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granting motion to certify plaintiff class
Summary of this case from Markadonatos v. Vill. of WoodridgeOpinion
Cause No. NA02-0094-C-H/H
January 31, 2003
ENTRY ON MOTION FOR CLASS CERTIFICATION
Named plaintiffs Cristobal Sanchez and David Bezy have sued the Sheriff and County Commissioners of Clark County, Indiana, for violating their federal constitutional rights and for violating state law. Plaintiffs have sued Sheriff Michael Becher and County Commissioners Raymond Parker, David Lewis, Vicky Kent Haire, and Dennis Hill in both their individual and official capacities for collecting a $25.00 "book-in" fee from plaintiffs when they were incarcerated in Clark County Jail. In their second amended complaint, plaintiffs seek repayment of the fee and equitable relief.
The named plaintiffs have moved to certify a plaintiff class of individuals who have paid the processing fee or will pay the fee in the future. In addition, plaintiff Sanchez has moved to certify a subclass of individuals who paid the fee and later were either acquitted or had the charges pending against them dismissed. Plaintiff Bezy has moved to certify a subclass of individuals who were required to pay the fee even though they were indigent. For the reasons explained below, the plaintiffs' motion for class certification is granted as modified, with both subclasses. The court has revised the proposed class definition so that it is consistent with the exhaustion requirement of 42 U.S.C. § 1997e.
I. Factual Background
This case involves Clark County Ordinance 5-2001, which was passed by the Clark County Commission on April 12, 2001. Cplt. ¶ 17. The ordinance authorizes the sheriff to assess a $25.00 processing fee to each individual who is booked into the Clark County Jail. Cplt. ¶¶ 18, 21.
Plaintiff Sanchez was incarcerated in the Clark County Jail on January 23, 2002, and was required to pay the $25.00 fee at the time that he was booked. Cplt. ¶¶ 9-10. The charges against Sanchez were dropped on April 25, 2002. Cplt. ¶ 11.
On May 14, 2002, plaintiff Bezy was transported from the Floyd County Jail to the Clark County Jail. Cplt. ¶ 12. At the time of his incarceration in the Clark County Jail, Bezy had no cash on his person, no bank accounts, and no investments of any kind. Cplt. ¶ 14. Nevertheless, Bezy was assessed the fee and $25.00 was taken from his commissary funds. Cplt. ¶ 16.
Sanchez and Bezy are the proposed class representatives for the class that the plaintiffs have defined as: "All persons who were charged the `book-in' fee while at the Clark County jail, excluding those who were incarcerated on May 2, 2002." Pl. Br. ¶ 2.
II. Discussion
To certify a class under Rule 23, plaintiffs must first satisfy all four elements of Rule 23(a): (1) the class is too numerous to join all members; (2) there are questions of law or fact common to the class; (3) the claims or defenses of representative parties are typical of those of the class members; and (4) the representative parties will fairly and adequately represent the class. Fed.R.Civ.P. 23(a). Once these requirements are satisfied, the plaintiffs must also satisfy at least one of the subsections of Rule 23(b). As the parties seeking class certification, plaintiffs bear the burden of proof in establishing each of the requirements under Rule 23. Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977). A plaintiff's failure to satisfy any one of these elements precludes certification. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993).
In deciding whether to certify a class, the court is not required to accept the allegations in the complaint as true. The court should make any factual and legal inquiries that are necessary to ensure that the requirements for class certification are satisfied, even if the underlying considerations overlap the merits of the case. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-76 (7th Cir. 2001); In re Bromine Antitrust Litigation, 203 F.R.D. 403, 407 (S.D.Ind. 2001).
A. Rule 23(a) Requirements
1. Numerosity
To meet the numerosity requirement, the class must be so large "that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). There is no magic number needed, and a plaintiff need not demonstrate the exact number of class members so long as a conclusion is apparent from good-faith estimates. See Peterson v. H R Block Tax Serv., Inc., 174 F.R.D. 78, 81 (N.D.Ill. 1997) (court can use common sense in evaluating numerosity). The proposed class satisfies the numerosity requirement, for the number of members is likely to be well in excess of 100. Although class members have not yet been identified, the class (as modified below) would include the vast majority of former inmates at the Clark County Jail who were assessed a "book-in" fee pursuant to Ordinance 5-2001.
2. Commonality
To meet the commonality requirement under Rule 23(a)(2), a plaintiff must show the presence of questions of law or fact common to the class. "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)." Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). This element can be satisfied by showing that there is "`at least one question of law or fact common to the class.'" Arenson v. Whitehall Convalescent and Nursing Home, Inc., 164 F.R.D. 659, 663 (N.D.Ill. 1996) (citation omitted).
The proposed class satisfies the commonality requirement under Rule 23(a)(2). Plaintiffs have alleged and have come forward with evidence that all of the potential class members were subject to the same $ 25.00 fee upon their incarceration at the Clark County Jail, which presents common issues of fact. There are also common issues of law because class members would be asserting the same causes of action against the defendants.
3. Typicality
Rule 23(a) also requires plaintiffs to show that "the claims . . . of the representative parties are typical of the claims . . . of the class." Fed.R.Civ.P. 23(a)(3). "`A plaintiff'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 his or her claims are based on the same legal theory.'" De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983), quoting H. Newberg, Class Actions § 1115(b) at 185 (1977).
The typicality requirement, although closely related to the question of commonality, focuses on the class representatives and whether the representatives will, by pursuing their own claims, work for the benefit of the entire class. See In re Prudential Ins. Co. Sales Practices Litig., 148 F.3d 283, 311 (3d Cir. 1998); Whitten v. ARS Nat. Services, Inc., 2001 WL 1143238, *4 (N.D.Ill. Sept. 27, 2001). "Typical does not mean identical, and the typicality requirement is liberally construed." Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D.Ill. 1996).
The typicality requirement is satisfied because the claims of the named plaintiffs and those of the proposed class members arise from the same fee that each was required to pay upon incarceration at the Clark County Jail. The named plaintiffs will work for the benefit of the proposed class by pursuing their own claims.
4. Adequacy of Representation
The final requirement under Rule 23(a) is that the named representatives fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). The adequacy standard involves two elements. First, a class representative must have a sufficient stake in the outcome to ensure zealous advocacy and must not have claims antagonistic to or conflicting with claims of other class members. Second, counsel for the named plaintiffs must be experienced, qualified, and generally able to conduct the litigation on behalf of the class. Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977).
The named plaintiffs have as substantial a stake in this litigation as any prospective class member, and they are fair and adequate representatives of the class under Rule 23(a)(4). Similarly, there is no dispute about the ability of plaintiffs' counsel to adequately represent the proposed class.
B. Requirements of Rule 23(b)
After satisfying Rule 23(a), plaintiffs must also satisfy the criteria of one of the subsections in Rule 23(b). Plaintiffs satisfy Rule 23(b)(3)because"the questions of law or fact common to the members of the class predominate over any questions affecting only individual members," and because "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3).
Class certification is particularly appropriate in this case because the monetary claims of individual class members are so modest. If the litigation were not concentrated, the litigation costs would dwarf any potential recoveries. In addition, because of the modest value of individual claims, there is little reason for individual class members to control the prosecution of their cases. As a result, the Rule 23(b)(3) criteria have been satisfied.
C. Effects of Statutory Exhaustion Requirement
For the reasons discussed above, plaintiffs' Motion For Class Certification under Rule 23 is granted. The proposed class definition must be modified, however, to comply with the statutory requirement for exhaustion of administrative remedies set forth in 42 U.S.C. § 1997e(a). That statute provides: "No action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." See also Def. Br. ¶¶ 3-5. The requirement applies to "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). For purposes of applying this requirement, "a plaintiff's status as a prisoner is to be determined as of the time he brought the lawsuit." Dixon v. Page, 291 F.3d 485, 489 (7th Cir. 2002); accord, Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998). The complaint in this case was filed on May 21, 2002.
Application of the exhaustion requirement in § 1997e(a) to class actions presents a relatively novel question. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001) (acknowledging issue in dicta, but affirming dismissal where named plaintiff failed to exhaust administrative remedies). In Jones v. Berge, 172 F. Supp.2d 1128, 1131-34 (W.D.Wis. 2001), Judge Crabb followed precedents from employment discrimination law that allow "vicarious" exhaustion, where the named class representative's exhaustion of remedies is sufficient for the entire class. Judge Crabb allowed a class to proceed under Rule 23(b)(2) in a case seeking only injunctive and declaratory relief regarding prison conditions. She emphasized the ongoing nature of the alleged violations and reasoned that any other approach would make it impossible for the case to proceed as a class action because the class membership would change every time a prisoner moved into the facility. Id. at 1131. Judge Crabb was careful to limit her holding, however, to a class under Rule 23(b)(2). Id. at 1133-34. See also Hattie v. Hallock, 8 F. Supp.2d 685, 689, opinion amended, 16 F. Supp.2d 834 (N.D.Ohio. 1998) (stating in dicta that "vicarious" exhaustion is available only for class certified under Rule 23(b)(2)).
As noted by Judge Crabb in Jones, in employment discrimination actions under Title VII of the Civil Rights Act of 1964, a class representative's exhaustion of administrative remedies is sufficient for the entire class. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8 (1975) ("The Courts of Appeals that have confronted the issue are unanimous in recognizing that backpay may be awarded on a class basis under Title VII without exhaustion of administrative procedures by the unnamed class members."); Romasanta v. United Air Lines, Inc., 717 F.2d 1140, 1157 (7th Cir. 1983) ("It is well established that, in a Title VII class action, unnamed Plaintiffs are not precluded from class membership merely because they did not individually file timely EEOC charges."). By contrast, in actions under the Social Security Act, exhaustion of administrative remedies may be required for each member of the class. See, e.g., Marcus v. Sullivan, 926 F.2d 604, 613-14 (7th Cir. 1991); Johnson v. Sullivan, 922 F.2d 346, 352-53 (7th Cir. 1990).
No court, to this court's knowledge, has actually applied the "vicarious" exhaustion approach of Title VII law to prisoner class actions seeking damages and certified under Rule 23(b)(3), as in this case. See Rahim v. Sheahan, 2001 WL 1263493, *7 (N.D.Ill. Oct. 19, 2001) (stating in dicta that court "sees no reason in this case why this [vicarious exhaustion] analysis should not apply equally to claims under the PLRA"); Doe v. Cook County, 1999 WL 1069244, * 3, n. 5 (N.D.Ill. 1999) (acknowledging issue but not deciding it). Both sides in this case assume that vicarious exhaustion is not available in this case, but they disagree about the treatment of persons who were booked and charged the fee after this action was filed. Plaintiffs propose a definition that would allow those later inmates to pursue their claims without exhausting administrative remedies. Defendants propose a class definition that would exclude persons "who are currently incarcerated at the Clark County Jail and who remain incarcerated during the entire pendency of this action."
The court does not find either solution appropriate. Unless and until the question is squarely presented, the court will not attempt to decide the vicarious exhaustion question definitively. Instead, as a matter of prudence, the court exercises its discretion to certify a relatively narrow class in this case, but leaves the door open to the filing of a new complaint by any similarly situated persons who might be excluded by the class definition.
Defendants' proposal to exclude persons who were incarcerated at the Clark County Jail on May 21, 2002, and those "who are currently incarcerated at the Clark County Jail and who remain incarcerated during the entire pendency of the action" is not consistent with the statutory requirement. First, the statutory exhaustion requirement applies to a person who is a prisoner in "any jail, prison, or other correctional facility," so that persons incarcerated on the date of filing in the Indiana Department of Correction, for example, would still be subject to an exhaustion requirement. See Dixon, 291 F.3d at 489 (whether the exhaustion requirement applies to a person depends on his or her status as a prisoner only at the time the complaint is filed, the time the action is "brought"). Also, whether a person remains incarcerated during the entire pendency of the action is not relevant in determining whether the exhaustion requirement applies.
Plaintiffs come closer with their proposed class that includes persons who were not required to exhaust administrative remedies because they were not "incarcerated" (without limiting incarceration to the Clark County Jail) as of May 21, 2002. However, plaintiffs' proposed class apparently would include persons who were booked later, and whose claims therefore had not even arisen at the time the complaint was filed. For these persons, it is more difficult to identify the time the action is "brought." Would it be the time their claims arose? The time the class is certified? The time they file a claim form of some type?
At this time, the court limits the class in this action to: All persons who were charged the book-in fee at the Clark County Jail before May 21, 2002, excluding those who were incarcerated in any jail, prison, or other correctional facility on May 21, 2002. This decision, of course, does not preclude any person who is excluded from this definition from bringing his or her own action, including a class action, if filed at a time when the person is not a prisoner. The court also certifies the plaintiffs' proposed subclasses, subject to the same limitation. Because of the arguments being raised, it is possible that the merits of the case could be resolved in ways that would make the definition of the subclasses important, and here, both subclasses meet the 23(b)(3) requirements.
Plaintiffs shall file no later than February 28, 2003 a proposed class notice that is consistent with class definition above, as well as a proposed exclusion form.
So ordered.