No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

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1 No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT MARK SHOOK, DENNIS JONES, SHIRLEN MOSBY and JAMES VAUGHAN, Plaintiffs-Appellants, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO and TERRY MAKETA, in his official capacity as Sheriff of El Paso County, v. Defendants-Appellees. Appeal from e United States District Court for e District of Colorado Civil Action No. 02-M-651 The Honorable Richard P. Matsch BRIEF OF PLAINTIFFS-APPELLANTS MARK SHOOK, DENNIS JONES, SHIRLEN MOSBY AND JAMES VAUGHAN ORAL ARGUMENT REQUESTED David C. Fai The National Prison Project of e ACLU Foundation, Inc Street NW, Suite 620 Washington, D.C (202) Mark Silverstein Legal Director American Civil Liberties Union of Colorado 400 Corona Street Denver, Colorado (303) DAVIS GRAHAM & STUBBS LLP In cooperation wi e American Civil Liberties Union Foundation of Colorado Thomas S. Nichols 1550 Seventeen Street, Suite 500 Denver, Colorado (303)

2 TABLE OF CONTENTS Page STATEMENT OF RELATED CASES...1 JURISDICTIONAL STATEMENT...1 ISSUES PRESENTED FOR REVIEW...1 STATEMENT OF THE CASE...3 STATEMENT OF FACTS...5 STANDARD OF REVIEW SUMMARY OF ARGUMENT ARGUMENT I. THE DISTRICT COURT IMPROPERLY DENIED CLASS CERTIFICATION BASED ON FACTORS THAT ARE NOT FOUND IN FED. R. CIV. P. 23(a) AND (b)(2) II. A. Instead of applying e requirements of Fed. R. Civ. P. 23, e district court erroneously applied a novel five-part test at has no basis in law B. The district court improperly considered e merits by denying class certification based upon its belief at plaintiffs allegations, if proven, would not entitle em to injunctive relief C. The district court erred in applying Rule 23(b)(3) standards of identifiability and manageability to a Rule 23(b)(2) class The class was adequately defined for purposes of Rule 23(b)(2) Manageability is not a requirement for class certification under Rule 23(b)(2) THE DISTRICT COURT ERRED IN CONCLUDING THAT THE PLRA PRECLUDED IT FROM GRANTING RELIEF, AND DENYING CLASS CERTIFICATION ON THAT BASIS A. Contrary to e view of e district court, e PLRA in no way affects e law of class certification in prison and jail cases The court s view conflicts wi e case law i -

3 TABLE OF CONTENTS (continued) Page III. IV. 2. The court s view conflicts wi e statutory scheme B. The PLRA does not abolish e power and duty of e federal courts to order a remedy commensurate wi proven constitutional violations C. The PLRA does not change e well-settled principle at plaintiffs are entitled to relief based on e evidence at trial, and at a broad request for relief does not preclude all relief THE PROPOSED CLASS AMPLY MEETS THE CRITERIA FOR CERTIFICATION UNDER FED. R. CIV. P A. Plaintiffs have satisfied all four requirements of Rule 23(a) Impracticability of Joinder Rule 23(a)(1) Commonality Rule 23(a)(2) Typicality Rule 23(a)(3) Adequacy of Representation Rule 23(a)(4) B. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) CLASS CERTIFICATION IS NECESSARY TO ALLOW PLAINTIFFS TO PRESENT THEIR CONSTITUTIONAL CLAIMS TO THE FEDERAL COURTS CONCLUSION STATEMENT REGARDING ORAL ARGUMENT STATEMENT REGARDING ATTORNEY FEES CERTIFICATE OF COMPLIANCE ATTACHMENTS TO BRIEF Attachment 1 Attachment 2 Order Denying Class Certification and Denying Motion to Dismiss or for Summary Judgment Order of Dismissal - ii -

4 TABLE OF AUTHORITIES Page Cases Adamson v. Bowen, 855 F.2d 668 (10 Cir. 1988)... passim Aiello v. Litscher, 104 F.Supp.2d 1068 (W.D. Wis. 2000)...31 Alston v. Coughlin, 109 F.R.D. 609 (S.D.N.Y. 1986)...52 Anderson v. City of Albuquerque, 690 F.2d 796 (10 Cir. 1982)... 20, 22, 24, 46 Anderson v. Coughlin, 119 F.R.D. 1 (N.D.N.Y. 1988)...27 Anderson v. Garner, 22 F.Supp.2d 1379 (N.D. Ga. 1997)... 31, 32 Andre H. v. Ambach, 104 F.R.D. 606 (S.D.N.Y. 1985)...42 Armstrong v. Davis, 275 F.3d 849 (9 Cir. 2001), cert. denied, 537 U.S. 812 (2002)... 34, 36 Arney v. Finney, 967 F.2d 418 (10 Cir. 1992)...52 Ashby v. McKenna, 331 F.3d 1148 (10 Cir. 2003)...17 Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968)...38 Battle v. Anderson, 970 F.2d 716 (10 Cir. 1992)...52 Beard v. Teska, 31 F.3d 942 (10 Cir. 1994)...16 Bell v. Wolfish, 441 U.S. 520 (1979) iii -

5 Bradley v. Harrelson, 151 F.R.D. 422 (M.D. Ala. 1993)... 27, 46, 47, 49 Califano v. Yamasaki, 442 U.S. 682 (1979)...36 Carper v. Deland, 54 F.3d 613 (10 Cir. 1995)...52 City of Boerne v. Flores, 521 U.S. 507 (1997) Clarkson v. Coughlin, 783 F. Supp. 789 (S.D.N.Y. 1992)...51 Coleman v. Wilson, 912 F. Supp (E.D. Cal. 1995)... 24, 26 Craig v. Eberly, 164 F.3d 490 (10 Cir. 1998)...45 Dean v. Coughlin, 107 F.R.D. 331 (S.D.N.Y. 1985)...42 Dept. of Housing and Urban Develop. v. Rucker, 535 U.S. 125 (2002)...32 Diaz v. Romer, 961 F.2d 1508 (10 Cir. 1992)...52 Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638 (4 Cir. 1975)...26 Duran v. Carruers, 885 F.2d 1485 (10 Cir. 1989)...52 Edelman v. Lynchburg College, 535 U.S. 106 (2002)...32 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)... 20, 22 Elliott v. Weinberger, 564 F.2d 1219 (9 Cir. 1977), aff d in pertinent part sub nom. Califano v. Yamasaki, 442 U.S. 682 (1979)... 28, 48 Esplin v. Hirschi, 402 F.2d 94 (10 Cir. 1968) iv -

6 Facteau v. Sullivan, 843 F.2d 1318 (10 Cir. 1988)...33 Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945 (10 Cir. 1980)...39 Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101 (5 Cir. 1993)...28 Gerstein v. Pugh, 420 U.S. 103 (1975)...50 Gibson v. County of Washoe, Nev., 290 F.3d 1175 (9 Cir. 2002), cert. denied, 537 U.S (2003)...24 Gilmore v. People of e State of California, 220 F.3d 987 (9 Cir. 2000)...36 Green v. Branson, 108 F.3d 1296 (10 Cir. 1997)...50 Green v. Johnson, 513 F. Supp. 965 (D. Mass. 1981)...42 Hamill v. Maryland Cas. Co., 209 F.2d 338 (10 Cir. 1954)...39 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9 Cir. 1998)...47 Hawker v. Consovoy, 198 F.R.D. 619 (D.N.J. 2001)...31 Heit v. Van Ochten, 126 F.Supp.2d 487 (W.D. Mich. 2001)...31 Hirschfeld v. Stone, 193 F.R.D. 175 (S.D.N.Y. 2000)...51 Hoehle v. Likins, 538 F.2d 229 (8 Cir. 1976)...50 Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270 (10 Cir. 1977)... 26, 40, 41 J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10 Cir. 1999)... 20, 42 - v -

7 Johnson v. American Credit Co., 581 F.2d 526 (5 Cir. 1978)...28 Johnson v. City of Opelousas, 658 F.2d 1065 (5 Cir. 1981)...50 Jones El v. Berge, 172 F.Supp.2d 1128 (W.D. Wis. 2001)...31 Knapp v. Romer, 909 F. Supp. 810 (D. Colo. 1995)...49 Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.), vacated on oer grounds, 442 U.S. 915 (1979)...48 Marioneaux v. Colorado State Penitentiary, 465 F. Supp (D. Colo. 1979)...52 Maynor v. Morgan County, Alabama, 147 F.Supp.2d 1185 (N.D. Ala. 2001)...31 MidAmerica Federal S&L v. Shearson/American Exp., 886 F.2d 1249 (10 Cir. 1989)...16 Milonas v. Williams, 691 F.2d 931 (10 Cir. 1982)... 42, 43, 45, 46 Monaco v. Stone, 187 F.R.D. 50 (E.D.N.Y. 1999)...42 Montez v. Romer, 32 F.Supp.2d 1235 (D. Colo. 1999)...52 Olsen v. Layton Hills Mall, 312 F.3d 1304 (10 Cir. 2002)...24 Paton v. New Mexico Highlands University, 275 F.3d 1274 (10 Cir. 2002)... 17, 40, 49 Penland v. Warren County Jail, 797 F.2d 332 (6 Cir. 1986)...51 Penn v. San Juan Hospital, Inc., 528 F.2d 1181 (10 Cir. 1975)... 26, 46 Ramos v. Lamm, 639 F.2d 559 (10 Cir. 1980) vi -

8 Rex v. Owens ex rel. State of Okl., 585 F.2d 432 (10 Cir. 1978)...41 Riddle v. Mondragon, 83 F.3d 1197 (10 Cir. 1996)...5 Rodriguez v. Bar-S Food Co., 567 F. Supp (D. Colo. 1983)...40 Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974)...52 Russell v. Johnson, 2003 WL (N.D. Miss. 2003)...31 Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180 (10 Cir. 2002), cert. denied, 123 S. Ct (2003)...47 Skinner v. Uphoff, 209 F.R.D. 484 (D. Wyo. 2002)... 31, 42, 44, 52 Smi v. Arkansas Dept. of Correction, 103 F.3d 637 (8 Cir. 1996)...34 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971)...36 Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10 Cir. 2001), cert. denied, 536 U.S. 934 (2002)...16 Thomas v. Pick Hotels Corp., 224 F.2d 664 (10 Cir. 1955)...39 United States ex rel. Morgan v. Sielaff, 546 F.2d 218 (7 Cir. 1976)...52 United States Parole Comm n v. Geraghty, 445 U.S. 388 (1980)...50 United States v. Messner, 107 F.3d 1448 (10 Cir. 1997)...17 Williams v. Edwards, 87 F.3d 126 (5 Cir. 1996)...34 Yaffe v. Powers, st 454 F.2d 1362 (1 Cir. 1972)... 25, 26, 28 - vii -

9 Statutes and Rules 18 U.S.C. 3626(a) U.S.C. 3626(a)(1)(A)... 14, 29, 35, U.S.C. 3626(a)(3) U.S.C. 3626(b)(1) U.S.C. 3626(b)(3) U.S.C. 3626(f) U.S.C U.S.C U.S.C. 1343(a)(3) U.S.C U.S.C. 1997e(a)... 3, 14, 17 Fed. R. Civ. P passim Fed. R. Civ. P. 23(a)... passim Fed. R. Civ. P. 23(a)(1)... 40, 41 Fed. R. Civ. P. 23(a)(2)...42 Fed. R. Civ. P. 23(a)(3)... 45, 46 Fed. R. Civ. P. 23(a)(4)...47 Fed. R. Civ. P. 23(b)(2)... passim Fed. R. Civ. P. 23(b)(3)... passim Fed. R. Civ. P. 54(c)... 38, 39 Oer Auorities 10 Moore s Fed. Prac [1][a] (3d ed.)...38 A. Conte & H. Newberg, Newberg on Class Actions, (4 ed. 2002) A. Conte & H. Newberg, Newberg on Class Actions, 3.10 (4 ed. 2002) viii -

10 A. Conte & H. Newberg, Newberg on Class Actions, 3.15 (4 ed. 2002)...45 A. Conte & H. Newberg, Newberg on Class Actions, 3.5 (4 ed. 2002)...41 Karl O. Haigler et al., U.S. Dept. of Educ., Literacy Behind Prison Walls: Profiles of e Prison Population from e National Adult Literacy Survey (1994)...52 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d ix -

11 STATEMENT OF RELATED CASES There are no prior or related appeals in is Court. JURISDICTIONAL STATEMENT The district court had subject matter jurisdiction of is action pursuant to 28 U.S.C because is action arises under e Constitution and laws of e United States, and pursuant to 28 U.S.C. 1343(a)(3) because is action seeks to redress e deprivation, under color of state law, of plaintiffs constitutional rights. This Court has jurisdiction of is appeal pursuant to 28 U.S.C The district court s final order dismissing is action was signed on August 22 and entered on August 26, 2003; e notice of appeal was filed on September 5, ISSUES PRESENTED FOR REVIEW 1. In considering a motion to certify a class under Fed. R. Civ. P. 23(b)(2), a court must analyze and determine wheer e factors required by Rule 23(a) and 23(b)(2) are present. Did e district court commit reversible error by ignoring e factors set for in e Rule, and applying instead an unprecedented five-part test at has no basis in law? 2. In ruling on a motion for class certification, a court is not to conduct a preliminary inquiry into e merits of e case. Did e district court err by denying class certification based upon its view at e - 1 -

12 plaintiffs claims, if proven, would not entitle em to injunctive relief? 3. Did e district court err by denying class certification on e ground at e Prison Litigation Reform Act precluded it from granting all e relief it believed plaintiffs were seeking? 4. Where plaintiffs established e existence of all factors required by Rule 23(a) and 23(b)(2) for class certification, and e district court did not find oerwise, did e district court err in denying e motion to certify e plaintiff class? 5. A prisoner s individual claim for injunctive relief from allegedly unconstitutional conditions becomes moot when e prisoner leaves e jail. Once a class is certified, however, e departure of e original class representative does not moot e claims of e prisoner class. As a result, because of e fluid nature of jail populations, e claims of jail prisoners for prospective relief will almost inevitably be dismissed as moot unless a class is certified. When e requirements of Rule 23(a) and 23(b)(2) are oerwise satisfied, as in is case, does a district court abuse its discretion when it denies class certification and, as a result, prevents e prisoners claims from being adjudicated on e merits? - 2 -

13 STATEMENT OF THE CASE This is a putative class action challenge to constitutionally inadequate mental heal care and failure to protect suicidal persons confined in e El Paso County Jail in Colorado Springs, Colorado. Plaintiffs Mark Shook and Dennis Jones, prisoners in e Jail wi serious mental heal needs, filed is action on April 2, 2002, pursuant to 42 U.S.C Aplt. App. at They alleged at defendants deliberate indifference to eir serious mental heal needs, and ose of oer Jail prisoners, violated e Eigh Amendment s prohibition on cruel and unusual punishment of convicted prisoners, and e Fourteen Amendment s prohibition on punishment of pretrial detainees. On e same date, plaintiffs filed a motion seeking certification, pursuant to Fed. R. Civ. P. 23(b)(2), of a class comprising [a]ll persons wi serious mental heal needs who are now, or in e future will be, confined in e El Paso County Jail. Aplt. App. at 35. The action sought only injunctive and declaratory relief; no money damages were sought. Defendants moved to dismiss e action on e ground at plaintiffs had allegedly failed to exhaust administrative remedies as required by e Prison Litigation Reform Act, 42 U.S.C. 1997e(a). On July 26, 2002, Shirlen Mosby and James Vaughan, prisoners in e Jail wi serious mental heal needs, filed a motion for leave to intervene and to join 1 The Appendix in is case is referred to as Aplt. App

14 e pending motion for class certification, along wi a complaint in intervention, Aplt. App. at The district court granted is motion for e limited purpose of determining e class certification question, Docket entry #45, of 01/15/03, Aplt. App. at 6. On January 15, 2003, e district court held oral argument on pending motions. On July 29, 2003, nearly 16 mons after e class certification motion had been filed, e district court denied defendants motion to dismiss, and denied plaintiffs motion for class certification. Aplt. App. at The court stated at plaintiffs and intervenors have 30 days to file an amended complaint for individual remedies. 2 Aplt. App. at 139. On August 21, 2003, plaintiffs and intervenors (hereinafter collectively plaintiffs ) informed e district court at ey would not file an amended complaint, Docket entry #57, of 08/24/03, Aplt. App. at 7, explaining at, because none of e plaintiffs were currently incarcerated in e Jail, ey lacked standing to seek injunctive and declaratory relief. On August 22, 2003, e district court dismissed is action. Aplt. App. at Plaintiffs filed eir notice of appeal on September 5, Defendants have not cross-appealed. 2 The district court s opinion and order is published. Shook v. Board of County Commissioners, 216 F.R.D. 644 (D. Colo. 2003)

15 STATEMENT OF FACTS Facts Alleged in e Complaint The plaintiffs in is case, and e class ey seek to represent, have suffered and are at risk of suffering serious harm as a result of systemic deficiencies in e defendants treatment of prisoners wi serious mental heal needs. These deficiencies include e lack of sufficient mental heal staff wi adequate training; inadequate provision for emergency psychiatric evaluation of prisoners; e lack of an adequate system for administering and monitoring psychotropic medications; e inability to care properly for prisoners who need inpatient psychiatric care; and e lack of adequate protection for prisoners at risk of selfharm or suicide. Complaint, 17, 66, Aplt. App. at 14, The individual plaintiffs each have diagnoses of serious mental illnesses at require psychiatric care. Mr. Shook suffers from Asperberger s Syndrome, a form of autism, as well as bipolar disorder. Complaint, 58, Aplt. App. at 29. Mr. Jones has bipolar disorder, suffers from depression and anxiety, and has been suicidal. Complaint, 63, Aplt. App. at 21. Ms. Mosby has bipolar disorder and has suffered numerous attacks of anxiety, depression, feelings of hopelessness, and suicidal ideation. While in e Jail, she has been placed in special detention cells 3 It is undisputed at defendants have an affirmative constitutional duty to provide necessary mental heal care to prisoners in eir custody. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10 Cir. 1996)

16 and been told by staff at her condition is a joke. She has attempted suicide ree times while a prisoner in e Jail. Class Action Complaint in Intervention, 12, Aplt. App. at 72. Mr. Vaughan also has bipolar disorder and has had nearly continuous conditions of depression, anxiety, and racing oughts. He was deprived of medication when he arrived at e Jail, and when he received his medication, he did not receive e blood tests at are necessary for adequate monitoring. Class Action Complaint in Intervention, 13, Aplt. App. at 73. The medically necessary treatment for e plaintiffs conditions includes psychoerapy and regular doses of appropriate medication wi periodic monitoring of erapeutic effect and side effects. Declaration of Michael H. Gendel, M.D., 6, Aplt. App. at 49. The plaintiffs bipolar condition can require inpatient psychiatric care. Depending on eir symptoms, ey may be subjected to use of restraints. Declaration of Michael H. Gendel, M.D., 4-6, Aplt. App. at Plaintiffs face a significant risk, however, at ey will not receive appropriate medication, Complaint, 36-42, Aplt. App. at 21-23, and a significant risk at ey will not receive oer necessary mental heal care, us posing a risk of increasing severity of eir mental illness, including increased risk of self-harm and psychiatric breakdown at would require in-patient psychiatric care. Declaration of Michael H. Gendel, M.D., 5-7, Aplt. App. at Moreover, - 6 -

17 because e Jail is unable to provide adequate protection, plaintiffs and oer prisoners who become suicidal face a significant risk of serious physical harm and even dea. The Complaint recounts e dea of pre-trial detainee Michael Lewis, who died while strapped face-down to e Jail s restraint board on May 7, For at least five days he had been hallucinating and psychotic, e probable result of e Jail medical provider s decision to change his medications, a decision made wiout consulting wi e erapist who had prescribed Mr. Lewis s former medications. Two days after security staff noted his decompensation, e Jail s counselor placed him on e waiting list to see e psychiatrist, who visited only one morning every oer week. Mr. Lewis did not live long enough to see e psychiatrist; he died while struggling against his restraints. Complaint, 1, Aplt. App. at 10. Between e time of Mr. Lewis s dea and e filing of is lawsuit in April, 2002, eight additional prisoners died in e Jail, four of em in In almost every case, e deceased prisoner was suicidal, seriously mentally ill, or displaying symptoms of psychosis from overdose or widrawal. Complaint, 2, Aplt. App. at 11. Two mons after suit was filed, yet anoer prisoner died by suicide. Class Action Complaint in Intervention, 4, Aplt. App. at

18 After a suicide in November, 2001, e ACLU of Colorado wrote to e defendant Board of County Commissioners and asked it to investigate e alarming pattern of prisoner suicides and oer deas, and consider wheer e Jail was staffed wi a sufficient number of competent medical, mental heal, and security personnel who were adequately trained to recognize and respond appropriately to e needs of e Jail s population. Complaint, 3, Aplt. App. at 11. The Board declined to investigate. Complaint, 4, Aplt. App. at 11. The defendants do not provide e Jail wi sufficient resources to provide for e plaintiffs and similarly situated prisoners wi serious mental heal needs. The Complaint quotes e American Correctional Association assessment at e Jail is extremely overcrowded, wi a population at regularly exceeds 1000 and has reached as high as Complaint, 20, Aplt. App. at 15. By e time Ms. Mosby and Mr. Vaughan intervened e crowding had become worse, wi e defendants emselves describing it as critical. Class Action Complaint in Intervention, 3, Aplt. App. at 72. Approximately twenty per cent of e Jail s prisoners have serious mental heal needs. Complaint, 16, Aplt. App. at 13. Between ten and twenty per cent receive psychotropic drugs, and e Jail s unlicensed mental heal professional sees 50 to 75 prisoners each mon who are acutely psychotic. Complaint, 23, Aplt. App. at

19 Defendants contract wi e Jail s private, for-profit medical provider provides for psychiatric services of only two hours per week, which represents approximately 36 seconds per mentally ill prisoner per week. Complaint, 30, Aplt. App. at There are no psychiatric nurses, and e two additional mental heal employees have no licenses and lack sufficient background and training. Complaint, 30, Aplt. App. at The contractor at provided medical services until 2002 requested additional funding to improve mental heal staffing at e Jail, but e defendants repeatedly rejected such requests. Complaint, 67, Aplt. App. at 31. Compounding e contract s deficiencies is e fact at defendants have failed to ensure at e contractor actually provides even e minimal services specified in e contract. For example, defendants have failed to ensure at e medical provider conducts full mental heal evaluations wiin 14 days; at it furnishes e contractually required clinical supervision; at it has mental heal staff available 24 hours a day; at it provides for prisoners who need inpatient psychiatric care; and at it fulfills e medication monitoring standards specified in e contract. Complaint, 27, Aplt. App. at 17. Prisoners exhibiting signs of mental illness are frequently placed in special detention cells, which have no window, no bed, no toilet, and no sink. Mentally - 9 -

20 ill prisoners, including prisoners at risk of self-harm, are frequently left in ese cells unobserved by staff. Complaint, 24-25, Aplt. App. at 16. Prisoners who need inpatient psychiatric care do not receive it. The Jail s former medical director states at e Jail is full of individuals at belong in e state hospital, but e state hospital accepts only a small portion of e prisoners who need inpatient care. Complaint, 31, Aplt. App. at 18. The Complaint provides specific examples of how e Bedlam-like conditions in e Jail have already resulted in significant harm and even dea to prisoners wi serious mental heal needs: A recently-raped and suicidal female prisoner, stripped naked and strapped into a restraint chair for five hours, screams in terror for hours while e Jail s mental heal worker fails to respond to e deputies repeated attempts to page her. Complaint, 45, Aplt. App. at Deputies respond to a recently-admitted prisoner enduring delirium and psychosis from alcohol widrawal as ough he presents a disciplinary problem; ey move him from e infirmary to a special detention cell and en pepper spray him when he is unable to respond to eir commands. The prisoner dies shortly afterwards. Complaint, 46, Aplt. App. at After briefly interviewing a recently-arrived prisoner wi a history of suicide attempts, whom intake staff had flagged for full suicide precautions,

21 e Jail s unlicensed mental heal professional terminates e suicide watch and transfers him to general population, where he hangs himself e next day. Complaint, 47, Aplt. App. at 25. A schizophrenic prisoner awaiting transfer to e state hospital for inpatient psychiatric care is not sent to e Jail s infirmary for medical supervision but is instead confined in a disciplinary isolation cell, where he succeeds in hanging himself. Complaint, 48, Aplt. App. at A prisoner on suicide watch in e mental heal cellblock is able to make a cutting tool, sharpen it, cut his wrists, climb stairs, and en jump off head first, resulting in serious physical injuries. Complaint, 49, Aplt. App. at 26. The Jail s mental heal workers fail to respond to calls about a suicidal prisoner who is hearing voices and smearing feces on e wall of a toiletless special detention cell where he is confined while deputies wait for instructions. Complaint, 50, Aplt. App. at A female prisoner needing inpatient psychiatric care is confined not in e infirmary but in e women s cellblock, where a guard finds her lying on e floor, naked, covered in food and making engine noises. Complaint, 52-57, Aplt. App. at

22 Plaintiffs allege at ey and e class ey represent have been harmed in e past and face a substantial risk of future harm as a result of e practices and deficiencies described in e Complaint. They seek appropriate injunctive relief as well as a declaration at e conditions ey describe violate e Constitution. Motion for class certification Simultaneously wi e filing of e Complaint on April 2, 2002, plaintiffs moved to certify pursuant to Rule 23(b)(2) a class comprising all persons wi serious mental heal needs who are now, or in e future will be, confined in e El Paso County Jail. Aplt. App. at 35. In eir reply brief, Plaintiffs also suggested an alternative class definition, comprising all current and future prisoners in e Jail. Aplt. App. at 47. Subsequent Proceedings After briefing on e class certification motion was completed, e district court issued a minute order noting at e parties had not discussed at provision of e Prison Litigation Reform Act which is presently codified in 18 U.S.C restricting remedies wi respect to prison conditions. The Court ordered supplemental briefs regarding e applicability of ose provisions to e question of class certification for prospective relief. Aplt. App. at Bo parties filed briefs in compliance wi e court s order

23 On January 15, 2003, e district court held oral argument on e pending motions. At at time, e court asked e plaintiffs to submit a supplemental brief addressing e requirements of e Eigh and Fourteen Amendments as ey apply to e facts alleged in plaintiffs Complaint. See Docket entry #45, of 01/15/03, Aplt. App. at 6; Transcript, p. 25, lines 22-24, Aplt. App. at 100. The brief, filed January 24, 2003, provided citations to case law holding at specific deficiencies cited in e Complaint violate prisoners constitutional rights. The District Court s Order In an order dated July 29, 2003, e district court denied e plaintiffs motion for class certification. Aplt. App. at The court determined at e allegations of e named plaintiffs and intervenors stated a claim at ey have been diagnosed as having serious mental heal needs at, as a result of deliberate indifference, were not met while ey were prisoners in e El Paso County Jail. Aplt. App. at 132. The court furer noted additional allegations of affirmative actions by e defendants at e court summarized as being claims of excessive force. Aplt. App. at 132. The court concluded at e plaintiffs and intervenors had stated actionable claims and noted at ey sought only prospective relief, and not damages. Before discussing e issue of class certification, e court stated at its ability to order prospective relief had been limited by e Prison Litigation Reform

24 Act (PLRA), and at such relief shall extend no furer an necessary to correct e violation of federal rights, and shall be accompanied by a finding at e relief is narrowly drawn, extends no furer an necessary, and is e least intrusive means necessary to correct e violation, quoting 18 U.S.C. 3626(a)(1)(A); Aplt. App. at 133. Turning to e question of class certification, e court said at it depends on finding e four prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Aplt. App. at 134. After briefly identifying e Rule 23(a) factors, however, e court did not analyze or discuss em any furer. Nor did e court mention or discuss e requirements of Rule 23(b)(2). Instead, e court announced a five-factor test at it said control[s] e motion for class certification: 1) 2) 3) 4) 5) wheer e named plaintiffs and interveners have standing to assert e claims made on behalf of e putative class wheer e members of e class can be identified wheer e class allegations are broader an e constitutional claim wheer e putative class is manageable and wheer e court has e auority to order e prospective remedy requested Aplt. App. at 134. The court did not provide any auority in support of is fivefactor test. In a full page of bulleted paragraphs, e district court quoted ten of e common questions of fact at plaintiffs enumerated in eir briefing on e class

25 certification motion. The court also pointed out at plaintiffs had provided an opinion from a professor at Yale Medical School about requirements for e humane treatment of persons wi serious mental heal needs. Aplt. App. at The court en characterized e lawsuit as an effort to reform jail practices raer an to redress past constitutional torts and prevent eir reoccurrence. Aplt. App. at 136. The court said at e initial problem is identifying e members of e class. Aplt. App. at 136. The court stated at identification of e class members would require an intake diagnostic procedure to determine persons having serious mental heal needs. Aplt. App. at 137. The court stated at [t]here is noing in e Constitution at requires e Sheriff of El Paso County to hire a competent professional staff to screen all persons coming to e jail to determine eir mental and emotional status. Aplt. App. at 137. The court furer stated at it was not aware of any case at imposes liability for suicide or any oer injury to an inmate because e jailers did not provide a mental heal evaluation by a competent professional to determine mental heal needs in advance of incarceration. Aplt. App. at 137. follows: The district court summarized its analysis of e class certification motion as The objective of is proposed class action is to have is court prescribe jail practices for humane treatment of prisoners. That is beyond e competence

26 and e jurisdiction of is court. The questions sought to be addressed and answered are policy determinations to be made by e political branches of local and state government. The evident purpose of e PLRA was to emphasize e functional difference between e judiciary and e agencies of representative government. The limitations on remedy established by e PLRA would preclude is court from replicating Ramos v. Lamm, 639 F.2d 559 (10 Cir. 1980). Aplt. App. at 138. According to e court, e common questions of fact quoted in e order illustrate e failure to demonstrate e feasibility of class relief in is case. Aplt. App. at 138. The court furer stated at e bread of e relief sought in is case makes e proposed class action not manageable wi is court s limited jurisdiction. Aplt. App. at 138. STANDARD OF REVIEW The reshold question wheer e district court applied e correct legal standard to plaintiffs motion for class certification is reviewed de novo. Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1105 (10 Cir. 2001), cert. denied, 536 U.S. 934 (2002); Beard v. Teska, 31 F.3d 942, 955 (10 Cir. 1994); MidAmerica Federal S&L v. Shearson/American Exp., 886 F.2d 1249, 1253 (10 Cir. 1989). If e district court has applied e correct legal standard, a decision to grant or deny class certification is reviewed for abuse of discretion. Adamson v. Bowen, 855 F.2d 668, 675 (10 Cir. 1988). An abuse of discretion occurs if e district court fails to consider e applicable legal standard upon

27 which its discretionary judgment is based, United States v. Messner, 107 F.3d 1448, 1455 (10 Cir. 1997), or bases its ruling on an erroneous conclusion of law. Ashby v. McKenna, 331 F.3d 1148, 1149 (10 Cir. 2003). If e district court did not apply e correct legal standard, its order must be reversed. Adamson, 855 F.2d at ; Paton v. New Mexico Highlands University, 275 F.3d 1274, 1280 (10 Cir. 2002). SUMMARY OF ARGUMENT 1. The district court erred by denying class certification on e basis of factors at are not found in Rule 23, Fed. R. Civ. P. (hereafter Rule 23 ). Instead of analyzing e factors of Rule 23(a) and 23(b)(2), e district court applied a novel five-part test of its own creation. Under Circuit precedent, is alone requires reversal. The district court also improperly considered e merits by denying class certification based on its belief at plaintiffs allegations, if proven, would not entitle em to injunctive relief. The district court also improperly applied Rule 23(b)(3) standards of identifiability and manageability when plaintiffs seek class certification pursuant to Rule 23(b)(2). 2. The district court furer erred in denying class certification based upon e provisions of e Prison Litigation Reform Act (PLRA) limiting prospective relief in prison and jail conditions litigation. The district court was incorrect in its conclusion at e PLRA sub silentio abolished class action

28 injunctive challenges to prison and jail conditions. In fact, noing in e language or legislative history of e PLRA indicates a Congressional intent to abolish class actions, or in any way change e law governing class certification in prison and jail cases. 3. The district court was also incorrect in denying class certification because of its view at e PLRA would bar e relief it believed plaintiffs sought in eir Complaint. Under e PLRA, as under pre-existing law, federal courts have e power and duty to order an effective remedy for constitutional violations at are proven at trial, wheer ose violations are individual or class-wide in nature. It was error for e district court to conclude, before hearing any evidence, at e PLRA would bar a remedy in is case, and to deny class certification on at basis. 4. Because of e short leng of stay in a county jail, no single prisoner seeking prospective relief is likely to remain in e jail long enough to litigate a challenge to conditions of confinement from filing rough final judgment and appeal. Because class certification is necessary to prevent claims for prospective relief from being dismissed as moot, e district court s ruling deprives e plaintiffs and e class ey represent of any opportunity to have eir claims heard on e merits. Where e requisite showing of e Rule 23 factors was made, e district court erred in denying certification when at denial had e effect of

29 ending e litigation and making it impossible for plaintiffs and oers similarly situated to present eir constitutional claims to e federal courts. 5. Because plaintiffs amply demonstrated at e proposed class satisfies all requirements of Rule 23(a) and (b)(2), e judgment of e district court should be reversed and e case remanded wi directions to certify e class. ARGUMENT I. THE DISTRICT COURT IMPROPERLY DENIED CLASS CERTIFICATION BASED ON FACTORS THAT ARE NOT FOUND IN FED. R. CIV. P. 23(a) AND (b)(2). In considering plaintiffs motion for class certification, e district court erred by: first, applying an unprecedented five-part test of its own creation raer an e factors set for in Rule 23(a) and (b)(2); second, denying class certification based on e court s evaluation of plaintiffs constitutional claims on e merits; and ird, applying e identifiability and manageability requirements of Rule 23(b)(3) to a Rule 23(b)(2) class. A. Instead of applying e requirements of Fed. R. Civ. P. 23, e district court erroneously applied a novel five-part test at has no basis in law. In ruling on a motion for class certification, e district court must determine wheer e four reshold requirements of Rule 23(a) are met. If e court determines at ey are, it must en examine wheer e action falls wiin

30 one of ree categories of suits set for in Rule 23(b). Adamson v. Bowen, 855 F.2d 668, 675 (10 Cir. 1988) (footnote omitted). 4 Class certification is solely a procedural issue, and e court s inquiry is limited to determining wheer e proposed class satisfies e requirements of Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974); Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10 Cir. 1982). In ruling on e motion for class certification, e court must take e substantive allegations of e complaint as true. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n. 7 (10 Cir. 1999). If e court has some doubt, it should err in favor of class certification. Esplin v. Hirschi, 402 F.2d 94, 101 (10 Cir. 1968). Here, e district court failed to perform e required analysis. Alough e court briefly identified e factors set for in Rule 23(a), Aplt. App. at 134, it did not discuss or analyze em at all. It made no findings on e presence or absence of any of e Rule 23(a) factors. Nor did it discuss Rule 23(b)(2), or find at e 4 The requirements of Rule 23(a) are: (1) e class is so numerous at joinder of all members is impracticable, (2) ere are questions of law or fact common to e class, (3) e claims or defenses of e representative parties are typical of e claims or defenses of e class, and (4) e representative parties will fairly and adequately protect e interests of e class. Amendments to Fed. R. Civ. P. 23 took effect on December 1, However, e portions of e Rule cited in is brief are unaffected

31 class was an improper (b)(2) class. The district court erred in failing to consider e factors set for in Rule 23(a) and (b)(2), and in failing to recognize at each of ese factors was established in is case. 5 Raer an analyzing e factors set for in Rule 23, e district court announced an unprecedented five-part test at it said was controlling in e class certification decision: [T]he considerations controlling e motion for class certification are [1] wheer e named plaintiffs and interveners have standing to assert e claims made on behalf of e putative class, [2] wheer e members of e class can be identified, [3] wheer e class allegations are broader an e constitutional claim, [4] wheer e putative class is manageable and, [5] wheer e court has e auority to order e prospective remedy requested. Aplt. App. at 134 (bracketed numerals added). The district court provided no auority for is statement, and it is an incorrect statement of e factors governing class certification under Fed. R. Civ. P. 23. The district court s failure to apply e appropriate legal standard requires reversal. See Adamson, 855 F.2d at B. The district court improperly considered e merits by denying class certification based upon its belief at plaintiffs allegations, if proven, would not entitle em to injunctive relief. It is well established at a motion for class certification is not e equivalent of a motion for summary judgment or a motion to dismiss for failure to state a 5 In section III, infra, plaintiffs demonstrate at e proposed class amply satisfies e requirements of Rule 23(a) and (b)(2)

32 claim motions at address e merits of e case. The court must determine wheer plaintiffs have met e requirements of Rule 23, not wheer plaintiffs will ultimately prevail in e litigation and obtain e relief ey seek. Noing in eier e language or history of Rule gives a court any auority to conduct a preliminary inquiry into e merits of a suit in order to determine wheer it may be maintained as a class action. Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10 Cir. 1982) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974)). In determining e propriety of a class action, e question is not wheer e plaintiff or plaintiffs have stated a cause of action or will prevail on e merits, but raer wheer e requirements of Rule 23 are met. Anderson, 690 F.2d at 799, quoting Eisen, 417 U.S. at 178; see also Adamson v. Bowen, 855 F.2d 668, 676 (10 Cir. 1988) (district court, in making class certification decision, must avoid focusing on e merits of e underlying claims). In evaluating plaintiffs motion for class certification, e district court strayed from ese well-established principles. Raer an considering wheer e proposed class met e requirements of Rule 23, e district court repeatedly made clear its focus on wheer plaintiffs allegations, if proven, would entitle em to injunctive relief. After briefing on e class certification motion was completed, e court directed e parties to submit supplemental briefs discuss[ing] at provision of e Prison Litigation Reform Act which is presently

33 codified in 18 U.S.C restricting remedies wi respect to prison conditions. See Docket entry #23, of 06/21/02, Aplt. App. at 5. Following is briefing, it concluded at e relief supposedly sought is beyond e competence and e jurisdiction of is court, Aplt. App. at 138. During oral argument on e motion on January 15, 2003, e court engaged plaintiffs counsel in a lengy colloquy about wheer particular mental heal services are constitutionally required, and concluded at as I interpret your complaint, you ve gone way beyond anying at any court has ever said is required under e Eigh Amendment. See Transcript, p. 23, line 4 - p. 26, line 18, Aplt. App. at The district court furer directed plaintiffs to submit a brief demonstrating at e relief ey seek is required by e Eigh Amendment. Transcript, p. 26, lines 3-18, Aplt. App. at 101. After raising ese issues, in its order denying class certification e court focused not on e requirements of Rule 23, but on wheer plaintiffs had identified constitutional violations and wheer ey could succeed in obtaining e relief it believed ey were seeking. Indeed, e court made substantive rulings, adverse to plaintiffs, on e requirements of e Eigh and Fourteen Amendments. For example, e court stated [t]here is noing in e Constitution at requires e Sheriff of El Paso County to hire a competent professional staff to screen all persons coming to e jail to determine eir mental and emotional

34 status, and [t]he court is not aware of any case at imposes liability for suicide or any oer injury to an inmate because e jailers did not provide a mental heal evaluation by a competent professional to determine mental heal needs in advance of incarceration. Aplt. App. at To e extent at e district court s denial of class certification was influenced by its view of e scope of e Eigh and Fourteen Amendments, or by its view at plaintiffs would not be entitled to e full injunctive relief it believed ey were seeking, it clearly erred. See Anderson, 690 F.2d at 799. C. The district court erred in applying Rule 23(b)(3) standards of identifiability and manageability to a Rule 23(b)(2) class. In denying class certification, e district court emphasized e difficulty it perceived in identifying members of e plaintiff class. Aplt. App. at The court also stated at e proposed class action was not manageable wi is 5 Plaintiffs submit at e district court s evaluation of e merits of plaintiffs claims was substantively wrong as well as procedurally improper. For example, to e extent at e district court concluded at defendants have no obligation to screen prisoners in eir custody for mental illness, it was incorrect. See Olsen v. Layton Hills Mall, 312 F.3d 1304, (10 Cir. 2002) (alough jail staff did perform some mental heal screening, county may have violated e constitution by failing to train staff to recognize prisoners suffering from obsessive-compulsive disorder); Gibson v. County of Washoe, Nev., 290 F.3d 1175, & n. 15 (9 Cir. 2002) (evidence at county jail knew of e need to screen incoming detainees for mental illness and chose to ignore it may establish constitutional violation), cert. denied, 537 U.S (2003); Coleman v. Wilson, 912 F. Supp. 1282, 1298 & n. 10 (E.D. Cal. 1995) (identifying a systematic program for screening and evaluating inmates to identify ose in need of mental heal care as one of e basic, essentially common sense, components of a minimally adequate prison mental heal care delivery system )

35 court s limited jurisdiction. Aplt. App. at 138. While ese may be proper factors to consider in certifying a class under Rule 23(b)(3), ey are not proper considerations in is case, where plaintiffs seek only prospective relief on behalf of a Rule 23(b)(2) class. Contrary to e view of e district court, it is not necessary to identify wi precision every member of a (b)(2) class, and e proposed class in is case is adequately defined for purposes of Rule 23(b)(2). In addition, e district court erred in denying class certification because of vague concerns about manageability. 1. The class was adequately defined for purposes of Rule 23(b)(2). The district court erred in denying class certification based on e difficulty it foresaw in identifying members of e plaintiff class. In Yaffe v. Powers, 454 F.2d 1362 (1 st Cir. 1972), e district court had denied class certification because of perceived problems in identifying class members, and e Court of Appeals reversed: Alough notice to and erefore precise definition of e members of e suggested class are important to certification of a subdivision (b)(3) class, notice to e members of a (b)(2) class is not required and e actual membership of e class need not erefore be precisely delimited. In fact, e conduct complained of is e benchmark for determining wheer a subdivision (b)(2) class exists, making it uniquely suited to civil rights actions in which e members of e class are often incapable of specific enumeration. Committee s Notes

36 to Revised Rule 23, 3B Moore s Federal Practice [10-2] (2d ed. 1969). Yaffe, 454 F.2d at In short, e district court had erroneously applied to a (b)(2) class action a requirement at applies only to (b)(3) class actions. Id; see also Adamson v. Bowen, 855 F.2d 668, 676 (10 Cir. 1988) (citing Yaffe wi approval); Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 276 (10 Cir. 1977) ( where, as here, e class is composed of a substantial number, no great need is present to identify each and every one ); Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1188 (10 Cir. 1975) (noting at in a 23(b)(2) class action, ere are not difficult notice problems nor does it present administrative complications involved in collecting and distributing funds such as are encountered in Rule 23(b)(3) damage actions ); Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638, 645 (4 Cir. 1975) ( [w]here e plaintiff has demonstrated at e class of persons he or she wishes to represent exists, at ey are not specifically identifiable supports raer an bars e bringing of a class action, because joinder is impracticable ). The proposed class in is case was adequately defined for purposes of Rule 23(b)(2), and courts have routinely certified prisoner classes in terms indistinguishable from e class proposed here. See, e.g., Coleman v. Wilson, 912 F. Supp. 1282, 1293 (E.D. Cal. 1995) ( all inmates wi serious mental disorders who are now or who will in e future be confined wiin e California

37 Department of Corrections ); Bradley v. Harrelson, 151 F.R.D. 422, 423 (M.D. Ala. 1993) ( all acutely and severely mentally ill inmates ); Anderson v. Coughlin, 119 F.R.D. 1, 2, 3 (N.D.N.Y. 1988) ( all inmates... who suffer from a mental illness ). In Anderson, e court specifically rejected defendants argument at such a class is overbroad and ill-defined, noting at plaintiffs sought certification under Rule 23(b)(2), and as such precise definition is not as important as it may be under oer class certification rules, since notice to class members is not required and e actual membership of e class need not be precisely delimited. 119 F.R.D. at Manageability is not a requirement for class certification under Rule 23(b)(2). Moreover, e district court erred in denying class certification on e ground at, in its view, e proposed class action was not manageable wi is court s limited jurisdiction. Aplt. App. at 138. Manageability is a proper consideration only when certification is sought under Rule 23(b)(3); it is not a consideration where, as here, certification is sought under Rule 23(b)(2) in a case 7 In any event, bo in briefing and at oral argument, plaintiffs specifically proposed to e district court e alternative of certifying a class comprising all current and future prisoners in e Jail. Transcript, p. 44, line 9 - p. 45, line 13, Aplt. App. at See Anderson, 119 F.R.D. at 3 n. 1 (in challenge to treatment of mentally ill prisoners, plaintiffs could have sought certification of class including entire prison population). Such a class definition would have obviated any problems (if any ere were) wi identifying members of e class. Indeed, e district court stated at oral argument at such a class may be more manageable. Transcript., p. 45, line 10, Aplt. App. at

38 seeking only injunctive and declaratory relief. See Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1105 (5 Cir. 1993) ( questions of manageability and judicial economy are irrelevant to 23(b)(2) class actions ); Johnson v. American Credit Co., 581 F.2d 526, 531 n. 9 (5 Cir. 1978) ( The defendants argue at e class is unmanageable because it is too large and too diversified. This argument would be relevant only if [plaintiff] had sought class certification under Rule 23(b)(3) ); Elliott v. Weinberger, 564 F.2d 1219, 1229 (9 Cir. 1977) ( by its terms, Rule 23 makes manageability an issue important only in determining e propriety of certifying an action as a (b)(3), not a (b)(2), class action ), aff d in pertinent part sub nom. Califano v. Yamasaki, 442 U.S. 682, 701 (1979). See also Yaffe, 454 F.2d at 1365 ( for a court to refuse to certify a class because of vaguelyperceived management problems is counter to e policy which originally led to [Rule 23] ). The district court s imposition of is extra hurdle requires reversal. See Adamson v. Bowen, 855 F.2d 668, 676 (10 Cir. 1988) (reversing denial of class certification where district court erroneously applied requirement of Rule 23(b)(3) to motion for class certification under Rule 23(b)(2); [t]he district court placed upon e class a burden at e rule does not auorize )