BB&K In The News

BB&K Partner Jared Goldman writes in the National Commission on Correctional Health Care’s CorrectCare magazine about the role of class action litigation in sparking systemwide change.

The award of class action certification is often the gateway for obtaining lifesaving systemwide judicial relief in broken correctional health care systems. It also can be the beginning of a decades-long, burdensome and inefficient route to reform. No matter what your perspective may be, the approval of class certification is a pivotal moment when a few individuals’ claims are recognized as more than an aggregation of disparate grievances and are instead litigated as a common contention applicable to a broader group, requiring a common remedy.

In litigation brought under the Eighth Amendment of the U.S. Constitution, the importance of class action certification can’t be overstated because, under the Prison Litigation Reform Act, judicial relief can “extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” Naturally, the scope of a remedy tailored for all inmates in a correctional system will be vastly different from a remedy tailored for an individual inmate or a handful of inmates.

Recently, in Parsons v. Ryan, an ongoing case brought by Arizona inmates against senior officials in the Arizona Department of Corrections, the ADC officials asserted an argument, as characterized by the U.S. Court of Appeals for the Ninth Circuit, that “Eighth Amendment claims can never be brought in the form of a class action.” This argument, if successful, would end impact litigation in the prisons as we know it. To understand the issue and the decision reached by the Ninth Circuit, some background about class actions is necessary.

Requirements for Class Certification

Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), a party seeking certification of a class or subclass must satisfy four requirements:
 

1. The class must be so numerous that including all individual members as named plaintiffs is impracticable.
2. There must be questions of law or fact common to the class.
3. The claims or defenses of the representative parties must be typical of the claims or defenses of the class.
4. The representative parties must be able to fairly and adequately protect the interests of the class.

These requirements are often referred to, respectively, as “numerosity,” “commonality,” “typicality” and “adequacy of representation.”

The proposed class must also satisfy one of three subsections in Rule 23(b), which defines different types of classes. One of those subsections, Rule 23(b)(2), is typically used for the certification of civil rights actions. It requires that the party opposing the class (e.g., prison officials) acted or refused to act on grounds that apply generally to the class, so that judicial relief is appropriate for the class as a whole.

In 2011, the U.S. Supreme Court raised the bar for class certification in the widely publicized case of Wal-Mart Stores, Inc. v. Dukes. In Wal-Mart, the district court certified a class consisting of all of Wal-Mart’s 1.5 million female employees in a case claiming discriminatory employment practices. The employees did not allege that Wal-Mart maintained an express policy discriminating against women. Rather, the employees asserted that local managers’ discretion over pay and promotion was exercised disproportionately in favor of men, and Wal-Mart’s failure to limit its managers’ authority amounted to unlawful discrimination. In support of their claim, the employees presented statistical evidence of pay and promotion disparities, anecdotal evidence of discrimination in numerous cases and expert testimony of a corporate culture making stores vulnerable to gender bias.

Despite the evidence presented, the court found the award of class certification unsupported. The court acknowledged a general policy of allowing managerial discretion, which may have resulted in a number of independent discriminatory acts. But the court found that the employees failed to offer significant proof that Wal-Mart operated under a general policy of discrimination. Thus, the employees’ claims failed to show commonality or “some glue holding together” the local managers’ alleged discriminatory decisions. The court explained that to show commonality, plaintiffs must demonstrate that the class members have suffered the same injury—which means more than just suffering a violation of the same law. Plaintiffs’ claims must depend on a common contention capable of classwide resolution, which means that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”

In the context of correctional health care litigation, Wal-Mart underscores that inmates cannot obtain class certification merely by showing widespread constitutional violations across the system. Some further commonality between the inmates’ claims must be shown, which brings us back to Parsons v. Ryan.

Statewide Policies: The ‘Glue’ of Commonality

The inmates in Parsons complained that numerous statewide policies and practices governing health care and conditions in isolation cells exposed them to a substantial risk of harm to which the ADC officials were indifferent. The inmates supported their complaint with detailed factual allegations of statewide policies and practices related to inadequate staffing, delays and denials of medical care, substandard dental care, failures to provide therapies for the mentally ill and detention of inmates in isolation for months or years without outdoor exercise or meaningful interaction with others. The district court granted the inmates motion for class certification, specifying a class of “[a]ll prisoners who are now, or will in the future be, subject to the medical, mental health, and dental care policies and procedures of the ADC.” It also certified a subclass of “[a]ll prisoners who are now, or will in the future be, subjected by the ADC to isolation, defined as confinement in a cell for 22 hours or more each day or confinement in [certain housing unit].”

The ADC officials appealed from the district court’s award of class action certification, principally arguing that the district court erred in concluding that the inmates possessed commonality. Citing the Supreme Court’s decision in Wal-Mart, the ADC officials asserted “Eighth Amendment health care and conditions-of-confinement claims are inherently case specific and turn on many individual inquiries. That fact is an insurmountable hurdle for a commonality finding because Wal-Mart instructs that dissimilarities between class members ‘impede generation of common answers.’” Said another way, the ADC officials argued that the inmates failed to satisfy the commonality requirement because a systemic constitutional violation of the sort alleged by the inmates is merely a collection of individual constitutional violations, each of which depends on the particular facts and circumstances of each case.

The Ninth Circuit rejected the ADC officials’ broad attack on inmates’ ability to bring class actions. It distinguished claims alleging deficient care provided on previous occasions, or to particular inmates, from the kind of claim asserted by the inmates in Parsons, in which the inmates made a future-oriented claim based on systemwide deficiencies. Specifically, the inmates complained that all inmates in ADC custody are exposed to the same injury—a substantial present and future risk of serious harm—as a result of ADC policies and practices of statewide application.

The court pointed to 10 statewide ADC policies and practices, to which all ADC inmates are exposed, which the court considered the “glue” holding together the class. All members of the class, as explained by the court, are subject identically to those same policies and practices. Additionally, the constitutionality of each policy and practice (i.e., whether it creates a systemic, substantial risk of harm to which the defendants are deliberately indifferent) “can be answered in a single stroke.”

By way of example, the court discussed the inmates’ claim that the ADC officials maintain an unconstitutional policy and practice of severe understaffing across all ADC medical facilities. This allegation, according to the court, presented a question of law and fact common to all ADC inmates. Because the inmates alleged that every single inmate is placed at substantial risk of future harm due to the general unavailability of adequate care, the question of whether the ADC’s staffing policies pose a risk of serious harm to all ADC prisoners is a common contention answerable as to the entire class at the same time. An inmate-by-inmate inquiry is unnecessary. “Either ADC employs enough nurses and doctors to provide adequate care to all of its inmates or it does not ...”

While the Ninth Circuit’s decision affirming the continuing viability of inmate class actions is not precedential throughout the United States, similar post-Wal-Mart decisions have been reached in lower courts in several states. Greater scrutiny of class claims can be expected. But it seems likely that class actions in correctional health care litigation will not come unglued.

Click here to see a .pdf of the article.