m. and provided that "[i]f an evidentiary hearing is necessary, it will be held at the same time." Id. at p. 3. Neither plaintiffs nor defendants requested a live evidentiary hearing, nor did they file witness or exhibit lists in response to this order or present evidence of any kind in connection with the motion to certify this class.
Having considered the Second Amended Complaint, the submissions of the parties, the arguments of counsel, the record and the applicable law, and for the following reasons, IT IS RECOMMENDED that plaintiffs' motion for class certification be DENIED.
II. LEGAL ANALYSIS
A. Class Certification Standards
Rule 23 of the Federal Rules of Civil Procedure governs class actions. "[T]he district court has great discretion in certifying and managing a class." James v. City of Dallas, No. 00-10556, 2001 WL 682089, at *12 (5th Cir. June 18, 2001) (citation omitted).
In another portion of these consolidated cases, the presiding district judge recently described the standards for examining a class certification motion.
To be certified, the class must first satisfy the following threshold requirements of Rule 23(a): (1) numerosity (a "class [so large] that joinder of all members is impracticable"); (2) commonality ("questions of law or fact common to the class"); (3) typicality ("named parties' claims or defenses are typical . . . of the class"); and (4) adequacy of representation (representatives "will fairly and adequately protect the interest of the class"). In addition, the class must satisfy one of the three subsections of Rule 23(b). The party seeking class certification bears the burden of showing that all of the criteria are met.Broussard v. Foti, No. 00-2318, 2001 WL 699525, at *1 (E.D. La. June 18, 2001) (Vance, J.) (emphasis added) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Mullen v. Treasure Chest Casino, LLC., 186 F.3d 620, 623-24 (5th Cir. 1999), cert. denied, 528 U.S. 1159 (2000)); Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996)).
Plaintiffs' counsel confirmed at oral argument that plaintiffs seek primarily monetary damages for delayed releases from Orleans Parish Prison, although they also seek injunctive relief. Plaintiffs' motion seeks class certification solely pursuant to Rule 23(b)(3), which would be the appropriate vehicle for class certification in this instance, if plaintiffs satisfy all the elements of Rule 23(a) and 23(b)(3). Thus, plaintiffs bear the burden of proving that the proposed class satisfies all four requirements of Rule 23(a) and both requirements of Rule 23(b)(3). Mullen, 186 F.3d at 624.
Rule 23(b)(3) provides:
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings 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 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.
Fed.R.Civ.P. 23(b)(3) (emphasis added). Under this part of the rule, plaintiffs must show both the predominance of common class issues and the superiority of the class action method. Mullen, 186 F.3d at 623-24 (citing Amchem Prods., 521 U.S. at 615).
B. Plaintiffs Have Failed to Carry Their Burden
Plaintiffs have failed to carry their burden to meet both the threshold requirements of Rule 23(a) and the additional requirements of Rule 23(b)(3). In the absence of proof of all required elements, the court may not certify a class. Berger v. Compaq Computer Corp., No. 00-20875, 2001 WL 829720, at *3 (5th Cir. July 25, 2001).
1. Rule 23(a)(1): Numerosity
First, "[t]o satisfy the numerosity prong [of Rule 23(a)], a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members." James, 2001 WL 682089, at *12 (quotation and citation omitted). In the instant case, plaintiffs presented no evidence of the number of purported class members. At oral argument, plaintiffs' counsel could not provide any estimate of the number of class members. Plaintiffs argue nonetheless that the court may take judicial notice that the class is sufficiently numerous because, they allege, more than 100,000 people are processed by Orleans Parish Prison each year.
The court has discretion to take judicial notice of "adjudicative facts." Fed.R.Evid. 201(a).
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.Id. R. 201(b).
Sheriff Foti neither disputes nor stipulates to the 100,000 number cited by plaintiffs, but he argues that the number of people processed is irrelevant. He contends that the only relevant number is how many arrestees were intentionally detained past their proper release time within the prescriptive period, a number that plaintiffs have not provided. However, actual numbers are not determinative of the numerosity inquiry and "it has been noted that any class consisting of more than forty members `should raise a presumption that joinder is impracticable.'" Street v. Diamond Offshore Drilling, No. 00-1317, 2001 WL 568111, at *4 (E.D. La. May 25, 2001) (Duval, J.) (quoting Mullen, 186 F.3d at 624).
Relevant factors to determine numerosity, aside from numbers, include "the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff's claim." Mullen, 186 F.3d at 624 (quotation and citation omitted). The court can infer from the nature of the action and the undoubtedly large number of persons processed through Orleans Parish Prison in a year that members of the class may be geographically dispersed and/or difficult to identify. Id. Plaintiffs' counsel noted at oral argument that individual class members do not have much incentive to bring individual actions because the amount of damages for a short delay in release may be small. These factors are sufficient to allow the court to presume, solely for purposes of the pending motion, that the class would contain a sufficiently large number of members whose joinder would be impracticable and that the numerosity requirement can be satisfied.
2. Rule 23(a)(2): Commonality
To demonstrate commonality, plaintiffs must allege that there exist "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). The "`test for commonality is not demanding'" and "is met when there is `at least one issue, the resolution of which will affect all or a significant number of the putative class members.'" James, 2001 WL 682089, at *12 (quoting Mullen, 186 F.3d at 625; Forbush v. J.C. Penney Co., 994 F.2d 1101, 1006 (5th Cir. 1993))
Defendant argues that plaintiffs must present at least two common issues, citing Applewhite v. Reichhold Chems., Inc., in which a Fifth Circuit panel stated that "class certification requires at least two issues in common." Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 573 (5th Cir. 1995) (citing Stewart v. Winter, 669 F.2d 328, 335 n. 16 (5th Cir. 1982)). However, the Applewhite panel misstated the holding inStewart. The court in Stewart held that Rule 23(a)(2) requires "that there be at least one issue whose resolution will affect all or a significant number of the putative class members." Stewart, 669 F.2d at 335. The Stewart court held that "[b]y its terms, Rule 23(a)(2) requires more than one common question" but left open "whether one common question should suffice, or, indeed, how to determine whether an issue presents `one' question or `more than one' question." Id. at 335 n. 16. The holdings of Forbush, Mullen and James that a case must contain "at least one issue, the resolution of which will affect all or a significant number of the putative class members," is an accurate statement of Fifth Circuit law.
"[T]he fact that some of the Plaintiffs may have different claims, or claims that may require some individualized analysis, is not fatal to commonality." James, 2001 WL 682089, at *12. Thus, in this case, the assertion by a few of the named plaintiffs of claims of constitutionally inadequate medical care or conditions of confinement — claims about which class certification is not sought — does not defeat commonality. Plaintiffs' counsel confirmed at oral argument that the class action does not encompass either those types of claims or any claims of individual pain and suffering or lost wages resulting from the allegedly delayed releases.
Plaintiffs contend that they present two common issues. They argue first that the reasons for and the actual length of delayed release in each class member's case are irrelevant because there is some fixed number of hours that a factfinder would find to be per se unreasonable, regardless of each plaintiff's individual circumstances, and second, that the Sheriff has a policy of deliberate delay. Although the first issue does not present common questions, as discussed further below, the second issue appears to satisfy this element of Rule 23(a). "However, this factor ordinarily is considered in connection with the Rule 23(b)(3) predominance inquiry because the court usually can find at least one issue that can be said to be `common' under the liberal wording of Rule 23(a)(2)." Street, 2001 WL 568111, at *4 (citing In re Ford Motor Co. Bronco II Prod. Liab. Litig., 177 F.R.D. 360, 366 (E.D. La. 1997)). Accordingly, I will examine this factor in more detail below in connection with the predominance inquiry.
3. Rule 23(a)(3): Typicality
Plaintiffs did not address typicality in their memorandum or at oral argument. To meet the typicality requirement, "the claims or defenses of the parties [must be] typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3).
Like commonality, the test for typicality is not demanding. It focuses on the similarity between the named plaintiffs' legal and remedial theories and the theories of those whom they purport to represent. Typicality does not require a complete identity of claims. Rather, the critical inquiry is whether the class representative's claims have the same essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.James, 2001 WL 682089, at *12 (quotations and citations omitted).
Sheriff Foti argues that plaintiffs are not typical because each class member must prove that defendant was deliberately indifferent to him or her under the particular circumstances of each class member's charges, hearing, posting of bond, receipt of parole, detention and release. However, plaintiffs allege a single legal theory of recovery arising out of a policy or course of conduct, which they characterize as a deliberate culture of incompetence that causes unreasonable delays, and all plaintiffs seek the same remedies, compensatory damages for the delays and punitive damages for the policy. Therefore, Rule 23(a)(3) is satisfied.See Mullen, 186 F.3d at 625 (typicality satisfied when plaintiff employees alleged theories of liability for defective air ventilation aboard casino boat under Jones Act and doctrine of unseaworthiness, despite defendant's argument that each class member's alleged resulting "respiratory illness" may differ).
4. Rule 23(a)(4): Adequacy of Representation
"The final requirement of Rule 23(a) is that the district court must find that the representative parties will fairly and adequately protect the interests of the class." James, 2001 WL 682089, at *13 (quotations and citations omitted). "Rule 23(a)'s adequacy requirement encompasses class representatives, their counsel, and the relationship between the two." Berger, 2001 WL 829720, at *2 (citation omitted).
The adequacy requirement mandates an inquiry into [1] the zeal and competence of the representative[s'] counsel and . . . [2] the willingness and ability of the representative[s] to take an active role in and control the litigation and to protect the interests of absentees[.] The adequacy inquiry also serves to uncover conflicts of interest between the named plaintiffs and the class they seek to represent. Furthermore, because absent class members are conclusively bound by the judgment in any class action brought on their behalf, the court must be especially vigilant to ensure that the due process rights of all class members are safeguarded through adequate representation at all times.Id. (footnote, quotations and citations omitted) (ellipsis and brackets in original).
Plaintiffs made no argument and offered no evidence concerning the adequacy of their representation of the class. They have failed to show that the class representatives and their counsel will adequately represent the class.
First, "it is not enough that plaintiff's counsel are competent if the plaintiffs themselves almost totally lack familiarity with the facts of the case." Id. at *6 n. 18. Plaintiffs have proffered no evidence that "the putative class representatives are `willing' and `able' to `take an active role in and control the litigation and to protect the interests of absentees." Id. at *2. The court must inquire into these facts and may not presume them. Id. at *4. A presumption of adequacy would eviscerate the requirement that plaintiffs offer "specific proof" to satisfy each element of Rule 23 and would ignore the constitutional due process dimension of the adequacy inquiry. Id. at *2-3. Thus, I must find that the named plaintiffs are inadequate to represent the putative class.
Further, plaintiffs have proffered no evidence of their counsel's competence to prosecute a class action. Plaintiff's counsel stated at oral argument that he is a sole practitioner and has never previously been approved to handle a class action in federal court. Although he said that he would associate more experienced co-counsel if necessary, he also said that he has not initiated any contacts with such counsel and did not identify who such counsel might be. In connection with the instant motion, he failed to offer any evidence to support any of the six factors that plaintiffs need to prove to obtain class certification and failed to address two of the factors in his memorandum in support of the motion. Although the court may in some circumstances take judicial notice of the adequacy of class counsel to prosecute the proposed class action,Berger, 2001 WL 829720, at *3 (citations omitted), there are no "adjudicative facts" concerning the adequacy of counsel to prosecute a class action that are "not subject to reasonable dispute" in the record of this case. Fed.R.Evid. 201. The court may not presume the adequacy of counsel's representation for the same, reasons stated above concerning the class representatives.
Because plaintiffs have failed to satisfy all four requirements of Rule 23(a), their motion to certify a class should be denied. However, should the presiding district judge disagree with this analysis, I will also address the requirements of Rule 23(b)(3).
5. Rule 23(b)(3): Predominance
Plaintiffs have failed to demonstrate that common questions of law or fact will predominate as required by Rule 23(b)(3). Determining predominance "requires an understanding of the relevant claims, defenses, facts, and substantive law." Street, 2001 WL 568111, at *9 (citingAllison v. Citgo Petroleum Corp., 151 F.3d 402, 419 (5th Cir. 1998)).
Plaintiffs assert that there was a specific time for each putative class member when Sheriff Foti's legal authority to detain that person expired, followed by a specific time when that person was actually released. Plaintiffs argue that the factfinder can determine a single, fixed number of hours of delay prior to release that is per se unreasonable as to all class members, regardless of their individual circumstances, which makes this action appropriate for class certification. That is not the law.
To recover under Section 1983 for either a substantive or a procedural due process violation, plaintiffs must demonstrate that they were "denied a cognizable liberty or property interest clearly established either by state law or the United States Constitution." Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000); accord Sandin v. Connor, 515 U.S. 472, 481-83 (1995) (liberty interest); Bryan v. City of Madison, 213 F.3d 267, 274 (5th Cir. 2000), cert. denied, 121 S.Ct. 1081 (2001) (property interest). "While no State may deprive any person of life, liberty, or property, without due process of law, it is well-settled that only a limited range of interests fall within this provision. Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466 (1983) (quotation and citation omitted).
The factfinder must analyze for each class member whether Louisiana law provides him with a protected liberty interest in, for example, being booked within a certain number of hours; receiving an initial hearing, bail determination, probable cause determination or preliminary examination within a certain number of hours; receiving any other procedure of which the class member alleges a deprivation; and being released under whatever circumstances the member and/or Sheriff Foti allege occurred.
Under Louisiana case law, violations of deadlines or procedures for receiving an initial hearing, bail determination, probable cause determination or preliminary examination are rendered moot by a criminal defendant's subsequent conviction. State ex rel. Cosey v. State, 635 So.2d 1140, 1140 (La. 1994); State v. Varmall, 539 So.2d 45, 46 (La. 1989); State v. Wallace, 392 So.2d 410, 413 (La. 1980); State v. Williams, 692 So.2d 509, 513 (La.App. 3d Cir. 1997); State v. Boniface, 650 So.2d 1222, 1222 (La.App. 4th Cir. 1995). Thus, the factfinder will need to determine whether each class member who alleges a violation of these types of deadlines or procedures was subsequently convicted of the crime(s) for which he was allegedly detained illegally.
In addition, a criminal defendant's due process rights are not violated when he is not brought before a judge within 72 hours of arrest, in the absence of a showing of prejudice. State v. Tauzier, 397 So.2d 494, 504-05 (La. 1981), superseded by statute on other grounds as stated in State v. Shropshire, 471 So.2d 707, 709 (La. 1985); accord State v. Bouie, 598 So.2d 610, 611 (La.App. 4th Cir. 1992). Similarly, a failure to conduct a preliminary examination is rendered moot by the defendant's subsequent conviction, in the absence of a showing of prejudice. State v. Bullard, 700 So.2d 1051, 1057 (La.App. 2d Cir. 1997) (citing State v. Washington, 363 So.2d 509 (La. 1978); State v. Gates, (La.App. 2d Cir. 1994)). Whether a particular class member was prejudiced in either of these circumstances will be an individualized inquiry.
Common questions of law or fact will not predominate in this case. To the contrary, the second amended complaint reveals, and Judge Vance has already held in her ruling granting the motion to sever this portion of the consolidated cases, that "[t]he detention plaintiffs [the putative class members] each allege a different scenario under which they were improperly detained. The unlawful detention claims thus will require fact-finding specific to each plaintiff." Record Doc. No. 24, at p. 3.
The facts concerning the crime charged; processing problems; procedures denied; length of delay; reasons for delay; existence of outstanding attachments, warrants or holds; physical location within the Orleans Parish Prison system; reasons for release; and conviction will differ as to each class member. The Second Amended Complaint reveals that the nine named plaintiffs were arrested for different crimes (traffic violations, other misdemeanors and felonies) and were variously released or not released on parole, on bond, because of a mistake in the length of sentence recorded in the Sheriff's office, because of an erroneous attachment or for other unstated reasons. The lengths of allegedly delayed release ranged from less than 24 hours to as much as 80 days. Some, but not all, of the named plaintiffs complain that they were not taken before a magistrate within 72 hours of arrest. Benny Taylor, Jr. complains that he was tried, convicted and sentenced after his bail had been posted. Leslie Butler had already been convicted and sentenced when he arrived at the Orleans Parish Prison, while the other named plaintiffs were pretrial detainees. The other plaintiffs do not state whether they were eventually convicted. Record Doc. No. 41, ¶¶ VII-XV. The differing facts in each case will determine whether the delay experienced by a particular person was excessive and, if so, was caused by mere negligence (which is not actionable under Section 1983) or by a compensable violation of that plaintiff's due process rights.
Furthermore, the question whether punitive damages should be awarded is fact-specific. It will require proof that Sheriff Foti acted with malice or willfulness or with callous and reckless indifference to the rights of plaintiffs. "Under § 1983, punitive damages may be awarded only if the official conduct is `motivated by evil intent' or demonstrates `reckless or callous indifference' to a person's constitutional rights." Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994) (citing Smith v. Wade, 461 U.S. 30, (1983)). One acts willfully or with reckless indifference to the rights of others when he acts in disregard of a high and excessive degree of risk about which he knows or which would be apparent to a reasonable person in his condition. The violation of constitutional rights must be shocking and offensive to justify an award of punitive damages. Fifth Circuit Pattern Jury Instr. 15.13 (2000).
These standards will require determinations based on the facts of each individual case. A particularly lengthy delay may be malicious, shocking and offensive in one case while a shorter delay may be unconstitutional, but not shocking or offensive, in another. Therefore, common issues of law or fact will not predominate in this case.
6. Rule 23(b)(3): Superiority
For the same reasons, the class action method will not be a superior method of handling this case because common issues of fact and law will not predominate and individual trials will be required on multiple issues.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that plaintiffs' motion for class certification be DENIED.
A party's failure to file written objections to the proposed findings, conclusions, and recommendations in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).