Opinion
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Craig Thomas Jones, Craig T. Jones, PC, Washington, GA, John G. Cicala, Law Office of John G. Cicala, Jr., P.C., Grayson, GA, Alison Reich Spiers, The Nations Law Firm, Houston, TX, for Plaintiffs.
Angela C. Couch, Regina Benton Reid, Richard A. Carothers, Thomas M. Mitchell, Carothers & Mitchell, LLC, Gary Kevin Morris, Williams, Morris & Waymire, LLC, Buford, GA, Michael Van Stephens, II, Gwinnett County Law Department, Lawrenceville, GA, for Defendants.
ORDER
HONORABLE STEVE C. JONES, UNITED STATES DISTRICT JUDGE
This matter appears before the Court on Plaintiffs’ Motion for Class Certification (Doc. No. [16] ).
A review of the record shows that Plaintiffs have filed a § 1983 action on behalf of themselves and others similarly situated against Gwinnett County Sheriff R.L. "Butch" Conway and other defendants (collectively, "Defendants"). "Plaintiffs were pretrial detainees at Gwinnett County Jail and [seek] damages and injunctive relief for excessive force they allege they endured from the Gwinnett County Sheriff Department’s Rapid Response Team ("RRT") in violation of the Fourteenth Amendment." Shuford v. Conway, 666 Fed.Appx. 811, 813 (11th Cir. 2016), cert. denied, __ U.S. __, 137 S.Ct. 2196, 198 L.Ed.2d 256 (2017).
On November 6, 2017, this Court consolidated the related case of Bort v. Sims, Civil Action No. 1:15-cv-0808-SCJ (NDGa) with the case sub judice. Doc. No. [231].
The Rapid Response Team ("RRT") is a specialized unit of the Gwinnett County Sheriff’s Department that resolves high-risk incidents and provides general assistance in maintaining order at the Gwinnett County Jail ("Jail"). Doc. No. [236], ¶ 2.
The Court will now consider the merits of the class certification motion. Doc. No. [16].
In their reply brief, Plaintiffs indicated that the "record will be further supplemented when the Court holds the evidentiary hearing on the motion that Plaintiff has requested— when Plaintiff intends to cross-examine a defense expert who has served as a court-appointed monitor in a similarly sized class action that resulted in injunctive relief similar to what Plaintiffs are seeking here." Doc. No. [225] (citing (Doc. No. [212] ) ). The Court held an evidentiary hearing on January 9, 2018 and Plaintiff submitted two exhibits (a copy of the California district court’s opinion in Von Colln v. Cty. of Ventura, 189 F.R.D. 583 (C.D. Cal. 1999) and a copy of the corresponding settlement agreement that resulted in a revised policy on restraint chairs) in lieu of calling the expert.
Plaintiffs state that the class definition is: "All inmates who have been or will be unconstitutionally subjected to the use of gratuitous, unnecessary and punitive force by the Rapid Response Team at the Gwinnett County Jail at any time after July 5, 2011." Doc. No. [16-1], pp. 5-6 (citing Doc. No. [1], ¶ 10); see also Doc. No. [237], ¶¶ 42-43 (referencing subclasses). Plaintiffs also "seek a declaration by the Court that Defendants’ conduct as described above violates the rights of Plaintiffs and the Class under the Fourteenth Amendment ..." and "equitable relief enjoining Defendants, their successors, agents, servants, employees, and all those in active concert or participation with them from subjecting inmates in the Gwinnett County Jail to excessive force and abuse by the Rapid Response Team, and mandating that Defendants formulate and effectuate a remedy, subject to the Court’s approval and modification, if necessary, to end the practices and policies challenged in this lawsuit." Doc. No. [16-1], p. 6 (citing Doc. No. [1], ¶¶ 78-79) ). Plaintiffs also seek damages. Id.
In Bort, the class was defined as "All inmates who have been or will be unconstitutionally subjected to the use of gratuitous, unnecessary and punitive force by the Rapid Response Team at the Gwinnett County Jail at any time after July 5, 2011." Bort, 1:15-cv-0808, Doc. No. [10], p. 6, ¶ 12. Plaintiffs also state that "[t]here are two subclasses of Plaintiffs: those subjected to the planned use of force, and those subjected to the unplanned use of force." Id. ¶ 1. Plaintiffs state that they also pled a defendant class in Bort that is not subject to the pending motion. Bort, 1:15-cv-0808, Doc. No. [10], p. 14, ¶ 41.
In support of their motion, Plaintiffs filed "approximately eighty videos obtained under the Georgia Open Records Act that depict the [alleged] unconstitutional use of deadly force against class members ...." Doc. No. [16-1], p. 6; see also Doc. No. [17]. Plaintiffs also "e-filed affidavits of seven class members, including the three named Plaintiffs." Id.
Plaintiffs further state that they "manually filed, as a demonstrative exhibit to this brief, a disk that contains short excerpts of ten videos showing the Rapid Response Team (RRT) in action." Doc. No. [16-1], p. 7. According to Plaintiffs, the disk of excerpts is representative of the conduct exhibited on the eighty unedited videos and described in the affidavits." Id.
In response to Plaintiffs’ motion, Defendants argue that it would be an abuse of discretion for this Court to certify a class on any issue in this case. Doc. No. [224], pp. 24-25. More specifically, Defendants state that "[e]verything to be determined [in this case], including the constitutional relevance of what is shown on [Plaintiffs’] videos, must be decided on an individual case-by-case basis. Id. Defendants state that "[t]he videos upon which the Plaintiffs base their request for class certification present just a small part in the middle of every single story, [as], [t]here were events that occurred before the video came on, decisions made by numerous different deputies, sergeants, and/or RRT squad leaders and supervisors ....[t]here were also chain of command review and approval, as well as review by Training and PSU after the video went off." Id. Defendants state that "these parts of the story are crucial to a proper analysis in this case ...." Id. Defendants also state that Plaintiffs allegations and facts fail to: (1) consider the training and the supervision of the three different sergeants that made the ultimate determination regarding these Plaintiffs; (2) take into account Plaintiffs’ conduct prior to the beginning of the recording; (3) take into account the Defendants’ facts as to how the various sergeants attempt to de-escalate, how the detainees are, in fact, warned prior to deploying the Rapid Response Team, and are told exactly what will happen if they fail to comply; and (4) account for the fact that the deputies, Defendants’ subordinates, are also responsible to protect the detainees and, in fact, can suffer liability if they fail to do so. Doc. No. [224], p. 5.
The Court held a hearing on January 9, 2018. Prior to the hearing, the parties filed stipulated facts and identified disputed facts relevant to the Rule 23 issues. Doc. Nos. [230]; [236]; [237]; and [239].
II. LEGAL STANDARD
"The class-action device was designed as ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only’ .... [T]he class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion ...." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (citations omitted).
"Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is ‘adequately defined and clearly ascertainable.’ " Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012); see also Karhu v. Vital Pharm., Inc., 621 Fed.Appx. 945, 946 (11th Cir. 2015) ("Rule 23 implicitly requires that the ‘proposed class is adequately defined and clearly ascertainable.’ ").
"If the plaintiff’s proposed class is adequately defined and clearly ascertainable, the plaintiff must then establish the four requirements listed in Federal Rule of Civil Procedure 23(a)." Little, 691 F.3d at 1304. "A class action may be maintained only when it satisfies all the requirements of Fed.R.Civ.P. 23(a) and at least one of the alternative requirements of Rule 23(b)." Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997) (footnotes omitted); see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) ("[Rule 23] states that ‘[a] class action may be maintained’ if two conditions are met: The suit must satisfy the criteria set forth in subdivision (a) (i.e., numerosity, commonality, typicality, and adequacy of representation), and it also must fit into one of the three categories described in subdivision (b).").
Subsection (a) of Rule 23 provides in relevant part:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). "These four requirements commonly are referred to as ‘the prerequisites of numerosity, commonality, typicality, and adequacy of representation,’ and they are designed to limit class claims to those ‘fairly encompassed’ by the named plaintiffs’ individual claims." Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001).
As stated above, Plaintiffs must also satisfy at least one of the three requirements under Rule 23(b). Plaintiffs, here, are pursuing Rule 23(b)(2) and (3). Doc. No. [16-1], p. 3. Rule 23(b)(2) provides that "[a] class action may be maintained if Rule 23(a) is satisfied" and "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole ...." Fed.R.Civ.P. 23(b)(2). Rule 23 (b)(3) states that "[a] class action may be maintained if Rule 23(a) is satisfied" and "the court finds that 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." Fed.R.Civ.P. 23(b)(3). Plaintiffs also state that "as a fallback position," this case is also eligible for certification of liability issues under Rule 23(c)(4). Doc. No. [16-1], p. 3.
The applicability of Rule 23(b)(1) is not before the Court.
Plaintiffs cite Rule 23(a)(4) in their brief (Doc. No. [16-1], p. 4), but it appears to the Court that Plaintiffs meant subsection (c)(4), which states that "[w]hen appropriate, an action may be brought or maintained as a class with respect to particular issues."
Because a class action is an "exception to the usual rule" that litigation is conducted on behalf of the named parties only, the party seeking to certify a class "must affirmatively demonstrate his compliance" with Rule 23. Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). The party seeking class certification bears the burden to show by a preponderance of the evidence that the requirements of Federal Rule of Civil Procedure 23 are met. Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). "A district court that has doubts about whether the requirements of Rule 23 have been met should refuse certification until they have been met." Brown, 817 F.3d at 1233-34. However, "[b]y its terms [Rule 23] creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action." Shady Grove, 559 U.S. at 398, 130 S.Ct. 1431.
In their briefing, Plaintiffs state that this case is distinguishable from the Supreme Court’s Wal-Mart and Comcast cases. Doc. No. [16-1], pp. 4-5. More specifically, Plaintiffs state: "[i]n any event, this case is distinguishable from Wal-Mart v. Dukes because that case involved literally millions of decisions made by thousands of managers in stores all over the country, where the decisions at issue in this case were made by the command staff at a single jail facility under the control of the three Defendants." Doc. No. [16-1], p. 14. Plaintiffs assert that there was one policy, one jail (location), and two defendants. After review, the Court is not convinced that the Wal-Mart and Comcast case are distinguishable so as to disregard the principles of law stated therein by the United States Supreme Court.
The Court recognizes that there is authority in this district that holds that any doubts should be resolved in favor of class certification. See Mauldin v. Wal-Mart Stores, Inc., No. CIV.A.1:01-CV2755JEC, 2002 WL 2022334, at *4 (N.D.Ga. Aug. 23, 2002) ("any doubts are to be resolved in favor of certification, because class certification is conditional only and the court may amend the certification order or decertify the class at any time prior to a final judgment on the merits."). However, the more specific statements by the Eleventh Circuit in Brownand the United States Supreme Court in Shady Grove (cited above), control.
The analysis of the class certification motion is not "a mere pleading standard," but rather involves "rigorous analysis" of the elements of Rule 23(a) and (b). Comcast, 569 U.S. at 33, 133 S.Ct. 1426; see also Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541. The Supreme Court has "emphasized that it ‘may be necessary for the court to probe behind the pleadings before coming to rest on the certification question’ ...." Comcast, 569 U.S. at 33, 133 S.Ct. 1426. Such an analysis will frequently entail "overlap with the merits of the plaintiff’s underlying claim." Id. at 33-34, 133 S.Ct. 1426. That is so because the ‘class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ " Id. (citations omitted); see also Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009) ("Although the trial court should not determine the merits of the plaintiffs’ claim at the class certification stage, the trial court can and should consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.").
The Eleventh Circuit has also held that "if a question of fact or law is relevant to [the] determination [of whether the Rule 23 prerequisites for class certification are satisfied], then the district court has a duty to actually decide it and not accept it as true or construe it in anyone’s favor." Brown, 817 F.3d at 1234.
A. Ascertainability
As stated above, before tackling the Rule 23(a) requirements, the Court must determine if the class is adequately defined and clearly ascertainable. In Little v. T-Mobile USA, Inc., the Eleventh Circuit held that "[b]efore a district court may grant a motion for class certification, a plaintiff seeking to demonstrate a proposed class must establish that the proposed class is ‘adequately defined and clearly ascertainable.’ " 691 F.3d 1302, 1304 (11th Cir. 2012) (quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) ); see also Karhu, 621 Fed.Appx. at 947 ("[T]he plaintiff seeking certification bears the burden of establishing the requirements of Rule 23, including ascertainability. ") (citations omitted); Bussey v. Macon Cty Greyhound Park, Inc., 562 Fed.Appx. 782, 787 (11th Cir. 2014) and Walewski v. Zenimax Media, Inc., 502 Fed.Appx. 857, 861 (11th Cir. 2012).
The Court recognizes that at least one court has held that "there is serious reason to doubt that the judicially created ascertainability requirement applies to Rule 23(b)(2) classes," because Little reached the conclusion in the context of a Rule23(b)(3) damages class. Braggs v. Dunn, 317 F.R.D. 634, 671 (M.D. Ala. 2016); Hunter v. Beshear, No. CV 2:16CV798-MHT, 2018 WL 564856, at *4 (M.D. Ala. Jan. 25, 2018). This Court is not so convinced.
"A class is properly defined if it is administratively feasible for the court to ascertain whether an individual is a member." Fabricant v. Sears Roebuck, 202 F.R.D. 306, 308 (S.D. Fla. 2001). "The class definition is viable if it is ascertainable by an objective standard." Id.
"In order to establish ascertainability, the plaintiff must propose an administratively feasible method by which class members can be identified." Karhu, 621 Fed.Appx. at 947 (citations omitted). A class is identifiable if its "members can be ascertained by reference to objective criteria." Bussey, 562 Fed.Appx. at 787 (quotation and citation omitted). The analysis of such objective criteria should also be administratively feasible. Id. " ‘Administrative feasibility’ means that identifying class members is a manageable process that does not require much, if any, individual inquiry." Id. (citations omitted). "A plaintiff cannot establish ascertainability simply by asserting that class members can be identified using the defendant’s records; the plaintiff must also establish that the records are in fact useful for identification purposes, and that identification will be administratively feasible." Karhu, 621 Fed.Appx. at 948.
As stated above, the class at issue here is defined as: "All inmates who have been or will be unconstitutionally subjected to the use of gratuitous, unnecessary and punitive force by the Rapid Response Team at the Gwinnett County Jail at any time after July 5, 2011." Doc. No. [16-1], pp. 5-6 (citing Doc. No. [1], ¶ 10). Plaintiffs state that "[t]he Court may ascertain the exact size of the Class and the identities of the individual members thereof through Defendant[s’] records, which are in exclusive control of Defendant[s]." Doc. No. [69], ¶ 13.
Here, ascertainability is problematic in that while it is conceivable that potential class members (who were restrained by the RRT) could be identified based on the RRT use/reports, to know if the potential class members were "unconstitutionally subjected to the use of gratuitous unnecessary and punitive force" by the RRT, would require the Court to engage in individualized determinations in order to ascertain a person’s membership in the class.
As one court stated in the context of a different type of civil rights case, "[i]f, however, the class definition is limited to those people strip searched without probable cause or reasonable suspicion during the execution of an all-persons-present warrant ... preliminary mini-trials would be required to determine whether each prospective class member belonged in the class, i.e., whether he or she was searched with probable cause or reasonable suspicion, or without it." Mothersell v. City of Syracuse, 289 F.R.D. 389, 395 n.4 (N.D.N.Y. 2013).
The United States Supreme Court has held that in deciding whether the force used against a pretrial detainee is constitutionally speaking, "excessive," "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." Kingsley v. Hendrickson, __ U.S. __, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015). "[O]bjective reasonableness turns on the ‘facts and circumstances of each particular case.’ " Id. "A court (judge or jury) cannot apply this standard mechanically." Id. "The following considerations may bear on the reasonableness or unreasonableness of the force used: (1) the relationship between the need for the use of force and the amount of force used; (2) the extent of the plaintiff’s injury; (3) any effort made by the officer to temper or to limit the amount of force; (4) the severity of the security problem at issue; (5) the threat reasonably perceived by the officer; and (6) whether the plaintiff was actively resisting." Id. "This list is non-exclusive and is used only to ‘illustrate the types of objective circumstances potentially relevant to a determination of excessive force.’ " Id. The objective reasonableness determination must be made "from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Kingsley, 135 S.Ct. at 2473. The "court must also account for the ‘legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,’ appropriately deferring to ‘policies and practices that in th[e] judgment’ of jail officials ‘are needed to preserve internal order and discipline and to maintain institutional security.’ " Id. (internal citations omitted).
Plaintiffs’ definition statement of "unconstitutionally subjected to the use of gratuitous unnecessary and punitive force" is essentially an excessive force determination. See Black’s Law Dictionary (10th ed. 2014) (defining excessive force as "[u]nreasonable or unnecessary force under the circumstances.").
The Supreme Court further stated: "It is unlikely (though theoretically possible) that a plaintiff could overcome these hurdles [i.e., the above-stated reasonable officer perspective, deference to policies and procedures needed to preserve internal order, discipline/security, and qualified immunity] where an officer acted in good faith." Kingsley, 135 S.Ct. at 2474-75.
While on a prior appeal of the case sub judice, the Eleventh Circuit found that under the "plaintiffs’ version of the facts," the evidence as to four of the named plaintiffs is sufficient to establish violations of their Fourteenth Amendment rights, the Eleventh Circuit did so only after consideration of the above-stated "factors that the Supreme Court has given as guidance— [i.e.] the relationship between the level of force used and the need for that force at the time it was used; the effort made to temper such force (or lack thereof); the severity of the security problem; the threat perceived; and the plaintiffs’ active resistance." Shuford, 666 Fed.Appx. at 816. The Eleventh Circuit also stated that "[i]n evaluating the use of force for objective reasonableness, the Supreme Court has told us to consider ‘the facts and circumstances of [the] particular case.’ " Id. The Eleventh Circuit further stated that its "analysis turns largely on the facts." Id.
Plaintiffs also argue that in light of the Eleventh Circuit’s opinion, "anyone who was subjected to the use of force by the Gwinnett Jail RRT is either a member of the class or is not." Doc. No. [225], p. 4. The Court does not agree that this is a logical inference to be made from the Eleventh Circuit’s opinion, as the Eleventh Circuit was not considering class actions issues on the appeal and such an inference would require disregard of the above-stated class action principles for determination of ascertainability.
At the evidentiary hearing, Plaintiffs’ Counsel indicated that the Court could appoint a special master to determine if individuals qualify for the class. However, a special master is still not sufficient as to satisfy the ascertainablity requirement, in that it still would require the Court (through the special master) to engage in substantial individual inquiry, which renders the ascertainability of the class non-administratively feasible. Plaintiffs have not established that the proposed class is clearly ascertainable.
B. Rule 23(a) requirements
Despite not having met the ascertainability requirement, the Court will (in the exercise of caution) still consider the requirements of Rule 23(a).
1. Numerosity ( Rule 23(a)(1) )
Under Rule 23(a)(1), a plaintiff must establish that "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). "Practicability of joinder depends on many factors, including, for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion." Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986). In addition, the Eleventh Circuit has stated that "[w]hile there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty [is] adequate, with numbers between varying according to other factors." Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (internal quotation marks and citation omitted). The plaintiffs bear the burden of making some showing and affording the district court the means to make a supported factual finding, that the class actually certified meets the numerosity requirement. Vega, 564 F.3d at 1267. Mere allegations of numerosity are insufficient to meet this prerequisite, but "a plaintiff need not show the precise number of members in the class." Id. (internal quotations and citations omitted).
Here, Plaintiffs state that they "believe that the class consists of several hundred inmates." Doc. Nos. [16-1], p. 6; [237], ¶ 44. To support their belief, Plaintiffs rely on the "eight videos obtained under the Georgia Open Records Act," that were filed contemporaneously with their certification motion. Doc. No. [16-1], p. 6. At the evidentiary hearing, Plaintiff’s Counsel indicated that he has contracts from around thirty people has gotten calls from others. Plaintiffs also assert that "approximately 80 [inmates] ... are presently identifiable based upon records for less than a year of the relevant time frame from July 2013 forward." Doc. No. [225], p. 3.
Plaintiffs also stated that "[d]iscovery in this case will ascertain the exact number of class members, and Plaintiffs intend to supplement this brief when that information is available." Doc. No. [16-1], p. 7. The Court recognizes that there has been discovery as to the claims of the class representatives, but no formal class discovery. To date, Plaintiffs have not supplemented their brief; however, the Court is not of the opinion that supplemental briefing is needed at this time.
At the evidentiary hearing, Plaintiffs’ Counsel indicated that there were 72 people identified under the first open records request and since then, he has picked up more.
In opposition, Defendants assert that "there is no evidence of any more than 13 potential plaintiffs," and Plaintiffs do not meet the numerosity requirement under Rule 23. Doc. No. [224], pp. 10-11.
Defendants also raise disputes of fact as to numerosity (i.e., there is no evidence of forty people who meet the Kingsley criteria for excessive force). See e.g., Doc. No. [239], ¶¶ 41, 42.
As indicated above, "classes containing more than 40 members are generally large enough to warrant certification." Hunter v. Beshear, No. CV 2:16CV798-MHT, 2018 WL 564856, at *4 (M.D. Ala. Jan. 25, 2018).
Here, Plaintiffs have met their burden of "making some showing and affording the district court the means to make a supported factual finding," through the videos and the statements in Plaintiffs’ Counsel place at the evidentiary hearing as to the contracts that he has received so far and the open records request, that the numerosity requirement is satisfied as to the number of people who were restrained by the RRT; however, as indicated above, ascertainability is still not satisfied. 2. Commonality ( Rule 23(a)(2) )
It has been noted that,
The commonality requirement of Rule 23(a) requires that there be "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). A plaintiff meets this requirement by showing a "single common question" that is "capable of classwide resolution." Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984 (11th Cir. 2016) (citing Wal-Mart, 564 U.S. at 359, 131 S.Ct. 2541). This "means that determination of [the common question’s] truth or falsity 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, 131 S.Ct. 2541. "Dissimilarities within the proposed class are what have the potential to impede the generation of common answers." Id. (citations and internal quotations omitted). "Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.... This does not mean merely that they have all suffered a violation of the same provision of law." Id. at 349-50, 131 S.Ct. 2541.
Here, Plaintiffs asserts that their case meets the commonality requirement because "all class members claim the same injury, denial of rights." Doc. No. [16-1], p. 14. Plaintiff further states that "this common contention is capable of class-wide resolution, as the answer to why [Plaintiffs] were deprived of their rights will be resolved in one stroke." Doc. No. [16-1], pp. 14-15 (citing Wallace v. Powell, 3:09-CV-286, 2013 WL 2042369, **5-6 (M.D. Pa. May 14, 2013) ).
The Wallace case is distinguishable because it involved, the "same county, ..the same judge, ... and the same alleged unlawful conspiracy." Wallace, 2013 WL 2042369, at *6. Here, we do not have the same supervisor acting each time and the complaint does not reference a conspiracy. Doc. No. [69].
Plaintiffs also state that "Defendants’ assertion that there is no common issue of law or fact is refuted by the [Eleventh Circuit’s] decision [in a prior appeal of this case] that all four of the named Plaintiffs were subjected to force that a jury could find unreasonable, unnecessary, and disproportionate to any real or imagined threat posed by inmates who were not presently disruptive. That is the common denominator for all class members, and anyone who was subjected to the use of force by the Gwinnett Jail RRT is either a member of the class or is not." Doc. No. [225], p. 4. More specifically, Plaintiffs state that the common questions of law and fact are as follows:
Plaintiffs also argue that commonality is implicit in the Eleventh Circuit’s ruling, even though the Eleventh Circuit was not ruling on the certification issue while the case was on a previous appeal. Shuford v. Conway, 666 Fed.Appx. 811 (11th Cir. 2016), cert. denied, __ U.S. __ , 137 S.Ct. 2196, 198 L.Ed.2d 256 (2017). Excerpts from the Eleventh Circuit’s opinion concerning material questions of fact are as follows:
a. Whether the Rapid Response Team at the Gwinnett County Jail was routinely deployed to inflict gratuitous, unnecessary and punitive force against Plaintiffs and the Class, all of whom were contained in a secure environment, subdued, and not posing a threat of injury or escape;
b. Whether Defendants directed and trained the Rapid Response Team to inflict gratuitous, unnecessary and punitive force against inmates who were contained in a secure environment, subdued, and not posing a threat of injury or escape;
c. Whether Defendants maintained customs and policies that caused the Rapid Response Team to inflict gratuitous, unnecessary and punitive force against Plaintiffs and the Class when they were contained in a secure environment, subdued, and not posing a threat of injury or escape;
d. Whether Plaintiffs and members of the Class are entitled to actual damages, injunctive relief, costs and attorney’s fees for Defendants’s acts and conduct;
e. Whether Plaintiffs and the Class are entitled to punitive damages for Defendants’ willful and wanton misconduct in causing the systemic abuse of inmates with deliberate indifference to the rights of Plaintiffs and the Class; and
f. Whether Defendants’ unconstitutional conduct is continuing, and whether members of the Class will continue to suffer damages if the conduct is not permanently enjoined.
Doc. No. [69], pp. 7-8. Plaintiffs further state that: "Resolution of any of the above questions of law or fact common to the Class will affect all of the Class members." Doc. No. [69], ¶ 24.
After review, the Court finds that Plaintiffs common questions (cited above), are of the kind that the Supreme Court has deemed insufficient to obtain class certification, even though they literally raise common questions. Wal-Mart, 564 U.S. at 349, 131 S.Ct. 2541 ("For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification.") (emphasis added). More specifically, in the case sub judice, Plaintiffs’ first three questions (a, b, and c) are really just asking, is there an unlawful practice? The latter three questions (d, e, and f) are asking, what remedies should we get?
The Court is of the opinion that the common question for purposes of the commonality analysis should be: why was the inmate restrained? The record before the Court shows that each decision to restrain (and use force against) an inmate is individualized (case-by-case), based on the circumstances present and that there are a variety of reasons for using the force. The record also shows that not all restraints/uses of force were approved by the same supervisor. Accordingly, based on the record before the Court, in the absence of uniformity of the circumstances under which the restraints/use of force happened, there has been no sufficient showing that there can be a common answer to the common question. As stated by the Supreme Court, "[w]ithout some glue holding the alleged reasons for all [of the restraint/use of force] decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question," of why was the inmate restrained. Wal-Mart, 564 U.S. at 352, 131 S.Ct. 2541.
As stated in the prior summary judgment order, force was used on the named plaintiffs in the following circumstances: the supervisor (Sergeant Ross) wrote in his report that Plaintiff Shuford hit the wall and partition, creating a risk of self-harm; the supervisor (Sergeant Hayes) wrote in his report that Plaintiff DeJesus was banging/striking the cell walls and the decision to place in the restraint chair was to prevent self-harm; the supervisor (Sergeant Tim Smith) wrote in his report that Plaintiff Anisko hit the door with his head and his hands and the decision to place Anisko in the restraint chair was for his own safety; and the supervisor (Sergeant Ross) wrote that Plaintiff Lunde struck the cell window hard enough to make it bow and was demanding to be sent to a mental health facility. Doc. No. [196], pp. 38-55.
Recent authority from the Eleventh Circuit also supports this conclusion. In Truesdell v. Thomas, the Eleventh Circuit considered the question of whether the district court had abused in discretion when it refused to certify a class of victims of a sheriff’s deputy who had used the state’s driver and vehicle identification database to access the personal information of tens of thousands of people. Truesdell v. Thomas, 889 F.3d 719, __, 2018 WL 2041953, at *1 (11th Cir. May 2, 2018). The Eleventh Circuit held that the district court did not abuse its discretion when it determined that a class action plaintiff failed to establish commonality. Id. at * 1. The district court’s lack of commonality finding was based on the fact that the defendant’s "reasons for accessing each putative class member’s personal information may vary for each class member, ... resulting in numerous mini-trials and a lack of typicality and commonality." Id. The Eleventh Circuit held that the fear of mini-trials was legitimate considering that the state’s Driver’s Privacy Protection Act permitted the use of protected information in certain circumstances, leaving a possibility that some of the searches performed by the sheriff’s deputy were legitimate. Id. at *4. The Eleventh Circuit also considered the possibility of whether plaintiff should have been permitted to amend her class action complaint to seek declaratory and injunctive relief (under Rule 23(b)(2) ). The Eleventh Circuit held that "even if [plaintiff] had requested an injunction-only class action, she would have fallen short of the Rule 23(a) prerequisites of typicality and commonality in the light of the possibility that some of [defendant’s] searches were legitimate." Id.
Similarly, here, there is a possibility that a jury could find some (or all) of the restraints of the inmates by the RRT were legitimate and the reasons for the restraint vary from class member to class member. Accordingly, based on the above-cited authority, the Court concludes that Plaintiffs have failed to demonstrate commonality. In the absence of commonality, there is no need to go further with a typicality and adequacy review.
C. Rule 23(b) considerations
Even in assuming that Plaintiffs met the ascertainability and Rule 23(a) requirements, Plaintiffs arguments as to Rule 23(b), hybrid classes, and Rule 23(c)(4) also fail.
(1) Rule 23(b)(2)
The Eleventh Circuit has stated that "[i]n addition to the requirements of Rule 23(a), before a class can be certified, at least one of the alternative requirements of Rule 23(b) must be satisfied." Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001). As stated above, Plaintiffs propose their class pursuant to Rule 23(b)(2).
"Rule 23(b)(2) allows class treatment when ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.’ " Wal-Mart, 564 U.S. 338, at 360, 131 S.Ct. 2541, 180 L.Ed.2d 374. "Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages." Id. at 360-61, 131 S.Ct. 2541. "The key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted— the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’ " Id. at 360, 131 S.Ct. 2541. "[C]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of what (b)(2) is meant to capture." Id. at 361, 131 S.Ct. 2541.
"[T]he validity of a (b)(2) class depends on whether ‘final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Wal-Mart, 564 U.S. at 365, 131 S.Ct. 2541.
Here, it is Plaintiffs’ burden to "affirmatively demonstrate" that class certification is appropriate under Rule 23(b)(2). Lakeland Reg’l Med. Ctr., Inc. v. Astellas US, LLC, 763 F.3d 1280, 1291 (11th Cir. 2014)
In the case sub judice, Plaintiffs assert that Defendants have "acted or refused to act on grounds generally applicable to the class’ by subjecting all class members to substantially identical treatment [misuse of restraint chair] in violation of the same constitutional right." Doc. No. [16-1], p. 17. Plaintiffs state that "[t]he predominant relief requested by the putative class is a judgment declaring that Defendants have violated Fourteenth Amendment rights, enjoining such conduct in the future, and mandating remedial action." Doc. No. [16-1], p. 18. Plaintiffs also state that they "have also made a claim for damages, but the claim for injunctive relief is clearly primary." Doc. No. [16-1], p. 18.
In opposition, Defendants state that "[t]he evidence in this case establishes that the Plaintiffs have no standing to seek injunctive relief and that they [cannot] meet the legal requirements for such relief even if they had standing. Therefore, there is no basis for certification of a class action in this matter." Doc. No. [224], p. 23.
a. Standing
"[P]rior to the certification of a class, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim." Herman v. Wachovia Bank, N.A., No. 1:08-CV-3850-CAP, 2011 WL 13175791, at *2 (N.D.Ga. Feb. 10, 2011) (citing Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000) ). "To establish standing, a plaintiff must have ‘suffered an injury-in-fact that would be corrected by [a] favorable decision in the lawsuit.’ Absent a redressable injury, a judicial determination of a plaintiff’s claim would amount to an advisory opinion prohibited by Article III’s case and controversy requirement." Church v. City of Huntsville, 30 F.3d 1332, 1335 (11th Cir. 1994) (citations omitted).
"Because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate— as opposed to a merely conjectural or hypothetical— threat of future injury. Logically, ‘a prospective remedy will provide no relief for an injury that is, and likely will remain, entirely in the past.’ " Id. at 1337. In addition, "[p]ast injury from alleged unconstitutional conduct does not in itself show a present case or controversy regarding injunctive relief, if unaccompanied by current adverse effects." Lynch v. Baxley, 744 F.2d 1452, 1456 (11th Cir. 1984). For example, in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the Supreme Court held that a plaintiff could not seek injunctive relief prohibiting police officers from utilizing a "chokehold" maneuver, because there was no real and immediate threat the plaintiff would be arrested in the future. Drayton, 2002 WL 32508918, at *4.
The Court notes that Lyons was not a class action case.
"[F]ederal courts are ‘generally ... unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.’ Thus, in Lyons, the Supreme Court refused to assume that the plaintiff would again violate the" law. Church, 30 F.3d at 1337-38.
"[A] plaintiff cannot include class action allegations in a complaint and expect to be relieved of personally meeting the requirements of constitutional standing, ‘even if the persons described in the class definition would have standing themselves to sue.’ " Griffin, 823 F.2d at 1483.
In the case sub judice, Defendants assert that "[t]he Plaintiffs cannot obtain a class certification on the basis of Rule 23(b)(2) if none of them have standing to obtain injunctive relief." Doc. No. [224], p. 15 (citing Drayton, 2002 WL 32508918) and Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675).
More specifically, Defendants argue that Plaintiffs cannot establish with any certainty that they will have another encounter with deputies at the Gwinnett County Sheriff’s Department; that they will be arrested in Gwinnett County, taken to the jail, and act in a manner that will necessitate that they be placed in the restraint chair. Doc. No. [224], pp. 17-18.
In opposition, Plaintiffs acknowledge that it is "unlikely that any of the named Plaintiff will return to the Gwinnett County Jail and again be subjected to force by the RRT," (Doc. No. [237], ¶ 39), but state that "because the class definition includes future inmates who might be subjected to excessive force by the RRT, the representatives of the class— who are by necessity inmates that have already been subjected to such treatment— can seek injunctive relief that regulates the RRT’s activities in the future." Doc. No. [225], p. 5.
Plaintiffs acknowledge that "monetary relief cannot be obtained for actions that have not yet occurred ...." Doc. No. [225], p. 5.
Defendants arguments are correct in that in light of the above-stated authority, in the absence of facts showing that Plaintiffs will be arrested again and subjected to the restraint/excessive force, Plaintiffs do not have standing to bring an injunction class action under Rule 23(b)(2). Nevertheless, Plaintiffs’ "future inmates" argument could fall within the "exception to the mootness doctrine [found in the class action setting] for a controversy that is capable of repetition, yet evading review." United States v. Sanchez-Gomez, No. 17-312, __ U.S. __, 138 S.Ct. 1532, __ L.Ed.2d __, 2018 WL 2186177, at *7 (U.S. May 14, 2018); Lynch v. Baxley, 744 F.2d 1452, 1457 (11th Cir. 1984) ("[Class member] has, however, been detained more than once and it is certain that other persons similarly situated will be detained under the statute. The claims of [class member] and the class are ‘capable of repetition, yet evading review.’ "); cf. Birmingham Steel Corp. v. Tennessee Valley Auth., 353 F.3d 1331, 1336 (11th Cir. 2003) ("As a result, the court reasoned that ‘[e]fficient judicial administration weighs in favor of allowing an opportunity for a new and proper class representative to enter the case and litigate the interests of the subclass."). There is currently insufficient briefing in the record as to the "future inmates" issue; however, the Court will not require additional briefing on the part of the parties in the absence of a showing that Plaintiffs have met the other requirements for proceeding in a class action.
The issue of standing being determinative, the Court will not address the remainder of Defendants’ Rule 23(b)(2) arguments.
b. Non-incidental monetary damages
"Because the amended complaint seeks compensatory and punitive damages as well as injunctive and declaratory relief, the instant action cannot proceed as a Rule 23(b)(2) class action. As the Supreme Court made clear in Wal-Mart, ‘individualized monetary claims belong in Rule 23(b)(3).’ " Mothersell v. City of Syracuse, 289 F.R.D. 389, 401 (N.D.N.Y. 2013) (citing Wal-Mart, 564 U.S. at 362, 131 S.Ct. 2541).
"[M]onetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief." Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001). "By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief .... Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established .... Liability for incidental damages should not ... entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions." Id.
In the case sub judice, Plaintiffs argue that while they have made a claim for damages, their claim for injunctive relief is clearly primary. Doc. No. [16-1], p. 18.
A review of the Complaint shows that Plaintiffs seek damages for their alleged "suffer[ing] [of] bodily injuries and physical restraint," which will involve individual inquiry into the individual circumstances. Doc. No. [69], ¶ 73. It also appears that "Plaintiffs seek damages to which they would not be automatically entitled even if Defendants’ liability to the class is established." Murray, 244 F.3d at 812. "Accordingly, the Court concludes that the monetary relief is not incidental to the requested injunctive/declaratory relief and that this case cannot proceed as a Rule 23(b)(2) class action.
While Plaintiffs also propose a formula for computing damages across the board(see e.g., Doc. No. [16-1], p. 21), the Supreme Court has disapproved of a similar proposal in the Wal-Mart case. See Wal-Mart, 564 U.S. at 367, 131 S.Ct. 2541 ("The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery— without further individualized proceedings. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or modify any substantive right,’ a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent backpay from being ‘incidental’ to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that ‘incidental’ monetary relief can be awarded to a 23(b)(2) class.") (citations omitted).
(2) Rule 23(b)(3)
Plaintiffs also propose their class pursuant to Rule 23(b)(3). The Court must consider whether Plaintiffs can demonstrate, pursuant to Rule 23(b)(3) that (1) "questions of law or fact common to class members predominate over any questions affecting only individual members," and (2) "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3).
a. Predominance of Common Issues
The Supreme Court has held that "Rule 23(b)(3)’s predominance criterion is even more demanding than Rule 23(a)." Comcast, 569 U.S. at 34, 133 S.Ct. 1426. To this regard, since Plaintiffs have not satisfied the Rule 23(a) commonality requirement, they will also not satisfy the Rule 23(b)(3) predominance requirement.
"To determine whether the requirement of predominance is satisfied, a district court must first identify the parties’ claims and defenses and their elements." Brown, 817 F.3d at 1234; see also Klay v. Humana, 382 F.3d 1241, 1254 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008) (internal quotation marks and citation omitted) (holding that in order to determine whether common questions predominate over individual questions, the court must consider "the claims, defenses, relevant facts, and applicable substantive law.). Here, the Plaintiffs’ substantive claim is excessive force. Doc. No. [69], ¶ 63. Defendants substantive defenses are their actions were justified an reasonable under the totality of the circumstances and did not rise to the level of constitutional or federal law violations. Doc. No. [75], pp. 1-6. The relevant elements of excessive force are found in Kingsley v. Hendrickson, __ U.S. __, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015) (discussed, supra, in the ascertainability section of this Order).
After identifying claims, defenses, and elements, "[t]he district court should then classify these issues as common questions or individual questions by predicting how the parties will prove them at trial." Brown, 817 F.3d at 1234 (citations omitted). "Common questions are ones where ‘the same evidence will suffice for each member,’ and individual questions are ones where the evidence will ‘var[y] from member to member.’ " Id. (citations omitted). If class members must "still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims," then class certification is not appropriate. Id. at 1255. "It is primarily when there are significant individualized questions going to liability that the need for individualized assessments of damages is enough to preclude 23(b)(3) certification." Klay, 382 F.3d at 1260, abrogated in part on other grounds by Bridge & Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008).
In the case sub judice, Plaintiffs assert that "class issues predominate under individual issues because all claims are based on the same fact pattern, allege repeated violations of the same constitutional right, and involve application of the same use-of-force standard under the Fourteenth Amendment." Doc. No. [16-1], p. 3. Plaintiffs also assert that the issues common to the class are: "same conduct, same right violated, same governing legal principles, same injury, and same type of damages— predominate over individual differences in circumstance and degree of damage suffered." Doc. No. [16-1], pp. 3-4.
In opposition, Defendants assert that "[b]ecause of the test required to establish a Fourth Amendment excessive force violation, the individual questions in this case will dramatically predominate over any common questions." Doc. No. [224], p. 23.
After review, the Court classifies Plaintiffs’ claims and Defendants’ defenses as involving individual questions because Kingley ’s objective reasonableness standard turns on the facts and circumstances of each particular case and requires consideration of a non-exclusive list of six factors that bear on reasonableness. Kingsley, 135 S.Ct. at 2473. In addition, at trial, there will be a need to probe into the what the officers knew at the time each plaintiff was restrained in that, as stated above, the objective reasonableness determination must be made "from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Id. Accordingly, this case "will require distinctly case-specific inquiries into the facts surrounding each alleged incident of" excessive force. Jackson, 130 F.3d at 1006. Most or all of Plaintiffs’ claims will rise or fall on "the resolution of these highly case-specific factual issues." Id.
To this regard, Plaintiffs have not met their burden of establishing the predominance requirement. In the absence of predominance, it is not necessary to engage in a superiority analysis.
In the briefing and at the hearing, Plaintiffs spent time addressing the authority that the mere existence of individual damages issues in a (b)(3) class does not cause individual issues to predominate over common issues of liability or causation. Doc. No. [16-1], p. 20. The Court notes that it has not focused on the damages, but on the Plaintiffs’ claims, defenses, and elements. To this regard, it is not necessary to apply Plaintiffs’ citations of authority.
(3) Hybrid class/certification of Liability Issues under Rule 23(c)(4)
See note 7, supra.
In their motion, Plaintiffs note that the Court has the option of certifying a hybrid class under both Rule 23(b)(2) and (b)(3). Doc. No. [16-1], p. 4. Plaintiffs state that "the case qualifies for class certification of liability and equitable relief under (b)(2) followed by certification of compensatory awards under (b)(3)." Id. and p. 22 (citing Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir. 1986); see also Holmes v. Continental Can Co., 706 F.2d 1144, 1158 n.10 (11th Cir. 1983) ). Plaintiffs recognize that the Supreme Court recently held in Comcast Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) that a liability-only class cannot be certified unless damages are measurable on a class-wide basis, but attempt to distinguish the case. Doc. No. [16-1], pp. 23-24.
Defendants assert that no hybrid class is proper. Doc. No. [224], p. 24.
"A hybrid Rule 23(b)(2) class action is one in which class members seek individual monetary relief ... in addition to class-wide injunctive or declaratory relief." Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir. 1986) (citations omitted).
According to Plaintiffs, "the Court could certify a liability-only class under Rule 23( [c] )(4) because the substantive law in this case does not require a person-by-person inquiry to determine class-wide liability, a single body of law applies to all claims, class certification will be effective and more efficient than individual resolution of multiple claims, and individualized damages claims can be determined separately from determination of class-wide issues of liability." Doc. No. [16-1], p. 4.
"[It is] possible to create hybrids in given cases. Since in theory there should be no hard requirement that (b)(2) be mutually exclusive, and since subpart (c)(4)(A) allows an action to be maintained ‘with respect to particular issues,’ the fact that damages are sought as well as an injunction or declaratory relief should not be fatal to a request for a (b)(2) suit, as long as the resulting hybrid case can be fairly and effectively managed. On the other hand, the policies underlying the requirements of (b)(3) should not be subverted by recasting and bifurcating every class suit for damage as one for final declaratory relief of liability under (b)(2), followed by a class suit for damages under (b)(3)." Holmes, 706 F.2d at 1158 n.10. In addition, "courts ‘have emphatically rejected attempts to use the (c)(4) process for certifying individual issues as a means for achieving an end run around the (b)(3) predominance requirement.’ As the Court finds that predominance has not been demonstrated, certification of an issue class is also inappropriate." Harris v. Nortek Global HVAC LLC, No. 14-CIV-21884, 2016 WL 4543108, at *17 (S.D. Fla. Jan. 29, 2016) (citations omitted).
CONCLUSION
Plaintiffs’ objection (Doc. No. [244] ) to Defendants’ Notice of Filing (Doc. No. [243] )is OVERRULED, as Defendants indicate that the documents were filed to be a part of the record in the event of appeal. While this Court has given no consideration to the filing (at Doc. No. [243] ), the Court does deem it proper to proffer the evidence (through filing on CM/ECF) for purposes of appeal.
Plaintiffs’ Motion for Class Certification (Doc. No. [16] ) is DENIED.
Plaintiffs’ request to amend (Doc. No. [226], p. 7) is GRANTED. As stated in the Court’s prior order (in Bort, 15cv808, Doc. No. [40] ), Plaintiffs may amend their Complaint within twenty days of the entry of this Order. In the event that related civil actions are filed, Plaintiffs’ Counsel shall designate the related action on the new case/Civil Cover Sheet and the Clerk is DIRECTED to assign all related actions to the undersigned judge in accordance with Internal Operating Procedure 905-2(a).
Plaintiffs’ request to consider the amendment "as a matter of right" is denied, as the request does not meet the requirements of Rule 15 for amending as a matter of right.
Pursuant to the parties’ amended joint preliminary plan (Doc. No. [226], p. 9), the parties are ORDERED to confer and make a recommendation to the Court with respect to the conduct of any additional discovery, if needed, as well as present a proposed scheduling order within thirty days of the entry of this Order. IT IS SO ORDERED.
Before the Supreme Court’s decision in Wal-Mart v. Dukes , the issue of commonality was rarely in dispute. However, Wal-Mart "defined ‘common question’ with more specificity than it had in prior decisions while reiterating the importance of ... centrality."
M. H. v. Berry, No. 1:15-CV-1427-TWT, 2017 WL 2570262, at *4 (N.D.Ga. June 14, 2017), reconsideration denied, No . 1:15-CV-1427-TWT, 2017 WL 4224089 (N.D.Ga. Aug. 28, 2017).
To this regard, the Court will not apply prior case law, which generally indicated that Rule 23(b)(2) class actions present common questions of law or fact by their very nature, see e.g., Haitian Refugee Ctr., Inc. v. Nelson, 694 F.Supp. 864, 877 (S.D. Fla. 1988), aff’d, 872 F.2d 1555 (11th Cir. 1989) and Von Colln v. Cty of Ventura, 189 F.R.D. 583, 591 (C.D. Cal. 1999) ), as the Wal-Mart case, involved Rule 23(b)(2) and as stated, above, added more specificity to the commonality analysis.
The plaintiffs have established a material question of fact as to whether Sheriff Conway and Lt. Col. Sims were on notice of a history of widespread abuse, and also whether Sheriff Conway’s custom or policy resulted in deliberate indifference to their constitutional rights.
....
This raises a material issue of fact whether Lt. Col. Sims was on notice of continued occurrences that violated detainees’ constitutional rights.
....
There is also an issue of material fact about whether Sheriff Conway’s policies resulted in deliberate indifference to plaintiffs’ constitutional rights.
....
There is therefore a material question of fact about whether Sheriff Conway was on notice of a risk of serious harm, disregarded it, and did so by conduct that is more than gross negligence.
....
There are material questions of fact about whether Sheriff Conway or Lt. Col. Sims were on notice about a history of widespread abuse and whether Sheriff Conway had subjective knowledge of a risk of serious harm, disregarded that risk, and did so by conduct constituting more than gross negligence.
....
Also in each case, the RRT entered without warning and used techniques that resulted in audible responses of pain from the plaintiffs.
....
In all four cases, at the time the RRT entered, the plaintiffs appeared to be sitting or standing in their cells such that they could be restrained without the use of any force.
Shuford, 666 Fed.Appx. at 816-19.
Defendants’ Exhibit 3 (from the evidentiary hearing) is also a compilation of use of force reports. A number of the case reports involve inmates striking the cell, police car/cell. Others circumstances leading to restraint involved: (1) an inmate "violently scratching at her wrists in an apparent attempt to harm herself" (Case No. 222721); (2) an inmate who refused to refused to completely "dress out" into inmate garb, refused to follow orders, and resisted officers (Case No. 217588); (3) an inmate who was beating on the cell door and metal partition and also bit the inside of his mouth and was spitting blood (Case No. 231758); (4) an inmate who fought the arresting officer, offered verbal and physical resistance during the pat down process at the jail, and constantly moved so that the nursing staff could not apply a blood-pressure cuff (Case No. 234661); (5) an inmate who was struggling with an officer (Case No. 216001); an inmate who made threats to officers and struck the cell door with closed fists (Case No. 215998); (6) an inmate who began to physically resist so that officers could not safely exit his cell (Case No. U.O.R. # 242359); (7) an inmate who had tied her sweater around her neck and attached it to the metal partition in her cell (Case No. 233239); (8) an inmate who was uncooperative, belligerent, and resisted staff (Case No. 242682); (9) an inmate who had aggressive reactions (Case No. 242768); an inmate who refused to put on his suicide gown and was combative (Case No. UOR# 2422978); and (10) an inmate who had kicked an officer in the face during arrest and who lashed out verbally and became emotionally unstable (Case No. U.O.R. # 242722).
The description of the inmates’ behavior is taken from the incident report. The Court has not made an actual factual finding as to the behavior. (emphasis added).