Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 02-cv-0651-RPM-MJW MARK SHOOK and DENNIS JONES, on behalf of themselves and all others similarly situated, Plaintiffs, and JAMES VAUGHAN, SHIRLEN MOSBY, THOMAS REINIG, and LOTTIE ELLIOTT, Intervenor Plaintiffs, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO and TERRY MAKETA, in his official capacity as Sheriff of El Paso County, Defendants. PLAINTIFFS' AND INTERVENOR PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
David C. Fathi Senior Staff Counsel The National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 Telephone: (202) 393-4930 E-mail: [email protected] Mark Silverstein Legal Director American Civil Liberties Union of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 E-mail: [email protected] Thomas S. Nichols DAVIS GRAHAM & STUBBS LLP In cooperation with the American Civil Liberties Union Foundation of Colorado 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 DC BOX 03 Telephone: (303) 892-9400 FAX: (303) 893-1379 E-mail: [email protected]

Attorneys for Plaintiffs and Intervenor Plaintiffs

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... ii INTRODUCTION ......................................................................................................................... 1 ARGUMENT................................................................................................................................. 2 I. THE REQUIREMENTS OF FED. R. CIV. P. 23(a) ARE SATISFIED ........................... 2 A. B. C. D. II. III. IV. Impracticability of Joinder ­ Rule 23(a)(1) ........................................................... 2 Commonality ­ Rule 23(a)(2)................................................................................ 5 Typicality ­ Rule 23(a)(3) ..................................................................................... 8 Adequacy of Representation ­ Rule 23(a)(4) ........................................................ 9

CLASS CERTIFICATION IS APPROPRIATE PURSUANT TO RULE 23(b)(2) ....... 10 MANAGEABILITY CONCERNS ARE NO BAR TO CLASS CERTIFICATION IN THIS CASE ................................................................................................................ 18 DEFENDANTS ARE WRONG WHEN THEY ARGUE THAT CLAIMS REQUIRING PROOF OF DELIBERATE INDIFFERENCE CANNOT PROCEED ON A CLASS BASIS................................................................................... 21 CLASS CERTIFICATION IS NECESSARY TO ALLOW PLAINTIFFS TO PRESENT THEIR CONSTITUTIONAL CLAIMS TO THE FEDERAL COURTS.......................................................................................................................... 22

V.

CONCLUSION............................................................................................................................ 24

i

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TABLE OF AUTHORITIES Cases Adamson v. Bowen, 855 F.2d 668 (10th Cir. 1988) ........................................................................................ 8, 9, 11 Arney v. Finney, 967 F.2d 418 (10th Cir. 1992) ................................................................................................ 21 Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994)....................................................................................................... 14 Blake v. Dickason, 997 F.2d 749 (10th Cir. 1993) ................................................................................................ 24 Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980) ................................................................................................ 14 Cox v. Malone, 199 F.Supp.2d 135 (S.D.N.Y. 2002), aff'd, 56 Fed. Appx. 43 (2d Cir. 2003) .................................................................................. 23 Craig v. Eberly, 164 F.3d 490 (10th Cir. 1998) .................................................................................................. 7 Diaz v. Romer, 961 F.2d 1508 (10th Cir. 1992) .............................................................................................. 21 Duran v. Anaya, 642 F. Supp. 510 (D.N.M. 1986) ..................................................................................... 23, 24 Duran v. Carruthers, 885 F.2d 1485 (10th Cir. 1989) .............................................................................................. 21 Estelle v. Gamble, 429 U.S. 97 (1976)................................................................................................................. 21 Farmer v. Brennan, 511 U.S. 825 (1994)................................................................................................................. 4 Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) .............................................................................................. 23 Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988)................................................................................................... 16 ii

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TABLE OF AUTHORITIES (continued)

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Helling v. McKinney, 509 U.S. 25 (1993)................................................................................................................... 4 In re Antibiotic Antitrust Actions, 333 F. Supp. 278 (S.D.N.Y. 1971) ........................................................................................ 20 In re Independent Gasoline Antitrust Litigation, 79 F.R.D. 552 (D. Md. 1978)................................................................................................. 20 In re Industrial Diamonds Antitrust Litigation, 167 F.R.D. 374 (S.D.N.Y. 1996) ........................................................................................... 20 In re Motor Vehicle Air Pollution Control Equipment, 52 F.R.D. 398 (C.D. Cal. 1970) ............................................................................................. 20 In re Potash Antitrust Litigation, 159 F.R.D. 682 (D. Minn. 1995)............................................................................................ 19 In Re Storage Technology Corp. Securities Litigation, 113 F.R.D. 113 (D. Colo. 1986) ............................................................................................ 21 J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999) .................................................................................... 5, 6, 7, 8 Keyes v. School District No. 1, Denver, Colorado, 576 F. Supp. 1503 (D. Colo. 1983).......................................................................................... 5 Knapp v. Romer, 909 F. Supp. 810 (D. Colo. 1995).......................................................................................... 10 Lipton v. County of Orange, 315 F.Supp.2d 434 (S.D.N.Y. 2004)...................................................................................... 23 Lucas v. Kmart Corporation, 2005 WL 1648182 (D. Colo. 2005) ....................................................................................... 13 Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997)................................................................................................... 13 McClendon v. City of Albuquerque, 272 F.Supp.2d 1250 (D.N.M. 2003) ...................................................................................... 22 Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982) ......................................................................................... passim iii

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TABLE OF AUTHORITIES (continued)

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Monreal v. Potter, 367 F.3d 1224 (10th Cir. 2004) ............................................................................ 14, 15, 16, 17 Montez v. Romer, 32 F.Supp.2d 1235 (D. Colo. 1999)....................................................................................... 22 Neiberger v. Hawkins, 208 F.R.D. 301 (D. Colo. 2002) ..................................................................................... passim Penn v. San Juan Hospital, 528 F.2d 1181 (10th Cir. 1975) ................................................................................................ 8 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985)............................................................................................................... 20 Procunier v. Martinez, 416 U.S. 396 (1974)............................................................................................................... 23 Ramos v. Lamm, 485 F. Supp. 122 (D. Colo. 1979).......................................................................................... 11 Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) ......................................................................................... passim Rutter & Willbanks Corp. v. Shell Oil Co., 314 F.3d 1180 (10th Cir. 2002), cert. denied, 539 U.S. 915 (2003) ............................................................................................ 9 Salt Lake Tribune Pub. Co. v. AT&T Corp., 320 F.3d 1081 (10th Cir. 2003) .............................................................................................. 23 Shelter Realty Corp. v. Allied Maintenance Corp., 75 F.R.D. 34 (S.D.N.Y. 1977) ......................................................................................... 20, 21 Shook v. El Paso County, 386 F.3d 963 (10th Cir. 2004), cert. denied, 125 S. Ct. 1869 (2005) ............................................................................... passim Skinner v. Uphoff, 209 F.R.D. 484 (D. Wyo. 2002) .............................................................................................. 5 Steiner v. Ideal Basic Industries, Inc., 127 F.R.D. 192 (D. Colo. 1987) .............................................................................................. 5

iv

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TABLE OF AUTHORITIES (continued)

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Wilder v. Bernstein, 499 F. Supp. 980 (S.D.N.Y. 1980) .......................................................................................... 8 Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972)................................................................................................. 19 Statutes and Rules 42 U.S.C. § 1997e(e).................................................................................................................... 23 Fed. R. Civ. P. 23......................................................................................................................... 19 Fed. R. Civ. P. 23(a) ............................................................................................................ 1, 2, 24 Fed. R. Civ. P. 23(a)(1).............................................................................................................. 2, 5 Fed. R. Civ. P. 23(a)(2).............................................................................................................. 5, 6 Fed. R. Civ. P. 23(a)(3).............................................................................................................. 8, 9 Fed. R. Civ. P. 23(a)(4).................................................................................................................. 9 Fed. R. Civ. P. 23(b)(2)......................................................................................................... passim Fed. R. Civ. P. 65(d) .................................................................................................................... 16 Other Authorities 3 Alba Conte & Herbert Newberg, Newberg on Class Actions § 7.25 (4th ed. 2002) ............................................................................................................... 19 8 Alba Conte & Herbert Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002) ............................................................................................................. 10 Fed. R. Civ. P. 23, Advisory Committee Notes, 1966 Amendment, Subdivision (b)(2) ............................................................................. 15, 16

v

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INTRODUCTION Defendants' Opposition to plaintiffs' motion for class certification essentially boils down to a single argument. Because the factual situation of each class member is in some sense unique, defendants argue, class certification is impermissible. This argument, which is of course at odds with the very concept of class actions, has been repeatedly rejected, as explained below. In arguing that class certification should be denied, defendants fail to identify anything about this proposed class that distinguishes it from the numerous cases in which the courts of this Circuit have granted class certification in injunctive challenges to conditions of confinement in prisons and jails (see Motion at 18 n. 6). Indeed, defendants do not even address those cases, and they simply disregard the Tenth Circuit's statement in this case that Rule 23(b)(2) class actions are "well suited" to cases in which "the plaintiffs attempt to bring suit on behalf of a shifting prison population." Shook v. El Paso County, 386 F.3d 963, 972 (10th Cir. 2004), cert. denied, 125 S. Ct. 1869 (2005). It is most telling that defendants are unable to cite a single case, from any jurisdiction, in which class certification has been denied in an injunctive challenge to prison or jail conditions. Defendants' objections to class certification are without merit. The requirements of Fed. R. Civ. P. 23(a) and (b)(2) are amply satisfied by the proposed class. Moreover, class certification is essential to allow the Court to reach the merits of plaintiffs' constitutional claims. For all of these reasons, plaintiffs' motion should be granted.

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ARGUMENT I. THE REQUIREMENTS OF FED. R. CIV. P. 23(a) ARE SATISFIED. A. Impracticability of Joinder ­ Rule 23(a)(1).

Defendants argue that the impracticability of joinder requirement of Rule 23(a)(1) is not satisfied because plaintiffs' class includes "a significant group of individuals who are simply not at risk of suffering any injury due to a violation of their constitutional rights by Defendants," and because plaintiffs' claims are not based on "an alleged unconstitutional policy or practice of Defendants to which all inmates with serious mental health needs are subjected." Defendants' Opposition ("Opp.") at 8, 9. Defendants are wrong on both counts. Plaintiffs have stated, repeatedly and in the clearest possible terms, that all class members are subject to defendants' unconstitutional policies, and all are at substantial risk of serious injury or death as a result of those policies. Plaintiffs' Supplemental Complaint alleges as follows: 60. 61. 62. 63. 64. 65. 66. 67. The policies and practices of defendants to which all class members are equally subject include, but are not limited to: Defendants' policy of failing to provide sufficient numbers of mental health and custody staff, with adequate training, to provide for the serious mental health needs of class members. Defendants' policy of failing to provide safe and appropriate housing for prisoners with serious mental health needs. Defendants' policy of using "special detention cells" to house prisoners exhibiting signs of mental illness. Defendants' policy of failing to provide inpatient psychiatric care for prisoners whose serious mental health needs require it. Defendants' policy of inappropriately using restraints, pepper spray, and electroshock weapons ("tasers") against prisoners exhibiting signs of mental illness. Defendants' policy of failing to maintain an adequate system to provide appropriate medication to prisoners whose serious mental health needs require it and to monitor the effects of that medication. Defendants' policy of failing to provide adequate screening and precautions to prevent self-harm and suicide.

2

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Supp. Compl., ¶¶ 60-67 (emphasis added). The named plaintiffs and the plaintiff class are all subject to the actions, omissions, and deliberate indifference of the defendants described herein. The named plaintiffs and the plaintiff class suffer from serious mental health problems, and the deliberate indifference of the defendants to these problems exposes each of them to conditions that constitute cruel and unusual punishment in violation of the Eighth Amendment and deprivation of liberty in violation of the Fourteenth Amendment. As a result of the defendants' acts and omissions, the named plaintiffs and the plaintiff class face continued and further degradation of their mental health and daily exposure to a serious risk of injury or death. Complaint, ¶ 6 (emphasis added). All class members are equally subject to the conditions of confinement and the systemic deficiencies described in this Complaint, including the lack of sufficient staff with adequate training; lack of inpatient care; lack of adequate housing; lack of adequate protection from self-harm and suicide; lack of an adequate system for medication; and the use of restraints and excessive force. Id., ¶ 17 (emphasis added). Conditions in the El Paso County Jail continue to pose a substantial risk of serious harm or death to persons with serious mental health needs, and defendants continue to act with deliberate indifference to this risk. Supp. Compl., ¶ 2 (emphasis added). See also Complaint, ¶ 65 (citing "the risk that the named plaintiffs and the plaintiff class will suffer serious psychiatric harm, physical injury, or death"); id., ¶ 69 ("physical and psychological injury and imminent risk of serious injury or death"); id., ¶ 71 ("[p]laintiffs are suffering irreparable injury, and will continue to suffer irreparable injury").1

Even class members who remain in the Jail a very short time are at risk from the unconstitutional policies challenged in this case. Indeed, as explained in the expert declaration of Terry A. Kupers, M.D., M.S.P., filed herewith, the first several days of incarceration are an especially high-risk period for mentally ill prisoners; nearly half of all jail suicides occur within 24 hours of admission. See Kupers dec., ¶¶ 6-11; Supp. Compl., ¶ 67 (challenging "[d]efendants' policy of failing to provide adequate screening and precautions to prevent selfharm and suicide"). 3

1

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When prison or jail officials, acting with deliberate indifference, subject prisoners to a "substantial risk of serious harm," they violate the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994). The threatened harm need not be imminent. See Helling v. McKinney, 509 U.S. 25, 33 (1993) ("[w]e have great difficulty agreeing that prison authorities ... may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next ... year"). Indeed, for purposes of injunctive relief, the threatened harm need never materialize; it is the risk itself that violates the Eighth Amendment and entitles the plaintiffs to injunctive relief. Id. ("[I]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them"). Plaintiffs have clearly alleged that all class members are at substantial risk of serious harm as a result of defendants' challenged policies and procedures. At the class certification stage, these well-pleaded allegations ­ which must be taken as true ­ are all that is required. Defendants suggest that plaintiffs are required to "establish" that each class member is subject to such a risk (Opp. at 10-11), but this would amount to a requirement that plaintiffs prove a classwide Eighth Amendment violation in order to obtain class certification. Such an argument is without merit; it is well settled that "[i]n determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Shook v. El Paso County, 386 F.3d at 971.2
2

Even if plaintiffs had not clearly alleged that all class members are at risk of harm from the challenged policies, that would not defeat class certification. In Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980), for example, the plaintiff class comprised "all persons who are now or in the 4

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Because the class is properly defined, and at any given moment includes well over 200 current members, the impracticability of joinder requirement is satisfied. This is especially true because the class includes future as well as current prisoners. Defendants do not dispute that joinder of future class members is impracticable. See Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002) ("[a]s members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable"). The requirements of Rule 23(a)(1) are met here.3 B. Commonality ­ Rule 23(a)(2).

As defendants concede, plaintiffs identify numerous common questions of fact and law. Opp. at 12-13. Defendants criticize these common questions as "generalities," but cite no authority in support of that criticism. Indeed, this Court has found the commonality requirement met by questions stated in at least equally general terms. See, e.g., Steiner v. Ideal Basic Industries, Inc., 127 F.R.D. 192, 193 (D. Colo. 1987) ("The common question of law is whether the defendants' conduct violated the securities laws"); Keyes v. School District No. 1, Denver, Colorado, 576 F. Supp. 1503, 1507 (D. Colo. 1983) ("there is a common question of what obligation is owing to all [limited-English proficient] children in the district"). Since Rule 23(a)(2) requires only a single question of law or fact (J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999)), the commonality requirement is met.

future may be incarcerated in the maximum security unit of the Colorado State Penitentiary." Id. at 562. Plaintiffs' claim that the prison's mental health care was unconstitutionally deficient was litigated on a class-wide basis, despite testimony that only 5-10% of class members were "seriously mentally ill," and only an additional 10-25% needed treatment but were not "seriously" ill. Id. at 577. 3 Numerous courts have certified prisoner classes in terms substantially identical to the class proposed here (see Motion at 19); defendants make no attempt to distinguish these cases. 5

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Defendants concede that the commonality requirement is met if plaintiffs identify policies of defendants that are applicable to the entire class. Opp. at 14-15 (stating that in Neiberger v. Hawkins, 208 F.R.D. 301 (D. Colo. 2002), "every member of the ... class was actually subjected to the treatment policies," and in Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982), "each of the policies enjoined by the district court were actually applied to every ... class member"). However, having stated on p. 12 that "Plaintiffs allege that the following questions of fact are common to Plaintiffs and the putative class," defendants then inexplicably complain on p. 14 that plaintiffs "allege no single question of fact common to the class." Once again, the latter statement is simply incorrect. Plaintiffs' Supplemental Complaint specifically identifies seven "policies and practices of defendants to which all class members are equally subject." Supp. Compl. ¶¶ 60-67 (quoted at p. 2, supra). Similarly, the original Complaint alleges that All class members are equally subject to the conditions of confinement and the systemic deficiencies described in this Complaint, including the lack of sufficient staff with adequate training; lack of inpatient care; lack of adequate housing; lack of adequate protection from self-harm and suicide; lack of an adequate system for medication; and the use of restraints and excessive force. Complaint, ¶ 17. In their motion for class certification, plaintiffs specifically identify the existence of these policies as common questions of fact, and their legality as common questions of law. Motion at 6-8. This is more than sufficient to satisfy Rule 23(a)(2). Finally, defendants rely on the Tenth Circuit's decision in Hart, but that case does not assist them. In Hart, the plaintiffs launched an across-the-board attack on the entire New Mexico child welfare system. The proposed class comprised "all children who are now or in the future will be (a) in or at risk of State custody and (b) determined ... to have any form of mental and/or developmental disability for which they require some kind of therapeutic services or support."

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186 F.3d at 1287. The Tenth Circuit noted that the putative class members came into state custody in a variety of ways, and were housed in a wide range of different settings, including foster homes, residential treatment centers, group homes, temporary shelters, and psychiatric hospitals. The circumstances of the children varied so widely that other than being disabled "in some way" and having had "some sort of contact" with New Mexico's child welfare system, there was no common factual link. Id. at 1289. In addition, some class members claimed under certain statutes while others claimed under different statutes; thus, the Tenth Circuit said, "there is no one statutory or constitutional claim common to all named Plaintiffs and putative class members." Id. at 1290. The ruling in Hart has no application here. Unlike in Hart, the class members in this case are all physically confined to a single institution, where all mental health services are supplied pursuant to a single contract that applies to all class members. All class members are subject to security and mental health policies and practices promulgated by a single decisionmaker, defendant Terry Maketa. See Motion at 6. Plaintiffs have specifically identified a number of these policies and alleged that they apply equally to all class members. See Complaint, ¶ 17; Supp. Compl. ¶¶ 60-67. Finally, all class members make the same legal claim: that these policies constitute deliberate indifference to their serious mental health needs, in violation of the Eighth and Fourteenth Amendments.4 The Hart court cited, as an example of a common question of law, a claim by black Protestant children that New York's law for providing child welfare services was The Tenth Circuit has held that, in the context of challenges to conditions of confinement, the Eighth and Fourteenth Amendment standards are equivalent. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). Therefore, unlike in Hart, the claims of all class members here are governed by the same legal standard. 7
4

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unconstitutionally discriminatory; "[a]ll class members claimed the system denied them placements because of their race and religion." Hart, 186 F.3d at 1289 (citing Wilder v. Bernstein, 499 F. Supp. 980 (S.D.N.Y. 1980)). Similarly, this case involves, inter alia, a claim by prisoners with serious mental health needs that defendants' mental health staffing is unconstitutionally deficient; all class members allege that they are at substantial risk of serious harm as a result of this deficiency. See Supp. Compl. ¶¶ 9, 61, 68(a). Thus here, unlike in Hart, there is a "constitutional claim common to all named Plaintiffs and putative class members" (Hart, 186 F.3d at 1290), and the commonality requirement is satisfied.5 C. Typicality ­ Rule 23(a)(3).

Defendants argue that the named plaintiffs do not meet the typicality requirement of Rule 23(a)(3). However, defendants' argument is based primarily upon their erroneous contentions, refuted above, that (1) plaintiffs have not identified a common question of law or fact, and (2) plaintiffs have failed to allege that all class members are at risk of harm from defendants' policies and practices. The law of this Circuit is that the typicality requirement is satisfied "so long as the claims of the class representatives and class members are based on the same legal or remedial theory." Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988); see also Penn v. San Juan Hospital, 528 F.2d 1181, 1189 (10th Cir. 1975) (same, noting that "the typicality requirement is ordinarily
5

See also Neiberger, 208 F.R.D. at 315: Defendants again argue that the individual differences in the cases require a particularized analysis. I again disagree. The Defendants mistakenly emphasize each patient's individual psycho-pathology, rather than the alleged systemic, institutional defects at IFP. It is these systemic problems which the Plaintiffs argue violate their statutory and constitutional rights. The commonality requirement is therefore met as to the NGRI patients at IFP. 8

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not argued"). In this case, all class members' claims are based on the same legal theory. As defendants concede, plaintiffs clearly state that "the claims of all plaintiffs and all class members are based on the theory that defendants' deliberate indifference to their serious mental health needs violates the Eighth and Fourteenth Amendments." Motion at 9. Moreover, the claims of all class members are also based on the same remedial theory. As explained in § II, infra, plaintiffs seek uniform group remedies that, if granted, will benefit all members of the plaintiff class. Accordingly, the requirements of Rule 23(a)(3) are satisfied.6 D. Adequacy of Representation ­ Rule 23(a)(4).

Notwithstanding their previous concession that the named plaintiffs adequately represent the interests of the class (see Motion at 10 n. 3), defendants now argue in conclusory fashion that the requirements of Rule 23(a)(4) are not met. In this Circuit, adequacy of representation involves two inquiries: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Rutter & Willbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002), cert. denied, 539 U.S. 915 (2003). Plaintiffs have shown that both requirements are met here (Motion at 10), and defendants do not assert otherwise. The requirements of Rule 23(a)(4) are met.

Defendants suggest that plaintiffs must allege that the named plaintiffs "suffered the same type of harm as that of the putative class." Opp. at 17. Defendants cite no Tenth Circuit authority for this requirement, which is invalid to the extent that it is inconsistent with Circuit precedent holding that Rule 23(a)(3) is satisfied "so long as the claims of the class representatives and class members are based on the same legal or remedial theory." Adamson, 855 F.2d at 676. In any event, plaintiffs have alleged that all class members suffer the same type of harm: "As a result of the defendants' acts and omissions, the named plaintiffs and the plaintiff class face continued and further degradation of their mental health and daily exposure to a serious risk of injury or death." Complaint, ¶ 6. 9

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II.

CLASS CERTIFICATION IS APPROPRIATE PURSUANT TO RULE 23(b)(2). Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits. Most class actions in the constitutional and civil rights areas seek primarily declaratory and injunctive relief on behalf of the class and therefore readily satisfy Rule 23(b)(2) class action criteria.

8 Alba Conte & Herbert Newberg, Newberg on Class Actions § 25.20, at 550 (4th ed. 2002) (hereinafter "Newberg"). The courts of this Circuit have consistently recognized that a challenge to prison or jail conditions is "a classic Rule 23(b)(2) civil rights action." Knapp v. Romer, 909 F. Supp. 810, 812 n. 1 (D. Colo. 1995); see generally Motion at 18 n. 6. Indeed, the Tenth Circuit has stated in this case that Rule 23(b)(2) is "well suited" to cases in which "plaintiffs attempt to bring suit on behalf of a shifting prison population." Shook, 386 F.3d at 972. Despite this ample authority, defendants contend that because the injuries suffered by each class member may be factually different, and because plaintiffs' Complaint and Supplemental Complaint set forth the injuries suffered by the named plaintiffs and some class members, certification under Rule 23(b)(2) is impermissible. This argument reveals a fundamental misunderstanding of class actions and, more to the point, is foreclosed by Circuit precedent. The named plaintiffs in a class action must set forth the nature of the injuries they have suffered as a result of the challenged policies and practices of defendants; this is required in order to demonstrate the named plaintiffs' standing. Obviously the injuries suffered by one named plaintiff will always differ in some way from the injuries suffered by other named plaintiffs and class members, and it is well settled that such differences do not defeat class certification. See Shook, 386 F.3d at 971 ("Factually different claims of individual class

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members should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy") (quoting Adamson, 855 F.2d at 676). Moreover, under Circuit precedent, it is precisely by exposing repeated instances of injuries suffered by individual class members that plaintiffs can establish that a prison or jail health care system is so inadequate as to violate the Eighth Amendment: In class actions challenging the entire system of health care, deliberate indifference to inmates' health needs may be shown by proving repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff, or by proving there are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively denied access to adequate medical care. Ramos, 639 F.2d at 575 (emphasis added). Ramos was a class action challenge to numerous conditions in the maximum security unit at the Colorado State Penitentiary, including inadequate medical, mental health, and dental care. 639 F.2d at 562, 574-78. In concluding that health care services violated the Eighth Amendment, the district court relied upon repeated examples of individual class members who had received inadequate care and suffered harm as a result. See, e.g., Ramos v. Lamm, 485 F. Supp. 122, 143 (D. Colo. 1979). The Tenth Circuit affirmed this conclusion. Ramos, 639 F.2d at 578. In short, far from rendering the case ineligible for class certification, reciting the injuries suffered by individual class members is one of the methods prescribed by the Tenth Circuit for establishing a class-wide Eighth Amendment violation. Defendants further complain that "[t]he class sought to be certified by Plaintiffs in this case is simply not amenable to uniform group remedies." Opp. at 22. Once again, this argument is foreclosed both by Circuit precedent and by the specific group remedies plaintiffs seek (see Supp. Compl., ¶ 68). 11

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Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982), involved a class action challenge to numerous conditions of confinement at the Provo Canyon School, which the district court described as "a correctional and detention facility." Id. at 935. Plaintiffs sought to enjoin thirteen practices at the school. Id. at 941. The district court certified, pursuant to Fed. R. Civ. P. 23(b)(2), a class consisting of all current and future residents of the school, and the Tenth Circuit affirmed. Id. at 934-35, 938. The district court granted class-wide relief as to four of the challenged practices, and again the Tenth Circuit affirmed. Indeed, two of the practices enjoined in Milonas are substantially similar to practices plaintiffs seek to enjoin in this case. Compare Milonas, 691 F.2d at 935 (injunction restricting use of "isolation facilities" and "physical force") with Supp. Compl., ¶¶ 68(c), 68(e) (seeking injunction restricting use of "special detention cells" and specific forms of physical force). Thus, defendants' argument that uniform group remedies are not possible in this case is directly refuted by Milonas. Indeed, the exact argument made by defendants here was recently rejected in Neiberger v. Hawkins, 208 F.R.D. 301 (D. Colo. 2002), a challenge to conditions of confinement at the Colorado Mental Health Institute at Pueblo. The Neiberger defendants argued that class certification pursuant to Rule 23(b)(2) was impermissible "because of the individual and differing circumstances of each Plaintiff's case" and because "each case is psychiatrically and medically unique." Id. at 317. Compare Opp. at 28 (citing "the extremely unique factual circumstances of each individual inmate"). The Neiberger court rejected this argument: I conclude that Plaintiffs' claims seek application of a common policy by way [of] injunctive and declaratory relief which do not depend on the individual facts of each case, but apply equally to all cases pending within the class. * * *

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The Plaintiffs' proffered exhibits are expert opinions on systemic problems in the institution which appear to violate the law. If Plaintiffs are correct, as I must assume, then issues of systemic abuse and conditions can be addressed without resorting to case-by-case analysis. Id. Thus, despite the varying circumstances of individual class members, the court recognized that the claims of systemic deficiencies could be addressed with uniform group remedies that did not require case-by-case analysis. Similarly, in Lucas v. Kmart Corporation, 2005 WL 1648182 (D. Colo. 2005), plaintiffs sought to certify a nationwide class of wheelchair users based on allegations of disability discrimination in Kmart stores across the country. Kmart objected on the ground that each of its 1500 stores "is physically unique, differing in terms of size, layout, configuration, building structure and merchandise selection." Id. at *1. The court rejected this argument, holding that "[t]his case provides a paradigm for class certification under Rule 23(b)(2)," and certified a nationwide class. Id. at *2, *3.7

The argument defendants make here is routinely rejected as a ground for refusing Rule 23(b)(2) certification in institutional litigation: Defendants argue that because the plaintiffs have alleged differing harms requiring individual remedies, no injunction will be appropriate for the entire class. Defendants further claim that due to the unique circumstances of each plaintiff's experience with the child welfare system, the defendants have not acted on grounds generally applicable to the class. We disagree. Insofar as the deficiencies of the child welfare system stem from central and systemic failures, the district court did not abuse its discretion in certifying a 23(b)(2) class at this stage of the litigation. Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) (challenge on behalf of children in custody of city's Administration for Children's Services). Plaintiffs have alleged that systemic failure causes the DHS to violate various mandates under federal statutory and constitutional provisions. Because the children in the system are comparably subject to the injuries caused by this systemic failure, even if the extent of their individual injuries may be affected by their own individual circumstances, the challenge to the system constitutes a legal 13

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In this case, as in Milonas and Neiberger, plaintiffs seek "uniform group remedies" (Shook, 386 F.3d at 973) that will benefit all members of the class, and will not require the Court to make any inquiry into the individual circumstances of each class member. For example, plaintiffs seek an injunction directing defendants to "provide sufficient numbers of mental health and custody staff, with adequate training, to provide for the serious mental health needs of class members," and to "provide adequate screening and precautions to prevent self-harm and suicide." Supp. Compl. ¶¶ 68(a), 68(g). If the Court were to grant the requested relief ­ for example, directing defendants to hire additional mental health staff and to develop an adequate mental health screening system ­ these remedies would equally benefit all members of the plaintiff class. Finally, defendants argue that Monreal v. Potter, 367 F.3d 1224 (10th Cir. 2004), forecloses class certification in this case, but that case has no application here. Monreal was a

claim applicable to the class as a whole. An order forcing the DHS to comply with their statutory and constitutional mandates would constitute relief generally applicable to the entire putative class. Indeed, the violations alleged here are precisely the kinds targeted by Rule 23(b)(2). Baby Neal v. Casey, 43 F.3d 48, 64 (3d Cir. 1994) (challenge on behalf of children in the custody of city's Department of Human Services). The district court declined to certify a plaintiff class in this case, reasoning that this case would involve "so many variations of remedy [for each inmate of Rogers Hall] that any sort of class relief would be impossible." ... Common to each member of the class are the questions of allegedly discriminatory commitment procedures and conditions of confinement at Rogers Hall, and the relief sought on behalf of the class includes a declaration that certain present commitment procedures and conditions of confinement are unconstitutional. Therefore, a class action may be maintained under Fed. R. Civ. P. 23(b)(2), which is an especially appropriate vehicle for civil rights actions seeking such declaratory relief for prison and hospital reform. Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (challenge to conditions at state psychiatric hospital) (brackets, quotation marks in original). 14

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Title VII case, in which plaintiffs sought to certify a nationwide class of Hispanic managerial employees of the U.S. Postal Service. The plaintiffs sought declaratory and injunctive relief, but also sought individualized remedies, including compensatory damages (including, but not limited to, damages for emotional suffering), payment for lost income and benefits, reinstatement, back pay, and front pay. Id. at 1235. The district court denied class certification, and the Tenth Circuit affirmed. The district court denied certification under Rule 23(b)(2) because it found that "the relief sought was primarily monetary damages." Id. at 1236. The Tenth Circuit affirmed, agreeing that "it is clear from the pleadings here that the primary relief sought is monetary damages." Id. This holding has no application to this case, which seeks only class-wide injunctive and declaratory relief. No money damages ­ indeed, no individualized remedies of any kind ­ are sought.8 The Tenth Circuit also affirmed the denial of (b)(2) certification on the ground that "Plaintiffs failed to point to any particular policy that the USPS applied to the entire class." Id. at 1236. Once again, that defect is not present in this case. Plaintiffs have specifically identified a number of policies that the defendants apply to the entire class: 60. 61. 62. The policies and practices of defendants to which all class members are equally subject include, but are not limited to: Defendants' policy of failing to provide sufficient numbers of mental health and custody staff, with adequate training, to provide for the serious mental health needs of class members. Defendants' policy of failing to provide safe and appropriate housing for prisoners with serious mental health needs.

Class certification under Rule 23(b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages." Fed. R. Civ. P. 23, Advisory Committee Notes, 1966 Amendment, Subdivision (b)(2). 15

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63. 64. 65. 66. 67.

Defendants' policy of using "special detention cells" to house prisoners exhibiting signs of mental illness. Defendants' policy of failing to provide inpatient psychiatric care for prisoners whose serious mental health needs require it. Defendants' policy of inappropriately using restraints, pepper spray, and electroshock weapons ("tasers") against prisoners exhibiting signs of mental illness. Defendants' policy of failing to maintain an adequate system to provide appropriate medication to prisoners whose serious mental health needs require it and to monitor the effects of that medication. Defendants' policy of failing to provide adequate screening and precautions to prevent self-harm and suicide.

Supp. Compl., ¶¶ 60-67. See also Motion at 6 (identifying additional policies, as well as the health care contract and drug formulary, to which all class members are subject). Because plaintiffs have identified numerous policies that defendants apply to the entire class, the defect identified in Monreal is not present here.9 Finally, the Tenth Circuit in Monreal noted that the plaintiffs' prayer for relief had sought only "appropriate declaratory and/or injunctive relief, including final injunctive relief." 367 F.3d at 1236 (quoting the plaintiffs' Fourth Amended Complaint). The court explained that an injunction in those literal terms would not satisfy the requirements of Fed. R. Civ. P. 65(d). Id.10
9

"Action or inaction is directed to a class within the meaning of [Rule 23(b)(2)] even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class." Fed. R. Civ. P. 23, Advisory Committee Notes, 1966 Amendment, Subdivision (b)(2). Thus, for example, the fact that not all class members currently require inpatient psychiatric care does not defeat class certification, where plaintiffs have specifically alleged that defendants have a policy of failing to provide inpatient psychiatric care for prisoners whose serious mental health needs require it, and that the policy is equally applicable to all members of the class. See Supp. Compl. ¶¶ 60, 64; see also Hassine v. Jeffes, 846 F.2d 169, 178 n. 5 (3d Cir. 1988) (class certification in action challenging prison mental health care was not defeated by the fact that not all named plaintiffs currently required mental health services; plaintiffs may "raise claims regarding the inadequacy of the provision of any health care service, to which they are entitled, and which they might at some time require"). 10 The court cautioned that "[w]e do not suggest that a plaintiff must set forth in the pleadings the requested injunction to the specificity required by Rule 65." Id. at 1236 n. 11. 16

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Once again, this holding has no application to this case. Plaintiffs' Prayer for Relief is detailed and precise, seeking specific injunctive relief targeted to redress the unconstitutional policies and practices that plaintiffs have alleged apply equally to all class members: 68. WHEREFOR, in addition to the relief sought in plaintiffs' original Complaint, plaintiffs respectfully request that the Court enjoin defendants to: a. provide sufficient numbers of mental health and custody staff, with adequate training, to provide for the serious mental health needs of class members; b. provide safe and appropriate housing for prisoners with serious mental health needs; c. discontinue use of the "special detention cells" to house prisoners exhibiting signs of mental illness; d. provide inpatient psychiatric care for prisoners whose serious mental health needs require it; e. cease using restraints, pepper spray, and electroshock weapons ("tasers") against prisoners exhibiting signs of mental illness in circumstances that pose a substantial risk of harm to such prisoners; f. implement an adequate system to provide appropriate medication to prisoners whose serious mental health needs require it and to monitor the effects of that medication; and g. provide adequate screening and precautions to prevent self-harm and suicide.

Supp. Compl., ¶ 68. In short, the factors that led the Tenth Circuit to affirm the denial of class certification in Monreal are simply not present in this case.11 Far more pertinent than Monreal is the Tenth Circuit's decision in Milonas. Milonas, like this case, involved a challenge by persons confined in a single correctional facility to the conditions of their confinement, including thirteen specific policies and practices. The district court certified, pursuant to Rule 23(b)(2), a class comprising current and future residents of the institution, and the Tenth Circuit affirmed. That court concluded that all persons confined in the

The Monreal court also noted that "[p]laintiffs do not allege any common issues of fact," id. at 1237, another defect not present in this case. See § I.B., supra. 17

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institution "have common claims against the defendants, i.e., that the disciplinary practices carried on at the school violated various constitutional and statutory rights of the individual plaintiffs and of the class." 691 F.2d at 938. This was so because "[r]egardless of their source of funding or, indeed, their individual disability or behavioral problems, all of the boys at the school were in danger of being subjected to" the challenged policies and practices. Id. Similarly in this case, regardless of their individual mental health problems, all class members are subject to the challenged policies and practices and are at substantial risk of serious harm as a result. See Supp. Compl., ¶¶ 59-67. Accordingly, as in Milonas, class certification pursuant to Rule 23(b)(2) is appropriate here. III. MANAGEABILITY CONCERNS ARE NO BAR TO CLASS CERTIFICATION IN THIS CASE. Because defendants discuss Rule 23(b)(2) and manageability together, they make no separate argument on the latter issue. Indeed, the nature of their manageability argument is difficult to discern, since defendants do not cite a single case in which class certification was denied on manageability grounds. In any event, merely to recite the numerous issues litigated on a class basis in Ramos and Milonas is to refute any argument that the present, far more modest class action, is unmanageable. Ramos involved class-wide challenges to inadequate shelter, sanitation, and food; risk of assault; restrictions on visitation and mail; inadequate access to the courts; and deficient medical, mental health, and dental care. All these issues were litigated to final judgment in the district court, and then on appeal. Ramos, 639 F.2d at 567-85. Milonas was a class-wide challenge to thirteen policies and practices at a juvenile detention facility. That case, too, was litigated to final judgment on a class basis, with the district court granting, and the 18

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Tenth Circuit affirming, class-wide relief on four of the thirteen issues (restrictions on mail, use of polygraph examinations, use of isolation facilities, and use of physical force). Milonas, 691 F.2d at 935, 941. These complex, multi-issue class actions were by definition manageable, as both trial and appellate courts were able to manage them. A fortiori, then, this more limited and focused class action is also manageable. See also Neiberger, 208 F.R.D. at 317 (rejecting argument that proposed class was "as a practical matter unworkable" on the ground that "each [class member's] case is psychiatrically and medically unique"). Notwithstanding the vague and entirely unsupported nature of defendants' argument, some principles of manageability are well established, and make clear that manageability is no bar to class certification in this case. As a threshold matter, there is a presumption against dismissing a case for manageability reasons. In re Potash Antitrust Litigation, 159 F.R.D. 682, 700 (D. Minn. 1995). See also Yaffe v. Powers, 454 F.2d 1362, 1365 (1st Cir. 1972) ("for a court to refuse to certify a class ... because of vaguely-perceived management problems is counter to the policy which originally led to [Rule 23], ... and also to discount too much the power of the court to deal with a class suit flexibly, in response to difficulties as they arise").12 Moreover, manageability is a consideration only if there are other means available to litigate plaintiffs' claims. "[D]ifficulties in management are of significance only if they make the class action a less fair and efficient method of adjudication than other available techniques."
12

By discussing manageability under the heading "Plaintiffs' Proposed Class Does Not Satisfy F.R.C.P. 23(b)(2)" (Opp. at 18, 21), defendants erroneously imply that manageability is a requirement of Rule 23(b)(2) that must be established before class certification can be granted. It is not. See Shook, 386 F.3d at 973 (holding only that "manageability is not categorically barred in Rule 23(b)(2) class certification decisions"). Rather, "[s]ince manageability of a class action is a relative concept, i.e., all actions are manageable in one manner or another, manageability will ordinarily be presumed until a contrary showing develops." 3 Newberg, § 7.25. 19

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In re Antibiotic Antitrust Actions, 333 F. Supp. 278, 282 (S.D.N.Y. 1971) (emphasis, quotation marks omitted). Accordingly, denial of class certification on manageability grounds is inappropriate when there is no other way to litigate plaintiffs' claims. See In re Independent Gasoline Antitrust Litigation, 79 F.R.D. 552, 563 (D. Md. 1978) (manageability concerns would not defeat class certification where "the class action device offers the only realistic opportunity" for injured persons to seek redress); cf. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) (where claims average about $100 per plaintiff, "most of the plaintiffs would have no realistic day in court if a class action were not available"). Thus, manageability concerns cannot defeat class certification in this case, where plaintiffs' claims can be litigated only on a class basis. In any event, manageability problems far greater than those urged by defendants here have been found insufficient to defeat class certification. See, e.g., In re Industrial Diamonds Antitrust Litigation, 167 F.R.D. 374, 386 (S.D.N.Y. 1996) (need to ascertain state of mind of individual class members, and calculate damages due each class member, would not defeat class certification); Shelter Realty Corp. v. Allied Maintenance Corp., 75 F.R.D. 34, 38 (S.D.N.Y. 1977) (prospect of "thousands of individual claims that would not otherwise have been brought" would not defeat class certification); In re Motor Vehicle Air Pollution Control Equipment, 52 F.R.D. 398, 404 (C.D. Cal. 1970) ("until management is recognized as impossible or near impossible, the Court will depend upon the ingenuity and aid of counsel to solve the complex problems this litigation may bring"). Finally, courts are properly reluctant to deny class certification at the outset of a case based on hypothetical manageability concerns that might never materialize. See Shelter Realty,

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75 F.R.D. at 38 ("[t]his court joins with the numerous judges and commentators who have deprecated the idea of blocking class suits on threshold predictions of unmanageability"). As this Court put it: The difficulties in class management which may arise are not grounds for refusing now to certify the class. Management problems which may arise in both pre-trial and trial proceedings may be the subject of further action by the court under Rules 16, 23(d)(2), 42(b), and 56(d). In Re Storage Technology Corp. Securities Litigation, 113 F.R.D. 113, 119-20 (D. Colo. 1986) (citations omitted). That reluctance should be especially great where, as here, denial of class certification will terminate the litigation and make it impossible for plaintiffs to present their constitutional claims to the federal courts (see § V, infra). IV. DEFENDANTS ARE WRONG WHEN THEY ARGUE THAT CLAIMS REQUIRING PROOF OF DELIBERATE INDIFFERENCE CANNOT PROCEED ON A CLASS BASIS. Finally, defendants argue that class certification should be denied because plaintiffs' claims require proof of deliberate indifference, which defendants contend cannot be litigated on a class basis. Opp. at 32-33. This unsupported argument amounts to an assertion that a challenge to prison or jail health care can never proceed as a class action. Once again, this argument flies in the face of settled law. It has been the law since 1976 that, in the context of prison and jail health care, the Eighth Amendment is violated only by "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). Since that time, the courts of this Circuit have repeatedly granted class certification to incarcerated persons challenging prison or jail health care. See, e.g., Arney v. Finney, 967 F.2d 418, 420 (10th Cir. 1992); Diaz v. Romer, 961 F.2d 1508, 1509-10 (10th Cir. 1992); Duran v. Carruthers, 885 F.2d 1485, 1486 (10th Cir. 1989); 21

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Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980); McClendon v. City of Albuquerque, 272 F.Supp.2d 1250, 1256 (D.N.M. 2003); Montez v. Romer, 32 F.Supp.2d 1235, 1237 (D. Colo. 1999). Defendants make no attempt to distinguish these cases. Given this unbroken line of authority, defendants' contention that prison and jail medical care claims are categorically ineligible for class certification is completely without merit. Not surprisingly, defendants are unable to cite a single case denying class certification on the ground that claims requiring proof of deliberate indifference cannot be maintained as a class action. Moreover, defendants' contention that it is impossible to demonstrate deliberate indifference on a class-wide basis is foreclosed by Circuit precedent. As already explained, the Tenth Circuit in Ramos specifically set forth the means by which deliberate indifference may be shown "[i]n class actions challenging the entire system of health care," Ramos, 639 F.2d at 575, and affirmed a class-wide finding of deliberate indifference. Id. at 578 (affirming district court's finding of "deliberate indifference to the serious health needs of the prison population"). Thus, under Ramos and the additional Tenth Circuit authority cited above, defendants' spurious argument must be rejected. V. CLASS CERTIFICATION IS NECESSARY TO ALLOW PLAINTIFFS TO PRESENT THEIR CONSTITUTIONAL CLAIMS TO THE FEDERAL COURTS. Defendants do not dispute that, absent class certification, it will be impossible for a federal court ever to grant injunctive relief from unconstitutional conditions in the Jail, because the plaintiffs will be released and thus lose standing before the litigation is completed. See Motion at 16-19; see also Neiberger, 208 F.R.D. at 318 (finding class certification necessary because, "should named Plaintiffs cycle out of the CMHI-P and be discharged, the ordered relief may become unenforceable"). However, say defendants, this is not a problem, because prisoners 22

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who are injured, or the family members of those who commit suicide, can bring a damages action. Opp. at 29-30. The purpose of an injunction is to prevent irreparable harm. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1180 (10th Cir. 2003). Irreparable harm is, by definition, harm that cannot be compensated by money damages. Salt Lake Tribune Pub. Co. v. AT&T Corp., 320 F.3d 1081, 1105 (10th Cir. 2003); see also Duran v. Anaya, 642 F. Supp. 510, 526-27 (D.N.M. 1986) ("[d]eath, extreme pain, self-mutilation and the other consequences of [prison] medical and mental health staffing reductions in evidence before the Court constitute irreparable injury in the most extreme sense of that term"). Thus, the availability of a damages action after one has been injured or killed is not an adequate substitute for injunctive relief to prevent that injury or death from occurring. See also Complaint, ¶ 71 (alleging that "[p]laintiffs are suffering irreparable injury" and "have no plain, adequate or speedy remedy at law"). "When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights." Procunier v. Martinez, 416 U.S. 396, 405-06 (1974). The fact that denial of class certification in this case, and the resulting dismissal of the case as moot, would prevent the Court from discharging this duty, militates strongly in favor of class certification.13
13

Defendants acknowledge that the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), bars damages for prisoners who have not suffered physical injury. See Motion at 16 n. 5. However, citing cases from the Eleventh Circuit, defendants state that this provision "does not prevent a former prisoner from bringing an action for strictly emotional injuries." Opp. at 29-30. In fact, other courts have held that the bar on actions for mental or emotional injury does apply to cases filed by released prisoners. See, e.g., Lipton v. County of Orange, 315 F.Supp.2d 434, 456-57 (S.D.N.Y. 2004); Cox v. Malone, 199 F.Supp.2d 135, 140 (S.D.N.Y. 2002), aff'd, 56 Fed. Appx. 43 (2d Cir. 2003). In any event, many class members will remain incarcerated, either in the Jail or in the Department of Corrections, until long after the statute of limitations on any damages 23

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CONCLUSION It has been more than three years since this case, alleging ongoing violations of fundamental constitutional rights in the El Paso County Jail, was filed. During that time, members of the plaintiff class have continued to suffer irreparable harm. Numerous class members have suffered catastrophic deterioration of their mental health; some have attempted suicide, and three have succeeded, the most recent on July 30, 2005. See declaration of Thomas S. Nichols, filed herewith. Plaintiffs, and the public at large, have a compelling interest in having this lawsuit decided on the merits. See Duran, 642 F. Supp. at 527 ("[r]espect for law, particularly by officials responsible for the administration of the State's correctional system, is in itself a matter of the highest public interest"). Because this will be possible only if a class is certified, and because the requirements of Rule 23(a) and (b)(2) are clearly satisfied, plaintiffs' motion should be granted.

claim has expired. See Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993) (statute of limitations in Colorado for § 1983 action is two years); see also Neiberger, 208 F.R.D. at 314 ("because the putative class plaintiffs are institutionalized patients their financial situation makes individual suits unlikely and in some cases impossible"). 24

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Dated: August 19, 2005 David C. Fathi Senior Staff Counsel The National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 Telephone: (202) 393-4930 E-mail: [email protected] Mark Silverstein Legal Director American Civil Liberties Union of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 E-mail: [email protected]

s/ Thomas S. Nichols Thomas S. Nichols DAVIS GRAHAM & STUBBS LLP In cooperation with the American Civil Liberties Union Foundation of Colorado 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 DC BOX 03 Telephone: (303) 892-9400 FAX: (303) 893-1379 E-mail: [email protected] Attorneys for Plaintiffs and Intervenor Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on this 19th day of August, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filin